`Case 1:16-cv-00453-RGA Document 598-1 Filed 10/16/18 Page 1 of 20 PagelD #: 48702
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`EXHIBIT A-1
`EXHIBIT A-1
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`Case 1:16-cv-00453-RGA Document 598-1 Filed 10/16/18 Page 2 of 20 PageID #: 48703
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`ACCELERATION BAY LLC,
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`ACTIVISION BLIZZARD, INC.,
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`C.A. No. 16-453 (RGA)
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`))))))))))
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`Plaintiff,
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`v.
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`Defendant.
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`PRELIMINARY JURY INSTRUCTIONS
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`Case 1:16-cv-00453-RGA Document 598-1 Filed 10/16/18 Page 3 of 20 PageID #: 48704
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`1.
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`INTRODUCTION1
`Members of the Jury: Now that you have been sworn, I am now going to give you some
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`preliminary instructions to guide you in your participation in the trial.
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`These instructions will give you some general guidance that might apply to any civil
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`case. However, because this is a patent trial, which will deal with subject matter that is not
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`within the everyday experience of most of us, I will also give you some additional preliminary
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`instructions regarding patents to assist you in discharging your duties as jurors.
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`1 AVM Techs. v. Intel Corp., Case 1:15-cv-00033-RGA, Dkt. No. 611 (D. Del. Apr. 14, 2017)
`(joint proposed preliminary jury instructions) (“AVM 2”); AVM Techs., LLC v. Intel Corp, Case
`No. 10-610-RGA (D. Del. Jan. 22, 2013) (joint proposed preliminary jury instruction) (“AVM
`1”); Innovative Display Technologies LLC v. LG, No. 13-cv-2109-RGA, D.I. 498 (joint proposed
`preliminary jury instructions)(“IDT”).
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`2.
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`THE PARTIES AND THEIR CONTENTIONS2
`Before I begin with those instructions, however, allow me to give you an overview of
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`who the parties are and what each contends.
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`You may recall that during the process that led to your selection as jurors, I advised you
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`that this is a civil action for patent infringement arising under the patent laws of the United
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`States. The parties in this case are the plaintiff, Acceleration Bay, LLC, which I will refer to as
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`“Acceleration Bay” or the “plaintiff” and the defendant, Activision Blizzard, Inc., which I will
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`refer to as “Activision” or the “defendant.”
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`The case involves United States Patent Numbers: 6,701,344; 6,714,966; 6,920,497;
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`6,732,147; 6,910,069, obtained by Fred B. Holt and Virgil E. Bourassa, and assigned to Boeing
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`and then to Acceleration Bay. For convenience, the parties and I will often refer to these patents
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`by the last three numbers of the patent. For example, I may simply say “the ‘344 Patent” instead
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`of “U.S. Patent No. 6,701,344.”
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`Acceleration Bay filed suit in this court against Activision for allegedly infringing the
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`Asserted Patents by making, importing, using, selling, and offering for sale in the United States
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`products that Acceleration Bay argues are covered by claims 12, 13, and 14 of the ‘344 Patent,
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`claims 12 and 13 of the ‘966 Patent, claims 9 and 16 of the ‘497 Patent, claims 1, 11, 15, and 16
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`of the ‘147 Patent, and claims 1 and 11 of the ‘069 Patent. These claims may be referred to as
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`the “Asserted Claims” of the Asserted Patents. The products that are alleged to infringe are Call
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`of Duty: Black Ops III and Call of Duty: Advanced Warfare, Destiny, and World of Warcraft.
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`Activision denies that it has infringed the Asserted Claims of the Asserted Patents.
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`Activision also argues that the Asserted Claims are invalid. You will determine the questions of
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`infringement and invalidity for each Asserted Claim.
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`During the course of this case, you will hear references to certain terms and phrases from
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`the Asserted Claims of the Asserted Patents. I will give you a glossary of some of those term
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`2 AVM 2; 1993 Model Instructions; Fed. Cir. Bar Association Model Patent Jury Instructions
`(July 2016)
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`and phrases for which I have provided a definition that you are to use in deciding the issues
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`presented to you. Any other terms and phrases that are not included in the glossary should be
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`given their plain and ordinary meaning.
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`Your job will be to decide whether or not the Asserted Claims of the Asserted Patents
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`have been infringed and whether or not those claims are invalid. If you decide that any claim of
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`an Asserted Patent has been infringed and is not invalid, you will then need to decide any money
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`damages to be awarded to Acceleration Bay to compensate it for the infringement. You will also
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`need to make a finding as to whether the infringement was willful. If you decide that any
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`infringement was willful, that decision should not affect any damages award you give. I will
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`take willfulness into account later.
