Case 3:17-cv-05659-WHA Document 275-3 Filed 11/27/18 Page 1 of 34
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`Exhibit 3
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`Case 3:17-cv-05659-WHA Document 275-3 Filed 11/27/18 Page 2 of 34
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`FRANCE TELECOM S.A.,
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`Plaintiff,
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`v.
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`MARVELL SEMICONDUCTOR INC.,
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`Defendant.
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`Case No. 12-cv-04967-WHO
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`ORDER REGARDING TENTATIVE
`FINAL JURY INSTRUCTIONS
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`Re: Dkt. No. 188
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`The parties have filed proposed opening and final jury instructions. Dkt. No. 188. I
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`previously issued an order regarding the opening instructions. See Dkt. No. 207. The parties
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`agree on proposed final jury instructions 1-20, 22, 31, 39, and 46. The parties disagree on the
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`remaining final jury instructions. Subject to any argument offered by the parties at the final
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`pretrial conference, the Court intends to adopt the versions of the disputed final jury instructions
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`listed below.
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`Per my prior order on the parties’ motions in limine, France Telecom is precluded from
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`presenting testimony, argument, or evidence on the doctrine of equivalents. See Dkt. No. 213 at 5-
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`8. Accordingly, the jury will not be instructed on the doctrine of equivalents in either the
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`preliminary or final jury instructions.
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`Northern District of California
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`United States District Court
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`Case 3:17-cv-05659-WHA Document 275-3 Filed 11/27/18 Page 3 of 34
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`CONTENTS1
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`Final Jury Instruction No. 21 Summary Of Contentions................................................................... 4
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`Final Jury Instruction No. 23 Method Claims ................................................................................... 5
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`Final Jury Instruction No. 24 Interpretation Of Claims .................................................................... 6
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`Final Jury Instruction No. 25 Infringement—Burden Of Proof ........................................................ 8
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`Final Jury Instruction No. 26 Direct Infringement ............................................................................ 9
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`Final Jury Instruction No. 27 Infringement—Extraterritoriality ..................................................... 10
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`Final Jury Instruction No. 28 Literal Infringement ......................................................................... 11
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`Final Jury Instructions Nos. 29-30 Infringement Under the Doctrine of Equivalents and
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`Restrictions on the Doctrine of Equivalents .................................................................................... 12
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`Final Jury Instruction No. 32 Inducing Patent Infringement........................................................... 13
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`Final Jury Instruction No. 33 Contributory Infringement ............................................................... 15
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`Final Jury Instruction No. 34 Willfulness ....................................................................................... 16
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`Final Jury Instruction No. 35 Invalidity—Burden Of Proof ........................................................... 17
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`Final Jury Instruction No. 36 Invalidity—Prior Art ........................................................................ 18
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`Final Jury Instruction No. 37 Invalidity—Obviousness .................................................................. 19
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`Final Jury Instruction No. 38 Invalidity—Improper Inventorship .................................................. 22
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`Final Jury Instruction No. 40 Invalidity––Indefiniteness ................................................................ 23
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`Final Jury Instruction No. 41 Damages––Burden Of Proof ............................................................ 24
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` 1
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` The instructions are numbered according to the numbers assigned by the parties in their joint
`submission. If necessary, the instructions will be renumbered to correct for any gaps resulting
`from instructions not given or given in a different order than what was requested.
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`Northern District of California
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`United States District Court
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`Case 3:17-cv-05659-WHA Document 275-3 Filed 11/27/18 Page 4 of 34
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`Final Jury Instruction No. 42 Damages––Reasonable Royalty—Definition .................................. 25
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`Final Jury Instruction No. 43 Damages––Availability of Non-Infringing Alternatives ................. 28
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`Final Jury Instruction No. 44 Damages––Extraterritoriality ........................................................... 29
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`Final Jury Instruction No. 45 Damages––Instances Of Direct Infringement .................................. 30
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`Final Jury Instruction No. 47 Damages––Laches Defense ............................................................. 31
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`Final Jury Instruction No. 48 Damages––End Of Damages Period ................................................ 33
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`Northern District of California
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`United States District Court
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`Case 3:17-cv-05659-WHA Document 275-3 Filed 11/27/18 Page 5 of 34
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`FINAL JURY INSTRUCTION NO. 21
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`SUMMARY OF CONTENTIONS
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`I will now again summarize for you each side’s contentions in this case. I will then tell you what
`each side must prove to win on each of its contentions.
