It’s typical, legal experts say, for the losing party in such a case as the recent Apple vs. Samsung patent infringement case to file a motion for a new trial. Samsung has done just that.
But there’s growing evidence that the jury foreman, inventor Velvin Hogan, not only was intimately familiar with prior art that Apple and Samsung used in various patents, but also that he used that expertise to sway the jury decision and the amount of the award.
That means Samsung just might actually have a magic bullet when District Court Judge Lucy Koh hears the argument on December 6, 2012.
Here’s the Samsung motion. Notice how much of it is blacked out — we pointed out to you weeks ago the enormous amount of material Apple and Samsung were pulling from the public record.
You won’t find Hogan’s name in it, but check below the fold for an excerpt from the so-called voir dire — that’s the jury selection interview with him.
But Samsung might have a bit more ammunition. It is alleging “jury misconduct.” Why might that be? As aNewDomain.net has repeatedly reported since a federal jury awarded Apple $1B plus in late August, jury foreman Vel Hogan knew a lot about patents. But check out the following document. It’s a transcript showing the question and answer session with tech inventor Hogan, who Samsung and Apple allowed onto the jury after he told them he would set aside his knowledge of patents if selected.
Numerous interviews with Hogan show the Silicon Valley engineer did no such thing. Rather, according to his own account, he actively guided the jury with his knowledge of patents. That’s contrary to what Hogan told attorneys during the selection process.
Scroll below the document embedded below to see how Hogan, 68, actually influenced jurors, according to Hogan and, now, Samsung allegations.
In an interview two days after the August 24 verdict, Hogan said:
“I just started thinking about it as if it were my patent,” said Hogan, an electrical engineer at Multicastlabs Inc., in Milpitas. “I went through it patent by patent, claim by claim and sorted it all out. I thought, ‘If I had to defend these claims to a patent office myself, could I successfully do that?’ And then I realized, clearly I could.
On August 28, Hogan told Bloomberg TV he used his knowledge of patents to get the tired jury out of a “stalemate.” Here’s an excerpt.
At that point in time, I thought it was going to ultimately lean the other way…We were at a stalemate, but some of the jurors were not sure of the patent prosecution process. Some were not sure of how prior art could either render a patent acceptable or whether it could invalidate it. What we did is we started talking about one and when the day was over and I was at home, thinking about that patent claim by claim, limit by limit, I had what we would call an aha moment and I suddenly decided I could defend this if it was my patent … and with that, I took that story back to the jury and laid it out for them. (ed: emphasis added) They understood the points I was talking about and then we meticulously went patent by patent and claim by claim against the test that the judge had given us, because each patent had a different legal premise to judge on. We got those all sorted out and decided which ones were valid and which ones were not.
Though it is by no means damning — it would be difficult to find a telecom patent that did not have a relationship to prior art also used by Apple or Samsung. Chicago IP attorney John Stec, who runs Patentrakker.com, drew up the below for aNewDomain.net.
It shows the deep knowledge Hogan had of prior art Samsung and Apple have used and their relationship to Hogan’s own IP. The green patent numbers at top are Apple’s, the beige are Samsung’s. The black one at center is Hogan’s. That patent has lapsed due to Hogan’s failure to pay maintenance fees, USPTO records show.
Copyright: Trakker Technologies, Inc. All rights reserved 2012.
Another lawyer who spoke to aNewDomain.net on the record — but not for attribution — told us that selecting Hogan for this jury was a serious gaffe. A bit of research would have revealed that Hogan knew too much about the relatively obscure arena of IP, he said.
“You never want someone on a patent case to stand up and tell other jurors who don’t know about IP — hey, I’m the expert. Listen to me. This was sloppy,” the attorney said.
Another attorney, speaking on the record not for attribution also, told aNewDomain.net, “If there are issues with the jury, this is clearly a big one. It’s rare to get a mistrial, but not impossible. Samsung might have an argument worth floating here.”
Here’s the video from Bloomberg TV — a live interview where Vel Hogan explains to a news reporter how he and another techie member of the jury affected the decision and the dollar amount awarded to Apple.
The jury deliberated for three weeks. Many jurors were “bored,” Hogan told reporters.
