For the half-year to 31 December 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Rebecca Gulbul, Lucas Michels and Marie-Andrée Weiss.

Regular round-ups of the previous week's blogposts are kindly compiled by Alberto Bellan.

Saturday, 2 March 2013

Sir Robin Jacob acts as expert witness for Samsung against Ericsson in the USA

This moggy is currently travelling in the orient, and thought that he was not going to post this week.  However, events have, as they are wont to do, taken over.

The IPKat's whiskers twitched when hearing news that Professor Sir Robin Jacob was acting as an expert witness for Samsung.  This news was first announced by Florian Mueller on his blog here, and has also been reported, for example, by the BBC here.  The engagement relates to a US action by Samsung against Ericsson in the ITC.

This news raised eyebrows in many quarters, including some feline eyebrows, with Florian Mueller commenting "this just doesn't feel right", because Sir Robin (whose main job since he stepped down from the Court of Appeal is Sir Hugh Laddie Chair of Intellectual Property Law and Co-Director, IBIL) recently gave the leading judgment in the Court of Appeal decision concerning Apple's registered design of tablet computers in which Samsung was held not to infringe Apple's registration, and Apple's conduct was severely criticised in a later hearing and judgment.  Your humble servant covered much of this dispute last year, and even scampered off to the Court of Appeal for the handing down of the judgment, at which alas Sir Robin did not make an appearance.

The IPKat considers himself a friend of both Sir Robin and Florian Mueller (and so do I, says Merpel); this human amanuensis knows both of them only by their works.  The IPKat has received this statement from the Clerk to Sir Robin Jacob at 8 New Square, which he would like to share with his readers:

Professor Sir Robin Jacob has asked me to issue a short statement on his behalf following recent press statements about his instruction by Samsung to act as an expert witness on matters of law and procedure in patent actions. 
Sir Robin had not discussed any role as an expert, or any related matter, with Samsung or any of its representatives either directly or indirectly before 9 January 2013, when he was approached through his clerk by Bristows in the normal way to enquire as to his availability to give an expert opinion.  Sir Robin accepted those instructions on 21 January 2013.
Sir Robin‘s role is entirely unrelated to his judgment in the Court of Appeal given on 18 October 2012 in the case of Samsung Electronics (UK) Ltd and Apple Inc. The instruction does not relate to any UK litigation or advice of any kind.   Sir Robin is being remunerated for providing his expert opinion at his usual rates.
Since Florian Mueller's esteemed blog does not accept comments, readers may care to post their thoughts on the matter here.

The IPKat, for his part, does not wish to comment on the merits of this particular instance, but suspects that the general issue of what engagements retired judges are permitted to accept will be very much up for discussion.

22 comments:

Sam S said...

I for one believe the judge/professor. I think that following his stint as judge, he can advice for anyone ... but I can understand why people feel that its odd for this judge to advice Samsung.

Would have been better if Samsung had not hired, or if this judge had not accepted, this particular professor for this particular position, but I am willing to believe it happened as the judge states it did.

I will note that I am an Android fan though.

Anonymous said...

This story has meanwhile gone viral on the net with reports of this story in multiple languages, French, German, Dutch. The gist is: 'Although not strictly illegal, as Sir Robin was not in the employ of Samsung at the time of the Apple-Samsung case, his move clearly calls into question his own moral standing. His ability to sit as a judge in future hi-tech cases is now forever in doubt, as this move can only be explained as Samsung's reward for the ruling against Apple in a vitriolic and questionable/unprecedented decision'.

Sir Robin is furthermore described as 'undeniably a patent expert, but now one in the employ of Samsung', and as 'a retired judge whose appearance in the Apple-Samsung dispute now raises serious questions on the status of such part-timers in terms of bias and corruptibility'. Derogatory statements about the independence of the UK judiciary then follow.

The decision by Sir Robin to act as Samsung's expert, although seemingly above board, raises serious questions on the freedom to act as both judge and expert in cases involving the same market players, even if they take place in another jurisdiction. It makes one wonder what type of judges can sit and what experts can appear before the Unified Patent Court in future. The strong reactions this story provokes points to disqualification.

Gentoo said...

