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`Exhibit 2
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`Case 3:17-cv-05659-WHA Document 275-2 Filed 11/27/18 Page 2 of 25
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`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE NORTHERN DISTRICT OF CALIFORNIA
`
`No. C 04-02123 WHA
`
`ABBOTT LABORATORIES,
`Plaintiff,
`
` v.
`BECTON, DICKINSON AND COMPANY
`AND NOVA BIOMEDICAL
`CORPORATION,
`Defendants.
` /
`
`FINAL CHARGE TO THE JURY
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`For the Northern District of California
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`United States District Court
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`Case 3:17-cv-05659-WHA Document 275-2 Filed 11/27/18 Page 3 of 25
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`1.
`Members of the jury, it is my duty to instruct you on the law that applies to this case.
`A copy of these instructions will be available in the jury room for you to consult as necessary.
`It is your duty to find the facts from all the evidence presented in the case. To those
`facts you will apply the law as I give it to you. You must follow the law as I give it to you
`whether you agree with it or not. You must not be influenced by any personal likes or dislikes,
`opinions, prejudices or sympathy. That means that you must decide the case solely on the
`evidence before you. You will recall that you took an oath promising to do so at the beginning
`of the case. In following my instructions, you must follow all of them and not single out some
`and ignore others; they are all equally important. You must not read into these instructions or
`into anything the Court may have said or done as suggesting what verdict you should return —
`that is a matter entirely up to you.
`
`2.
`The evidence from which you are to decide what the facts are consists of:
`1.
`The sworn testimony of witnesses, on both direct and
`cross-examination, regardless of who called the witness;
`2.
`The exhibits which have been received into evidence;
`3.
`The sworn testimony of witnesses in depositions read into
`evidence; and
`Any facts to which all the lawyers have stipulated here in the
`4.
`courtroom before you. You must treat any stipulated facts as having been
`conclusively proven.
`
`3.
`Evidence may be direct or circumstantial. Direct evidence is direct proof of a fact, such
`as testimony by a witness about what that witness personally saw or heard or did.
`Circumstantial evidence is proof of one or more facts from which you could find another fact.
`By way of example, if you wake up in the morning and see that the sidewalk is wet, you may
`find from that fact that it rained during the night. However, other evidence, such as a turned-
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`For the Northern District of California
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`United States District Court
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`Case 3:17-cv-05659-WHA Document 275-2 Filed 11/27/18 Page 4 of 25
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`on garden hose, may explain the presence of water on the sidewalk. Therefore, before you
`decide that a fact has been proven by circumstantial evidence, you must consider all the
`evidence in light of reason, experience and common sense. You should consider both kinds of
`evidence. The law makes no distinction between the weight to be given to either direct or
`circumstantial evidence. It is for you to decide how much weight to give to any evidence. You
`should base your decision on all of the evidence, regardless of which party presented it.
`4.
`In reaching your verdict, you may consider only the testimony and exhibits received
`into evidence. Certain things are not evidence and you may not consider them in deciding
`what the facts are. I will list them for you:
`1.
`Arguments and statements by lawyers are not evidence.
`The lawyers are not witnesses. What they have said in their opening statements,
`closing arguments and at other times is intended to help you interpret the
`evidence, but it is not evidence. If the facts as you remember them differ from
`the way the lawyers have stated them, your memory of them controls.
`2.
`A suggestion in a question by counsel or the Court is not evidence
`unless it is adopted by the answer. A question by itself is not evidence.
`Consider it only to the extent it is adopted by the answer.
`3.
`Objections by lawyers are not evidence. Lawyers have a duty to
`their clients to consider objecting when they believe a question is improper under
`the rules of evidence. You should not be influenced by any question, objection
`or the Court’s ruling on it.
`4.
`Testimony or exhibits that have been excluded or stricken, or that
`you have been instructed to disregard, are not evidence and must not be
`considered. In addition, some testimony and exhibits have been received only
`for a limited purpose; where I have given a limiting instruction, you must follow
`it.
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`United States District Court
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`Case 3:17-cv-05659-WHA Document 275-2 Filed 11/27/18 Page 5 of 25
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`Anything you may have seen or heard when the Court was not in
`5.
`session is not evidence. You are to decide the case solely on the evidence
`received at the trial.
`
`5.
