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.
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.
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: