Open Ballot: should technical court cases be decided by technical people?

Open Source

In a recent court case, a jury took just three days to decide that Samsung have infringed all over Apple's patents. The decision was reached so quickly that it looks like they didn't even have time to check their maths. In their initial verdict they awarded damages $2'000'000 for a phones that even they found not to infringe, and in the amended verdict, they failed to add up the damages correctly.

This speed is especially surprising given the complex technical nature of some of the patents under contention (OK, some were little more than rounded rectangles). This has left some commentators to wondering how they managed to fully comprehend all the issues so quickly. Above The Law writes: "It would take me more than three days to understand all the terms in the verdict! Much less come to a legally binding decision on all of these separate issues. Did you guys just flip a coin?"

Contrast this with the Oracle vs Google case where the judge presiding over the proceedings was himself a programmer, and able to guide the court on technical matters. To ensure a fair trial, he even learned Java specifically for the case.

Our question is this: Should judges and / or jurors in technical cases be required to have some technical knowledge so they can fully understand the issues under consideration?

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Your comments

Peers = one equal to another in ability/qualification

Taking one definition of the term, it would make sense to have someone who actually understood the goings on. Back when it meant someone who was of equal footing, ie. a common person, it was fine. We all know what murder is, we all know if you break into a house it is wrong.

The magical mystical world of patent infringement where up is owned by Apple and down is a wholly owned by a subsidiary of Sony it would be almost impossible for someone who works in the field all the time to know where this case should go. That doesn't even begin to verify if any of these, and they are all likely to be, obvious and un-patentable.

You should have to be qualified in a case like this, much like in a financial case they have to get special lawyers & investigators, we can't expect justice to be served if people base there judgement on what "feels" right.

Absolutely not technical jurors

Despite the initial appearance that the Apple-Samsung case has gone badly wrong, and been decided without due regard to prior art, under the influence of a patent-holding foreman, justice must be done and be seen to be done.

That means the jury must be allowed to come to a common-sense decision with their own resources. It is up to technical experts to contribute to any appeal, in which those issues will be put explicitly to the next jury - and to educate the wider public about the underlying technical issues.

The thought of justice being served by technical experts is almost equal to a secret trial.

Yes and no.

There are two sides to this argument.
1. It makes sense to have technical people decide on these cases. People who have no interest or knowledge of technology can't be expected to understand most of the patents involved in the cases.
2. People involved in technology tend to have views and favourites between companies and technologies. How do you remove the bias if you don't have random dury selection?

Utter, utter HS!

This should not have even come to court. So many of these patents are obvious and trivial.

Firstly, as the designs of these devices are based on the dimensions and ergonomics of the human body (something that is in the public domain), they will look similar to each other. Fingers, hands, arms and the positions that they can take relative to our eyes are (barring injury/disability) invariant.

Secondly, the gestures used to interact with these devices are trivial, can be arrived at independently and simultaneously by anyone wishing to create such a device and furthermore, need to be open and standardised anyway, as otherwise users will have difficulty using a range of devices if they all have different gestures that do the same thing. Forgive the car analogy, but we don't see motor manufacturers suing each other because one has copied the other's pedal layout. Imagine if that wasn't an industry standard.

Thirdly, integration of a camera, a phone and email into a single device. Come on! Who is granted a patent on this? Same for bookmarking a picture in a gallery and listening to music whilst using an app. We have been listening to music and using progs on our desktops for years. These are trivial.

Finally, these companies need to grow up. If they made decent products that worked intuitively, simply and elegantly, and didn't throw up unnecessary barriers towards users using their devices (like the requirement to use itunes to upload music, instead of having portable devices appearing as external storage devices upon connection to a PC) they would win. They need to get back to earning by out-innovating each other instead of out-suing each other.

PS Yes these cases should be heard by technically competent judges and juries (trained either before-hand or especially for the case). We cannot have a situation where by people can pronounce upon things about which they know nothing.

PPS As a point of procedure, reading the wording of this open ballot: surely it is the judge who decides what damages (if any) to award, not the jury, although the verdict they deliver will obviously inform the judgement the judge makes.