`Certain charts, animations and summaries have been shown to you in order to help
`explain the facts disclosed by the books, records and other documents which are in evidence in
`the case. They are not themselves evidence or proof of any facts. If they do not correctly
`reflect the facts or figures shown by the evidence in the case, you should disregard these charts
`and summaries and determine the facts from the underlying evidence.
`6.
`In deciding the facts in this case, you may have to decide which testimony to believe and
`which testimony not to believe. You may believe everything a witness says or part of it or none
`of it. In considering the testimony of any witness, you may take into account:
`1.
`The opportunity and ability of the witness to see or hear or know
`the things testified to;
`2.
`The witness’ memory;
`3.
`The witness’ manner while testifying;
`4.
`The witness’ interest in the outcome of the case and any bias or
`prejudice;
`5.
`6.
`evidence; and
`Any other factors that bear on believability.
`7.
`The weight of the evidence as to a fact does not necessarily depend on the number of
`witnesses who testify. Nor does it depend on which side called the witnesses or produced
`evidence. You should base your decision on all of the evidence, regardless of which party
`presented it.
`
`Whether other evidence contradicted the witness’ testimony;
`The reasonableness of the witness’ testimony in light of all the
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`Case 3:17-cv-05659-WHA Document 275-2 Filed 11/27/18 Page 6 of 25
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`7.
`You are not required to decide any issue according to the testimony of a number of
`witnesses, which does not convince you, as against the testimony of a smaller number of
`witnesses or other evidence, which is more convincing to you. The testimony of one witness
`worthy of belief is sufficient to prove any fact. This does not mean that you are free to
`disregard the testimony of any witness merely from caprice or prejudice, or from a desire to
`favor either side. It does mean that you must not decide anything by simply counting the
`number of witnesses who have testified on the opposing sides. The test is not the number of
`witnesses but the convincing force of the evidence.
`8.
`A witness may be discredited or impeached by contradictory evidence or by evidence
`that at some other time the witness has said or done something, or has failed to say or to do
`something, that is inconsistent with the witness’ present testimony. If you believe any witness
`has been impeached and thus discredited, you may give the testimony of that witness such
`credibility, if any, you think it deserves.
`
`9.
`Discrepancies in a witness’ testimony or between a witness’ testimony and that of other
`witnesses do not necessarily mean that such witness should be discredited. Inability to recall is
`common. Innocent misrecollection is not uncommon. Two persons witnessing an incident or a
`transaction sometimes will see or hear it differently. Whether a discrepancy pertains to an
`important matter or only to something trivial should be considered by you.
`However, a witness willfully false in one part of his or her testimony is to be distrusted
`in others. You may reject the entire testimony of a witness who willfully has testified falsely on
`a material point, unless, from all the evidence, you believe that the probability of truth favors
`his or her testimony in other particulars.
`
`10.
`In determining what inferences to draw from the evidence you may consider, among
`other things, a party’s failure to explain or deny such evidence.
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`United States District Court
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`Case 3:17-cv-05659-WHA Document 275-2 Filed 11/27/18 Page 7 of 25
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`11.
`You have heard testimony from witnesses referred to as “expert witnesses.” These are
`persons who, because of education or experience, are permitted to state opinions and the
`reasons for their opinions. Opinion testimony should be judged just like any other testimony.
`You may accept it or reject it, and give it as much weight as you think it deserves, considering
`the witness’ education and experience, the reasons given for the opinion and all the other
`evidence in the case. If an expert witness was not present at the events in question, his or her
`opinion is necessarily based on an assumed set of circumstances. In evaluating the opinion
`during the trial, you should take into account the extent to which you do agree or do not agree
`with the circumstances assumed by the expert witness.
`12.
`In these instructions, I will often refer to a party’s burden of proof. I will be discussing
`two different burdens of proof. The first is known as a burden of proof by a preponderance of
`the evidence. When a party has the burden of proof on any issue by a preponderance of the
`evidence, it means you must be persuaded by the evidence that the issue is more probably true
`than not true. To put it differently, if you were to put the evidence favoring plaintiff and the
`evidence favoring defendant on opposite sides of a scale, the party with the burden of proof on
`the issue would have to make the scale tip somewhat toward its side. If the party fails to meet
`this burden, then the party with the burden of proof loses on that issue. Preponderance of the
`evidence basically means “more likely than not.”