The Samsung litigation position is broadly pro-open source software and broadly anti-software patent. Florian Mueller is broadly anti/pro. There are many in the pro/anti that present evidence indicating that Mueller is an opinion for hire and not a very good one at that:

http://linuxrants.com/2012/08/florian-mueller-is-no-pamela-jones/

His "wondering" about Professor Sir Robin Jacob is consistent with many ad hominem attacks from the anti/pro camp

I'm slightly shocked that you can even report it which effectively amounts to the support for the suggestion that Professor Jacob has anything to explain. You know who is he and what he has done. Whereas the provenance of Mueller seems to be less clear:

https://therealmadhatter.wordpress.com/2011/01/26/the-provenance-of-florian-muller/

Gibus said...

Disclaimer: I've worked with Florian Müller when he has set up the NoSoftwarePatent.com campaign. I have no relation with Robin Jacob, apart from welcoming his judgement in Aerotel v. Telco and deeply regretting his instance on to illegaly deleting Arts 6-8 from the unitary patent regulation.

That said, it gets Florian a lot of nerves to raise conflict of interests about Jacob's role as expert for Samsung, while Florian has himself publicly disclosed he was paid by Microsoft and Oracle, and as such has been involved in the "smartphone thermonuclear patent wars patent", siding clearly against google and Android manufacturers.

I'm still amazed Florian has so much press coverage while his biased opinion is clearly obvious.

Anonymous said...

In Germany we have a similar situation: Gisbert Steinacker, the former presiding judge of the patent panel at the Düsselorf appeal court changed in 2008 after his retirement as a judge into private practice in a Düsseldorf law firm.
(http://www.rokh-ip.com/gisbert-steinacker.html)

Walter Mueller said...

It is notable that Mr. Mueller has a propensity to post "publicity catching" conspiracy theories, by which I mean endless insinuations about conflicts of interest. Often they are laced with inaccurarcies. He often says German judges in ip cases are holder friendly for the sole reason that they want to draw business. What reason a overworked career judge in Germany paid relatively modestly as a "Beamter" for the rest of his life should have to produce even more work for himself he never explains. They are certainly not better renummerated for it. That the law in Germany is ip holder friendly for good reason (An economy based on producing incrementaly innovative products for a extremly competitive world market) he ignores. Because law in the Mueller world is a constant backdoor dealing for personal monetary advantage of the judges and lawyrs.


Sir Robin Jacobs being a expert for Samsung is only problematic if you insinuate that he was influenced in his previous judgement by his certain knowledge or expectance that he would be financially rewarded later on. Given Sir Jacobs record as a impartial judge over many years i find this insinuation implausible and insulting. It only makes sense in the Mueller world where legal decisions are not based on law, but on people trying to enrich themselves.

I think he should stop slandering people and the legal community should react by steadfastly refusing cooperation with someone who is constantly trying to leach of their reputation.

Gentoo said...

@Walter Mueller

"Given Sir Jacobs (sic) record as a impartial judge"

exactly

@Gibus

"I'm still amazed Florian has so much press coverage while his biased opinion is clearly obvious"

exactly

@Anonymous Saturday, 2 March 2013 09:00:00 GMT

"The decision by Sir Robin to act as Samsung's expert, although seemingly above board, raises serious questions on the freedom to act as both judge and expert in cases involving the same market players"

best stay anonymous and/or list the serious questions

As Groklaw said of the lawyers acting for Apple v Samsung

"No one can persuade me that Apple's lawyers didn't know [that the jury failed to follow the Court’s instructions on the law, and awarded damages based on a legally impermissible theory] [...] Because upholding the rule of law in a civilized nation is more important than winning a particular case. And lawyers are officers of the court, so they have a duty."

I can't imagine Prof Jacob needing to be reminded.


Anonymous said...

There is no conflict. Get over it to all saddos that think there is. Obviously, those that worship only at the Temple of Jobs (RIP) will see this as an attack against their religion and will no doubt issue a i-fatwa against the Samsungite Jacob.

Meanwhile, in the human world, Sir Robin still has a living to make and a significant amount to contribute to the IP world. He has sat in court and heard cases for many parties in many industries, and has passed judgement without bias (whether you agree with his decisions or not). If he is conflicted out of acting for Samsung, he would also be conflicted out of acting for anyone.

