Apple Event Preview

sep_2013_event_invite

The days leading up to an Apple event – and in particular an iPhone event – are some of the biggest days of the year in the tech blogosphere, and I have been so busy I haven’t been able to post about it (though I do keep the Twitter widget active at all times). At this point everything that will be leaked has been leaked and all the predictions are in. Rather than re-invent the wheel, The verge and CNET have pretty thorough articles previewing what to expect at tomorrow’s Apple event, being held in Cupertino at 10 AM PT/1 PM ET.

Here are the expected highlights:

Two new iPhones: An updated iPhone (probably iPhone 5S) that will look very similar to the iPhone 5 but will feature a fingerprint sensor on the home button, increased storage capacity, brighter display, dual LED flash, and a gold option, and a new lower budget iPhone (possibly iPhone 5C) with plastic case that will come in many colors.

A completely redesigned iOS 7 that gives iOS a sleeker look and many new features.

iTunes Radio, a Pandora-like service that integrates with iTunes and the iTunes Store.

Apple TV will see a software update to allow a Person A to share content purchased on iTunes on Person B’s Apple TV, as well as the addition of iTunes Radio. Contrary to earlier reports, there will probably not be any new Apple TV hardware unveiled tomorrow.

New iPad or iPad Mini hardware is also unlikely.

To follow the event live, The Verge and CNET both keep good liveblogs, and I’ll try to keep the Twitter widget active.

Google I/O 2013: subscription music service, unified messaging, and improved gaming, Maps and Search, and more

google-io-2013

Google’s much-anticipated Google I/O 2013 developers conference began today and Google announced some interesting new features and products.  Google’s blog entry is pretty comprehensive and definitely worth a read, and here’s a quick rundown of what was unveiled:

- Google Play Music All Access: a $9.99 per month ($7.99 if previewed by the end of June) music service akin to Spotify that allows unlimited on-demand plays and custom playlists.

- Google Play games: coordinates multiplayer games and syncing of game data across devices.

- Samsung Galaxy S4 Google edition: an unlocked Galaxy S4 that runs stock Android and will receive updates directly from Google rather than from Samsung.  It’s not a Nexus device because Google did not design the hardware, but it is the next best thing.  It runs on AT&T and T-Mobile’s LTE networks and will be sold by Google for $650.

- Google Chrome: enhancements to how video is streamed, payments are processed, as well as “Chrome Experiments” to show the cool graphical and gaming capabilities of Chrome.  These enhancements are largely designed to encourage developers to create more graphics-intensive applications for Chrome.

- Google+: an improved multi-column Stream with suggested hashtags based on the post, a free-standing Hangouts app (available on Android, iOS, and Chrome) that is meant to unify chatting and includes some really interesting group and video features, and enhancements to Photos that automatically back-up photos taken by mobile devices and sift through them to choose the best to share.

A note about Google Hangouts:  In my opinion, Google Hangouts and the All Access music service were the two biggest announcements today and I feel that Google did not make enough of an effort to really promote Hangouts.  Gmail and gchat are pretty universally liked and used, but for whatever reason people have an aversion to Google+ despite how great of a service it is.  I think Google would have been much wiser to announce Hangouts as a freestanding multi-platform messaging service that integrates with Google+ rather than putting Hangouts right in the middle of the Google+ presentation and making it look like a service of Google+.  Regardless, so far the app looks and works great.

- Search: Search now includes spoken questions and answers on computers running Chrome, and Google Now adds more reminder-related features, like dictated notes and reminder cards for new music, movies, books, and TV shows.

- Maps: the browser-based Maps will now be full-screen and the map will be drawn based on what Google thinks we want to know.  For example, if you search for restaurants, the map will be drawn to show other similar restaurants that Google thinks you’ll like, and directions to the restaurant you select.

Overall Google made some interesting announcements today, with the two common themes being integrating various devices that run Chrome and Android and adding more and better prediction to the information Google gives us.

Facebook announces Facebook Home

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Today Facebook announced Facebook Home, a Facebook-centric launcher for Android. A “launcher” for Android is the software that controls how your homescreen looks and functions, including app layout and appearance, page transitions, and how to access your app drawer. Launchers typically go hand-in-hand with a manufacturer’s skin/user interface, so HTC Sense and Samsung TouchWiz are two user interfaces that each have custom launchers. The Facebook Home launcher replaces whatever launcher is currently on your phone.

Cover Feed:
Facebook Home eliminates the multiple home screen functionality that we are accustomed to in favor of a single, full-screen Cover Feed that shows constantly changing posts by friends. The launcher cycles through posts, or you can swipe to the next one, and you can “like” and comment on posts directly from the Cover Feed. While there is still the option to use the traditional drop-down notifications function, notifications in Facebook Home appear more colorful and pop up directly on the Cover Feed, and can be selected or swiped away. Facebook’s Director of Product unfortunately said that ads will eventually come to Cover Feed. At the bottom of Cover Feed is a small photo of your face that can be dragged to Messenger, App Launcher (below), and the last used app.

Chat Heads:
Facebook Home emphasizes communicating with friends and combines text messages and Facebook Messages into one (which was previously available through the Facebook Messenger app). When someone messages you, a picture of their face pops up on your screen and you touch their face to respond. A cool function here is that the face can be moved on the screen so as to be there when you want to reply while not interfering with whatever you’re doing on the screen.