`The second burden of proof involved in this case is known as a burden of proof by clear
`and convincing evidence. When a party has the burden of proving any issue by clear and
`convincing evidence, it means you must be persuaded by the evidence that the contention is
`highly probable. Such evidence requires a higher standard of proof than proof by a
`preponderance of the evidence.
`
`13.
`If you find that plaintiff carried its burden of proof as to an issue your verdict should be
`for plaintiff on that specific issue. If you find that plaintiff did not carry its burden of proof, you
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`For the Northern District of California
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`United States District Court
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`Case 3:17-cv-05659-WHA Document 275-2 Filed 11/27/18 Page 8 of 25
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`must find against plaintiff on that issue. This same principle also applies to defendants on
`issues on which they have the burden of proof.
`14.
`I now will turn to the law that applies to this case. As you know, in this lawsuit Abbott
`seeks money damages from defendants Becton Dickinson and Company and Nova Biomedical
`Corporation for allegedly infringing Claims 11 and 12 of the ’890 patent. To simplify the case,
`the parties have agreed that you only need to consider Claim 11 of the ’890 patent in your
`deliberations. Whatever you decide to with respect to infringement and invalidity of Claim 11
`will also apply to Claim 12. I will refer to Claims 11 and 12 as the “asserted claims” or “claims
`in suit” or the “claimed inventions.” The product that Abbott contends infringes the asserted
`claims are BD and Nova’s “BD Test Strip.” I will refer to this product as the “accused
`product.” BD and Nova deny infringement and contend that the claims in suit are invalid.
`Your job is to decide the issues of infringement and validity. If you decide that any
`claim has been infringed and is valid, you will then need to decide on money damages.
`15.
`As you know, the patent claims are the numbered paragraphs at the end of each patent.
`The claims are important because they specifically define the exclusive rights granted by the
`patent office. The figures and the specification in the rest of the patent provide a description
`and/or examples of the invention and provide a context for the claims but the claims define how
`broad or narrow the patent holder’s rights. It is often the case that a patent specification and its
`figures disclose more than the specific matter claimed as inventions, so it is important to keep
`straight what the specification says versus what the claims say.
`16.
`I am now going to instruct you on the meaning of some of the words and phrases in the
`patent claims at issue. You must accept and use these meanings in your deliberations.
`Sample transfer path: The term “sample transfer path” appears in both of the claims at
`issue in this lawsuit. “Sample transfer path” means the route along which the sample moves.
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`For the Northern District of California
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`United States District Court
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`Case 3:17-cv-05659-WHA Document 275-2 Filed 11/27/18 Page 9 of 25
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`Directional flow: The term “directional flow” appears in both of the claims at issue in
`this lawsuit. This term means the orientation and guidance in a particular direction.
`Defining a sample transfer path for directional flow: The term “defining a sample
`transfer path for directional flow” includes the foregoing definitions but also means providing a
`channel for the sample to move in a particular direction from the application point to and
`including the electrodes. It is not necessary that all of the sample flow unvexed in precisely the
`same direction without even slight turbulence so long as the sample generally moves in the
`same particular direction. By the same token, a channel could have a right-angle turn or curved
`turn and that would still be directional. Moreover, it is not necessary that the electrode support
`and only the electrode support define the entire channel so long as the electrode support defines
`an important part of a channel, that is, that it helps to define the channel. Electrode support,
`moreover, may be above or below the electrodes so long as it provides some stiffness to
`maintain the integrity of the electrical circuit.
`Aperture: As I told you earlier, an aperture is an opening.
`You must accept these definitions as established for purposes of your deliberations and
`verdict. You may, however, consider all of the evidence in the case as to whether or not these
`definitions have been satisfied except that if a witness based his view on meanings of the terms
`contrary to my stated definition, you should discount that part of his testimony accordingly.
`Now, who is a person of ordinary skill in the field? It is up to you to decide the level of
`ordinary skill in the field. You should consider all the evidence introduced at trial in making
`this decision, including:
`1.
`the levels of education and experience of persons working in the
`
`field;
`
`the types of problems encountered in the field; and
`2.
`the sophistication of the technology.
`3.
`Sometimes I will refer to such a person as a “skilled artisan.”
`17.
