Judge Fay is working today

He just issued this opinion (which was joined by Judge Jordan).  This is the funny intro: "On July 23, 2009, Connie Strickland had been 'working on the railroad / All the live-long day.'" And here is the citation from the opinion: "A popular American folk song, the first published version of 'I’ve Been Working on the Railroad' seems to have been in a 1894 Princeton University songbook. See James J. Fuld, The Book of World-Famous Music 309 (Dover, 4th ed. 1996)."

SDFLA Federal Courthouses Closed on Monday

From the court website:

CLOSURE OF KEY WEST, MIAMI AND FORT LAUDERDALE FEDERAL COURTHOUSES ON MONDAY, AUGUST 27, 2012

During inclement weather periods, the safety of jurors, the public and Court personnel is always a priority. In the event of hazardous weather conditions, including hurricanes and tropical storms, the policy of the Southern District of Florida is to close federal courthouses when the local public schools within a particular county close. In light of the announced closures of public schools in Monroe, Miami-Dade and Broward Counties, the federal courthouses in Key West, Miami and Fort Lauderdale will be closed on Monday, August 27, 2012. Those courthouses will reopen when public schools in those counties reopen or until further order of Chief United States District Judge Federico A. Moreno. In the event of an emergency, information about the U.S. District Court for the Southern District of Florida can be obtained from the following sources:
- The Court’s website: www.flsd.uscourts.gov
- Recorded telephone messages at each courthouse
- Broadcast messages sent to CM/ECF e-filers
- Television announcements
Please note that if the Court’s website is unavailable, the Administrative Office of the U. S. Courts will post emergency messages on behalf of the Court on its website: www.uscourts.gov

Here is Judge Moreno's Administrative Order regarding closures, which explains that when schools in a particular county are closed, so too are the federal courthouses in that county.

Apple crushes Samsung

You've seen all the news already, but you should check out the Verge blog for the best coverage of the verdict and the case.  It's got really good stuff, including that the jury said that it didn't review the 100+ pages of instructions in coming to its verdict.  Who could blame them. 

I also love this shot of the damages calculation, which should be framed in the lawyer's office:

Here's the whole verdict form filled out.

I think the verdict also shows how important opening statements are...  The general consensus was that Apple really won the initial round and that Samsung held its own during the case and  gave a powerful closing. 

Apple/Samsung jury instructions and verdict form

They are impenetrable and 109 pages!  Here's the summary of claims page:

NO. 18 SUMMARY OF CONTENTIONS
I will now again summarize for you each side's contentions in this case. I will then tell you what each side must prove to win on each of its contentions.
As I previously explained, Apple seeks money damages from Samsung Electronics Company ("SEC"), Samsung Electronics America, Inc. ("SEA"), and Samsung Telecommunications America, LLC ("STA"), for allegedly infringing claim 19 of the '381 patent, claim 8 of the '915 patent, claim 50 of the '163 patent, and the D'889, D'087, D'677, and D'305 patents. Apple also argues that SEC actively induced SEA and STA to infringe the patents. Apple also contends that Samsung's infringement has been willful.
Samsung denies that it has infringed the asserted claims of Apple's patents and argues that, in addition, those claims are invalid. Invalidity is a defense to infringement.
Samsung has also brought claims against Apple for patent infringement. Samsung seeks money damages from Apple for allegedly infringing the '941, '516, '711, '460, and '893 patents by making, importing, using, selling and/or offering for sale Apple's iPhone, iPad and iPod products that Samsung argues are covered by claims 10 and 15 of the '941 patent, claims 15 and 16 of the '516 patent, claim 9 of the '711 patent, claim 1 of the '460 patent, and claim 10 of the '893 patent. Samsung also contends that Apple's infringement has been willful.
Apple denies that it has infringed the claims asserted by Samsung and argues that the claims asserted by Samsung are invalid, and for the '516 and '941 patents, exhausted due to Samsung's license to Intel and also unenforceable. Invalidity, exhaustion, and unenforceability are defenses to infringement. Apple also contends that, by asserting its "declared essential" patents against Apple, Samsung has violated the antitrust laws and breached its contractual obligations to timely disclose and then license these patents on fair and reasonable terms.
For each party's patent infringement claims against the other, the first issue you will have to decide is whether the alleged infringer has infringed the claims of the patent holder's patents and whether those patents are valid. If you decide that any claim of either party's patents has been infringed and is not invalid, you will then need to decide any money damages to be awarded to the patent holder to compensate for the infringement. You will also need to make a finding as to whether the infringement was willful. If you decide that any infringement was willful, that decision should not affect any damage award you give. I will take willfulness into account later.
To resolve Apple's claims regarding Samsung's "declared essential" patents, you will need to make a finding as to whether Samsung violated the antitrust laws and whether Samsung breached its contractual obligations. If you decide that Samsung violated the antitrust laws or breached its contractual obligations, you will then need to decide what money damages to award to Apple.
Apple accuses Samsung of diluting Apple's Registered Trade Dress No. 3,470,983. This trade dress relates to the iPhone. Apple also accuses Samsung of diluting two unregistered trade dresses relating to the iPhone. Finally, Apple claims that Samsung has diluted and infringed its unregistered trade dress relating to the iPad.
For each of Apple's trade dress dilution and infringement claims, the first issue you will have to decide is whether the Apple trade dress is protectable (or valid). An asserted trade dress is only protectable if the trade dress design as a whole, as opposed to its individual features standing alone, is both distinctive and non-functional.
For Apple's trade dress dilution claims, the next issues you will decide are whether Apple's trade dress was famous before Samsung started selling its accused products, and whether Samsung's accused products are likely to cause dilution of the asserted Apple trade dresses by impairing their distinctiveness.
Apple's trade dress infringement claim will require you to resolve different issues. You will need to determine whether Apple's trade dress had acquired distinctiveness before Samsung started selling its accused products, and whether Samsung's accused products are likely to cause confusion about the source of Samsung's goods.
If you decide that any Apple trade dress is both protectable and has been infringed or willfully diluted by Samsung, you will then need to decide the money damages to be awarded to Apple.
Samsung denies that it has infringed or diluted any Apple trade dress and argues that each asserted trade dress is not protectable. If a trade dress is not protectable, that is a defense to infringement and dilution.