PPPS Patent offices world-wide need to be challenged for granting these patents, as they seem to be asleep at the wheel here. The whole premise of patenting software needs to be challenged in the US (and anywhere else it occurs), too. Technically, being applied maths, software cannot be patented. Patents are only granted on software in the US as applicants make reference to the device upon which the software runs. However, as these are general purpose computers, not specific appliances, I fail to see how any software can be innovative.

PPPPS Rant over.

Technical patent court proceedings must change

Not only do technical people have to decide on technical court cases but the way they are held must change.

So many patents are trivial and we can obviously not trust the patent registers to make the right call when handing out those patents.

So when these patent lawsuits are held they first should decide if someone can actually have a patent on it and if the courts decide NO the patent must be invalidated; end of trial!

Laws are flawed?

Aren't the laws and the system really flawed if the outcome of a court depends on if the people judging are technical or not?


I think if the jury in Apple vs. Samsung case were technical people we would have had a different turn out.

Technical yes

Yes I think judges with technical experience would better understand the cases this really is a specialist field.

You do realize...

I live in Southern California, and have seen reasonably full coverage (although possibly not accurate) in the local media. It is not clear from the comments above, that everyone is aware that the jury selected as a foreman a man who had held a patent at one time.

He apparently had the idea that to make simplify the jury's mission, he would evaluate each patent as if it were his own, and take a personal view of how it might be defended.

I guess his patent must not have been very closely related to the cell phone/table industry. My understanding (from having been on a couple of jurys) is that no one involved in the trial wants to have anyone with existing knowledge of the topics in question on the jury.

I was shocked at the speed with which the jury deliberated, but I do think it was useful for someone in the room to have some idea of what they were being asked to decide. Taking three weeks to become informed about each of the questions, and then come to (crappy?) conclusions isn't any better than doing the same thing in three days.

I wish there were a mechanism in law to force Apple to reach reasonable (court-mediated?) licensing agreements with infringers, rather than simply arranging to have all their products banned. I understand that Apple WILL NOT license their patents, and I feel that may be the worst aspect of all of this.

Is this a serious question ? :-p

Isn't this common-sense ? Yeah I know, today's common-sense today is outdated and overrated. Still, it comes in handy sometimes.

Personally, I've always thought that's the way it goes for any kind of (serious) decision making: prior knowledge is needed to come to an objective conclusion. Sometimes referred to as "experience".

If the people involved in a trial don't have at least theoretical knowledge of the subject at hand, how can they ever come to an objective verdict ?

Would the common fiscal fraudee feel confident when faced to a jury only composed of software developing nerds ?

Well ? :-)


is that so? That "Apple WILL NOT license their patents"

I find that hard to believe as it seems contrary to how the patent system is supposed to work (not withstanding that software patents "working" is an oxymoron).

But if that really is the case, it's something Samsung should pursue as while the patent system grants, for a limited time, exclusive ownership of inventions, that's not the same as the right to monopolise, which clearly is against the public interest.

System is broken long before it gets to lay-juries

There have been a few articles in the last few months (on about how the rest of the system doesn't need to change at all, provided patents are properly tested at the Patent Office. We need more technical people there who can spot frivolously overreaching claims and bargain them down to harmlessly specific claims.

I personally like the way the fashion industry works: if you copy someone, then you are publicly shamed for it, and that's that. It's all about ego, and the industry is self-policing. This would involve fewer lawsuits and the children of patent attorneys would only receive one Mercedes a year, so this obviously will never come to pass.

I think the jury probably should be a cross-section with all sorts of people in there. There's an Einstein quote going around that is something like: "if you can't explain something in simple enough terms, then you don't understand it enough".

think straight

As they are civil rather than criminal proceedings it would seem reasonable to have these patent issues decided by technical people who really understand the issues. There is, however, a wider issue here of juries and judges not understanding technical issues or arguments which require complex reasoning. In the Lucia De Berk case in Holland they were unable to see through an "expert"'s faulty reasoning and an innocent woman had her life ruined as a consequence.