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`United States District Court
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`Case 3:17-cv-05659-WHA Document 275-2 Filed 11/27/18 Page 10 of 25
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`Abbott has the burden of proof on the issue of infringement. Abbott must persuade you
`that it is more likely than not that BD and Nova have infringed Claims 11 and 12.
`For Abbott to carry its burden of proof on infringement, Abbott must show that each and
`every element of an asserted claim was literally found or equivalently found in the accused BD
`Nova strip. Literally found means the element as actually recited in the claim is fully found in
`the accused product. Equivalently found means even though the element is not literally present,
`its equivalent is present. An equivalent is a feature that a person of skill in the art would think,
`as of the time of alleged infringement, was an insubstantial difference from the claimed element
`in the context of the claimed invention.
`One way to decide whether a difference was insubstantial is to consider whether, as of
`the time of the alleged infringement, the feature performed substantially the same function, in
`substantially the same way, to achieve substantially the same result as the element in the patent
`claim.
`
`In deciding whether any difference between a claim requirement and the product was
`insubstantial, you may consider whether, at the time of the alleged infringement, persons of
`ordinary skill in the field would have known of the interchangeability of the part with the
`claimed requirement. Known interchangeability between the claim requirement and feature in
`question is not necessary to find equivalency. However, known interchangeability may support
`a conclusion that the difference between the part in the product and the claim requirement was
`insubstantial. The fact that a part of the product performs the same function as the claim
`requirement is not, by itself, sufficient to show known interchangeability.
`There is a restriction on the use of interchangeability to satisfy a claim element. You
`may not use an equivalent to find infringement if you find that it would effectively eliminate a
`claim requirement. The purpose of the claim elements is to give the public notice of what is
`covered. Usually, this is done by the particular words and phrases selected for the claim by the
`patent applicants to describe their invention. However, as I have already instructed you, a
`patent owner may prove an element is present in an accused device literally or equivalently.
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`United States District Court
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`Case 3:17-cv-05659-WHA Document 275-2 Filed 11/27/18 Page 11 of 25
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`In this case, Claim 11 called out an aperture for receiving the sample on the cover layer.
`Claim 11 did not mention an end-fill approach. If you decide that the accused device is an end-
`fill device that is not literally found in Claim 11, then you must consider whether or not it
`constitutes an equivalent, using the rules stated above. There is a restriction on this, namely
`that if, as of the date of allowance of Claims 11 and 12, those skilled in the art would have
`understood the calling out of one approach as intending to exclude the other approach as an
`equivalent then you may not treat the other approach as an equivalent.
`18.
`To assist you on the infringement issue, counsel gave you a handout that identified the
`elements concededly found in the accused device and highlighted in blue for you the elements
`disputed. Abbott contends that the accused device literally satisfies all the limitations of the
`asserted claims. For two elements of the asserted claims Abbott also relies on the doctrine of
`equivalents as an alternative to literal infringement. Those elements are “covering layer having
`an aperture” requirement and “elongated electrode support defining a sample transfer path.”
`19.
`Now, let’s turn to the affirmative defenses raised by defendants. We will first
`address the invalidity defenses. A patent issued by the Patent Office is presumed to be valid.
`The burden is on defendants to prove to the contrary. They must do so by clear and convincing
`evidence. When a party has the burden of proving any issue by clear and convincing evidence,
`it means you must be persuaded by the evidence that the issue is highly probable.
`20.
`The first invalidity defense is anticipation. Defendants contend that Claims 11 and 12
`were anticipated by the Nankai patent, that is, Claims 11 and 12 were revealed in information
`already in the public domain by reason of the teachings of the Nankai patent.
`Patents are supposed to be limited to new revelations, among other requirements.
`A patent claim is invalid if the claimed invention was not new at the time of the patent
`application. For a claim to be invalid because it is not new, all of its elements must have
`already existed in a single device before the claimed invention or, more specifically for our
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`United States District Court
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`Case 3:17-cv-05659-WHA Document 275-2 Filed 11/27/18 Page 12 of 25
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`case, have been described in a previous publication or patent before the claimed invention. In
`patent law, previous publications or patents are called “prior art” or “prior-art references.” All
`of the “claimed” elements must be contained within a single reference. In deciding whether
`defendants have carried their burden of proof as to their invalidity defense, you may consider
`whether or not any claimed prior art reference was before the examiner, but you are not bound
`by the action of the Patent Office and must make your own decision as to validity.