Oy.  Here is the entire set of instructions:

Apple vs. Samsung Jury Instructions



The 22-page verdict form seems even worse.  Here's one page:

I feel for this jury.  Anyway, stay dry this weekend.  See you Monday.

Student who threatened Obama on Facebook gets probation

Curt Anderson has the details of the sentencing before Judge Cooke:

A 21-year-old college student and musician was sentenced Wednesday to three years' probation for posting threats against President Barack Obama on Facebook, a case a federal judge said underscored the perils of impulsive Internet use.
In addition to the probation, which includes four months' home confinement, U.S. District Judge Marcia Cooke ordered Joaquin Serrapio to write a new Facebook post explaining how messages can have permanent dire consequences.
"I want people to speak out. I want us to have dialogue about issues. But I think some of our young people don't realize that cyberspace is forever," Cooke said after sentencing Serrapio. "When you write something in cyberspace, you are writing it for the world."

I'm happy Judge Cooke didn't put him in jail, but house arrest and 3 years of probation seems like a lot to me.  I do like the idea of requiring him to write something on Facebook.

Thoughts?

Read more here: http://www.sacbee.com/2012/08/22/4748518/obama-facebook-threat-gets-fla.html#storylink=cpy

Apple/Samsung closing arguments

Lots of great coverage around the web today of the closings in a packed courtroom.  It sounded like Apple took the show in openings, but Samsung seems to have had a great closing.  From Reuters:

Samsung attorney Charles Verhoeven countered by saying consumers are not confused between the products from the two mobile companies. He urged jurors to consider that a verdict in favor of Apple could stifle competition and reduce choices for consumers.
"Rather than competing in the marketplace, Apple is seeking a competitive edge in the courtroom," Verhoeven said. Apple thinks "it's entitled to having a monopoly on a rounded rectangle with a large screen. It's amazing really."
...
Samsung's Verhoeven said Apple had not shown any evidence that consumers were actually deceived into buying Samsung products instead of the iPhone or iPad.
"Consumers make choices, not mistakes," he said.

Apple had this to say in its initial close:

Apple attorney Harold McElhinny urged jurors to consider the testimony of a South Korean designer who said she worked day and night on Samsung's phones for three months.
"In those critical three months, Samsung was able to copy and incorporate the result of Apple's four-year investment in hard work and ingenuity - without taking any of the risks," McElhinny said.
Apple is seeking more than $2.5 billion in damages from Samsung. An Apple expert said Samsung earned 35.5 percent margins on the phones in the lawsuit from mid-2010 through March 2012, on $8.16 billion in U.S. revenue. Samsung has disputed that figure.
...
McElhinny focused on a meeting between Samsung and Google executives in February 2010, where Google asked Samsung to stop imitating the iPad so closely.
"Samsung executives chose to ignore that demand and continue on the path of copying," he said.

And from Apple's rebuttal (via ArsTechnica):

The contention that Apple doesn’t want to compete is "startling… and it is wrong," said Bill Lee, the Apple lawyer who delivered a final rebuttal.
"No one is trying to stop them from selling smartphones," he said. "All we're saying is: make your own. Make your own designs, make your own phones, and compete on your own innovations."