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`As I previously told you, France Telecom seeks money damages from Marvell Semiconductor for
`allegedly infringing the ‘747 patent by using a method within the United States that France
`Telecom argues are covered by claims 1 and 10 of the patent. These are the asserted claims of the
`‘747 patent. France Telecom also argues that Marvell Semiconductor has actively induced
`infringement of these claims of the ‘747 patent by others and contributed to the infringement of
`these claims of the ‘747 patent by others. The methods that are alleged to infringe are turbo
`coding methods used for channel coding by certain Marvell Semiconductor communication
`processor chips that are incorporated into third party devices such as smart phones.
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`Marvell Semiconductor denies that it has infringed the asserted claims of the ‘747 patent and
`argues that, in addition, the asserted claims are invalid. Invalidity is a defense to infringement.
`Marvell Semiconductor also contends that France Telecom unreasonably and inexcusably delayed
`in filing this lawsuit, and in doing so prejudiced Marvell Semiconductor. This defense is known
`as laches.
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`Your job is to decide whether the asserted claims of the ‘747 patent have been infringed and
`whether any of the asserted claims of the ‘747 patent are invalid. If you decide that any claim of
`the patent has been infringed and is not invalid, you will then need to decide any money damages
`to be awarded to France Telecom to compensate it for the infringement. You will also need to
`make a finding as to whether the infringement was willful. If you decide that any infringement
`was willful, that decision should not affect any damage award you give. I will take willfulness
`into account later. Finally, you will also be asked to make a finding as to whether France Telecom
`unreasonably and inexcusably delayed in filing this lawsuit and in doing so prejudiced Marvell
`Semiconductor.
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`Court’s analysis:
`The Court adopts Marvell’s proposed instruction. This instruction closely follows the Model
`Patent Jury Instructions for the Northern District of California. As discussed in my order
`regarding the opening jury instructions, France Telecom’s proposed instruction recites an
`improper standard for infringement of method claims.
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`4
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`Northern District of California
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`United States District Court
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`

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`Case 3:17-cv-05659-WHA Document 275-3 Filed 11/27/18 Page 6 of 34
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`FINAL JURY INSTRUCTION NO. 23
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`METHOD CLAIMS
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`Both of the asserted claims in this case describe methods, and are therefore referred to as “method”
`claims. Method claims recite a series of steps that comprise the patented invention. The word
`“comprises” in this context means “includes at least.” That is, if a method includes all of the steps
`that are described by a patent claim, the method is described by the claim even though it may also
`include other or additional steps. The two claims asserted in this case—claims 1 and 10—are both
`method claims. A method can be embodied in a product, the sale of which constitutes use or sale of
`the method.
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`Court’s analysis:
`This is the same as Opening Instruction No. 18. The Court again adopts France Telecom’s proposed
`instruction with the modifications above. The phrase “other steps” is confusing; “additional steps”
`is more accurate. As discussed in the order on the parties’ motions in limine, to infringe a method
`patent, each step must be practiced; the sale of a product which purportedly embodies the patented
`method is not sufficient.
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`Northern District of California
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`United States District Court
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`Case 3:17-cv-05659-WHA Document 275-3 Filed 11/27/18 Page 7 of 34
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`FINAL JURY INSTRUCTION NO. 24
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`INTERPRETATION OF CLAIMS
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`Before you decide whether Marvell Semiconductor has infringed the asserted claims of the ‘747
`patent or whether those claims are invalid, you will need to understand the patent claims. As I
`mentioned, the patent claims are numbered sentences at the end of the patent that describe the
`boundaries of the patent’s protection. It is my job as judge to explain to you the meaning of any
`language in the claims that needs interpretation.
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`I have interpreted the meaning of some of the language in the patent claims involved in this case.
`You must accept those interpretations as correct. For some terms, the parties agreed on a
`construction. You must also accept those interpretations as correct. My interpretation of the
`language should not be taken as an indication that I have a view regarding the issues of
`infringement and invalidity. The decisions regarding infringement and invalidity are yours to
`make.
