It isn’t too difficult to understand why the jury involved in the Apple versus Samsung case made the verdict it did last Friday, awarding Apple a landslide victory and more than $1 billion in damages. But what isn’t clear is how the jury came to its decision. Thanks to Jury Foreman Vel Hogan, we now have a fascinating insight into what it was like to be part of that panel.
In his first TV appearance since the billion dollar patent trial came to an end, Hogan reveals how he made up his own mind, how the jury decided on the damages Samsung must pay Apple, whether feelings and emotions influenced the jury’s decision, and more.
Speaking to Bloomberg TV, Hogan told of his “a-ha moment.” At first he felt the case could go Samsung’s way, and that the jury wasn’t entirely sure how prior art could render Apple’s patents acceptable or invalid. But then Hogan suddenly decided he could defend Apple’s patent if it were his own.
This helped the jury make up its mind, Hogan said:
At that point in time, I thought it was going to ultimately lean the other way…We were at a stalemate, but some of the jurors were not sure of the patent prosecution process. Some were not sure of how prior art could either render a patent acceptable or whether it could invalidate it. What we did is we started talking about one and when the day was over and I was at home, thinking about that patent claim by claim, limit by limit, I had what we would call an a-ha moment and I suddenly decided I could defend this if it was my patent…And with that, I took that story back to the jury and laid it out for them. They understood the points I was talking about and then we meticulously went patent by patent and claim by claim against the test that the judge had given us, because each patent had a different legal premise to judge on. We got those all sorted out and decided which ones were valid and which ones were not.
When questioned about the damages awarded to Apple and whether Samsung was “punished” for infringement, Hogan said:
In this country, intellectual property deserves to be protected. My real point was that if anyone, the industry at large, if any company decides to ignore the stipulations and the rules and get too close, that they cross the line and infringe and they do it willfully, they need to understand that if they take the risk and they get caught, they should have to pay for it.
Hogan then revealed how that $1.049 billion sum was calculated:
In the evidence, Apple had declared that Samsung had cost them in profits 35% of their revenue. On the other hand, Samsung said that it is because they took out operating costs and the value is 12%. Three of us had been through the process in our careers of dealing with financial documents. I understood P&L statements as well as the other to. What we did was look at it against our matrix of what infringed and what did not. We determined that in our experience, the percentage was not 12%, and it certainly was not 35%. It should be closer between 13% to 15%. We zeroed in on 14%. That became the magic number. Then we did our own calculations for each of the areas, adding those up with royalties that were entitled for some of the items. And we cut that value in half. When we added them together and tallied them up, that is the number we came up with.
Surprisingly, no one on the jury owned an iPhone, according to Hogan, who has “intentionally” avoided Apple equipment for a number of years. “I’m a PC person,” he said, before conceding that his wife owns a Samsung cell phone, “but it is now a smartphone.”
Hogan was also asked whether he believed Apple will be successful in its bid to get eight of Samsung’s devices banned. He revealed that “they probably will be,” and that Samsung should use a different approach to avoid infringing Apple’s patents — like those taken by Nokia and BlackBerry:
They probably will be. The thing that everyone should remember is that just because, not all of Samsung’s devices, phones in particular, infringed property rights. There are other ways they can accomplish something. Nokia is an example. Blackberry is an example. Motorola is an example. Just because it has Android operating system that makes it seem Apple-like, it is not. They don’t have to be 100% the same. You can back off from that and have an acceptable product.
The full 17-minute interview is a very interesting watch if you’ve been following the Apple vs. Samsung trial. You can see it now at Bloomberg TV.
Source: Bloomberg TV