`For anticipation, it is not enough that all of the elements could have been found among
`two or more references. If, at the time of the patent application, a single prior-art reference
`already described all of the elements of the claimed invention and would have informed those
`skilled in the art that those elements could have been arranged as in the claimed invention, then
`the prior-art reference is deemed to “anticipate” the claimed invention and thereby render it
`unpatentable and thus invalid. It would not be enough, however, that all of the elements were in
`random passages in the reference. By the same token, for anticipation to apply, it is not
`necessary that the prior-art reference expressly lay out the elements in the exact way laid out in
`the claim. Rather, for anticipation, it is sufficient if the single reference would have informed
`those skilled in the art that all of the claimed elements could have been arranged as in the
`claimed invention.
`For anticipation to apply, Nankai did not have to discuss the subject of shortfill. Rather,
`what matters is whether or not Nankai’s specification and figures would have informed those of
`ordinary skill in the art that the claimed combination could have been arranged as in the claimed
`invention in suit. If Nankai did not do so, then it did not anticipate. If Nankai did so, then it did
`anticipate. It would not matter that it was subsequently discovered that the arrangement in
`question was also useful in solving the shortfill problem. What is already in the public domain
`does not become patentable merely because a new use for a known approach is discovered.
`21.
`To assist you, counsel gave you a handout that identified the elements concededly found
`in the prior art and highlighted in blue for you the elements disputed.
`22.
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`United States District Court
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`Case 3:17-cv-05659-WHA Document 275-2 Filed 11/27/18 Page 13 of 25
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`You have heard that there is an issue whether Abbott is entitled to a date of invention
`earlier than the ’890 patent-application date of September 27, 1995. With respect to the Nankai
`patent, however, there is no need to evaluate the date-of-invention issue because the date of the
`Nankai patent application preceded even the earlier date of invention argued by Abbott.
`23.
`Now, we turn to the issue of obviousness. Even when a claimed invention is new and is
`not anticipated in the prior art, it may still be found unpatentable and invalid by reason of
`obviousness. This is the next ground for invalidity asserted by defendants. Let me now explain
`the ground rules for obviousness.
`
`24.
`No one is entitled to obtain a patent on a claimed invention that would have been
`obvious to those of ordinary skill in the field at the time of the invention. Put differently, if a
`skilled artisan, knowing all the prior art, would have known that all of the claimed elements
`already existed in the prior art, that those elements could have been arranged in the manner of
`the claimed invention, and would have seen the benefit of doing so, then the claimed invention
`should not receive a patent. This means that even if all of the requirements of the claim cannot
`be found in a single prior art reference, the claimed invention was obvious if a person of
`ordinary skill in the relevant field who knew about all the prior art would have come up with the
`claimed invention by combining the prior art references, or by combining a single prior art
`reference with the knowledge of one of ordinary skill in the art.
`25.
`However, a patent claim combining several elements, all of which were already known
`in the prior art, is not necessarily invalid. To the contrary, many valid patent claims are new
`combinations of features already known. To be obvious, the particular combination and
`arrangement must have been obvious to those skilled in the art at the time of the invention.
`You must be careful not to use hindsight; many valid inventions might seem obvious
`after the fact. You should put yourself in the position of a person of ordinary skill in the field at
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`For the Northern District of California
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`United States District Court
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`Case 3:17-cv-05659-WHA Document 275-2 Filed 11/27/18 Page 14 of 25
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`the time the claimed invention was made and you should not consider what is known today or
`what is learned from the teaching of the patent.
`26.
`In evaluating the obviousness issue, you should consider whether the trial evidence has
`identified a persuasive reason that would have prompted a person of ordinary skill in the field to
`combine the elements or concepts from the prior art in the same way as in the claimed
`invention. For example, market forces or other design or manufacturing incentives might have
`naturally led to new combinations of prior art elements. Such circumstances may indicate
`obviousness. You should also consider whether there was some teaching or suggestion in the
`prior art to combine the elements claimed in the patent. If, however, the teachings of the prior
`art directed a person skilled in the art away from combining certain known elements, the
`discovery of a successful way to combine those elements was more likely to be nonobvious.