Smacks of patriotism to me

American company, defending American patents in an American court with an American jury against a foreign company.

No surprise Apple won.

Turn the tables.

If Samsung made the iPhone/iPad and was defending it's rectangles with rounded corners against Apple, then the American jury would have found the patent invalid and Apple would have still won.

And to rub their noses in it, Apple is seeking injunctions on Samsung devices found not to infringe as well as those found to infringe.

A simple case of America does what it wants and the rest of the world can either subjugate or get stuffed.


Law is complicated

What about criminal trials with complex forensic arguments?

We don't expect a jury in that situation to have prior understanding of forensic techniques. If we did the jury pool would be very small.

It's the job of the lawyers with their expert witnesses to present an argument any juror can make a decision on.

That said, this whole thing makes me glad we don't have such patenting nonsense in this country. I'm with the above commenter about the problem being in the patent office to begin with.

I remember...

I saw a quick demonstration of some of the violations in the BBC News and I remember one of the examples being available in Compiz a number of years ago. (Bouncy windows.) If this example is flawed then, what about the others? Just how original are the Apple patents?

Considering the importance of this court case outcome, just leaving it to twelve common people in a particular place in the USA is extreme, especially as this will have an impact upon the rest of the world.

Luckily, in the UK, software isn't patentable and I certainty hope an oblong cube with curved edges isn't either.

These shenanigans in the US could cause a great brake to be applied to technological progress. Will someone knock their collective heads together please!



Also, the patent office should be able to kick out patent applications for a anything as generic as a rounded rectangle.

Utter HS indeed

Another example proving the US legal, and patent, systems to be scrupulously consistent. And..., well, I'll leave it at that.

Loook at who an the jury screwed up.

The guy in the cycle shop and the construction worker were cowed by the technical people. Now go to groklaw. There you see an analysis of the "clueless jury". First the foreman owns a patent, which many on groklaw describe as bogus. It basically describes TiVo with removable media and was filed three years after TiVo came out.

The foreman then offered his expertise on patent law. The most glaring error being dismissing prior art because it ran on machines using a different processor. Juries are not supposed offer their own expertise. In the area where I live when you are called to sit in the pool from which jurors are chosen, you are shown a movie about does and don't of jury duty. Not using your own expertise is one of the things prominent in that movie.

Now not content to disregard the jury instructions, the guy is going around giving interviews on TV about how they disregarded the jury instructions. Which means that the verdict will probably be thrown out.

Something that you must understand about US juries. Juries determine facts, they do not determine law. Judges determine law. The law is encapsulated in the jury instructions.

Given the long nature of the jury form, I won't go into too much detail, but the basic task the jury had was to determine whether the patents were valid, if so then did each relevant device infringe on the patent, if so then what are the damages? The criteria for determining if a patent is valid, if a device infringes, and how to calculate damages are supposed to be in the jury instructions. The juries job is to see if the criteria are met.


Title should be: Look who on the jury screwed up.



Interesting link. Good work :)

I also think in principle you were right BTW. Apple has no real intention of allowing anyone else to use their patents in this area, hence the unrealistic licence demand.

They all consulted their iphone "Jury decision app"

The Jury were all given iphones. With the latest iphone "Jury decision app" Input the relevant patent number into the app and the app will wade through the boring technical details on your behalf. It will then give you a decision in favour of Apple OR if Apple is not available - Microsoft.

Igoring the stupidity of

Igoring the stupidity of software patents, everyone else in the world but the Americans know that it was a completely biased decision. If Americans can not compete using the current rules and laws in any particular field they just change them so that they win.


So where is the Vivaldi? No silliness with softwarew patents then.

We're in trouble

we are in trouble if it requires technical people to intercede in cases that effectively revolve around non-technical issues... What sense can be made of a case that requires the jury to understand what goes toward development, especially if the company prosecuting the case desists from explaining the technical details for reason of "commercial in confidence".
It's a non sequitur. There's no way to explain that there is a case if the very justification for the case is invisible for purposes of protection of IP.

I wish it weren't so.

There is no such thing as a problem
without a gift for you in its hands

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