App Launcher:
The App Launcher controls how you access and open apps. It has two screens – favorite apps and an app drawer with all apps, and with Facebook getting rid of the ability to put apps on the homescreen, the App Launcher is the gateway to all non-Facebook apps.. Even from the App Launcher favorite screen, you can still post status messages, photos, and check-in. So while the Facebook Home App Launcher allows non-Facebook apps to be used, the focus is definitely Facebook.

Availability:
Facebook Home will be available in the Play Store on April 12, on the HTC One X, HTC One X+, Samsung Galaxy S III and Samsung Galaxy Note II. It will roll out to more smartphones and tablets in the future. A nice thing Facebook is doing is promising monthly updates.

HTC First:
Facebook also unveiled HTC First, which is a mid-range Android smartphone that comes with Facebook Home pre-installed. The phone’s specs really aren’t anything to write home about and it is really just to show off Facebook Home, so I won’t go into any more detail on it. It’s also being released on April 12 for $99 on AT&T.

My Thoughts:

I check Facebook on my phone several times a day and use Facebook Messenger to chat with several people.  When I see other people using their phones when I’m out and about, I often see them checking Facebook.  So Facebook has plenty of regular Android users. And I think Facebook Home is an interesting idea for Facebook and as far as I know Facebook is the first major tech company to develop more than just an app and widget for Android, so good for them for giving it a shot.  And it actually looks pretty cool.

All that being said, I really don’t see that many people using Facebook Home as their primary launcher.  Today’s smartphones serve so many different functions that even if there is an improved Facebook experience, it is not worth the sacrificed functionality and versatility that Android offers.  As I said, I use Facebook and Facebook Messenger a lot.  I also use Gmail, Google Talk, Google Currents, Google Chrome, Google Now/Search, Associated Press, New York Times, Twitter, and Google Play Music daily, and I like to be able to use all of those apps side-by-side.  I know I’ll still be able to access those apps but it seems like they’ll take a back seat to Facebook. While I think Cover Feed and Chat Heads would be fun to use, I don’t see myself giving up my variety of apps just for a better Facebook experience.  I’m also not sure how I feel about posts by people I never talk to occupying my entire homescreen. I will definitely give it a try though, and for anyone else who wants to I recommend Home Switcher to easily switch between launchers and change the default launcher.

For further reading check out Facebook, The Verge, cnet, and The New York Times. And here’s the promo video:

Judge Koh vacates almost half of the jury’s damages awards in Apple v. Samsung

By now this is old news, but I was away when this news broke and my hotel unbelievably didn’t provide free wi-fi, despite our $40 per night resort fee. But Since I’ve been following this case so closely I think it deserves a post, and better late than never.

As you may recall, a California jury found that many Samsung phones and tablets infringed on Apple’s patents and trade dress and awarded Apple $1.05 billion in damages. Notably, the jury deliberated for less than three days. There has been lengthy post-trial motions by both parties, including a motion by Samsung to vacate the jury verdict and damages award based on alleged misconduct by the jury foreperson, which was denied.

On Friday, March 1, Judge Koh ruled on another series of motions relating to damages.  With regard to supplemental damages, which are damages from continued infringement after trial, Judge Koh:

(1) Sided with Samsung and determined that the computing of damages should begin on the date of the verdict rather than the June 30 date that evidence submitted at trial specifically covered.

(2) Sided with Samsung that the appropriate way to calculate supplemental damages relating to post-verdict sales is to take the jury damages award per device, divide each amount by the number of units those devices sold prior to the verdict to reach a per-unit damages amount.  Then calculate the number of units of each particular device sold post-verdict and multiply it by the per-unit damages amount.  Apple had argued for a broader calculation that didn’t differentiate between devices.

(3) Concluded that supplemental damages are appropriate in this case, and that the court will look at post-verdict sales figures after the appeals process.

With regard to pre-judgment interest on the amount owed by Samsung, Judge Koh also decided that the 52-week Treasury bill rate, as argued by Samsung, should be used in calculating prejudgment interest, rather than the higher prime rate as advocated by Apple.

Finally, in evaluating the jury damages award, Judge Koh determined it was appropriate to evaluate the jury award, and while Judge Koh upheld much of the jury’s award, she found the following issues that warranted vacating parts of the award:

(1) The jury improperly calculated damages relating to the Galaxy Prevail, which only infringed utility patents, based on lost profits.  The Court vacated $58 million from the damages award and ordered a new trial on damages.

(2) The jury incorrectly awarded Samsung’s profits for infringement of utility patents in eight devices – Gem, Indulge, Infuse 4G, Galaxy SII AT&T, Captivate, Continuum, Droid Charge, and Epic 4G – while the correct remedy for infringement of utility patents is either a reasonable royalty or Apple’s lost profits.  The Court was unable to determine the proper amount of damages with regard to these eight devices from the jury award, and accordingly vacated $383 million from the award and ordered a retrial on damages.

(3) The jury used a notice date that was too early in calculating damages with regard to five devices – Exhibit 4G, Galaxy Tab, Nexus S 4G, Replenish, and Transform – and Judge Koh vacated $9 million from the damages award and ordered a new trial on damages.

