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post #121 of 156
Quote:
Originally Posted by Tallest Skil View Post

What about the LG Chocolate? That's when I first remember hearing about the 'candy bar' format referred to as such.

There were phones before the LG Chocolate that were referred to as "candy bar" form factor. The Moto SLVR was the first I'd heard but it started even before then.
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post #122 of 156
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Originally Posted by mstone View Post

That is a nice story however it ignores the actual history. The Spanish missions were built from the late 1760s through around 1830 at which time only the Spanish missionaries spoke Spanish and gave places their names. The native population did not speak Spanish but rather indigenous languages. The immigration of Spanish speaking immigrants from Mexico did not start until after 1910 due to the turmoil of the Mexican revolution. At that time California was already a state and the indigenous population had been given ownership of territories. Before that time there were only a few areas of the southwest that were very sparely populated by Spanish speakers. That early 1900s immigration can not compare to the influx of Spanish speaking immigrants into the US in more recent times, For example the Spanish speaking population in the US has doubled since 1990. It is these immigrants to which I referred as being gathered together into segregated communities and not integrating.

It's easier for a Spanish speaking immigrant not have a need to integrate, because in certain states no matter where they go they'll most likely find a Spanish speaking person to assist them.
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post #123 of 156
Quote:
Originally Posted by SpamSandwich View Post

 

I don't know about a hung jury. It's not an "all or nothing" affair. Every item must be decided separately... right?

 

Nope, its an all or nothing.

 

The jury needs to be unanimous.

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post #124 of 156
I am much more interested in debating the merits of Apple's patents. Putting aside whether or not the things they've brought Samsung to trial over are patentable under the current system I do not think they should be patentable. They're just too fundamental.
post #125 of 156
Quote:
Originally Posted by mstone View Post

That is a nice story however it ignores the actual history. The Spanish missions were built from the late 1760s through around 1830 at which time only the Spanish missionaries spoke Spanish and gave places their names. The native population did not speak Spanish but rather indigenous languages. The immigration of Spanish speaking immigrants from Mexico did not start until after 1910 due to the turmoil of the Mexican revolution. At that time California was already a state and the indigenous population had been given ownership of territories. Before that time there were only a few areas of the southwest that were very sparely populated by Spanish speakers. That early 1900s immigration can not compare to the influx of Spanish speaking immigrants into the US in more recent times, For example the Spanish speaking population in the US has doubled since 1990. It is these immigrants to which I referred as being gathered together into segregated communities and not integrating.
That's California, think Texas instead. Both Spain and later Mexico encouraged colonization of what is now Texas as a buffer from American expansion. While many empresarios brought European and American colonies, there was significant Mexican emmigration as well and they received preferential treatment in land grants.

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post #126 of 156
Quote:
Originally Posted by dasanman69 View Post

There were phones before the LG Chocolate that were referred to as "candy bar" form factor. The Moto SLVR was the first I'd heard but it started even before then.
You are way too serious, read it again slowly and think about it, he was making a joke. I will admit my first reaction was the same as yours though, until I asked myself, "of all the phones why did he pick that one?"

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post #127 of 156
Quote:
Originally Posted by Samson Corwell View Post

I am much more interested in debating the merits of Apple's patents. Putting aside whether or not the things they've brought Samsung to trial over are patentable under the current system I do not think they should be patentable. They're just too fundamental.

 

They're only `fundamental' because Apple's implementation and success with them have made them seem fundamental.

post #128 of 156
Quote:
Originally Posted by mdriftmeyer View Post

 

They're only `fundamental' because Apple's implementation and success with them have made them seem fundamental.

That is a complete load of crap. Pick whichever one you wish to address. They make some cool stuff with many of these concepts, but virtually none of those concepts were actually invented by Apple. I find their products work just as well  without the RDF :).

post #129 of 156

 

Quote:
They're only `fundamental' because Apple's implementation and success with them have made them seem fundamental.

