In regione caecroum rex est luscus or… In the jury of the blind, Velvin Hogan is King

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Thu, 2012-08-30

'If this were my patent, could I defend it?' was the question jury foreman, Velvin Hogan asked himself when considering the Apple Samsung patent infringement suit. On August 24th, 2012 a nine person jury reached the verdict which awarded Apple slightly over $1 billion in damages. This is a grievous miscarriage of justice in which Velvin played an active role. Velvin does not understand that novelty and obviousness are what determine patent validity. His public opining reinforces the widespread ignorance of the broken patent system and the myth of Apple’s innovation.

For the record, prosecuting one patent does not entail knowledge or expertise in patent infringement cases. In fact, Velvin’s self-query denotes an inherent misunderstanding of applying for a patent and patent prosecution. Despite this fact, Velvin led his fellow jurors and the public audience down a willfully (can anyone say treble damages?) ignorant path because of his experience in patent prosecution.

First, Velvin Hogan does NOT own a patent. Look up the only patent he prosecuted, US 7,352,953 (the ‘953 patent), on the USPTO website and one will find that Velvin has not paid his maintenance fees. Yes, that’s right. The guy who asked if he could defend Apple’s ludicrous patent didn’t think his own patent was worth a few hundred dollar maintenance fee because it was mostly copied from… uh oh, we’re getting ahead of the story. Patently Obvious would encourage members of the press to perform due diligence in this respect.

In an interview with CNET, one of his fellow jurors Manuel Ilagan describes how Velvin “helped” the decision process by sharing his experience. “He owned patents he took us through his experience. After that it was easier. After we debated that first patent -- what was prior art --because we had a hard time believing there was no prior art. In fact we skipped that one," Ilagan continued, "so we could go on faster. It was bogging us down." Yes, skipping the prior art seems like a great idea in a patent infringement case.

Prior art limits the application of a patent’s claims using records of the activities of others which clearly and convincingly show that a claim, as requested, must be more narrowly construed. Had the jury been encouraged to get “bogged down” in doing their job, they may have uncovered the key to understanding that Apple and Samsung patents copied previous innovation. Despite skipping that pesky prior art, Manuel pointed out, "We weren't impatient. We wanted to do the right thing, and not skip any evidence. I think we were thorough."

The definition of a double bind is “a psychological predicament in which a person receives from a single source conflicting messages that allow no appropriate response to be made.” Patently Obvious is currently in Gregory Bateson’s archetypal double bind along with every person who has read about the Apple Samsung verdict. To say that the jury did not skip any evidence and yet to have skipped the prior art because it was slowing them down is contradictory.

Another example of double bind: in an interview with Emily Chang from Bloomberg West, Emily asserted Judge Lucy Koh’s instructions that damages are not meant to punish companies, rather to compensate for losses. In a pre-Bloomberg interview with Reuters, Velvin said "We wanted to make sure the message we sent was not just a slap on the wrist. We wanted to make sure it was sufficiently high to be painful, but not unreasonable." When pressed on the retribution tone by Emily, Velvin argued it was not punishment since “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 do it willfully; they need to understand, if they take the risk and get caught, they should have to pay for it.”

And then Emily changed the subject. She likely understood Velvin really was punishing Samsung and demonstrating his massive ignorance of the problems with intellectual property (IP) in the United States. Velvin, to the uninitiated viewer, may have seemed painfully unaware of the widespread abuse and exploitation of the United States Patent and Trademark Office (USPTO).

“We didn't want to give carte blanche to a company, by any name, to infringe someone else's intellectual property,” was Velvin’s assertion in the Reuters interview. Tragically, his failure to comply with his duty as a juror or foreman thereof gave carte blanche to Apple who, if successful, will use this verdict to permanently block importation of Samsung products. This is not protecting innovation. This is an anticompetitive consumer-choice-stifling measure.

Velvin was not asked to defend anyone’s patent. He was asked to determine if Apple or Samsung were infringing on each other’s intellectual property. As a result of his one night deliberation epiphany, he reinforced Apple’s propaganda of true innovation and demonstrated why juries are ill-suited to decide infringement cases as long as the USPTO mints forgeries. Apple did not create their products in a vacuum. By telling others to ignore prior innovation, Velvin disrespected the fact that Apple was not the first to patent the designs.