All in all, Judge Koh vacated $450.5 million in damages relating to 14 devices – Galaxy Prevail, Gem, Indulge, Infuse 4G, Galaxy SII AT&T, Captivate, Continuum, Droid Charge, Epic 4G, Exhibit 4G, Galaxy Tab, Nexus S 4G, Replenish, and Transform.  The damages awarded in the new trial could be higher, the same, or lower.

I think it was a pretty good day for Samsung’s lawyers, as they got half the jury verdict vacated (though an even higher damages award could be returned by the jury in the re-trial), Judge Koh sided with them on the interest rate issue, and they delayed the calculation of supplemental damages (based on my experience, any delay is good for a defendant). Still, Samsung took a big hit in this trial and is on the hook for at least $599 million pending appeal, though I doubt it will hurt their bottom line in light of how dominant they have became in the smartphone market.  And another thing to keep in mind is that this case is just one of many being litigated worldwide between these parties.

For more reading on this, check out FOSS PatentsThe Verge, and Judge Koh’s Order.

Judge denies Apple’s motion to ban infringing Samsung products and denies Samsung’s juror misconduct motion

Apple vs Samsung

Yesterday the first two decisions after the December 6 Apple v. Samsung hearing were handed down, and I’m sure the decisions have left each party unhappy for different reasons.

Denial of Apple’s motion seeking sales ban:

Judge Koh’s decision hinged on the lack of a “causal nexus” between the infringement and the harm suffered by Apple.  In the case of smartphones, which utilize literally thousands of patented technologies, Apple must demonstrate that it lost sales directly due to the 6 infringed patents in order to obtain an injunction:

First and most importantly, Apple has not been able to link the harms it has suffered to Samsung’s infringement of any of Apple’s six utility and design patents that the jury found infringed by Samsung products in this case. The fact that Apple may have lost customers and downstream sales to Samsung is not enough to justify an injunction. Apple must have lost these sales because Samsung infringed Apple’s patents. Apple has simply not been able to make this showing. Though this is a case where the “plaintiff practices its invention and is a direct market competitor,” [citation omitted] it is not a case where the
patented inventions are central to the infringing product. Without the required causal nexus, the parties’ status as direct competitors simply does not justify an injunction.

The large number of patented technologies that make up a smartphone compared with the small number of infringed patents owned by Apple was significant to Judge Koh:

The phones at issue in this case contain a broad range of features, only a small fraction of which are covered by Apple’s patents. Though Apple does have some interest in retaining certain features as exclusive to Apple, it does not follow that entire products must be forever banned from the market because they incorporate, among their myriad features, a few narrow protected functions. Especially given the lack of causal nexus, the fact that none of the patented features is core to the functionality of the accused products makes an injunction particularly inappropriate here.

Judge Koh also noted that Apple’s previous agreements to license its patented technologies (including with HTC as well as negotiations with Samsung) demonstrates that Apple’s patented technologies are not priceless, which weighs against an injunction.

There is no doubt that this decision does not sit well with Apple. While many of the Samsung devices that are the subject of this lawsuit are no longer on the market and are certainly not driving Samsung’s current sales, I’m sure Apple does not want to allow this kind of reasoning to stand because it will make it more difficult for Apple to obtain injunctions against Samsung or other competitors in the future. For this reason, I’d say an appeal is a near certainty.

I see both sides of the coin here. On the one hand, user experience is an important factor in smartphone sales, and there are many elements that users don’t even realize exist that combine to make a better user experience. Features like the way pages scroll and the visual effect you see when an app opens and closes go unnoticed by many, but does that mean that these features can be stolen from their inventors with the consequence of only monetary damages from a company rolling in money simply because it is impossible to pinpoint those features as driving sales?  This will, Apple will argue, give a license to steal any feature that doesn’t make up the core functionality of a smartphone.

On the other hand, there can be half a million patented technologies in a single smartphone, and if sales were allowed to be halted due to just a few infringed patents there would be even more patent litigation and it would slow down technological innovation – the very thing patent law is in place to foster – because smartphone manufacturers would fear that the inclusion of a technology that comes too close to a patented technology could have a disastrous effect on their business (as sales bans in the fast-moving smartphone world basically render the banned device worthless).

At the end of the day, Samsung turned itself into a smartphone powerhouse and the billion dollar jury verdict (if upheld) was really worth it to get its foot in the door. It seems unjust when said like that, but Apple isn’t exactly a sympathetic party either.

Worth noting is that Judge Koh’s decision denying the injunction did not speak to the jury findings, though reading between the lines it is almost a sure thing she will not completely throw away the jury verdict after issuing this decision.

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Denial of Samsung’s juror misconduct motion:

After the verdict was reached, Samsung moved to throw away the verdict based on an alleged bias of the jury foreman and on that same foreman bringing extraneous evidence into jury deliberations. In short, Samsung alleged that the foreman, Velvin Hogan, intentionally omitted a lawsuit involving him and Seagate Technology, his former employer, when asked about prior lawsuits. Seagate was his former employer and had given Mr. Hogan a loan which Mr. Hogan did not repay after being terminated, and when Seagate sued Mr. Hogan, Mr. Hogan filed for bankruptcy  The significance of this is that Samsung now is the largest shareholder of Seagate with a 10% share. Samsung also claimed that Mr. Hogan’s post-verdict interviews demonstrated a desire to be on the jury (which Samsung claimed coupled with his Seagate omission proved bias) and also demonstrated that he gave the jury improper instructions based on his own understanding of patent law as opposed to what they were told by the court.