Finally, as is customary when commented on any apple/microsoft/samsung issue, I must disclose my allegiances. But as I am an adult, there is nothing more to say.

One more finally - what is Robin's hourly rate? I have a little job for him,

Anonymous said...

Julius Caesar replied thus (according to Plutarch) when asked why he had divorced his wife Pompeia. He considered his honour and position compromised, since she was indirectly associated with Publius Clodius' trial for sacrilege. Cf. [1580 Lyly Euphues & his England II. 101] Al women shal be as Caesar would haue his wife, not onelye free from sinne, but from suspition.

It is a very great misfortune that persons imployed in the most important Departments should‥have seperate interests from the publick whom they profess to serve. Caesars wife ought not to be suspected.
[1779 A. Adams Letter 4 Jan. in L. H. Butterfield et al. Adams Family Correspondence (1973) III. 148]

Caesar's wife ought to be above suspicion. ‥Caesar himself ought to be so too.
[1847 J. C. & A. W. Hare Guesses at Truth (ed. 3) 1st Ser. 263]

Policemen‥are like. ‥candidates for the Church of England ministry. ‥and Caesar's wife. ‥Not only they, but all their relations, must be above suspicion.
[1965 O. Mills Dusty Death xxi.]

He [i.e. Governor D. Wilder] ought to bear in mind the maxim of one of Caligula's more lucid predecessors: Caesar's wife must be above suspicion. And so should Caesar.
[1990 Washington Times 9 July D2]

Francis Davey said...

The guide to judicial conduct says:

"9 AFTER RETIREMENT

9.1 The conditions of appointment to judicial office provide that judges accept appointment
on the understanding that following the termination of their appointment they will not
return to private practice as a barrister or a solicitor and will not provide services, on
whatever basis, as an advocate in any court or tribunal in England and Wales or
elsewhere, including any international court or tribunal, in return for remuneration of any
kind, or offer or provide legal advice to any person. The terms of appointment accept
that a former judge may provide services as an independent arbitrator/mediator and may
receive remuneration for lectures, talks or articles.

9.2 Even in retirement a former judge may still be regarded by the general public as a
representative of the judiciary and any activity that might tarnish the reputation of the
judiciary should be avoided."

Thus: practice as a barrister, giving of legal advice or advocacy are expressly ruled out. Appearance as an expert witness is not.

It would clearly be desirable for the guide to be clear as to which side of the line giving expert evidence should fall.

Wayne Borean said...


The later Anonymous would be more believable, if he weren't Anonymous.

As to whether the Judge is morally or legally in the right, we won't really know until we see his testimony. We can however read Florian Müller's opinions, and he has a distressing tendency towards inaccuracy. In fact bookies would give good odds against him.

Have to admit it was rather amusing to read the comments and see myself quoted as a source. Thanks Gentoo.

Wayne

Anonymous said...

One element of the damage caused by this incident is that judges (and/or tribunals) that have to make any decisions in the future as between Samsung and Apple will know that Samsung will scratch your back if you scratch theirs. So regardless of whether Sir Robin knew about the 'job' before he decided in Samsung's favour, the next judge/tribunal knows which of the parties will "look after them" afterwards.

A sad day for British justice.

Anonymous said...

If one sets aside the absurd ad hominem and blame-the-messenger comments that have no place on this page, one is left with this: nobody who knows Sir Robin Jacob doubts his integrity and his ability to judge impartially. Whether there is a technical conflict of interest is not the issue either - although you may find Jacob's expert evidence being questioned on this ground in the actual case by the other side. (By the way, there is a lot of case law on the question of conflicts of interest involving part-time deputy judges: see eg Locabail (UK) Ltd v Bayfield Properties Ltd [1999] EWCA Civ 3004 - featuring, inter alios, Lords Dyson & Collins in former incarnations, both absolved of any conflict. But we all are familiar with the cases of other lofty individuals who have recently run into similar problems, not always with the same happy consequences.)