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`Now I will read you the claim terms and their respective meanings:
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`Claim Term
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`combining
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`convolutional coding
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`data element
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`source [digital] data element
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`systematic convolutional coding
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`Meaning
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`calculating one or more values from two or
`more values
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`coding that associates to each source data
`element at least one coded data element which
`is a combination of the source data element
`and at least one previous source data element
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`a single unit of data
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`data element to be coded by the claimed
`method
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`convolutional coding where the output
`includes both the coded data and the current
`input data
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`temporally interleaving said source data
`elements
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`modifying the order of the source data
`elements
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`Northern District of California
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`United States District Court
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`Case 3:17-cv-05659-WHA Document 275-3 Filed 11/27/18 Page 8 of 34
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`You have been given a list of these terms and their meanings. For claim terms for which I have
`not provided you with any meaning, you should apply the claim term’s plain and ordinary
`meaning to a person of ordinary skill in the art.
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`The claims define the scope of the patent. You must read the claims in the same way when you
`analyze infringement and when you analyze invalidity.
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`Court’s analysis:
`The Court adopts Marvell’s proposed instruction, which is based on the Model Patent Jury
`Instructions for the Northern District of California. France Telecom’s proposed instruction
`included a definition of the term “comprising” not agreed to by the Court and a statement arguably
`suggesting that the Court has found that the written description requirement has been satisfied.
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`Northern District of California
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`United States District Court
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`Case 3:17-cv-05659-WHA Document 275-3 Filed 11/27/18 Page 9 of 34
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`FINAL JURY INSTRUCTION NO. 25
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`INFRINGEMENT—BURDEN OF PROOF
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`I will now instruct you on the rules you must follow in deciding whether France Telecom has
`proven that Marvell Semiconductor has infringed claim 1 or 10 of the ‘747 patent. To prove
`infringement of either claim, France Telecom must persuade you that it is more likely than not that
`Marvell Semiconductor has infringed that claim.
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`Court’s analysis:
`The Court adopts Marvell’s proposed instruction. France Telecom’s proposed instruction relies on
`its incorrect statement of infringement of a method patent. The adopted instruction is consistent
`with the Model Patent Jury Instructions for the Northern District of California.
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`Northern District of California
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`United States District Court
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`

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`Case 3:17-cv-05659-WHA Document 275-3 Filed 11/27/18 Page 10 of 34
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`FINAL JURY INSTRUCTION NO. 26
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`DIRECT INFRINGEMENT
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`A patent’s claims define what is covered by the patent. A method directly infringes a patent if it is
`covered by at least one claim of the patent.
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`Deciding whether a claim has been directly infringed is a two-step process. The first step is to
`decide the meaning of the patent claim. I have already made this decision, and I have already
`instructed you as to the meaning of the asserted patent claims. The second step is to decide
`whether an accused direct infringer has used a method covered by an asserted claim of the ‘747
`patent within the United States. If it has done so, it infringes. You, the jury, make this decision.
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`With one exception, you must consider each of the asserted claims of the patent individually, and
`decide whether the accused method infringes that claim. The one exception to considering claims
`individually concerns dependent claims, such as claim 10. A dependent claim includes all of the
`requirements of a particular independent claim, plus additional requirements of its own. As a
`result, if you find that an independent claim is not infringed, you must also find that its dependent
`claims are not infringed. On the other hand, if you find that an independent claim has been
`infringed, you must still separately decide whether the additional requirements of its dependent
`claims have also been infringed. In this case, claim 1 is an independent claim and claim 10 is a
`dependent claim. Accordingly, if you find that claim 1 is not infringed, you must also find that
`claim 10 is not infringed. On the other hand, if you find that claim 1 has been infringed, you must
`still separately decide whether the additional requirements of claim 10 have also been infringed.
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`You have heard evidence about Marvell Semiconductor’s commercial products and methods.
`However, in deciding the issue of patent infringement you may not compare the Marvell
`Semiconductor products to the figures in the patents. Your decision must be based on a
`comparison of the accused methods to the asserted claims.
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`Whether or not an accused direct infringer knew the method infringed or even knew of France
`Telecom’s patents does not matter in determining direct infringement.
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`There are two ways in which a patent claim may be directly infringed. A claim may be “literally”
`infringed, or it may be infringed under the “doctrine of equivalents.” The following instructions
`will provide more detail on these two types of direct infringement.
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`Court’s analysis:
`The Court’s adopts Marvell’s proposed instruction with the modifications indicated above. The
`underlined language is added to more clearly explain the impact of the independent and dependent
`claims at issue on the infringement analysis in this case. The stricken language is removed to
`avoid confusing the jury. Stating that the jury must base its decision on a comparison of the
`accused methods to the asserted claims adequately states the jury’s responsibility; introducing
`language discussing the figures in the patents risks confusing the jury. The final paragraph is
`stricken because the Court has precluded France Telecom from introducing evidence or argument
`regarding the doctrine of equivalents.