Judge Koh found that Samsung failed to exercise reasonable diligence in researching Mr. Hogan and thus lost its right to challenge his impartiality. Judge Koh opined that Samsung knew of the bankruptcy proceeding and knew of Mr. Hogan’s past employment with Seagate, and if it had timely requested the bankruptcy file, as it did after the verdict, or questioned Mr. Hogan on his relationship with Seagate, it would have discovered the prior lawsuit. Since Samsung did not properly research Mr. Hogan prior to the trial, it cannot claim impartiality after the trial.

Judge Koh also held that Mr. Hogan’s statements in post-verdict press interviews are inadmissible under Rule 606(b), which prohibits a juror from being able to impeach is or her verdict. The judge found that while jurors may not bring their personal knowledge of the parties or the specific issues presented into deliberations, they can bring in their general knowledge and life experience, which is what Mr. Hogan did. In denying Samsung’s request even for an evidentiary hearing to further address these issues, Judge Koh found that Samsung did not properly show that the verdict would have been different had the alleged misconduct not occurred.

Worth noting is how much deference Judge Koh gave to Mr. Hogan’s statements that he is unbiased and fair.

I am not surprised that Judge Koh did not toss the verdict based on Mr. Hogan’s interviews, as courts are very reluctant to second-guess a jury’s thought process. I am slightly surprised that Judge Koh did not seem more bothered that Mr. Hogan failed to disclose his Seagate litigation. She is 100% correct in saying that Samsung should have done more research into Mr. Hogan’s past, but that doesn’t completely negate the fact that Mr. Hogan omitted elements of his past in voir dire. Any party can (and should) do independent research into prospective jurors to find out potential biases, but requiring Samsung to do so makes the voir dire process designed to elicit those biases seem hollow.  I also find it to be a circular argument to respond to Samsung’s claims that Mr. Hogan is essentially a liar with Mr. Hogan’s statements that he will be honest. But I do understand how gutsy it would have been of Judge Koh to toss the verdict and order a retrial, which would cost hundreds of thousands of dollars to the parties, not to mention possibly billions of dollars if a different verdict is reached, and her reluctance to do so. I also understand not wanting a party to get away with turning a blind eye to a potential bias and then raising it when the verdict doesn’t go the way they want, so I really can’t say I disagree with Judge Koh’s reasoning.  I do think Judge Koh should be more mad at Mr. Hogan, but I guess, unlike me, a judge has to pick a side and I don’t blame her for picking the side she did.

The real thing I take away from her decision is that civilians like Mr. Hogan and the other jurors, whose reasoning in the jury room will clearly not be questioned, should not be responsible for applying extremely complex patent law principles. Patents are highly technical documents, and attorneys drafting them are required to have technical backgrounds. Patent examiners who determine whether to grant a patent are also required to have technical backgrounds. Engineers who invent the software that is the subject of this lawsuit all have technical backgrounds.  Ditto for other kinds of inventors. So why, after all that work performed by experts, do we leave evaluating whether a patent is valid and infringed upon to civilians, many of whom have little to no technical expertise whatsoever, and then require such a high standard in reversing their decisions? It seems like a weak link in the process that has great consequences and could be avoided. I’m all for a jury in determining whether a murder suspect’s alibi is convincing or whether parties intended to form a contract, but with patent law it seems like these important decisions would be left up to trained individuals.

Today parties will argue to uphold/overturn $1 billion verdict in Apple v. Samsung

Today is a big day for the United States edition of Apple v. Samsung, as the parties will go before Judge Koh and argue various motions to uphold/overturn and increase/decrease the value of the $1 billion jury verdict rendered back in August.  Regardless of what happens, I would say it’s a safe bet that the decision will be appealed.  Still, the lower court’s decision is very important because it will frame the appeal.  The hearing is scheduled for 4:30 EST.

I am very busy with a project this week into next and am going away this weekend so I unfortunately will be unable to write the post that the hearing and decision (which most likely won’t be rendered today) deserve, or at least not in a timely fashion, but I will keep the Twitter feed updated and drop a few links that are worth reading below as the day goes on.

Pre-hearing stories: Huffington Post (AP), BBC News.

UPDATE:  The parties are in the courtroom and the proceedings have begun.  The Verge is live-blogging it.

UPDATE:  It looks like the majority of the hearing was spent arguing over the damages amounts and whether the jury’s damages calculations can be questioned.  The parties didn’t spend much time discussing the alleged misconduct by the jury foreperson, though that and all other issues in this case were briefed to the judge before the hearing so decisions will be issued on all issues regardless of whether they were addressed at the hearing.  Judge Koh said she “will try to get these orders out as quickly as [she] can.”  For more, check out The New York Times and The Verge.

Large Tablet Buyer’s Guide, 2012 Holiday Season

The tablet space once dominated by Apple’s iPad has exploded in the past year to 18 months, and now many tablets are selling well. Here are some of the more notable tablets in the large display (~10 inches) tablet market.