 

Exactly. Most of you will know where I picked this from, perhaps GTR in particular:

 

“The more original a discovery the more obvious it seems afterward.” — Arthur Koestler in The Act of Creation, 1964.


Edited by sennen - 8/20/12 at 12:04am
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post #130 of 156
Quote:
Originally Posted by hmm View Post

That is a complete load of crap. Pick whichever one you wish to address. They make some cool stuff with many of these concepts, but virtually none of those concepts were actually invented by Apple. I find their products work just as well  without the RDF :).

 

Idea vs implementation...

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post #131 of 156
Quote:
Originally Posted by Galbi View Post

 

Nope, its an all or nothing.

 

The jury needs to be unanimous.

 

Not quite. The jury needs to be unanimous, but the case will be broken down into multiple parts. So the jury could be unanimous in finding Samsung guilty in one patent, not-guilty on another patent and hung on still another patent.

post #132 of 156
Quote:
Originally Posted by sennen View Post

 

Idea vs implementation...


Did you note the context?

post #133 of 156
Quote:
Originally Posted by hmm View Post


Did you note the context?

Yes.

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post #134 of 156
Did no one else read the respective jury forms?
Apple uses simple language.
Samsung uses legalese with repetition of the various sections of Samsung with lots of and/or qualifiers aiming to frustrate the jury members with too many choices to keep in mind when decision making.
Same old Samsung tactics.
Deception, prevarication, confusion and dissembling.
post #135 of 156
Quote:
Originally Posted by muppetry View Post

I noticed also, from his spelling, that he is not American - or at least wasn't educated in the US.

As many of the posters demonstrate on a daily basis, it is possible to be American and go to school in the US and still not be educated.
Quote:
Originally Posted by Galbi View Post

Nope, its an all or nothing.

The jury needs to be unanimous.

Maybe.

First, in civil cases, juries do not need to be unanimous:
http://en.wikipedia.org/wiki/Juries
"As of 1999 over thirty states had laws allowing less than unanimity in civil cases,"
Don't assume that it needs to be unanimous.

However, CA is split. State courts only require 3/4 of the jurors to find someone guilty. Federal courts require unanimous decision in civil cases:
http://www.lawguru.com/legal-questions/california-constitutional-law/jurors-win-civil-court-case-690122453/a

The more important factor, though, is that the jury will not simply find Samsung guilty or not guilty once. There are many different charges and it is not uncommon for someone to be guilty for some charges, but not others. Therefore, it is NOT 'all or nothing'.
Quote:
Originally Posted by umrk_lab View Post

Careful with this argument. According to genetics, races do not exist within human species (they did, at some point in time, with the co-existence of several distinct human races (neanderthal & homo erectus (and possibly others, the picture becomes more and more complicated). This does not imply that nobody can rightfully be considered as racist ...

Incorrect. By standard biology definitions, there are three races: Mongoloid, Caucasoid and Negroid (some sites add a fourth for Australian natives).
Edited by jragosta - 8/20/12 at 5:51am
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post #136 of 156
Quote:
Originally Posted by jragosta View Post

Incorrect. By standard biology definitions, there are three races: Mongoloid, Caucasoid and Negroid (some sites add a fourth for Australian natives).

 

 

No. Although we enter into linguistic debate (but words do matter, especially in this case ..). What you call "races" are cross fecund, which is one important criteria (but not the only one). In fact geneticians are amazed by the astonishing low genetics diversity among human populations. This can only be explained by the fact that the entire present human population derives from a relatively small initial tribe (a few thousands, may be just a few hundreds of individuals) which are the only ones who managed (somewhat miraculously) to survive to the last ice age/period.

 

(edit) : do not confuse phenotype and genotype ...


Edited by umrk_lab - 8/20/12 at 5:32am
post #137 of 156

Pretty surprisingly Samsung was successful in getting Judge Koh to issue jury instructions that BOTH Apple and Samsung destroyed evidence that might be helpful to the other party. In essence it nullifies any advantage that Apple thought they might get from adverse instructions targeting Samsung only.