Samsung had to address damages (via C|Net):

A topic for both companies was damages, an amount that varies wildly depending on which expert you listen to. Apple's asking for $2.75 billion, while Samsung's targeting Apple for around $519 million. Verhoeven once again made the case that Apple had grossly overestimated.
"$2.75 billion in damages? Really?" Verhoeven asked. "What does it take to get a certified damages expert to agree with you on that?"
"We don't think Samsung should have to pay any damages," Verhoeven countered. "We don't think we're liable, but we have to address the issue of damages because this is the only chance."
Verhoeven pleaded with jurors to use "common sense" if they were to assign damages, going with Samsung's much smaller $22 million tally. Along the way that included taking a crack at Apple's methodology, which included spending $1.75 million on a program to calculate everything together.

I thought this live blog coverage from the Verge of the closings was fantastic as it had tons of quotes and actual exhibits.  Here's the link for the Apple coverage and the Samsung coverage. 

I liked these Apple exhibits:

Any predictions?

And if you aren't interested in Apple vs. Samsung, how about some good ol' fashion grammar humor-- "your" going to love it. 

Monday News & Notes

1.  Leaking from SCOTUS could get you in hot water. (NLJ).

2.  That said, Jay Wexler (a former Ginsburg clerk) has this awesome article in Salon.  Here's what he had to say about writing opinions:

Third, the clerks usually write a first draft of the opinions that their justice has been assigned to write. Some people find this shocking, but it really is not that big a deal. At least in Justice Ginsburg’s chambers, the boss would give us a detailed outline to work from and then, once we turned in our drafts, totally rewrite them.  The best you could really hope for as a clerk is to get a little pet phrase or goofy word or other quirky something-or-other into the final opinion. For example, there may or may not be one Ginsburg opinion from our term which, when read backward, will summon the demon Beelzebub from the seventh level of hell to earth where he will horribly murder the entire human race. On a more innocuous note, when Justice Anthony Kennedy was assigned to write an opinion concerning the import tariffs applicable to permanent press pants baked in giant pants ovens in Mexico, my co-clerk Bill and I worked very hard to convince the Kennedy clerk working on the case to get the words “trousers” and “slacks” into the final opinion. “Trousers” made it into the U.S. Reports, but “slacks” is absent, although whether this is because the clerk failed to put it in his draft or because Justice Kennedy took it out we cannot be sure.

3.  Obama is really horrible with filling judicial vacancies. (NY Times).

President Obama is set to end his term with dozens fewer lower-court appointments than both Presidents Bill Clinton and George W. Bush achieved in their first four years, and probably with less of a lasting ideological imprint on the judiciary than many liberals had hoped for and conservatives had feared.

Mr. Obama’s record stems in part from a decision at the start of his presidency to make judicial nominations a lower political priority, according to documents and interviews with more than a dozen current and former administration officials and with court watchers from across the political spectrum. Senate Republicans also played a role, ratcheting up partisan warfare over judges that has been escalating for the past generation by delaying even uncontroversial picks who would have been quickly approved in the past.

But a good portion of Mr. Obama’s judicial record stems from a deliberate strategy. While Mr. Bush quickly nominated a slate of appeals court judges early in his first year — including several outspoken conservatives — Mr. Obama moved more slowly and sought relatively moderate jurists who he hoped would not provoke culture wars that distracted attention from his ambitious legislative agenda.

“The White House in that first year did not want to nominate candidates who would generate rancorous disputes over social issues that would further polarize the Senate,” said Gregory B. Craig, Mr. Obama’s first White House counsel. “We were looking for mainstream, noncontroversial candidates to nominate.”

4.  CBP is protecting us from fake Christian Louboutin high heels. (Article and picture by CNN).

Michael Caruso informally sworn in yesterday as Federal Defender

That's Judge Williams doing the honors.  The formal investiture will be announced sometime soon.  Congratulations to well-deserving Michael Caruso.

The Apple/Samsung trial has Judge Koh.  But we have Judge Turnoff, who had these gems yesterday (via Sun-Sentinel):

In September, the judge found the two men in contempt of court and ordered them to repay every dime of the fees or explain why they couldn't pay. The two ignored the order for months. Roy had to be arrested in New York last month to answer to the judge.
Mayas had claimed he sold the Miramar home but underwent a change of heart or mind after the judge spelled out the consequences of continuing to test his patience.
Then Mayas skipped a court hearing last week, in part he said, because he got sick after undergoing a colonoscopy. But the judge wasn't buying it .
"There's simply no excuse'' for his failure to show up in court last week, Turnoff told Mayas.
When Coulton's lawyer, Paul Petruzzi, told the judge Mayas had not handed over the keys to his vehicle and his Monarch Lakes home, the judge demanded he turn over the keys in court.
As Mayas fumbled with his briefcase and his keyring for what seemed an unnecessarily long time, the judge cracked: "I bet the colonoscopy was easier than this."
With the house keys in hand and a promise the car would be turned over within hours, Petruzzi said it was a small step toward making things right.
But he said Coulton wasn't particularly enjoying watching his two former lawyers put through the legal wringer.
"This will barely make a dent in what they owe to my client," Petruzzi said. "[Coulton] would be a lot happier if he could just go back in time and have hired a proper lawyer from the start."