UPDATE: Thompson Reuters reports Samsung has a reason for filing its motions under seal. Find that full story here. Excerpt:
… from a close examination of the statute and cases Samsung cited in the redacted section, we’ve discerned Samsung’s two-pronged argument for juror misconduct: The nine-person jury improperly considered extraneous evidence during deliberations and jury foreman Velvin Hogan failed to disclose in voir dire (ED: JURY SELECTION) that he was involved in 1993 litigation with a former employer that led him and his wife to declare personal bankruptcy.
In an exclusive interview Tuesday about Samsung’s secret new allegations, Hogan, an engineer, confirmed that he was a party in two cases cited in Samsung’s brief, a 1993 case from municipal court in Santa Cruz titled Seagate Technology v. Hogan and a 1993 federal bankruptcy case titled In re Velvin R. Hogan. According to Hogan, when Seagate hired him in the 1980s and he moved from Colorado to California, his new employer agreed to split the cost of paying off the mortgage on his Colorado home. But after Hogan was laid off in the early 1990s, he told us, Seagate claimed he owed the company that money. Hogan said he sued Seagate for fraud, Seagate countersued, and he ultimately declared personal bankruptcy … to protect his house.
And there’s more to the story. As we’ve reported, Vel Hogan in 2002 filed a patent application that eventually became U.S. Patent No. 7,352,953.
In the patent application, he listed his address as 306 Colville Drive, San Jose, CA. His attorney was Kevin Roe, a solo practitioner in Campbell.
Hogan never assigned the ‘953 patent, which has now expired because he didn’t pay maintenance fees, USPTO records show.
In 2004, inventor Tom Sueki assigned the rights to his patent application to InTeleMax, Inc. The address for InTeleMax in USPTO records was 306 Colville Drive, San Jose. The attorney who filed the recordation was, again, Kevin Roe.
The California Secretary of State also lists Hogan as the agent for InTeleMax and provides the 306 Colville Drive address. Sueki’s application eventually issued as U.S. Patent No. 6,788,275. Sueki appears to be employed by HP at the moment.
InTeleMax is listed as a Nevada company. Its present officers are Mark Richardson, a Santa Monica business attorney, and Donald Sutherland, Jr., a San Jose accountant.
It is unclear when Hogan sold InTeleMax, and it is unclear if InTeleMax ever sold actual products. It is unclear what anyone ever did with InTeleMax and/or the Sueki’s patent. Neither Multicast Labs, nor InTeleMax, nor Hogan have ever filed a patent infringement lawsuit. We do not know about licensing efforts.
Multicast was registered as a Nevada corporation in 2008. In addition to Hogan, the other officers are Howard Amundsen, who appears to have worked at Intel as a marketing manager, and former NEC and Hitachi employee, Jeff Meyers.
The registered address for Multicast Labs – that would be 1161-70 Ringwood Court in San Jose – is the same address for an electrical contractor in San Jose. Whether this is a second business is unclear, and it is unclear if Multicast is in or out of business. It has no patents formally or currently registered to it, according to USPTO data.
Persons/Companies Associated with
Velvin R. Hogan Home (circa 2002)
306 Colville Drive, San Jose 95123
Wife: Carol K. Hogan, works at San Jose Unified School District
Multicast Labs, Inc. – Nevada registered, 2008
1161-70 Ringwood Court, San Jose, CA 95131
711 S Carson St, Ste #4, Carson City, NV 89701
Howard M. Amundsen, treasurer
Velvin R. Hogan, Secretary
Jeff Meyers, Director & President (former NEC, Hitachi)
Amundsen was formerly employed as an Intel marketing director and also served as a VP at the now defunct AirTegrity Wireless.
Hogan’s own patent — 7,352,953 — is titled “Method and apparatus for recording and storing video information” and issued on April 1, 2008.
The company incorporated in 2001 in Nevada, records show.
Here’s his bio as listed by Multicast.
Vice President of Engineering
Vel received his Engineering education from the San Jose State University in 1977. Since then he has refined his expertise at Memorex, Storage Tech, DEC, Micropolis, and Quantum. He has over 30 years of experience in recording technology.
Vel became interested in refining and defining video compression while developing new performance characteristics for Digital Video Recording on a hard drive.