Samsung's Request for New Trial in Apple Case Rests on Dec. 6 Hearing

The smartphone maker claims the jury foreman in the $1.05 billion verdict against Samsung failed to disclose his litigation history.

A hearing is scheduled for Dec. 6 in a California courthouse to hear Samsung's argument that juror misconduct should prompt a judge to order a new trial in the case brought against Samsung by Apple over patent infringement.

The jury handed down a series of verdicts Aug. 24 that resulted in Samsung being ordered to pay $1.05 billion in damages to Apple for infringing on various Apple patents in the design of Samsung's own tablet computers and smartphones. But Samsung is trying to overturn the verdict by arguing that Velvin Hogan, the jury foreman, failed to disclose litigation in which he was involved that could have indicated bias against Samsung.

Legal analyst and blogger Pamela Jones, on the legal issues Website Groklaw, writes that Judge Lucy Koh, who presided over the trial, has three main issues to consider in weighing Samsung's motion for a new trial: whether Hogan's undisclosed information about being involved in a lawsuit was material, when Apple learned of the potential conflict and disclosed it, and whether Hogan presented his own legal arguments about patent law during jury deliberations that were improper.

According to court records, Hogan was asked during voir dire—the process of screening all prospective jurors by asking questions that could reveal bias—whether he had been involved in any litigation in the past. He disclosed that he was sued by an employee of a company Hogan owned over ownership of patented software. In the case, the employee said he owned the software, but Hogan argued the company did. The case was settled and sometime afterward, the company went out of business.

But what Hogan did not disclose was another lawsuit in which he was sued by a former employer, hard-drive maker Seagate Technology, for breach of contract. Samsung has a substantial investment in Seagate, which is also a supplier to Samsung.

On Dec. 6 in U.S. District Court in San Jose, Calif., Koh will consider "whether the jury foreperson concealed information during voir dire, whether any concealed information was material, and whether any concealment constituted misconduct," according to her order.

Also at issue is when Apple attorneys and executives learned of the Seagate case and when they notified the court. A third issue is whether comments Hogan made to fellow jurors during deliberations were out of bounds, Jones wrote on Groklaw.

Jones points to news articles following the verdicts in which Hogan is quoted as telling jurors his opinion of what constitutes patent infringement. According to a brief filed by Samsung, "Hogan said that he told his fellow jurors an accused device infringes a design patent based on 'look and feel,' that an accused device infringes a utility patent unless it is 'entirely different,' that a prior art reference could not be invalidating unless that reference was 'interchangeable,' and that invalidating prior art must be currently in use."

"These incorrect and extraneous legal standards had no place in the jury room," Samsung argued in its brief.

"As you can imagine, this is a much more serious claim," Jones wrote. "The extraneous issues introduction is the one that I think is going to ultimately be the one that makes or breaks Samsung's motion. I'm sure you can understand why it's so important that a juror not transform into an 'expert' in the jury deliberations—the other side doesn't get to refute his 'testimony.'"