由報導內文來看，這個評審團主席可能對於美國之Utility（實用）專利的認識不清。產品有無侵犯他人Utility專利，並不是用所謂可以替代與否來判斷的。他說的情況，是來決定一個專利是否有效（具備新穎性與進步性）的問題。
看Prior-Art時，是看其功能的互換性（等同性）沒錯，但並不是要看軟體的原始碼相同或硬體是否相容（這是判別著作權有無仿冒的判準），這Jury Foreman明顯搞錯了，竟然認為只要軟體原始碼不相同，或者硬體載台不同，就沒有專利侵權問題。天啊！這個錯誤更可能會造成陪審團的相關決定被法官廢棄，因為其明顯違反法官對陪審團的第33條指示！
It looks like the foreman have lead the jury to
mix-up Patents with Copyrights!!!BBC News - Apple versus Samsung: Full interview with the jury foremanhttp://www.bbc.co.uk/news/technology-19425051
Transcript of Apple-Samsung juror
www.bbc.co.uk
The full text of an interview Velvin Hogan, foreman of the jury in the Apple-Samsung patent lawsuit,
This is the "error" interpretation of prior-arts and validility of patents said by the jury foreman:
「When we had to determine the validity of Apple's patent against the charges of Samsung's with the prior art examples, what we had to do - to make it clear - is that not only did we have to validate, if you will, the Apple patent, but in looking at the prior art we had stipulations in the law that tested both sides and if the test wasn't passed then it was clear either the patent was valid or it wasn't.
Prior art didn't mean that the prior art wasn't valid. It was valid. But the stipulation under the law is for the prior art to be sufficient to negate or invalidate the Apple patents in this case, it had to be sufficiently similar or, more importantly, it had to be interchangeable.
And in example after example, when we put it to the test, the older prior art was just that. Not that there's anything [wrong] with older prior art - but the key was that the hardware was different, the software was an entirely different methodology, and the more modern software could not be loaded onto the older example and be run without error.
And vice versa of that was also true. So the point being, at the 40,000 foot-level, even though the outcome of the two seemed similar, the internal methodology of how you got there was entirely different.
One could not be exchanged for the other. And that is the thing that most people at large do not understand about the legal system. And as a result of that you have heard a lot of hype in the media about did we turn our back on prior art? No.
Did it mean prior art could not have been used to compete against anything any other company had done? No, I'm not saying that.
I'm saying both could have existed independently of each other and been used. The thing you have to remember is that the prior art that belonged to Samsung, or belonged to somebody else that they had the ability of using, they had not used for quite some time.」
Related Blogs and News:
He claims the Samsung prior art was unable to run Apple code, so wasnt valid prior art. This is not how you invalidate a patent.
He then goes onto to say that the prior art and patent much be interchangeable. This is also incorrect.
http://www.whathifi.com/forum/smartphones-tablets/jury-foreman-in-applesamsung-is-an-idiot
That isn't disqualifying for prior art. It doesn't have to run on the same processor. It doesn't have to run at all. It can be words on a piece of paper.
| The Foreman's Aha Moment in Apple v. Samsung Was Based on Misunderstanding Prior Art ~pj - Updated |
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| Wednesday, August 29 2012 @ 09:23 AM EDT |
The foreman in the Apple v. Samsung trial has now done an interview with Bloomberg News, giving him an opportunity to answer some of the criticisms of the verdict. It's a video on YouTube, titled "Apple Jury Foreman: Here's How We Reached a Verdict", and while he answers the criticisms, he describes how the jury, under his instructions, decided that the Samsung prior art didn't invalidate an Apple patent. In doing so, I think he has revealed the biggest mistake of all made by the jury, one so large I don't believe it can be ignored. At a minimum, Apple shouldn't want to win like this. His aha moment, as he calls it, and assuming what he says on the video is accurate, was based on a misunderstanding of what constitutes prior art.
In discussing the first patent on the list, he says they got into a discussion about the prior art that was presented at trial. Here's why they discounted it:
The software on the Apple side could not be placed into the processor on the prior art and vice versa. That means they are not interchangeable. That changed everything right there.
That isn't disqualifying for prior art. It doesn't have to run on the same processor. It doesn't have to run at all. It can be words on a piece of paper. (If you don't believe little old me, here's a lawyer noticing the video too now.)
Here is the jury instruction given on what is prior art, on page 44 of the instructions PDF, which you can find here:
FINAL JURY INSTRUCTION NO. 31
UTILITY PATENTS—ANTICIPATION
A utility patent claim is invalid if the claimed invention is not new. For the claim to be invalid because it is not new, all of its requirements must have existed in a single device or method that predates the claimed invention, or must have been described in a single previous publication or patent that predates the claimed invention. In patent law, these previous devices, methods, publications or patents are called “prior art references.” If a patent claim is not new we say it is “anticipated” by a prior art reference.
The description in the written reference does not have to be in the same words as the claim, but all of the requirements of the claim must be there, either stated or necessarily implied, so that someone of ordinary skill in the field looking at that one reference would be able to make and use the claimed invention.
Here is a list of the ways that either party can show that a patent claim was not new:
– If the claimed invention was already publicly known or publicly used by others in the United States before the date of conception of the claimed invention;
– If the claimed invention was already patented or described in a printed publication anywhere in the world before the date of conception of the claimed invention. A reference is a “printed publication” if it is accessible to those interested in the field, even if it is difficult to find;
– If the claimed invention was already made by someone else in the United States before the date of conception of the claimed invention, if that other person had not abandoned the invention or kept it secret;
If the patent holder and the alleged infringer dispute who is a first inventor, the person who first conceived of the claimed invention and first reduced it to practice is the first inventor. If one person conceived of the claimed invention first, but reduced to practice second, that person is the first inventor only if that person (a) began to reduce the claimed invention to practice before the other party conceived of it, and (b) continued to work diligently to reduce it to practice. A claimed invention is “reduced to practice” when it has been tested sufficiently to show that it will work for its intended purpose or when it is fully described in a patent application filed with the PTO.
– If the claimed invention was already described in another issued U.S. patent or published U.S. patent application that was based on a patent application filed before the patent holder’s application filing date or the date of conception of the claimed invention.
Since certain of them are in dispute, you must determine dates of conception for the claimed inventions and prior inventions. Conception is the mental part of an inventive act and is proven when the invention is shown in its complete form by drawings, disclosure to another, or other forms of evidence presented at trial.
Did you notice that prior art can be a piece of paper describing the invention? It doesn't have to run on *any* processor. It's the claims that have to match, not what it runs on. For example, when Red Hat was accused of patent infringement by IP Innovation, they rolled in a 1985 Amiga computer that a Groklaw reader still have running to demonstrate prior art, and they won. Otherwise, by his logic, Samsung couldn't infringe any of Apple's patents, in that Android and Linux don't run directly on iOS.
The foreman, in answering criticisms, says that the jury paid close attention to the jury instructions. But looking at this one, did they? I'm sure they meant to, and I'm also sure they did their best according to what they understood. But this was an error, and it's one I don't think the judge can ignore, if anyone brings it to her attention. Incidentally, just in case he said prior art and he meant obviousness, the jury instruction on that is No. 33.
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