At about 10:10 this morning the jury asked a question regarding whether they could move to number #2 on the Verdict sheet before completing number #1. In the presence of counsel the jury was called back in and the Judge said if you are referring to breaking down the questions into subsets, meaning the 420 patent and the 664 patent, sure you can consider those any way you want. But he said they should not move on to number two as depending upon what they decide on #1, numbers #2 and #3 may not be necessary. I see this as the first sign that the jury is being efficient and in all likelihood has decided question #1 in favor of the plaintiff. Here is my reasoning quickly with some speculation on the juries thoughts:
A) If there is no #1 no need to go to #2 (I think this is the best argument)
B) If trying to sort out which claims #1 applies to one would want to decide number #2 claim by claim to see if number 1 and number 2 match up. Keep in mind that Judge Jackson has instructed the jury on the use of the doctrine of equivalence which states basically that they don't need to be exact if the resulting function is determined essentially to be the same. You can look up the U.S. Supreme Court's rulings on this which is why simple workarounds often don't pass the non-infringement test. Being instructed they can use this doctrine was a big win for VRNG, one that GOOG counsel objected to.
C) If the jury believes that #2 is going to be done quickly they can concentrate on #1 claims (logical)
D) If jurors feel they have more or less decided number #1, they may, just to be efficient, want to set #1 aside and get #2 out of the way fast. These are all my own impressions based upon my own version of game theory in this case.
EDVACOURT - Did the judge say that the jury can sequence Question 1 and 2 independently for each of the two patents or by individual claims (I believe there are at least 13 among the two patents)?
It certainly sounds to me like the jury agreed on infringement on one of the two patents or some of the claims, and wants to know if they can move on to Q2 for the agreed upon items or remain on Q1 until it is decided for all patents/claims.
This feels like the Apple jury. The jury foreman's technique to get a timely decision was move onto the next items if when the consensus building process slowed down. Its easy for a layman jury to grapple with validity than infringement because its already been held as a valid patent by the USPTO. As with the Apple jury, the foreman may be trying to teach the rest of jury how to work together by agreeing to the easiest subject first.
Your option B makes sense to me. If I have a committee that has to consider two aspects for each in a long list of claims, I want to handle each claim in toto before moving on to the next claim. That way you only have to bring the group up to speed on the general nature of each claim once.