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`9
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`Northern District of California
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`United States District Court
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`

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`Case 3:17-cv-05659-WHA Document 275-3 Filed 11/27/18 Page 11 of 34
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`FINAL JURY INSTRUCTION NO. 27
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`INFRINGEMENT—EXTRATERRITORIALITY
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`A U.S. Patent does not have extraterritorial effect. France Telecom must prove that Marvell
`Semiconductor engaged in conduct within the United States that infringed the ‘747 patent or actively
`induced or contributed to infringement of the ‘747 patent. Because the asserted claims in this case
`are method claims, each step of the asserted method claim must be practiced entirely within the
`United States in order for you to find infringement.
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`Court’s analysis:
`The Court adopts an amalgamation of the parties’ proposed instructions. This instruction
`accurately instructs on the law without providing unnecessary and unduly suggestive language.
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`Northern District of California
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`United States District Court
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`

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`Case 3:17-cv-05659-WHA Document 275-3 Filed 11/27/18 Page 12 of 34
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`FINAL JURY INSTRUCTION NO. 28
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`LITERAL INFRINGEMENT
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`To decide whether Marvell Semiconductor’s accused method literally infringes a claim of the ‘747
`patent, you must compare the accused method with the patent claim and determine whether each
`and every requirement of the claim is included in that method. Every requirement of that method
`must be performed by a single person or entity. If so, then Marvell Semiconductor’s method
`literally infringes that claim. If, however, Marvell Semiconductor’s method does not have every
`requirement in the patent claim, that method does not literally infringe that claim. You must
`decide literal infringement for each asserted claim separately.
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`The word “comprises” in this instruction, and in claims 1 and 10 of the ‘747 patent, means
`“includes.” That is, if an accused method includes steps that are identical to the steps described by
`claim 1 or claim 10 of the ‘747 patent, infringement is not avoided by the presence of additional
`steps in an accused method.
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`Court’s analysis:
`The Court adopts Marvell’s proposed instruction. France Telecom’s proposed instruction relies on
`its incorrect statement of infringement of a method claim.
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`Northern District of California
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`United States District Court
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`Case 3:17-cv-05659-WHA Document 275-3 Filed 11/27/18 Page 13 of 34
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`FINAL JURY INSTRUCTIONS NOS. 29-30
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`INFRINGEMENT UNDER THE DOCTRINE OF EQUIVALENTS
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`AND RESTRICTIONS ON THE DOCTRINE OF EQUIVALENTS
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`[Not given]
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`Court’s analysis
`Per my order on the motions in limine, France Telecom is precluded from presenting any evidence
`or argument regarding infringement under the doctrine of equivalents. The jury will therefore not
`be instructed regarding the doctrine of equivalents.
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`Northern District of California
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`United States District Court
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`Case 3:17-cv-05659-WHA Document 275-3 Filed 11/27/18 Page 14 of 34
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`FINAL JURY INSTRUCTION NO. 32
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`INDUCING PATENT INFRINGEMENT
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`France Telecom argues that Marvell Semiconductor has actively induced another to infringe the
`‘747 patent. In order for Marvell Semiconductor to induce infringement, Marvell Semiconductor
`must have induced another to directly infringe a claim of the ‘747 patent; if there is no direct
`infringement by a third party, there can be no induced infringement. This means that some third
`party must practice each and every step of the accused method within the United States; mere
`evidence of United States sales of finished products containing the accused product is not enough.
`As with direct infringement, you must determine whether there has been active inducement on a
`claim-by-claim basis.
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`In order to be liable for inducement of infringement, Marvell Semiconductor must:
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`(1)
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`have intentionally taken action that actually induced direct infringement by a third party;
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`have been aware of the ‘747 patent;
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`(3)
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`have known that the acts it was causing would infringe the patent; and
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`(4)
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`not have had a good faith belief the patent was invalid or not infringed.
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`If the four requirements just stated are not met, Marvell Semiconductor cannot be liable for
`inducement unless it actually believed that it was highly probable its actions would encourage
`infringement of the ‘747 patent, it believed the ‘747 patent to be valid, and it deliberately chose to
`avoid learning the truth. To prove inducement, it is not enough that Marvell Semiconductor was
`merely indifferent to the possibility that its actions might encourage infringement of a valid patent.
