I haven't had a chance to read all of the posts this evening, but have gotten several questions via email or PM. Frankly, a number of my guesses on various subjects over the last few days have been wrong, which is what happens when only predicting is possible. At this point, however, it seems to me that further guessing is pointless, so I'm just going to make a few comments and then let things go --- the case is in the jury's hands, and no amount of guessing is going to do much good at this point.
First, I certainly would not pretend to know what the jurors are emphasizing, or what is delaying their decision. Whether it is infringement or damages, or some combination thereof, really just cannot be known with any confidence. I suppose we might glean something if the jurors were asking questions to the Court, but even then, we couldn't be sure.
I also do not know when the Judge might consider this to be a hung jury. Actually, I've never seen or heard of a hung jury in a civil case, but assuming it's possible, the usual standard is that the jurors must make a credible showing that they can simply go no further due to the deadlock, and that further deliberations would be useless. In other words, unless there is some partiular statute or local rule governing such, this determination will be completely at the Judge's discretion based on his assessment of what the jury tells him. Having said this, I remain of the opinion that a hung jury in this case is unlikely.
So, I will simply close with the thought that at least we have jurors who seem to be taking the case and their duties seriously, and who, from their perspective, believe they are trying to do the right thing. That's far better than some of the cases I've tried. I have no idea how this jury will rule, or how they will have gotten to their conclusions once they have done so, but the "let's just get this over and done" method of deliberations doesn't do much for me.
In any event, I'm sorry that I can't be more helpful. Tomorrow morining, I will be out of town taking depositions for a few hours, and will not be watching either this board or our stock price. Will check in when I return. Best wishes to all.