 

http://www.fosspatents.com/2012/08/samsung-successfully-neutralizes.html

 

Unless things change again today, this is what jurors will be told about Samsung and destruction of evidence:

"Samsung Electronics Company has failed to preserve evidence for Apple's use in this litigation after Samsung Electronics Company's duty to preserve arose. Whether this fact is important to you in reaching a verdict in this case is for you to decide."

 

and what they'll be told about Apple and destruction of evidence:

"Apple has failed to preserve evidence for Samsung's use in this litigation after Apple's duty to preserve arose. Whether this fact is important to you in reaching a verdict in this case is for you to decide."


Edited by Gatorguy - 8/20/12 at 5:40am
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post #138 of 156
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Originally Posted by Gatorguy View Post

Pretty surprisingly Samsung was successful in getting Judge Koh to issue jury instructions that BOTH Apple and Samsung destroyed evidence that might be helpful to the other party. In essence it nullifies any advantage that Apple thought they might get from adverse instructions targeting Samsung only.

http://www.fosspatents.com/2012/08/samsung-successfully-neutralizes.html

Unless things change again today, this is what jurors will be told about Samsung and destruction of evidence:
"Samsung Electronics Company has failed to preserve evidence for Apple's use in this litigation after Samsung Electronics Company's duty to preserve arose. Whether this fact is important to you in reaching a verdict in this case is for you to decide."


and what they'll be told about Apple and destruction of evidence:

"Apple has failed to preserve evidence for Samsung's use in this litigation after Apple's duty to preserve arose. Whether this fact is important to you in reaching a verdict in this case is for you to decide."

If Apple loses, this is plenty of grounds for appeal.

Samsung failed to show any relevance or a single example of destroyed evidence. Apple showed plenty of examples of where evidence that was destroyed would have been relevant.
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post #139 of 156
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Originally Posted by diplication View Post


That's California, think Texas instead. Both Spain and later Mexico encouraged colonization of what is now Texas as a buffer from American expansion. While many empresarios brought European and American colonies, there was significant Mexican emmigration as well and they received preferential treatment in land grants.

I was told that in practice, areas between Mojave Dessert and San Antonio are now Mexico, according to local population makeups, economy, environments and lifestyle. Is that true?

 

Then again, Mexicans never really leave despite Texas Annexation, and borders mean nothing from then and even today. Only people complains are Northeastern snowbirds.

post #140 of 156
Quote:
Originally Posted by jragosta View Post


If Apple loses, this is plenty of grounds for appeal.
Samsung failed to show any relevance or a single example of destroyed evidence. Apple showed plenty of examples of where evidence that was destroyed would have been relevant.

Not that I've read about. The only thing I saw was Apple convinced that some evidence wasn't retained. I never saw Apple pointing to something specific that was advantageous to their case, but destroyed. If you've got a link that shows otherwise, please post it.

 

I'm sure you'd at least admit that Apple was in an even better position than Samsung to know when a lawsuit was likely, and should have been keeping all relevant emails or other internal correspondence at least as early as the court expected Samsung to. Judge Grewel never ruled on that basis, simply dismissing Samsung's motion as untimely.

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post #141 of 156
Quote:
Originally Posted by Gatorguy View Post

Quote:
Originally Posted by jragosta View Post

If Apple loses, this is plenty of grounds for appeal.

Samsung failed to show any relevance or a single example of destroyed evidence. Apple showed plenty of examples of where evidence that was destroyed would have been relevant.
Not that I've read about. The only thing I saw was Apple convinced that some evidence wasn't retained. I never saw Apple pointing to something specific that was advantageous to their case, but destroyed. If you've got a link that shows otherwise, please post it.

I'm sure you'd at least admit that Apple was in an even better position than Samsung to know when a lawsuit was likely, and should have been keeping all relevant emails or other internal correspondence at least as early as the court expected Samsung to. Judge Grewel never ruled on that basis, simply dismissing Samsung's motion as untimely.