The question is rather whether Jacob was wise to accept a brief to present expert evidence for a party whose case he had so recently adjudicated. As a retired judge who continues occasionally to sit in the Court of Appeal, he may have to avoid adjudicating any case involving Samsung or the other parties in the case in which he is giving expert evidence - probably no big deal for him or anyone else. He will not likely wish to put the court to the embarrassment of having a recusal argument made before the case even gets started.

If that is so, it suggests the decision to take the brief was unwise - the events have just occurred the other way round in time.

Jacob's ability to earn a living is unimpaired; he just has to choose wisely from the queue of potential clients lining up to see his clerk. Perhaps a lesson has been learned?

Anonymous said...

While I agree with Anonymous above (15:30), I would argue that it wasn't wise. It does feel all wrong. And reading the rules that Francis Davey has posted, it does seem to be sailing very close to the wind. Especially as part (2) effectively says "don't sail close to the wind".

I now see that this story is the very first story in this week's Private Eye, which surely is the very definition of "this doesn't feel right"?

Anonymous said...

The previous Anonymous post has misread the previous post, which indeed did usggest that Jacob's decision was unwise.

Anonymous said...

Frankly, for somebody who has been following the whole software patent debate for a while now, there's somewhat of a "Behind the Mirror" feeling to see the anti crowd spring to the defence of Sir Jacob, while questioning the integrity of Florian Müller: just ten years ago, the brickbats and accolades would have been exactly reversed.
I've always held Robin Jacob in much higher esteem than Florian Müller, anyway, but I still think it quite unwise of him to have accepted this engagement.
Finally, I'd very much advice our friends Gentoo and Gibus, and indeed the whole FLOSS community to be wary of such "friends" as Samsung and Google: both are highly profit-oriented corporations whose current community of interests with the defenders of open source is very much dictated by temporary circumstances. In the long term, however, their "friendship" may well prove as mercenary and unreliable as that of Florian "No Lobbyist As Such" Müller...

Anonymous said...

The Samsung litigation position is broadly pro-open source software and broadly anti-software patent

In the case in which Sir Robin Jacob will be testifying, Samsung is the patentee, the patent relates to an industry standard, and it is being heard by the USITC, a favoured venue for patentees seeking injunctions. Hardly a pro-open software or pro-interoperatibility move, and if it was Apple or Microsoft doing it, you'd likely be the first condemning them for it and impugning Sir Jacob's character...

Wayne Borean said...

Frankly, for somebody who has been following the whole software patent debate for a while now, there's somewhat of a "Behind the Mirror" feeling to see the anti crowd spring to the defence of Sir Jacob, while questioning the integrity of Florian Müller: just ten years ago, the brickbats and accolades would have been exactly reversed.

You totally misunderstand the situation. I'm a hardware guy. Yeah, I program. But really hardware is what I'm strongest at.

I'm not anti-software patent, I'm anti-patent. I see no evidence that the Patent system delivers innovation. In fact from what I've seen it blocks innovation.

I also see evidence that the patent system is costing the economy huge amounts of lost productivity every year.

As to the difference between Florian Müller and Judge Jacob, Florian has admitted that he's for sale. Depending upon what exactly the judge testifies about he might be for sale too, but at the present I'm going to give him the benefit of the doubt. There are no doubt things that the judge could testify to which would be legitimate. Since none of us know what Samsung has asked him to testify to, we are only speculating.

Let's sit back, and let the judge draw the noose over his own head, if he is so inclined. In the meantime Florian is a valid target, feel free to excoriate him with extreme prejudice.

Wayne

Anonymous said...

Well, if it has been covered in Private Eye it must be wrong! Those good old chaps appreciate when the etiquette of the establishment has not been followed to the letter. Game of rugger anyone?

Anonymous said...

Wayne Borean: Should have gone to Specsavers!

Anonymous said...

I thought this was an IP blog, but it appears to have been taken over as a meeting place for the flat-earth society.

Ban the Bomb! All property is theft!
Children should neither be seen nor heard! Free baggy Y-fronts for all! My computer is my best friend! Linux for resident!

Wayne Borean said...


I thought this was an IP blog, but it appears to have been taken over as a meeting place for the flat-earth society.

True, you are commenting here, and making no sense at all. I gather that explaining yourself would be just too difficult.

Wayne

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