Apple 2.0

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Apple v. Samsung: Meet the foreman of the jury - updated

August 28, 2012: 9:05 AM ET

Reporters who feared the jurors would get lost in the weeds didn't figure on Velvin Hogan

Hogan. Photo: Jim Gensheimer for the Mercury News

FORTUNE -- One of the reasons -- perhaps the main reason -- the jury was able to deliver a verdict in Apple's (AAPL) landmark suit against Samsung in less than three days was that it chose as its foreperson a 67-year-old retired engineer with two grown children, three civil cases under his belt, a 35-year career in hard-drive technology (Memorex, Storage Technology, Digital Equipment) and a U.S. patent in his name.

It was Velvin R. Hogan who signed the 20-page jury form and read the verdict aloud. And it was reportedly under his guidance that the jury worked through the thorny issue of whether Apple's patents were valid.

"We were debating heavily, especially about the patents on bounce back and pinch-to-zoom," juror Manuel Ilagan told CNET in the first published interview with a jury member. "Apple said they owned patents, but we were debating about the prior art... Hogan holds patents, so he took us through his experience. After that it was easier."

According to Ilagan, things moved quickly once the group agreed the patents were valid and Samsung had infringed. One of the other jurors, a project manager with AT&T, helped calculate Apple's damage award of $1,051,855,000 -- later crossed out and reduced to $1,049,393,540 when the judge asked for four (just four!) corrections.

Hogan told Reuters's Dan Levine on Saturday that Apple's damages demand -- $2.75 billion -- seemed "extraordinarily high." It wasn't clear to him that Apple had enough components to build more iPhones even if it wanted to. And he didn't accept Apple's estimate that Samsung earned margins of 35.5% on its smartphones. Apple's estimate didn't seem to take into account all of Samsung's costs. In the end, he told Levine,

"We wanted to make sure the message we sent was not just a slap on the wrist. We wanted to make sure it was sufficiently high to be painful, but not unreasonable."

A team of Bloomberg reporters has compiled the most complete dossier of Hogan's career we've seen. They weren't able to secure a photograph, but following their leads you can find his patent (No. 7,352,953) and his LinkedIn page. UPDATE: The San Jose Mercury News published the photo above on Saturday.

Below the fold: Excerpts from Hogan's remarks in a Bloomberg Television interview conducted Monday.

Hogan on the Apple vs. Samsung trial:

"It was exciting. For some it was boring. For me, it was always interesting because of my technology background. We were inundated with evidence and people trying to bias our opinion on both sides. But when we went into the jury room, we were determined to set all that aside and focused right on the evidence."

On whether the jury was ever confused:

"I was never confused, but a few of the jurors were. What we did in the jury room before we did anything after we did the election of who would lead the jury, I told them, let's just lay out on the table any concerns or open questions you may have that's left over and get that out of the way first."

On whether he had a feeling that the case would sway overwhelmingly in Apple's favor:

"No. 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 a-ha 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. 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."

On reports that a 20-year-old juror provided most of the debate:

"Actually, he did. What it amounted to was that he thought very logically and I'm glad. He was never willing at first to take anyone's viewpoint until he had thought it out. That was a good thing. That would create discussions. We would either convince all of ourselves and be unanimous on the point, or we would move on. And then eventually we would come back. We learned enough going forward that when we came back, it made the process of lot easier."

On the damages:

"In this country, intellectual property deserves to be protected. My real point was that if anyone, the industry at large, if any company decides to ignore the stipulations and the rules and get too close, that they cross the line and infringe and they do it willfully, they need to understand that if they take the risk and they get caught, they should have to pay for it."

On how the jury came up with $1 billion:

"In the evidence, Apple had declared that Samsung had cost them in profits 35% of their revenue. On the other hand, Samsung said that it is because they took out operating costs and the value is 12%. Three of us had been through the process in our careers of dealing with financial documents. I understood P&L statements as well as the other to. What we did was look at it against our matrix of what infringed and what did not. We determined that in our experience, the percentage was not 12%, and it certainly was not 35%. It should be closer between 13% to 15%. We zeroed in on 14%. That became the magic number. Then we did our own calculations for each of the areas, adding those up with royalties that were entitled for some of the items. And we cut that value in half. When we added them together and tallied them up, that is the number we came up with."

On whether anyone on the jury owned an iPhone:

"Nobody on the jury. In fact, I own no Apple equipment, and intentionally not for a number of years. I am a PC person…my wife has a Samsung phone, but it is not a smart phone."

On whether Apple had a home field advantage:

"They did not. I know what you're saying, but they did not have home field advantage. The Android operating system clear in and of itself is not something that infringed. We as the jury set aside the close proximity and looked strictly at the evidence as it spoke for itself, and it was overwhelming that Samsung should have known or did now that they were infringing."

On whether being a South Korean company was a disadvantage to Samsung:

"None at all. The evidence, to us, spoke overwhelmingly. We put each side to the test. I did as the patents were mine, both ways. And then the evidence on top of that and there was no question about it."

On whether the judge will find willfulness:

"I do not know. She will find willfulness because that is what swayed us. In the discovery phase, each side had to give documents to each other. What was put into evidence was two things. Minutes of a meeting that was held in Korea and Google was present and it had to do with the tablet. Google demanded in their minutes they were too close to Apple and they needed to pull back because they were worried about their operating system…Overall they wanted everything to be less like Apple. There were other approaches they could have used. They chose not to pass that information down to the engineers that were developing the product. They went on about their work not knowing the decision. And there were other internal memos after that in evidence that were comparing the cellphones, Apple to Samsung, and the individual on the Samsung side, a VP at a very high level, said the difference is that of heaven and earth. You need to move closer. They did move closer, but in moving closer, they crossed the line. That was unnecessary. You can compete in this country, be similar, and at the same time compete fairly."

On whether he believes a design should be patentable:

"For any patent to be valid, whether it be utility or design, all of the claims and the limitations have to be taken in an entirety. In the case of the design patent, it was the look and feel of it and how the device presented itself. And when you compared them side- by-side against the statements in the patent, it was clear to every one of us that not only was the patent valid, but the Samsung products that were accused were legitimately a problem."

On Apple moving for eight Samsung phones to be banned and whether he believes that will happen:

"They probably will be. The thing that everyone should remember is that just because, not all of Samsung's devices, phones in particular, infringed property rights. There are other ways they can accomplish something. Nokia is an example. Blackberry is an example. Motorola is an example. Just because it has Android operating system that makes it seem Apple-like, it is not. They don't have to be 100% the same. You can back off from that and have an acceptable product."

On whether a complicated decision like this should be in the hands of a civilian jury:

"Yes, I do. Because the reality of it was that while it was complicated, I believe that any jury of our peers could have reached this decision asking more questions of the judge. It would have taken longer. But at no time were we so confused that we felt we were going in the wrong direction."

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About This Author
Philip Elmer-Dewitt
Philip Elmer-DeWitt
Editor, Apple 2.0, Fortune

Philip Elmer-DeWitt has been following Apple since 1982, first for Time Magazine, and now on the Web for Fortune.com.

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