I don't think you are painting an accurate picture here. The adverse inference instruction against Samsung arose because of their automatic email deletion policy that they did nothing to change even after litigation was known to be coming. Apple argued that by extrapolation from evidence that was obtained, the destroyed evidence would most likely have been relevant.

In contrast, the adverse inference instruction against Apple is because Samsung successfully argued that Apple had failed to issue a retention instruction to employees relating to this specific case, not that there was any indication that they had deleted emails or destroyed evidence.

For those two situations to have been treated the same seems a real stretch, and maybe an over-enthusiastic move by the Judge to remove any hint that she might not be treating the two parties equally.
post #142 of 156
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Originally Posted by muppetry View Post


I don't think you are painting an accurate picture here. The adverse inference instruction against Samsung arose because of their automatic email deletion policy that they did nothing to change even after litigation was known to be coming. Apple argued that by extrapolation from evidence that was obtained, the destroyed evidence would most likely have been relevant.
In contrast, the adverse inference instruction against Apple is because Samsung successfully argued that Apple had failed to issue a retention instruction to employees relating to this specific case, not that there was any indication that they had deleted emails or destroyed evidence.
For those two situations to have been treated the same seems a real stretch, and maybe an over-enthusiastic move by the Judge to remove any hint that she might not be treating the two parties equally.

I believe Samsung presented indications that the number and source of emails that Apple submitted as evidence from the period preceding the lawsuit was too low for them all to have been kept. In general the same "smoking gun" type of proof that some communications at Apple hadn't been properly retained as they should have.

http://news.cnet.com/8301-13579_3-57488289-37/payback-samsung-says-apple-destroyed-evidence/

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post #143 of 156
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Originally Posted by muppetry View Post

I don't think you are painting an accurate picture here. The adverse inference instruction against Samsung arose because of their automatic email deletion policy that they did nothing to change even after litigation was known to be coming. Apple argued that by extrapolation from evidence that was obtained, the destroyed evidence would most likely have been relevant.
In contrast, the adverse inference instruction against Apple is because Samsung successfully argued that Apple had failed to issue a retention instruction to employees relating to this specific case, not that there was any indication that they had deleted emails or destroyed evidence.
For those two situations to have been treated the same seems a real stretch, and maybe an over-enthusiastic move by the Judge to remove any hint that she might not be treating the two parties equally.

There are other factors that you didn't mention. In particular, Apple already had its email retention policy in place because of its lawsuits with other companies, so they were already retaining emails and documents. The only issue is that they didn't specifically tell employees to retain emails because of Samsung. But since they were already retaining emails because of Motorola, HTC, Google, etc, that's a moot point.

In addition, Apple had specifically requested documents that Samsung claims were deleted. It is therefore clear that Samsung had deleted relevant documents. The converse is not true.
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post #144 of 156

"In response to Samsung's accusations about destroying evidence, Apple trumpeted the fact that unlike Samsung, it does not implement any automatic e-mail deletion systems. Employees are allowed to preserve e-mails any way they wish and when it becomes clear that Apple may be party to a lawsuit, managers send out notices to those involved to preserve e-mails. Apple does, however, employ an e-mail system that reminds employees to keep their e-mail accounts below certain limits.

Samsung told the judge that regardless of what kind of e-mail system one employs, the duty to preserve is the same.

"The question for the Court is not whether records were destroyed pursuant to an 'automatic e-mail deletion system,'" Samsung wrote. "It is whether they were destroyed when there was an obligation to preserve them, period."

Samsung argues that the court has held it responsible for preserving e-mails a full 8 months before Apple acknowledges it issued its first litigation hold on e-mails related to the case. Apple began preserving e-mails only after it filed the lawsuit against Samsung in April 2011.

"Why was August 2010 the right date triggering Samsung's obligation to preserve documents while the right date for Apple was not until April 2011?" Samsung asks in its filing.

 

Does anyone see any obvious fallacies in Samsung's argument?