`Also, you should consider whether the claimed invention applied a known technique that had
`already been used to improve a similar device in a similar way. You should also consider
`whether the claimed invention would have been obvious to try, meaning that the claimed
`innovation was one of a relatively small number of possible approaches to a problem with a
`reasonable expectation of success by those skilled in the art. You should also consider whether
`there was a design need or market pressure to solve a problem with a finite number of
`identified, predictable solutions, such that persons of ordinary skill in the art would have had
`good reason to pursue the known possible solutions within his or her technical grasp. Such
`circumstances would be indicative, not of innovation, but of straightforward application of
`ordinary skill and common sense, meaning that it was obvious.
`The ultimate conclusion of whether a claim is obvious should be based upon your
`determination of several points. First, you must decide the level of ordinary skill in the field
`that someone would have had at the time the claimed invention was made. Second, you must
`decide the scope and content of the prior art. Third, you must decide what difference, if any,
`existed between the claimed invention and the prior art. The ultimate question is whether the
`differences between the prior art and the claimed invention were so insubstantial that the
`
`1 2 3 4 5 6 7 8 9
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`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`12
`
`For the Northern District of California
`
`United States District Court
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`

`

`Case 3:17-cv-05659-WHA Document 275-2 Filed 11/27/18 Page 15 of 25
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`claimed invention would have been obvious to those of ordinary skill in the art. In this you
`must presume that those of ordinary skill in the art would have known and understood all of the
`relevant prior art, including all relevant patents and articles.
`If you decide that Nankai did not anticipate the claimed invention, that is, that Nankai
`would not have informed those skilled in the art that the claimed elements could be arranged as
`in the claimed invention, you should nonetheless consider whether the Nankai reference
`standing alone or in combination with other prior art rendered the claimed invention obvious as
`of the date of invention.
`
`27.
`In addition, you should consider any of the following factors that you find have been
`shown by the evidence. These are sometimes called “secondary considerations:”
`1.
`commercial success of a product due to the merits of the claimed
`invention;
`a long-felt need for the solution provided by the claimed invention;
`2.
`unsuccessful attempts by others to find the solution provided by
`3.
`the claimed invention;
`4.
`copying of the claimed invention by others;
`5.
`unexpected and superior results from the claimed invention;
`6.
`acceptance by others of the claimed invention as shown by praise
`from others in the field or from the licensing of the claimed invention;
`7.
`other evidence tending to show non-obviousness;
`8.
`independent invention of the claimed invention by others before or
`at about the same time as the named inventor thought of it; and
`9.
`other evidence tending to show obviousness.
`The presence of factors 1–7 may be considered by you as an indication that the claimed
`invention would not have been obvious at the time the claimed invention was made. The
`presence of factors 8–9 may be considered by you as an indication that the claimed invention
`would have been obvious at such time. Although you should consider any evidence of these
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`1 2 3 4 5 6 7 8 9
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`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`13
`
`For the Northern District of California
`
`United States District Court
`
`

`

`Case 3:17-cv-05659-WHA Document 275-2 Filed 11/27/18 Page 16 of 25
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`factors, the relevance and importance of any of them to your decision on whether the claimed
`invention would have been obvious is up to you.
`28.
`When a patentee can demonstrate commercial success, usually shown by significant sales
`in a relevant market, and that the successful product is the invention disclosed and claimed in the
`patent, it is presumed that the commercial success is due to the patented invention. If a patentee
`makes the requisite showing of nexus between commercial success and the patented invention,
`the burden shifts to the challenger to prove that the commercial success is instead due to other
`factors extraneous to the patented invention, such as advertising or superior workmanship.
`You must consider all the evidence that was presented to you by both sides in your
`consideration of all the secondary considerations. Although you must consider such evidence,
`the importance of any of them to your decision on the issue of obviousness is up to you.
`29.
`For purposes of identifying the relevant body of prior art, you must look only to art prior
`to the date of invention. Now, what is a date of invention under the law? The presumed date
`of invention is the date of the patent application, namely in our case: September 27, 1995.
`The Ikeda patent, however, was filed in the United States on April 20, 1995. Abbott contends
`that the inventors made the invention of Claim 11 before the date the Ikeda patent was filed. If
`Abbott is correct that the inventors made the invention of Claim 11 in the United States before
`April 20, 1995, then the Ikeda patent is not prior art.
`Earlier in trial, I made statements concerning the burden of proof required to over