Apple iPad, 4th Generation:
Highlights: 9.7″ 2048 x 1536 display (264 ppi); 1.2 MP front-facing camera; 5 MP rear-facing camera; dual-core A6x CPU with quad-core GPU; weighs 652-662 grams; 16, 32, and 64 GB storage options; WiFi and WiFi with LTE options; priced from $500-830.
Pros: Beautiful display; excellent build quality; access to the industry-leading iTunes and App Stores, with many apps designed for the larger tablet display; AirPlay mirroring to Apple TV; good integration with other iOs devices and iTunes; good update support from Apple.
Cons: Expensive; choices and options, such as what browser to make the default browser, are limited by Apple, sub-standard Maps software, Apple’s cloud music storage, iTunes Match, costs $25 a year, new Lightning Dock connector will not work with earlier iPhone, iPad, and iPod docks.
Bottom Line: Despite the talk of Apple perhaps losing some of its mojo with the iPhone 5 and iPad Mini, the new iPad is still the standard-setter in the large tablet space, and for good reason. If you are invested in the Apple ecosystem and have music in iTunes and/or another iOS device, and you plan to stick with Apple moving forward, then this iPad is a no-brainer. Similar for older, non-tech savvy users and young users, as the iPad interface is very intuitive and easy to use. Finally, not all tablets have LTE connectivity, so if that is important then the new iPad is a good choice. If you’re not invested in Apple products, are looking to have more options with your device, or like to root and customize your device, then I think there are other good large tablets on the market for a lower price.

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Google/Samsung Nexus 10:
Highlights: 10.055″ display with 2560 x 1600 resolution (300 ppi); 1.9 MP front-facing camera; 5 MP rear-facing camera; dual-core A15 CPU and quad-core Mali T604 GPU; 2 GB RAM, weighs 603 grams; 16 and 32 GB storage options; WiFi only; priced at $399 and $499.
Pros: Beautiful display with best-in-class pixel density; excellent integration with Google services; stereo front-facing speakers; NFC; micro-USB and micro-HDMI connectivity; as a Nexus device it will receive timely updates from Google; good developer options.
Cons: The Google Play Store’s selection of movies, TV shows, and tablet-optimized apps is improving but still limited; integration with non-Google services is not as natural as with other devices.
Bottom Line: If you want a “pure Google” experience and a large display then this is a great choice. Unlike other Android-based tablets, the Nexus 10 will receive updates directly from Google, often six months earlier than other Android tablets receive updates, and I think that counts for a lot. Also, if you’re into rooting your tablet so that you can modify features or install entirely new operating systems on it, then this tablet is a good choice. For its support from Google and excellent display, I would rank this tablet just below the iPad, with its greatest shortcoming being more limited content and fewer tablet-optimized apps.

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Kindle Fire HD 8.9″:
Highlights: 8.9″ 1920 x 1200 display (254 ppi); front-facing “HD camera”; 1.5 GHz OMAP4470 dual-core processor; weighs 567 grams; WiFi only version comes with 16 and 32 GB options; WiFi with LTE version comes with 32 and 64 GB options; priced from $300 to $614.
Pros: Beautiful display; stereo speakers; Dolby audio; access to an expansive library of movies, music, TV shows, magazines, and books; free unlimited cloud storage for Amazon content; option to subscribe to Amazon Prime and have unlimited content streaming; Amazon claims fastest WiFi of any tablet.
Cons: The Fire HD 8.9″ is powered by a “forked” version of Android, which is a heavily modified Android-based operating system that is incompatible with the the Google Play Store and many apps found there. As such, it only has access to the Amazon App Store, which has a much more limited selection of apps than the Google Play Store. One could turn to the Android developer community for a fix, but that can be very involved.
Bottom Line: The Kindle Fire HD 8.9″ is a great tablet for media consumption, so for the traveler who wants to be able to watch movies and shows on a plane and occasionally use basic apps, the Fire HD 8.9″ is a good combination of display, content, and price. But for a more well-rounded tablet, there are better options out there.

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Microsoft Surface with Windows RT:
Highlights: 10.6″ 1366 x 768 display (148 ppi); 720p front and rear-facing cameras; quad-core NVIDIA Tegra 3 CPU; weighs 680 grams; 32 and 64 GB options; WiFi only; priced from $500.
Pros: Integration with Windows 8 and Windows Phone 8; innovative tiled user interface that allows for a lot of personalization; Microsoft Office and the attachable Smart Touch cover/keyboard allow the Surface to be used for school and business moreso than the competition; USB, microSDXC and HD video out ports allow for greater connectivity; integrated kickstand; Internet Explorer (which is now receiving very positive reviews).
Cons: Unimpressive display resolution; expensive; Microsoft is new to the tablet space and is not very established in the smartphone space, so being an early adopter runs the risk of the platform not receiving developer support needed to meet its potential.
The Bottom Line: The new tiled interface on Windows RT and Windows Phone 8 is really exciting and is receiving rave reviews for its customization and for thinking outside the box. While these products are relatively new, Microsoft has been working for some time on having a complete, integrated product line on launch, so I think the growing pains will be manageable. For someone who likes to be in front of the masses and who is willing to pay $500 for a tablet and another $100 for the Smart Touch cover, this is a great tablet. It’s also a great choice for someone who uses Microsoft Office a lot, or someone who wants a tablet that can also perform many of the tasks normally reserved for laptops. However, the Surface may not be the best fit for someone who mostly wants a tablet to read news, play games, watch movies, and use social media.

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Honorable mentions: Samsung Galaxy Tab 2 10.1, the stylus-equipped Samsung Galaxy Note 10.1, the less expensive and slightly outdated Apple iPad 2, and the ultra-affordable Barnes & Noble Nook HD+.