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`3. WHAT A PATENT IS AND HOW ONE IS OBTAINED3
`This case involves a dispute relating to United States patents. Before summarizing the
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`positions of the parties and the legal issues involved in the dispute, let me take a moment to
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`explain what a patent is and how one is obtained.
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`Patents are granted by the United States Patent and Trademark Office (sometimes called
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`“the USPTO” or “the PTO”). A valid United States patent gives the patent owner the right to
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`prevent others from making, using, offering to sell, or selling the patented invention within the
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`United States, or from importing it into the United States, during the term of the patent without
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`the patent holder’s permission. A violation of the patent owner’s rights is called infringement.
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`The patent owner may try to enforce a patent against persons believed to be infringers by filing a
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`lawsuit in federal court.
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`The process of obtaining a patent is called patent prosecution. To obtain a patent, one
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`must file an application with the PTO. The PTO is an agency of the Federal Government and
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`employs trained examiners who review applications for patents. The application includes what is
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`called a “specification,” which must contain a written description of the claimed invention telling
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`what the invention is, how it works, how to make it, and how to use it so others skilled in the
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`field will know how to make or use it. The specification concludes with one or more numbered
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`sentences. These are the patent “claims.” When the patent is eventually granted by the PTO, the
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`claims define the boundaries of its protection and give notice to the public of those boundaries.
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`After the applicant files the application, a PTO Patent Examiner reviews the patent
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`application to determine whether the claims are patentable and whether the specification
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`adequately describes the invention claimed. In examining a patent application, the patent
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`examiner reviews certain information about the state of the technology at the time the application
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`was filed. The PTO searches for and reviews information that is publicly available or that is
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`3 Fed. Cir. Bar Association Model Patent Jury Instructions (July 2016); 1993 Delaware Patent
`Jury Instructions (“1993 Model Instructions”); D&M Holdings Inc. d/b/a The D+M Group and
`D&M Holdings U.S. Inc v. Sonos, Inc., C.A. No. 16-141 (RGA), D.I. 304 (joint proposed
`instructions) (D. Del. Feb. 20, 2018) (“D&M”).
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`submitted by the applicant. This information is called “prior art.” The Examiner reviews this
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`prior art to determine whether or not the invention is truly an advance over the state of the art at
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`the time. Prior art is defined by law, and, in general, prior art includes information that
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`demonstrates the state of technology that existed before the claimed invention was made or
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`before the application was filed. A patent lists the prior art that the Examiner considered; this list
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`is called the “cited references.”
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`After the prior art search and examination of the application, the patent Examiner informs
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`the applicant in writing of what the examiner has found and whether the Examiner considers any
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`claim to be patentable and, thus, would be “allowed.” This writing from the patent Examiner is
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`called an “Office Action.” If the Examiner rejects the claims, the applicant has an opportunity to
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`respond to the Examiner to try to persuade the Examiner to allow the claims, and to change the
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`claims or to submit new claims. This process may go back and forth for some time until the
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`Examiner is satisfied that the application meets the requirements for a patent and the application
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`issues as a patent, or that the application should be rejected and no patent should issue.
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`Sometimes, patents are issued after appeals within the PTO or to a court. The papers generated
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`during these communications between the Examiner and the applicant are called the “prosecution
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`history.”
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`The fact that the PTO grants a patent does not necessarily mean that any invention
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`claimed in the patent, in fact, deserves the protection of a patent. A person accused of
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`infringement has the right to argue here in federal court that a claimed invention in the patent is
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`invalid because it does not meet the requirements for a patent. It is your job to consider the
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`evidence presented by the parties and determine independently whether or not Defendant has
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`proven that the patent is invalid.
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`4.
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`MEANING OF THE PATENT AT ISSUE4
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`4 Fed. Cir. Bar Association Model Patent Jury Instructions (July 2016)
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`I have already determined the meaning of the Asserted Claims of the Asserted Patents.
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`You have been given a document reflecting those meanings. For a claim term for which I have
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`not provided you with a definition, you should apply the ordinary meaning. You are to apply my
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`definitions of these terms throughout this case. However, my interpretation of the language of
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`the claims should not be taken as an indication that I have a view regarding issues such as
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`infringement and invalidity. Those issues are yours to decide. I will provide you with more
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`detailed instructions on the meaning of the claims before you retire to deliberate your verdict.
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`5.
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`DUTIES OF THE JURY5
`Let me begin with those general rules that will govern the discharge of your duties as
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`jurors in this case.
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`It will be your duty to find what the facts are from the evidence as presented at the trial.
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`You, and you alone, are the judges of the facts. You will have to apply those facts to the law as I
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`will instruct you at the close of the evidence. You must follow that law whether you agree with
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`it or not.