`Nor is it enough that Marvell Semiconductor took a risk that was substantial and unjustified.
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`One cannot induce infringement unintentionally. In order to establish active inducement of
`infringement, it is not sufficient that a third party directly infringed the claim. Nor is it sufficient
`that Marvell Semiconductor was aware of the act(s) by the third party that allegedly constitute the
`direct infringement. Rather, in order to find active inducement of infringement, you must find
`either that Marvell Semiconductor specifically intended the third party to infringe the ‘747 patent
`or that Marvell Semiconductor believed there was a high probability that the third party would
`infringe the ‘747 patent, but deliberately avoided learning the infringing nature of the third party’s
`acts. The mere fact, if true, that Marvell Semiconductor knew or should have known that there
`was a substantial risk that the third party’s acts would infringe the ‘747 patent would not be
`sufficient for active inducement of infringement.
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`Evidence that Marvell Semiconductor believed in good faith the ‘747 patent was not infringed or
`believed in good faith that the ‘747 patent was invalid may lead you to conclude that Marvell
`Semiconductor did not know that the accused acts constituted patent infringement.
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`Case 3:17-cv-05659-WHA Document 275-3 Filed 11/27/18 Page 15 of 34
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`Court’s analysis:
`The Court’s adopts Marvell’s proposed instruction with the modifications indicated above. The
`underlined language is added from the Model Patent Jury Instructions for the Northern District of
`California and more directly explains the concepts stated in the stricken paragraph which follows.
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` I
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` disagree with France Telecom’s proposed instruction that “[a]s a United States corporation,
`Marvell Semiconductor is deemed to have known of the Berrou patent at all times.” Sontag Chain
`Stores Co. v. Nat’l Nut Co., 310 U.S. 281, 295 (1942), cited by France Telecom, does not support
`that proposition. Sontag dealt with the defense of intervening rights, not indirect infringement.
`Moreover, the statement regarding constructive notice in Sontag was dicta and does not mean that
`issuance of a patent provides constructive notice for all purposes, such as indirect infringement.
`See, e.g., Wang v. Palo Alto Networks, Inc., 12-cv-05579 WHA, 2014 WL 1410346, at *5-6 (N.D.
`Cal. Apr. 11, 2014); Univ. of Colorado Found., Inc. v. Am. Cyanamid, 880 F. Supp. 1387, 1406
`n.4 (D. Colo. 1995) (The Supreme Court's dicta in Sontag . . . to the effect that the issuance of a
`patent is notice to the world for certain purposes, do not support the conclusion that such issuance
`is notice for all purposes, including the statute of limitations.”) aff'd in relevant part, 196 F.3d
`1366 (Fed. Cir. 1999). France Telecom cites no authority from the 70 years since Sontag was
`issued holding that issuance of a patent provides constructive notice for indirect infringement
`purposes. In contrast, recent Supreme Court authority confirms that actual knowledge is necessary
`for indirect infringement. See Global-Tech Appliances, Inc. v. SEB S.A., 131 S.Ct. 2060, 2068
`(2011) (“[W]e proceed on the premise that § 271(c) requires knowledge of the existence of the
`patent that is infringed. Based on this premise, it follows that the same knowledge is needed for
`induced infringement under § 271(b).”). I likewise disagree with France Telecom’s assertion that
`Marvell need not know of the alleged infringement in order to be liable for inducement. Such an
`instruction is contrary to the knowledge requirement for indirect infringement. See, e.g., id.
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`Case 3:17-cv-05659-WHA Document 275-3 Filed 11/27/18 Page 16 of 34
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`FINAL JURY INSTRUCTION NO. 33
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`CONTRIBUTORY INFRINGEMENT2
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`France Telecom argues that Marvell Semiconductor has contributed to infringement by another.
`Contributory infringement may arise when someone supplies something that is used to infringe
`one or more of the patent claims.
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`As with inducement, in order for there to be contributory infringement by Marvell Semiconductor,
`someone other than Marvell Semiconductor must directly infringe a claim of the ‘747 patent; if
`there is no direct infringement by anyone, there can be no contributory infringement.
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`If you find someone has directly infringed the ‘747 patent, then contributory infringement exists
`if:
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`(1) Marvell Semiconductor supplied an important component of the infringing part of the
`accused method;
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`(2)
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`the component is not a common component suitable for non-infringing use; and
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`(3) Marvell Semiconductor supplied the component with knowledge of the ‘747 patent and
`knowledge that the component was especially made or adapted for use in an infringing manner.