Happy Thanksgiving to my American readers!!

Google unveils Nexus 4, updated Nexus 7, Nexus 10, and Android 4.2

While Google was forced to cancel its Android event in NYC today due to Hurricane Sandy (which sounds like it’s about to blow down my living room windows right now), it went ahead and unveiled three new devices – a smartphone, a modified version of its 7″ tablet, and a new 10″ tablet, as well as Android 4.2 – online. All three devices are Nexus devices designed by Google in conjunction with equipment manufacturers that contain the newest, unmodified version of the Android operating system and are intended to represent Google’s vision of an ideal Android device.

Nexus 4:
The Nexus 4 is a smartphone built by LG that contains a 1.5GHz quad-core Snapdragon S4 Pro processor, a 4.7″ 1280×768 IPS display, Corning Gorilla Glass 2, 8 MP rear/1.3 MP front cameras, NFC, 2 GB of RAM and a choice of 8 GB or 16 GB of storage. Notably, the phone is being sold unlocked directly through Google and will not have any carrier sponsorship or affiliation. What this means is that it will not work on Verizon and Sprint’s CDMA networks, and is not 4G LTE compatible with any carriers. This was done in order to maintain complete control over the device and to avoid having to make different versions of the phone for different carriers’ 4G LTE specifications. The device looks really nice and the processor, display, and RAM are as good or better than anything out there now, but I think the lack of 4G LTE technology – which is pretty much standard right now – is a big mistake and will prevent this smartphone from selling well. While Nexus phones have never been huge sellers, they come with unmodified Android that can run better than some of the modified versions of Android, like HTC’s Sense and Samsung’s TouchWiz, that we see on other phones, and they receive much better update support too. I think with proper marketing Google could make its Nexus line commercially successful, but leaving off 4G LTE will not help make that happen. I understand Google’s frustration with Verizon for not allowing the Galaxy Nexus to receive updates directly from Google, and I don’t know the extent of Google’s efforts to make 4G LTE happen while still having direct control over the software update process, but again, I think not having 4G LTE on a flagship phone is really unfortunate. [edit: upon further reading, it is possible for actual HSPA+ speeds to approach actual 4G LTE speeds right now, but 4G LTE has much more potential and represents the The Nexus 4 will be sold at the relatively reasonable off-contract price of $299 for 8 GB and $349 for 16 GB.

Nexus 7:
Google unveiled the Nexus 7 tablet built by ASUS with a 7″ display last summer, and the new Nexus 7 is the same with added memory and a cellular data option. At release last summer, it received great reviews but the biggest story was how inexpensive it was – $199 for 8 GB and $249 for 16 GB. Now Google has made the Nexus 7 even more financially enticing, with the 16 GB version reduced to $199, a new 32 GB version for $249, and a 32 GB version that comes with HSPA+ cellular connectivity for $299. I think the 16 GB version may be my next tablet.

Nexus 10:
The Nexus 10 is built by Samsung and has a pretty impressive 10.055″ 2560×1600 display with 300 ppi. It also packs a dual-core CPU and quad-core GPU, 5 MP front/1.9 MP rear cameras, NFC, 2 GB of RAM and 16 or 32 GB of storage. The Nexus 10 tablet is wifi only, and is $399 for the 16 GB version and $499 for the 32 GB version. Initial reviews are positive for the Nexus 10, and I’d love to see that display in person. Personally, though, I think tablet technology is advancing so fast that I would hesitate to spend $400+ on one knowing how quickly it will be obsolete. In fact, I would say $299 is the most I’d be willing to spend on a tablet that will probably only last me a few years. I spent $729 on the original iPad a few years ago and now newer graphics-heavy apps crash all the time, and next time around I think I’ll be more budget-conscious (that is not a knock on Apple, but instead an example of how quickly things move in the tablet market). Anyway, for someone looking for a more expensive and larger tablet I think spec-wise the Nexus 10 looks good, and I would go for a Nexus tablet over any other Android tablet just for the update support from Google as well as developers that Nexus devices receive.

Android 4.2:
Android 4.2 – called “a new flavor of Jelly Bean” as opposed to Key Lime Pie – provides some cool new features like gesture typing with better predictive text, multiple user support for tablets, wireless streaming to TV via a wireless HDMI adapter, improved Google Now, and most interestingly, a Photo Sphere feature that allows 360-degree vertical and horizontal photos akin to what we’re used to in Google Street View. I’m looking forward to checking out 4.2.

For more on how Nexus devices are created, The Verge has a great article and video I highly recommend.

Apple responds to Samsung’s motion for a new trial based on juror misconduct

A few weeks ago Samsung filed a motion to enter judgment for Samsung despite the jury verdict awarding Apple $1 billion. Samsung presented several arguments, including that Velvin Hogan, the jury foreman, failed to tell the court about a lawsuit brought by his former employer – of which Samsung is now the largest shareholder, and which led him to file for bankruptcy – in voir dire and that Mr. Hogan, in describing his and the jury’s deliberations, showed bias and the application of incorrect legal principles.

