Apple v Samsung: Five experts, five questions

IDG News Service - As a nine-person jury begins deliberations in the closely watched patent trial between Apple and Samsung, the companies and their lawyers are left waiting and wondering what the jury made of the three weeks of arguments.

We polled five people with specialist knowledge of the legal system, patent litigation and trials, and the U.S. smartphone market to get their opinions on the trial so far.

They were: Mark McKenna, a Notre Dame University law professor who specializes in intellectual property, trademark and copyright law; Christopher Carani, a shareholder at McAndrews, Held & Malloy who specializes in design patents and is the current chairman of the American Bar Association's Design Rights Committee; Roy Futterman, director at DOAR Litigation Consulting and a clinical psychologist who provides jury analysis and recommendations for civil and criminal cases; Bill Panagos, a shareholder at Butzel Long who specializes in intellectual property, patent prosecution and litigation, trademark and copyright law; and Charles Golvin, principal analyst at Forrester Research.

Here are some of their responses:

Q1. What has surprised you about the trial?

Roy Futterman: I am surprised that the attorneys and the judge have allowed the jury's job to be staggeringly complicated by providing them with an elaborate verdict form and remarkably long jury instructions. In our experience working on complex patent litigation, we always advise attorneys to do everything possible to clarify the complex legal and technological issues for the jurors as a means to a favorable verdict. A simpler case with a clear verdict form would be most favorable to Apple as the plaintiff charging infringement. A complicated verdict form may lead an overwhelmed jury to check a box that leads to an invalid patent.

Charles Golvin: In truth, what surprised me most is that the case actually came to trial. There have been many patent disputes but the vast majority have been resolved in negotiation. It speaks to the strength of Apple's conviction that the market it essentially created with the iPhone has been unfairly dominated by competitors via -- in Apple's mind -- theft.

Christopher Carani: I am continually surprised at how emotionally attached people are to their cellphones and tablets. At times the allegiance seems stronger than one's political or religious affiliation.

Q2. If you could give advice to this jury -- that got 109 pages of instructions and hundreds of other pages of documents -- what would it be?

Mark McKenna: They will have to first focus on the validity of the rights Apple and Samsung claim. A lot of the instructions have to do with damages, and damages are irrelevant if the rights aren't valid. Then I think they have to guard against the risk of just looking at the Apple and Samsung devices in comparison to each other, without looking more broadly at what else came before, and what other devices out there look like. And they have to be careful not to buy into the narratives either side is telling and focus on the instructions. They're also going, in some cases, to have to go device-by-device. That will be a slog, but they don't have a choice.

Christopher Carani: Take one question at a time and follow the jury instructions as best you can. Don't be the student who fills out a multiple-choice exam by checking "Answer D" for every question. While perhaps tempting and expedient, justice will not be served. If you are going to faithfully fulfill your duty as a juror, understand that there is no quick way to complete the verdict form. Remember, at issue, there are seven Apple patents (four design patents and three utility patents) against 28 Samsung products (26 smartphones and two tablets) along with trade dress and antitrust claims. In return, Samsung has asserted five patents against five Apple products (three iPhones, the iPad and an iPod). If there are any findings of liability, the jurors then have to shift gears and tabulate damages on a per-patent, per-accused product basis.