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post #145 of 156
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Originally Posted by Gatorguy View Post

"In response to Samsung's accusations about destroying evidence, Apple trumpeted the fact that unlike Samsung, it does not implement any automatic e-mail deletion systems. Employees are allowed to preserve e-mails any way they wish and when it becomes clear that Apple may be party to a lawsuit, managers send out notices to those involved to preserve e-mails. Apple does, however, employ an e-mail system that reminds employees to keep their e-mail accounts below certain limits.



Samsung told the judge that regardless of what kind of e-mail system one employs, the duty to preserve is the same.



"The question for the Court is not whether records were destroyed pursuant to an 'automatic e-mail deletion system,'" Samsung wrote. "It is whether they were destroyed when there was an obligation to preserve them, period."



Samsung argues that the court has held it responsible for preserving e-mails a full 8 months before Apple acknowledges it issued its first litigation hold on e-mails related to the case. Apple began preserving e-mails only after it filed the lawsuit against Samsung in April 2011.



"Why was August 2010 the right date triggering Samsung's obligation to preserve documents while the right date for Apple was not until April 2011?" Samsung asks in its filing.



 



Does anyone see any obvious fallacies in Samsung's argument?



If the implication is that you don't, then I'm disappointed. In one case, Samsung, by its own admission, continued to delete emails and thus destroyed material that Apple successfully argued by extrapolation would have been relevant to the case. Samsung, now backed into a corner, tried to copy the approach and argued that Apple might have deleted some emails, based on the lack of a specific retention policy and an attempt to presume that there must have been more emails than were entered into evidence and that those assumed missing emails might have been helpful to Samsung (which is begging the question).

You really don't see why those are different?
post #146 of 156
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Originally Posted by jragosta View Post

Quote:
Originally Posted by muppetry View Post

I don't think you are painting an accurate picture here. The adverse inference instruction against Samsung arose because of their automatic email deletion policy that they did nothing to change even after litigation was known to be coming. Apple argued that by extrapolation from evidence that was obtained, the destroyed evidence would most likely have been relevant.
In contrast, the adverse inference instruction against Apple is because Samsung successfully argued that Apple had failed to issue a retention instruction to employees relating to this specific case, not that there was any indication that they had deleted emails or destroyed evidence.
For those two situations to have been treated the same seems a real stretch, and maybe an over-enthusiastic move by the Judge to remove any hint that she might not be treating the two parties equally.

There are other factors that you didn't mention. In particular, Apple already had its email retention policy in place because of its lawsuits with other companies, so they were already retaining emails and documents. The only issue is that they didn't specifically tell employees to retain emails because of Samsung. But since they were already retaining emails because of Motorola, HTC, Google, etc, that's a moot point.

In addition, Apple had specifically requested documents that Samsung claims were deleted. It is therefore clear that Samsung had deleted relevant documents. The converse is not true.

I was just trying to restrict my comments to the arguments made, but I agree with the additional observations and conclusions.
post #147 of 156
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Originally Posted by muppetry View Post


If the implication is that you don't, then I'm disappointed. In one case, Samsung, by its own admission, continued to delete emails and thus destroyed material that Apple successfully argued by extrapolation would have been relevant to the case. Samsung, now backed into a corner, tried to copy the approach and argued that Apple might have deleted some emails, based on the lack of a specific retention policy and an attempt to presume that there must have been more emails than were entered into evidence and that those assumed missing emails might have been helpful to Samsung (which is begging the question).
You really don't see why those are different?

Neither Samsung or Apple accused the other of deleting emails after the lawsuit was filed. This has to do with communications from the period prior to the lawsuit.

 

I completely agree that Samsung's automatic deletion policy that applied to their home office communications likely resulted in some pertinent emails not properly retained. Samsung's argument is two-fold. They didn't believe that Apple was likely to be filing suit as early as October of 2010 and therefor did not believe they needed to override their email policy yet. Whether it was a valid excuse or not (and I don't personally think it was) the court felt they should have. So if that's the courts' opinion of an appropriate date, why was Apple, who was in a much better position to determine a lawsuit was going to happen, not held to the same requirement?

