There are substantially different facts that are both public knowledge and in the record.

The iPhone operating system has always been an integral part of the Apple developed iPhone product-line.

Compare and contrast this with Android which was from the start billed as an open platform that carriers and OEMs could do with as they liked. However, there are two substantial business activities that Google has engaged in outside of developing and maintaining the AOSP and also maintaining their own line of Android software:

1) they contractually required OEMs to include all of a set of key apps they developed for use on Android, giving privileged positions to some of them and requiring that OEMs not fork Android in order to continue to have access to Google’s Play Services.

2) And here’s the money shot: when 3rd party developers such as Epic and according to Tim Sweeney in an interview that was also on The Verge, Activision, were developing their own App Stores, Google made the rounds paying them off to not do so. Epic received the offer, but didn’t take the deal. To go one step further, Google also made the rounds to game developers to keep them from listing in Epic’s store as well.

Why does Android have a, as framed by the questionnaire the members of the Jury filled out and answered yes to this question on, a defined market area in and I quote “Android app distribution, worldwide excluding China” but the iPhone does not? Because that is how Google billed Android from the start: an open platform with an open software market. Conversely, Apple has never allowed a secondary app market to develop on iOS outside of the App Store and have taken pains to prevent this whereas separate app storefronts are a feature of the Android operating system but Google has actively worked to undermine their market viability.

For what it’s worth, I do think Google should have won this one, but either Epic has epic lawyers, Google’s lawyers walked in thinking this was a Grenada or both. I don’t have a lot of respect for the position that antitrust law is even applicable anywhere within the phone hardware and software market in the US. Either way, this was a substantively different record and a different set of allegations leading to a different outcome.

Oh and on this:

> And no, it's not just 4

In substance it’s just 4. 5 and 6 are things the Judge would have also had as criteria to make a judgement on. What’s different about point 6 is that he could have kept his thoughts to himself rather than pointing this out to a Jury. In the end, whether it’s a Jury or Judge, you are relying on people to make a judgement call. Trying to predict the judgement call different people will make might be possible if you become an expert in that person, but even then they might surprise you.

Like with any working class professionals—Doctors, Accountants, Consultants, PR Agents—you can take any two of them from the same profession, give them a set of facts and desirable outcomes and end up with two completely different opinions. Legal strategy does involve knowing your audience to some degree, but both legal teams went in knowing it was and preparing for a Jury trial. If Google had any disadvantages, it wasn’t solely from this being a Jury trial in a Jury pool they helped to select.