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`A “common component suitable for non-infringing use” is a component that has uses other than in
`the patented method, and those other uses are not occasional, farfetched, impractical,
`experimental, or hypothetical.
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`As with induced infringement, evidence that Marvell Semiconductor believed in good faith that
`the ‘747 patent was not infringed or believed in good faith that the ‘747 patent was invalid may
`lead you to conclude that Marvell Semiconductor did not know that the accused acts constituted
`patent infringement.
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`Court’s analysis:
`The Court’s adopts Marvell’s proposed instruction with the modifications indicated above. As
`modified, this instruction mirrors the Model Patent Jury Instructions for the Northern District of
`California. Subsection (3) adequately states the requirement that Marvell have knowledge that the
`component was made or adapted for use in an infringing manner.
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` The parties have briefed whether France Telecom’s theory of contributory liability is properly in
`the case. I will address that issue at the final pretrial conference.
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`FINAL JURY INSTRUCTION NO. 34
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`WILLFULNESS
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`In this case, France Telecom argues that Marvell Semiconductor willfully infringed the ‘747
`patent.
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`If you have decided that Marvell Semiconductor has infringed, you must go address the additional
`issue of whether or not this infringement was willful. Willfulness requires you to determine that it
`is highly probable that Marvell Semiconductor acted recklessly.
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`To prove that Marvell Semiconductor acted recklessly, France Telecom must prove two things are
`highly probable:
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`The first part of the test is objective: France Telecom must persuade you that Marvell
`Semiconductor acted despite a high likelihood that its actions infringed a valid and enforceable
`patent. In making this determination, you may not consider Marvell Semiconductor’s state of
`mind. Legitimate or credible defenses to infringement, even if not ultimately successful,
`demonstrate that Marvell Semiconductor was not reckless.
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`Only if you conclude that the Marvell Semiconductor’s conduct was reckless do you need to
`consider the second part of the test. The second part of the test does depend on the state of mind
`of Marvell Semiconductor. France Telecom must persuade you that Marvell Semiconductor
`actually knew or should have known that its actions constituted an unjustifiably high risk of
`infringement of a valid and enforceable patent. To determine whether Marvell Semiconductor had
`this state of mind, consider all facts which may include, but are not limited, to:
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`(1) Whether or not Marvell Semiconductor acted in accordance with the standards of commerce
`for its industry;
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`(2) Whether or not Marvell Semiconductor intentionally copied a product of France Telecom that
`is covered by the ‘747 patent;
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`(3) Whether or not there is a reasonable basis to believe that Marvell Semiconductor did not
`infringe or had a reasonable defense to infringement;
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`(4) Whether or not Marvell Semiconductor made a good-faith effort to avoid infringing the ‘747
`patent, for example, whether Marvell Semiconductor attempted to design around the ‘747 patent;
`and
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`(5) Whether or not Marvell Semiconductor tried to cover up its infringement.
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`Court’s analysis:
`The Court’s adopts Marvell’s proposed instruction. However, the Court will present this
`instruction after the infringement instructions, as requested by France Telecom, rather than after
`the damages section, as requested by Marvell.
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`Case 3:17-cv-05659-WHA Document 275-3 Filed 11/27/18 Page 18 of 34
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`FINAL JURY INSTRUCTION NO. 35
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`INVALIDITY—BURDEN OF PROOF
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`I will now instruct you on the rules you must follow in deciding whether Marvell Semiconductor
`has proven that claims 1 and 10 of the ‘747 patent are invalid. Before discussing the specific
`rules, I want to remind you about the standard of proof that applies to this defense. To prove
`invalidity of any patent claim, Marvell Semiconductor must persuade you that it is highly probable
`that the claim is invalid.
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`During this case, Marvell Semiconductor has submitted prior art that was not considered by the
`United States Patent and Trademark Office (PTO) during the prosecution of the ‘747 patent.
`Marvell Semiconductor contends that such prior art invalidates claims 1 and 10 of the ‘747 patent.
`In deciding the issue of invalidity, you may take into account the fact that the prior art was not
`considered by the PTO when it issued the ‘747 patent. Prior art that differs from the prior art
`considered by the PTO may carry more weight than the prior art that was considered and may
`make Marvell Semiconductor’s burden