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post #148 of 156
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Originally Posted by Gatorguy View Post

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Originally Posted by muppetry View Post

If the implication is that you don't, then I'm disappointed. In one case, Samsung, by its own admission, continued to delete emails and thus destroyed material that Apple successfully argued by extrapolation would have been relevant to the case. Samsung, now backed into a corner, tried to copy the approach and argued that Apple might have deleted some emails, based on the lack of a specific retention policy and an attempt to presume that there must have been more emails than were entered into evidence and that those assumed missing emails might have been helpful to Samsung (which is begging the question).

You really don't see why those are different?
Neither Samsung or Apple accused the other of deleting emails after the lawsuit was filed. This has to do with communications from the period prior to the lawsuit.

I completely agree that Samsung's automatic deletion policy that applied to their home office communications likely resulted in some pertinent emails not properly retained. Samsung's argument is two-fold. They didn't believe that Apple was likely to be filing suit as early as October of 2010 and therefor did not believe they needed to override their email policy yet. Whether it was a valid excuse or not (and I don't personally think it was) the court felt they should have. So if that's the courts' opinion of an appropriate date, why was Apple, who was in a much better position to determine a lawsuit was going to happen, not held to the same requirement?

No reason for them not to be, but you are focussing on the narrow question of simply whether the requirement was met, rather than the broader question of by how much the requirement was breached, and whether the breach was likely to be significant.
post #149 of 156
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Originally Posted by muppetry View Post


No reason for them not to be, but you are focussing on the narrow question of simply whether the requirement was met, rather than the broader question of by how much the requirement was breached, and whether the breach was likely to be significant.

Not at all. FWIW I don't agree that Apple and Samsung should be stung by identical adverse jury instructions. Samsung obviously failed if the court determines Oct/2010 to be realistic. At the same time i think it may be completely appropriate for the court to tell the jury that Apple may not have retained all relevant evidential emails either.

 

I won't be at all surprised to see Judge Koh modify the instructions a bit to Apple's benefit. I would be surprised to see her let Apple of the hook entirely.

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post #150 of 156
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Originally Posted by Gatorguy View Post

Quote:
Originally Posted by muppetry View Post

No reason for them not to be, but you are focussing on the narrow question of simply whether the requirement was met, rather than the broader question of by how much the requirement was breached, and whether the breach was likely to be significant.
Not at all. FWIW I don't agree that Apple and Samsung should be stung by identical adverse jury instructions. Samsung obviously failed if the court determines Oct/2010 to be realistic. At the same time i think it may be completely appropriate for the court to tell the jury that Apple may not have retained all relevant evidential emails either.

I won't be at all surprised to see Judge Koh modify the instructions a bit to Apple's benefit. I would be surprised to see her let Apple of the hook entirely.

That I agree with.
post #151 of 156
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Originally Posted by diplication View Post


That's California, think Texas instead. Both Spain and later Mexico encouraged colonization of what is now Texas as a buffer from American expansion. While many empresarios brought European and American colonies, there was significant Mexican emmigration as well and they received preferential treatment in land grants.

Which does not really support your original premise that there were Spanish speaking communities years before English speakers arrived. Spanish speakers were very sparsely populated in those territories prior to becoming part of the US. English speakers and Spanish speakers were both in those areas at the same time although the Spanish speakers were not actual family communities but mostly soldiers, bandits and cowboys. I realize that is putting a rather fine point on it but my original comment was about communities. You were trying to be clever by switching the words around but it just wasn't factual.