As expected, Apple disagreed in its opposition. Apple’s arguments relating to Mr. Hogan are:

(1) Samsung waived any objections it could have made based on the Seagate lawsuit by not asking Mr. Hogan about his relationship with Seagate or following-up on Mr. Hogan’s bankruptcy case, which he did mention in voire dire;
(2) Samsung cannot establish that Mr. Hogan has a bias against Samsung based on his “decades-old” dispute with a non-party former employer of which Samsung is now a shareholder;
(3) Samsung cannot establish an implied bias based on Mr. Hogan’s inaccurate answer in voir dire;
(4) Mr. Hogan was honest in answering the court’s question of whether he was a party to any lawsuits because he did tell the court that about a lawsuit he was a party to and was never asked if there were any other lawsuits;
(5) Mr. Hogan’s comments to the media about the jury’s deliberations involve “legal standards” which cannot be second-guessed by a judge rather than “extraneous evidence” which could warrant a new trial, and even if Mr. Hogan did bring in extraneous evidence from his personal experience, Samsung cannot establish that the outcome would have been different.

The first four arguments involve Mr. Hogan’s inclusion in the jury in the first place, which I think will be more problematic for Apple as compared to the jury’s deliberations. Apple is correct that Samsung should have done a better job of investigating Mr. Hogan, and how they could not ask about his relationship with Seagate is beyond me. But the point of voir dire is to learn about the prospective jurors and their biases and had Mr. Hogan answered questions truthfully then Samsung would have learned about Mr. Hogan’s dispute with Seagate. I don’t think that the fact that Samsung could have learned about the dispute in other ways, such as by asking other questions or requesting the bankruptcy file, is enough to negate Mr. Hogan’s dishonesty. If Apple can show that Samsung did know of the Seagate dispute during trial and waited till a verdict so that it could have a good argument on appeal if the verdict was for Apple, then I would agree that Samsung waived its objection. I suspect that Samsung didn’t approach Mr. Hogan’s former Seagate employment with enough caution before and during the trial and then looked into his background more after he started giving so many interviews.

As for whether Mr. Hogan is biased against Samsung, lawyers learn about jurors and often make educated guesses about whether their background and experiences have made them biased or impartial, and there is often no hard evidence of bias. I understand that we are at a different stage now than when we were in jury selection, but had Samsung learned of the “decades-old” dispute with Seagate, I have to think it would have challenged him even if there was a chance that he held no grudge against Samsung.

I also disagree with Apple’s argument that Mr. Hogan was not “dishonest” because his lie was by omission rather than an affirmative lie. He was asked if he’s been a party to a lawsuit and described one such lawsuit. In being truthful with the court which just asked a question designed to learn about any and all lawsuits he has been a party to, his answer should not end there. The court should have asked whether there are any other lawsuits, but that does not change the fact that Mr. Hogan did not meet his obligation of telling the court what lawsuits he has been a party to, and therefore the court should consider his answer dishonest. While Apple’s argument that it was an honest mistake rather than dishonesty could be convincing in some cases, I think Mr. Hogan loses the benefit of the doubt in my mind since he must have known that Samsung would at least find it interesting that a company in which it has invested over $1 billion sued him. This gives Samsung a better argument that Mr. Hogan was “dishonest” and that his dishonest answer demonstrates an implied bias.

As for Apple’s final argument, what Mr. Hogan told the other jurors could be viewed as “legal standards” (and thus can’t be disturbed) even though they were based on his own prior knowledge of the law rather than on the judge’s instructions. Judges are very reluctant to step into the jury room, and for better or worse (I think worse in the case of something as technical as patents) a jury’s verdict is given a great deal of deference and is rarely disturbed. If Mr. Hogan hadn’t given interviews then the jury’s thought process would never be questioned; but his comments to the media are hard to defend if the goal here is to determine whether there was infringement and, if so, what the damages are. Still, I think the judge is much more likely to find that Mr. Hogan’s failure to disclose the Seagate dispute warrants a new trial than she is to toss the verdict based on what went on in the jury room.

The motion will be argued on December 6.

Samsung moves to toss jury verdict based on juror misconduct

Just as Judge Koh once said she has more matters to attend to than just the Apple v. Samsung case, the same goes for this blog. Nevertheless, the stories relating to this case are too good to pass up, and especially this one today, so apologies if I’m beating a dead horse.

Velvin Hogan was the foreman in the California Apple v. Samsung case that returned a verdict largely in Apple’s favor in August. Shortly after the verdict was issued, Mr. Hogan began giving interviews (here, here, here, and here are examples). Days later, in my infinite wisdom, I tweeted “The foreman seems nice enough, but Apple would be wise to try to get him to stop giving interviews.” Ok, perhaps it was pretty obvious, but I’m still proud of my foresight, because now Samsung is arguing that the verdict should be thrown out and a new trial ordered, in part because of what Mr. Hogan said in those interviews.

Mr. Hogan’s background:

Mr. Hogan is a 67-year-old electrical engineer and he holds a patent for a “Method and apparatus for recording and storing video information,” which, on my reading, is a DVR that allows programming to be loaded onto removable storage.

Jury selection:

When parties are selecting members to comprise a jury, they go through a voir dire process in which the judge and attorneys can ask the jurors questions to make sure that they are unbiased. One question asked by Judge Koh (on page 148 of the transcript) was “Have you or a family member or someone very close to you ever been involved in a lawsuit, either as a plaintiff, a defendant, or as a witness?” Mr. Hogan answered that he had been in a lawsuit in 2008 with a former employee over the ownership of a program. That was the only lawsuit he mentioned.

