As news of last Friday’s US$1.05 billion damages award for Apple, Inc. against Samsung Electronics continues to reverberate throughout the world, the details of what the jury actually decided–and how they reached their decision–have begun to reach the light of day. First, the now publicly-available jury verdict, spanning 20 pages, identifies the specific utility patent, design patent, and trade dress claims on which Apple prevailed and assigns damages amounts to specific infringing products. See Jury Verdict, Apple, Inc. v. Samsung Electronics, Ltd., No. 11-cv-01846 (N.D. Cal. Aug. 24, 2012). Among other things, the jury found that multiple smartphones marketed by Samsung infringed the designs on Apple’s iPhone, including its contours and general appearance, as well as its “bounce back” feature, which causes the phone’s screen to snap back when a user scrolls to an end image.
Second, an article in today’s Wall Street Journal purports to tell some of the inside story of the jury’s deliberations. See Inside the Apple-Samsung Jury Room, Wall St. J. (Aug. 27, 2012). Based in part on interviews with the jurors, the article describes how the jury, composed of seven men and two women, deliberated only 22 hours before delivering one of the largest intellectual property verdicts in U.S. history. According to an article published in the San Francisco Chronicle, Velvin Hogan, the jury foreman, stated that the jury was influenced significantly by internal Samsung e-mails, including one 2010 message “describing how Google asked [Samsung] to change the design of its products to look less like Apple’s.” Apple-Samsung Jury Found Google E-Mail Persuasive, Foreman Says, S.F. Chron. (Aug. 26, 2012). Another juror, quoted in CNET, confirmed that he also found “pretty damning” copies of “e-mails that went back and forth from Samsung execs about the Apple features that they should incorporate into their devices.” Exclusive: Apple-Samsung juror speaks out, CNET (Aug. 25, 2012).
The CNET article observes that four of the nine jurors had experience working for technology companies, including Intel and AT&T. However, despite their apparent technical sophistication, some of the jurors’ comments suggest that they may have had difficulty understanding or applying the applicable law. One juror, in particular, suggested in both the CNET and Wall Street Journal articles that the jury was not inclined to award Apple damages for unregistered trade dress infringement, simply because the trade dress was not registered. However, the Lanham Act clearly protects unregistered trade dress if the trade dress is distinctive and the infringing trade dress is not functional and is likely to cause confusion.