Aug 28, 2012

Samsung verdict - Justice or a Mockingbird killed?

That the US patent system is broken and badly needs a fix hardly needs repetition. Dubious patents seem to be the rule not exception. You don't even have to be a respected judge and scholar like Justice Posner to know it. When two clever Indians wanted to "patent" the medical properties of turmeric, known to grandmothers in India for thousands of years, they went to the most advanced country in the world to do so. It took years of costly battles to get that overturned. But don't be surprised if some manages to patent yet another well known grandma's recipe, perhaps the humble neem or Indian gooseberry.

If you are an eternal optimist you can see this as another case of bureaucratic bungling or if you are conspiracy theorist you can think of this as a clever plan to help American companies. Conspiracy theorists would no doubt see the Apple vs Samsung verdict as evidence confirming their worst suspicions.

Delivering a slam-bang-thankyou-mam verdict in three days flat on a complex case where just reading the instructions and filling out the verdict form diligently should have taken that long, if not longer, the jury has raised serious doubts about its job. It is little wonder that ridiculous totalling and other errors were made. The jurors even confessed they had made up their mind on Day one itself, even before Samsung said anything, and had not bothered to read the instructions. A weird side effect of the jury's botched job is that Apple lost that one aspect of the case where its pre-trial chances were strongest, based on injunctions granted - the one against Galaxy Tab. If Judge Koh reverses that ruling she must pretty much acknowledge that this jury has been incompetent or in a tearing hurry to get it over with and go home, having made up its mind even before evidence was presented. If she doesn't  it would then put a question mark over her the wisdom of her own enthusiastic eagerness to ban the tab even before the trial was held because it was 'substantially similar'.

As if all these are not enough, the jury foreman also bragged that they 'punished' Samsung, which is completely nonsensical and against common sense as well as what they jury were told - to compensate Apple for lost profits (if any) and not 'punish'.

In so many ways, this jury is not that different from the 'mockingbird' jury.

No wonder words like unfair, biased and all sorts of other allegations are being thrown around.

Perhaps Samsung's attorney was predicting the future when he blurted out the honest but injudicious truth - 'why even have a trial' when he was barred from presenting prior art evidence because it was 'late'.

But it is never too late. There will be appeals where it is not a jury but judges that will hear the case. Hopefully the American legal and justice system will come out smelling a little bit better at the end of the process. Or will it still be held hostage by nonsensical patents and $1,200 an hour lawyers and $100 Billion companies and their paid shills that abuse it for their commercial benefits?

Time will tell..

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