(Dado Ruvic/Reuters)
(Dado Ruvic/Reuters)

Today, a San Jose federal courtroom will host the latest skirmish in a seemingly never-ending war over how to punish Samsung for infringing on Apple's smartphone patents. Arguments in the retrial over damages will likely veer into the deepest corners of intellectual property law, with experts dueling over the effects of various smartphone features on the devices' sales. Surely, the ultimate arbiter must be some impartial expert who thoroughly understands the rules of battle, right?

Nope. It's six women and two men, selected in part for their lack of preexisting knowledge of the patent trial, which is also to say their lack of awareness of the technical questions at hand. And they're supposed to decide exactly how many millions of dollars the South Korean company must pay the Cupertino, Calif., tech giant based on their understanding of the facts.

The gap between the two firms' views of fair compensation is not small: Samsung thinks it ought to pay $52 million, and Apple pegs the number at $379 million. (That's on top of the $600 million already awarded; this is a retrial for the $410 million a judge knocked off the original $1.05 billion judgment). So, how are these likely average Joes and Janes supposed to come up with a fair decision?

The jury starts from the assumption that Samsung violated five of Apple's patents across 13 devices. They then have to answer these questions: How many people would've bought Apple's devices if Samsung's hadn't included each of those patented features, such as "pinch-to-zoom" and the bounce-back function that occurs when a user scrolls to the end of an electronic document? What profits did Samsung earn as a result, and how much did Apple lose? And, finally, what royalties would Samsung have paid if the firms had negotiated upfront to license the patent?

"This gets really complicated really quickly, and you have to ask the jury to make these counterfactual assumptions of what would've happened in a world without infringement, and what they would've agreed to had they negotiated when the infringement began had they negotiated willingly," says Brian Love, an assistant professor and patent expert at Santa Clara University Law School. "And we know they wouldn't have negotiated willingly."

On top of that, the smartphones in question are older models that aren't on sale in the United States anymore, and the different types of patents -- utility vs. software, for example -- carry different kinds of liability. Sometimes, a judge will appoint a neutral expert, called a "special master," to help the jury puzzle its way through such calculations. But U.S. District Court Judge Lucy Koh has opted not to do so in this case, and that's too bad, considering that the reason for the retrial is that the last jury miscalculated a big chunk of the damages after deliberating over 700 highly technical questions for three days.

So far, the new jury has heard testimony from experts retained by Apple who've done research on exactly how much more consumers were willing to pay for Apple inventions. In the coming days, Samsung will call its own experts, who will likely argue that people buy its phones for many reasons, chief among them being the desire to stick with their preexisting wireless plan.

All of these arguments will come with precise calculations about how much each violation was worth. But those calculations are unlikely to be the only things that will make up the jury's mind -- which is why the lawyers for each side loaded their opening statements with soaring rhetoric on the culture of innovation and the need for fairness. Emotion can affect a jury's decision in other ways, too. Even though they're supposed to leave punitive damages to the judge to decide, for example, juries can still be motivated by a sense of retribution. In the patent case, the previous jury's foreman talked about wanting to make sure the "message we sent" was "painful."

"They're going to hear days and days of detailed economic testimony, and at the end of the day have a gut check reaction based on who they feel was wronged," says Love. "With the jury behind closed doors, they're going to be influenced more by storytelling and narrative and seeing one side as wearing a white hat and one wearing a black hat."

Of course, the right to a trial by a jury of one's peers is a longstanding principle of the American legal system. But when juries have been shown to systematically grant higher damages awards in patent infringement cases -- which are already something of a crapshoot and a tax on the technology ecosystem -- it's safe to ask whether that principle in fact leads to less fair results.