Edited by mstone - 8/20/12 at 8:40am

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post #152 of 156
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Originally Posted by mstone View Post

Which does not really support your original premise that there were Spanish speaking communities years before English speakers arrived. Spanish speakers were very sparsely populated in those territories prior to becoming part of the US. English speakers and Spanish speakers were both in those areas at the same time although the Spanish speakers were not actual family communities but mostly soldiers, bandits and cowboys. I realize that is putting a rather fine point on it but my original comment was about communities. You were trying to be clever by switching the words around but it just wasn't factual.

My original premise was only meant to say that there have been some communities which have always been Spanish speaking, which I believe is true, and that this differs from immigrant communities which speak other languages. I was not trying to state an absolute as far as all Spanish speaking communities. I think we try to see things as either one way or the other, and in reality things are seldom that way.  I apologize if I overstated my case, I did not mean to speak in absolutes.  You can now have the last word if you would like.

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post #153 of 156
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Originally Posted by diplication View Post

My original premise was only meant to say that there have been some communities which have always been Spanish speaking, which I believe is true, and that this differs from immigrant communities which speak other languages. I was not trying to state an absolute as far as all Spanish speaking communities. I think we try to see things as either one way or the other, and in reality things are seldom that way.  I apologize if I overstated my case, I did not mean to speak in absolutes.  You can now have the last word if you would like.

Perhaps El Paso and similar border towns were originally Spanish speaking communities. The most unfortunate segregation was clearly the native Americans. Only recently due to proliferation of casinos are they beginning to integrate into American society. Kind of sad really. They gave up their traditional heritage only to become purveyors of vice.

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post #154 of 156
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Originally Posted by mdriftmeyer View Post

They're only `fundamental' because Apple's implementation and success with them have made them seem fundamental.

I have to disagree with that. The elements over which they have chosen to sue Samsung for are, or rather should be, public domain. I have seen the design patent for the iPad and it strikes me as being much too broad.
post #155 of 156
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Originally Posted by Gatorguy View Post

Not at all. FWIW I don't agree that Apple and Samsung should be stung by identical adverse jury instructions. Samsung obviously failed if the court determines Oct/2010 to be realistic. At the same time i think it may be completely appropriate for the court to tell the jury that Apple may not have retained all relevant evidential emails either.

 

I won't be at all surprised to see Judge Koh modify the instructions a bit to Apple's benefit. I would be surprised to see her let Apple of the hook entirely.

So what was the courts final decision on adverse jury instructions? Neither Samsung or Apple will get a mention about possibly destroyed evidence.

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post #156 of 156
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Originally Posted by jragosta View Post


There are other factors that you didn't mention. In particular, Apple already had its email retention policy in place because of its lawsuits with other companies, so they were already retaining emails and documents. The only issue is that they didn't specifically tell employees to retain emails because of Samsung. But since they were already retaining emails because of Motorola, HTC, Google, etc, that's a moot point.

In addition, Apple had specifically requested documents that Samsung claims were deleted. It is therefore clear that Samsung had deleted relevant documents. The converse is not true.

 

Not quite true.  If Apple had reason to suspect a litigation, their lawyers had a duty to issue a preservation order specific to that case that would supersede any other retention schedule or email management program.  The scope of that preservation would also have to be defined in meet and confer sessions with the opposing council, as per the FRCP.  It is not enough just to retain emails generally, as the scope of the preservation would also include all other forms of media, and the chance for inadvertant spoliation would exist.    Responsive material would have to be identified, reviewed, preserved and produced.

 

In fact, the fact that they retain email can put them at more risk, as any email they were unable to produce would be at odds with their stated policy.  In contrast, a policy that mandates a  destruction schedule for non-record email gives you the protection to not have to produce, as long as you can prove your records management program is applied consistently.

 

Conversely, Samsung's failure to produce email could be defensible if their email management policy specifies a period of retention (even two-weeks).  They would only be responsible for the production of material produced after they could reasonably be aware of the impending litigation, or material that would otherwise be retained as a record by their retention schedule.  Now, the onus is on Samsung to prove they have a defensible records management policy that is consistently applied, and it is clear they have inconsistent implementation here, but there is nothing inherently wrong with the destruction of emails. 

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