IP, Technology & Data

The recent Apple v Samsung case in the US is one of the most talked about Intellectual Property (IP) decisions of the year and commentators are continuing to speculate on the impact that the decision will have on the tablet and smartphone industries. However, from a legal perspective one of the most interesting aspects of the case is the role that the jury played in arriving at the decision that Samsung was guilty of infringing Apple’s patents and how it calculated the damages award of around $1 billion against Samsung.

In the US, as readers will be aware, juries can be used to decide civil intellectual property cases. However, in the UK only a judge or judges can do so. This got me thinking about the pros and cons and of each approach and whether there is an advantage of one over the other.

Understanding the technology
In intellectual property cases, one of the most difficult aspects is understanding the technology that forms the substance of the dispute. This is particularly true in patent cases where the subject matter can comprise, for example, a pharmaceutical compound or a mechanical process or indeed cutting edge mobile phone technology. In cases of a complex nature, an industry expert will usually be engaged to prepare a report to assist the lawyers and the Court understand the technology and to assist their legal arguments on the issues of validity and infringement of that patent.  Frequently, the technology will be so complex that more than one expert is engaged and each will deal with distinct parts of the patent. The judge will spend many days listening to evidence and legal arguments on all the issues before reaching his decision.

It may be fair to assume that the majority of jurors hearing a case will have neither a technical or a legal background. That is not to say of course that juries cannot understand the technology or the substantive law required to arrive at a decision but it will likely mean that the lawyers (or the judge) may have to spend more time explaining complex technology or legal issues to them. It may also mean that the legal arguments made in Court would be pitched in a different way if they were being made to a jury rather than the judge. For example, it may be better to use less ‘legalistic’ submissions and instead use the key arguments in a context which can be more readily understood by the jurors. Arguably, the focus becomes less on the legal aspects and more on presenting ‘key arguments/themes’ to the jurors.

An interesting side issue to that is the impact that key jurors can have on the rest of the jury. This is something which one would not have to consider in cases decided by a judge. In jury cases, when a juror has experience in the particular field, they are likely to be the one who drives the discussion and influences the thinking of the other jurors. In the Apple v Samsung case, the foreman of the jury was Velvin Hogan who is Chief Technology Officer at a company called Multicast Labs which specialises in internet video technology. He also appears to have had some experience of the patent system in the US, having been the named inventor on a patent (see here). In one of his post-trial interviews, it seems clear that his experience in this field was one of the key factors in helping the jury reach its verdict. In his interview with the BBC (you can read the full transcript on the BBC website here) he said:

I asked myself the question: could I defend this patent, not in the court, could I defend this patent through that process just like I had to do my own if this were mine?… The answer to that question for me was yes. And so it just hit me that evening that that process I needed to explain to my fellow jurors because I was the only one that had ever gone through that process among them.

Some may argue of course that this decision making process is one of the main arguments in favour of allowing juries to decide cases such as Apple v Samsung. Justice is being carried out by ‘the people’ because it comprises a cross section of society. They will have different backgrounds and experiences and not everyone (perhaps even no-one) will be an ‘expert in the field’ of the technology in dispute. Whatever their view, the jurors are bound to apply the law as it has been explained and as they understand it. If there is one ‘expert’ amongst them then it is only natural that he or she will use their knowledge to have a major influence on the decision that is reached.

The damages calculation
In patent cases in the UK, once a finding of liability has been reached, there will usually be a separate hearing to establish the amount of damages due to the party which has had its intellectual property infringed (although often that is settled out of court).

Under Scots law, the basic principle is that damages is calculated with a view to putting the party in the position it would have been in, had there been no infringement. Alternatively, the victorious party can seek an account of the net profits which defender has made as a result of its infringing acts. The victorious party usually selects whichever of these is likely to be the greater. It is also important to note that damages in IP cases under UK law are usually not punitive. Their purpose is not to punish the infringer for its wrongful acts (although there can be exceptions to his for example for flagrant infringement of copyright) but rather to restore the aggrieved party to the position it would have been in, but for the infringement.

In the Apple case, there was much media criticism of the jury’s ability to reach a decision on liability and the amount of damages and in such a short period of time. The jury was given an instruction document 109 pages long which contained around 700 individual questions. Yet, the jury managed to assess all of this and deliver its decision in less than 2 days. Mr Hogan, in one of his interviews claimed that there were in truth only 33 questions to answer but that they related to 26 different Samsung devices, and in some cases the devices did not infringe the relevant patents.

Nevertheless, this is still a remarkable feat given that, at least for the patent infringement claims, numerous items of prior art would first require to be considered to form a view on whether or not the patents were valid. A judicial decision of this nature would certainly have taken many months to issue.

Of course the speed of the jury’s verdict is helped greatly by the fact that they do not have to issue a written opinion setting out the reasoning for their decision or how they arrived at the amount of damages. It would have been interesting in the Apple v Samsung case to see how they arrived at the damages amount of $1.05 billion!

So is one better than the other?
There are advantages and disadvantages to both jury and judicial decisions being issued in cases of IP infringement.

In Scotland, there are 6 IP specialist judges who deal with the vast majority of the IP cases (the rest being dealt with by ordinary judges). They have accumulated valuable experience in a wide variety of IP cases and many of them will also have further experience from working on cases whilst they were practising as Advocates/QC’s. This means that the quality of the decision will most likely be very high.

Whilst I am not aware of any evidence that suggests jury decisions are appealed successfully more often than judicial decisions, my own view is that there are likely to be less variable factors involved in a judge arriving at a decision. This means that judicial decisions are likely to be more consistent and a body of case law can be built up and relied on. Juries are more unpredictable in the sense that they will be made up of different people each time.

As a lawyer, whether or not this is a benefit will depend what side of the case you are on. It certainly worked well in Apple’s favour in this instance as the damages award is amongst the highest in American history.

IP and Technology