Samsung has since discovered a second lawsuit that Mr. Hogan did not disclose. In 1993, his former employer, Seagate Technology, sued him for breach of contract for failing to pay back a loan to Seagate after being terminated. Six months later, Mr. Hogan filed for bankruptcy, presumably so Seagate couldn’t go after his assets. While any lie could be a problem in jury selection, this one is especially problematic because Samsung sold its hard disk drive business to Seagate last year in exchange for $1.375 billion in cash and stock, as well as the right to select a Seagate board member. The deal gave Samsung a 9.6 percent stake in Seagate, and made it Seagate’s largest stockholder. The press release contained statements about how Samsung and Seagate are strengthening their alliance with this deal.

In addition to the Seagate lawsuit establishing possible bias against Samsung, Samsung discovered that the attorney who sued Mr. Hogan on behalf of Seagate is married to a partner in Quinn Emmanuel’s Silicon Valley office – the same firm and office that is representing Samsung in this case with Apple. Samsung is now arguing that the failure to alert the court of the Seagate case establishes possible biases that they did not have the opportunity to explore, and that they thus deserve a new trial.

Mr. Hogan’s post-verdict interviews:

As expected, Samsung found many things to criticize regarding Mr. Hogan’s post-trial interviews (linked to above, and again here, here, here, and here).

Regarding sitting on the jury:

“I expected to be dismissed from the jury because of my experience. More than one time during the questions from the lawyers for both sides they focused on me, but I am very grateful to have been part of this case….Except for my family, it was the high spot of my career. You might even say my life.”

Samsung argues that this establishes that Mr. Hogan wanted to be on the jury, and that he lied to make sure he was not dismissed. If this is the case, then bias would be presumed.

Regarding having a pro-IP agenda:

Mr. Hogan said he wanted to be satisfied that the verdicts “protected copyrights and intellectual property rights” in order “to send a message to the industry at large that patent infringing is not the right thing to do” and “make sure the message we sent was not just a slap on the wrist.”

Samsung argues that this statement is contrary to his silence to the question on voir dire of whether he had “strong feelings or strong opinions about either the United States patent system or intellectual property laws.”

Regarding providing the jury with incorrect legal principles:

Mr. Hogan said in interviews that he instructed the jury that “look and feel” is the proper way to determine whether a device infringes a design patent, that a device infringes a utility patent unless it is “entirely different,” that prior art could only invalidate a patent if it was “interchangeable,” and that prior art must be in use to be considered.

Samsung argues that these are incorrect legal concepts that Mr. Hogan brought in from outside against Judge Koh’s instructions, and that introducing these concepts in the jury room warrants a new trial.

Samsung also argued that no reasonable jury would have reached these verdicts and that a new trial should be ordered. The motion will be heard on December 6.

My thoughts:
Personally, if I were Samsung I would not have wanted Mr. Hogan on the jury based on the nature of the patent that he holds and that his experience may make him an overly influential juror. Also, I can’t understand Samsung not doing an internet search for every prospective juror with a case of this magnitude, though I guess it is possible that they did and that the two 20-year-old cases (Seagate and bankruptcy) are not accessible on the internet.

I think Mr. Hogan’s failure to disclose the Seagate case is a strong argument in favor of a retrial, though. It is really unclear whether Mr. Hogan meant to deceive the court and also whether he knew that Seagate and Samsung were now sort of business partners. For what it’s worth, Mr. Hogan still denies any bias and claims that the instruction regarding previous lawsuits was limited to a period of ten years prior. The transcript proves that claim wrong. Regardless of Mr. Hogan’s intentions or whether he knew just how relevant that Seagate lawsuit was, lying to a judge on a fact that would have raised eyebrows at Samsung’s table will not sit well with Judge Koh or an appellate court.

I think the interview statements on their own probably wouldn’t have been enough for a retrial because to me it makes sense to be happy to be on a jury in such a monumental case, and if a judge began questioning how a jury deliberated then it would open the door to all sorts of issues regarding jury trials. But coupled with the Seagate lie, those statements make Mr. Hogan look like a guy who wanted to be able to make a statement about patent rights, helped his chances to get on the jury in order to make that statement, and convinced other jurors to go along with that statement.

Apple is trying to figure out when Samsung found out about the Seagate case in the hope that they can claim that Samsung missed their opportunity to raise the argument. That’s a question mark here, as I have been unable to find out when or how Samsung found out about the Seagate lawsuit.

And finally, a word about Mr. Hogan. I don’t know much about the guy besides what I’ve seen of him in the media relating to this case, but I think what he is doing is very foolish. First of all, don’t lie to a federal judge. Second, bias or not, if he is proud of the verdict (which he says he is) then don’t give interviews discussing the complex legal principles applied in the jury room because if he is wrong on anything he creates an opening for a motion for a new trial, and the verdict that he is proud of will be meaningless. I don’t know whether he was looking for fame, enjoyed that he was the man of the hour, just liked having someone to talk to, or was defensive about all the criticism the verdict was getting, but all the interviews were a mistake as far as protecting the integrity of the verdict. While I think the jury was wrong on many claims here and that at least some of the patents should have been invalidated, a retrial would cost hundreds of thousands of dollars, not to mention it would mean that a lot of people wasted their time in July and August, and I certainly wouldn’t want a retrial because of my own misconduct.

For further reading, Groklaw has a great write-up on this story with many exhibits.

And here’s a video of one of his interviews: