"Demon-Xanth:
Did you have the opportunity to ask 'Is this something that should be patentable?' during the trial?
Velvin Hogan:
No, however it was not the function of this jury to ask that. We were bound to use the law as it is today. The patents were issued the judge instructed us not to second guess the current patent system.
Groklaw Commentary: The law is that the jurors are supposed to decide whether or not a patent is infringed, which includes whether or not the patent is valid, because if it is not valid, it can't be infringed."
Whoever wrote the commentary doesn't understand the patent law. The question of "is the patent valid" actually encompasses several different questions, some of which are for the judge to decide and some of which are for the jury to decide. The jury foreman's characterization of "is this something that should be patentable?" is correct. This is the "subject matter" question. It asks: "in general, is this kind of thing the kind of thing that should be patentable?" This is a legal question that is in the judge's province, not the jury's.
The jury decides patent validity, which encompasses a separate set of questions. If a particular "kind of thing" is patentable, then the jury looks at whether a particular thing that is of that "kind of thing" has been validly patented.
A fair argument would be that author of the article interpreted the question differently than Hogan did, and should have been more charitable to Hogan.
But your argument that the Groklaw commentator interpreted the question in the same narrow way as Hogan, and does not understand the basics of patent law, is ridiculous.
The author of the article clearly posed a question about subject matter patentability rather than patent validity, given the terminology he used. Hogan responded with a correct statement of the law of subject matter patentability.
If the author had intended to ask a different question, he should have asked a different question. In general, the Groklaw coverage suffers from a lack of precision in writing. Law is all about breaking down a complex dispute into distinct questions, answering them separately, then synthesizing a result from answers to those distinct questions. Groklaw's coverage is very fuzzy about which legal questions it is talking about at any given time.
The term "patentability" also applies to inventions, and the questioner did not specify "subject matter patentability", which is only one of several factors that must be considered in deciding if a particular innovation is patentable. In fact, I would say that the question's phrasing makes it pretty clear that the intended meaning was patentability of the invention, not subject matter. To quote page 46 of the final jury instructions:
>Not all innovations are patentable. A utility patent claim is invalid if the claimed invention would have been obvious to a person of ordinary skill in the field at the time of invention.
So again, it is reasonable to say that Hogan may have simply misinterpreted the question he was being asked, and that whether he understood the jury instructions cannot be gleaned from this exchange. It is not reasonable to say that Hogan's interpretation of the question was correct and that Groklaw's interpretation was wrong.
I guess I see your interpretation, but that makes it a weird question. "Patentability" in that sense encompasses both legal questions and factual questions. A jury can't really consider the "patentability" of an invention because some of the elements of "patentability" aren't jury questions. They can only consider specific elements like obviousness, novelty, usefulness.
At best the interviewer asked an ambiguous question and the foreman gave a reasonable answer. In any case, this would all be obviated if Groklaw and the media were precise in their use of the terminology. The lack of precision in their discussion is really what makes me question the depth of their understanding of the law.
The judge will address that question in the opinion. The opinion has not yet been released. That of course makes all the hubub premature, since the jury verdict has no legal force in and of itself until the judge renders an opinion, but the tech media wouldn't be the same if it didn't continually jump the gun.
"Demon-Xanth: Did you have the opportunity to ask 'Is this something that should be patentable?' during the trial?
Velvin Hogan: No, however it was not the function of this jury to ask that. We were bound to use the law as it is today. The patents were issued the judge instructed us not to second guess the current patent system.
Groklaw Commentary: The law is that the jurors are supposed to decide whether or not a patent is infringed, which includes whether or not the patent is valid, because if it is not valid, it can't be infringed."
Whoever wrote the commentary doesn't understand the patent law. The question of "is the patent valid" actually encompasses several different questions, some of which are for the judge to decide and some of which are for the jury to decide. The jury foreman's characterization of "is this something that should be patentable?" is correct. This is the "subject matter" question. It asks: "in general, is this kind of thing the kind of thing that should be patentable?" This is a legal question that is in the judge's province, not the jury's.
The jury decides patent validity, which encompasses a separate set of questions. If a particular "kind of thing" is patentable, then the jury looks at whether a particular thing that is of that "kind of thing" has been validly patented.