There are many reasons for which authorities doubt that patent infringement and validity questions should be put before layperson juries. For example, Judge Posner wrote: "Judges have difficulty understanding modern technology and jurors have even greater difficulty, yet patent plaintiffs tend to request trial by jury because they believe that jurors tend to favor patentees, believing that they must be worthy inventors defending the fruits of their invention against copycats [...]"
Apple is a good example of those patent plaintiffs who like jury trials. In front of professional judges in neutral jurisdictions, the track record of Apple's patent assertions against Android is rather poor. In other words, Apple's success is reversely proportional to the competence (and neutrality) of those who render a decision.
Late on Monday, Judge Koh issued an order that may be consistent with U.S. case law on admissible evidence in jury trials but once again favors Apple's interest in preventing that those who make the decision -- the jurors -- know too much. Shortly before the trial, Apple withdrew its invalidity challenges to Samsung's patents-in-suit, and during the trial it has consistently stressed that the USPTO was right with its decisions to grant those Apple patents -- including a patent on an invention that all ten European judges who looked at did not deem patentworthy, a patent of which the USPTO itself has already invalidated the broadest claims, and a patent with respect to which the USPTO itself has realized that there is a substantial new question of patentability that requires another look and, potentially, invalidation. Samsung would have liked to counter Apple's efforts to fool the jury into believing that the USPTO is infallible by pointing to Apple's own invalidity challenges to Samsung's patents (though Apple dropped those shortly before the trial).
Judge Koh reaffirmed her previous decision that Apple's dropped invalidity defenses to Samsung's patents-in-suit must not be mentioned to the jury. Again, I'm not saying that this was the wrong decision under U.S. law, but it shows that Apple's best bet is to hide important facts from the decision-makers.
Under those same rules for admissible evidence in jury trials, Samsung was obviously not allowed to inform the jury of the fact that the slide-to-unlock invention has become a laughing stock in European courts or that the USPTO itself is doubting its original decision to grant the autocomplete patent.
Samsung also can't tell the jury how high the rate of invalidation of patent claims is in USPTO reexaminations, especially in this field of technology. It's true that statistical information on how many claims are invalidated can mislead a jury because those laypeople may not fully understand that statistics relating to other patents don't necessarily apply to the patents before them. But wherever these cases are put before professional judges (i.e., everywhere but in the United States), the decision-makers do know that patent offices make mistakes, they will see decisions made in other jurisdictions (which are not binding precedent but can be very persuasive), and they do see when the USPTO itself starts to doubt a past decision to grant a patent.
On the one hand, there's no shortage of Apple fans out there who think that Apple is doing the morally right thing, and waging a "holy war" as Steve Jobs called it. On the other hand, competent and neutral judges have so far been largely unimpressed by Apple's patent assertions, and Apple wants to withhold from juries various important facts that cast serious doubt on the validity of Apple's patents-in-suit. Someone who appeals to jurors' national bias, tries to obtain favorable decisions on an uninformed or misinformed basis with respect to the fact that an issued patent can be totally invalid if the patent office was unaware of some relevant prior art when it made its original decision -- and is lobbying against much-needed patent reform that would help Main Street businesses and small app developers (including especially iOS app developers!), only in an effort to ensure that bogus patents can be enforced -- is not really standing on higher moral ground.
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