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`In addition to instructing you about the law, I will provide you with instructions as to
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`what the claims of the patent mean. Again, of course, you are bound by your oath as jurors to
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`follow these and all the instructions that I give you, even if you personally disagree with them.
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`All the instructions are important, and you should consider them together as a whole.
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`You are the judges of the facts. I will decide which rules of law apply to this case.
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`Perform these duties fairly. Do not let any bias, sympathy, or prejudice that you may feel
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`toward one side or the other influence your decision in any way. Also, do not let anything that I
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`may say or do during the course of the trial influence you. Nothing I say or do during the course
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`of the trial is intended to indicate what your verdict should be.
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`5 1993 Model Instructions; AVM 2; AVM 1; D&M.
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`6.
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`EVIDENCE6
`The evidence from which you will find the facts will consist, in part, of the testimony of
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`witnesses. The testimony of witnesses consists of the answers of the witnesses to questions
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`posed by the attorneys or the court; you may not ask the witnesses questions. Evidence will also
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`consist of documents and other things received into the record as exhibits, and any facts that the
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`lawyers agree to or that I may instruct you to find.
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`Certain things are not evidence and must not be considered by you. I will list them for
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`you now:
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`1.
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`2.
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`Statements, arguments, and questions by lawyers are not evidence.
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`Objections to questions are not evidence. Lawyers have an obligation to their
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`clients to make objections when they believe evidence being offered is improper under the rules
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`of evidence. You should not be influenced by the objection or by the court’s ruling on it. If the
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`objection is sustained, ignore the question. If it is overruled, treat the answer like any other. If
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`you are instructed that some item of evidence is received for a limited purpose only, you must
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`follow that instruction. If this occurs during the trial, I will try to clarify this for you at that time.
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`3.
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`Testimony that the court has excluded or told you to disregard is not evidence and
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`must not be considered.
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`4.
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`Anything you may have seen or heard outside the courtroom is not evidence and
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`must be disregarded. You are to decide the case solely on the evidence presented here in the
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`courtroom.
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`There are two kinds of evidence: direct and circumstantial. Direct evidence is evidence
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`that does not require an inference, such as the testimony of an eyewitness, which, if you believe
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`it, directly proves a fact. If a witness testified that he or she saw it raining outside, and you
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`believed him or her, that would be direct evidence that it was raining.
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`Circumstantial evidence is proof of facts from which you may infer or conclude that other
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`facts exist. If someone walked into the courtroom wearing a raincoat covered with drops of
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`6 AVM 2; AVM 1 (D.I. 245 at 5–6); D&M; 1993 Model Instructions.
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`water and carrying a wet umbrella, that would be circumstantial evidence from which you could
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`conclude that it was raining.
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`As a general rule, the law makes no distinction between these two types of evidence, nor
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`does it say that one is any better evidence than the other. Rather, the law simply requires that
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`you find facts from all the evidence in the case, whether direct or circumstantial or a combination
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`of the two.
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`7.
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`CREDIBILITY OF WITNESSES7
`You are the sole judges of each witness’s credibility. You should consider each witness’
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`means of knowledge; strength of memory; opportunity to observe; how reasonable or
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`unreasonable the testimony is; whether it is consistent or inconsistent; whether it has been
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`contradicted; the witness’s biases, prejudices, or interests; the witness’s manner or demeanor on
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`the witness stand; and all circumstances that, according to the evidence, could affect the
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`credibility of the testimony.
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`In determining the weight to give to the testimony of a witness, you should ask yourself
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`whether there was evidence tending to prove that the witness testified falsely about some
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`important fact, or, whether there was evidence that at some other time the witness said [or did]
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`something, [or failed to say or do something] that was different from the testimony he gave at the
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`trial.
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`You should remember that a simple mistake by a witness does not necessarily mean that
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`the witness was not telling the truth. People may tend to forget some things or remember other
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`things inaccurately. If a witness has made a misstatement, you must consider whether it was
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`simply an innocent lapse of memory or an intentional falsehood, and that may depend upon
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`whether it concerns an important fact or an unimportant detail.
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`7 AVM 1; AVM2; D&M; 1993 Model Instructions.
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`8.
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`DEPOSITION TESTIMONY8
`You may hear witnesses testify through deposition testimony. A deposition is the sworn
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`testimony of a witness taken before trial. The witness is placed under oath and swears to tell the
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`truth, and lawyers for each party may ask questions. A court reporter is present and records the
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`questions and answers. The deposition may also be recorded on videotape. Deposition
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`testimony is entitled to the same consideration and is to be judged, insofar as possible, in the
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`same way as if the witness had been present to testify.
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`8 AVM2; AVM1; D&M.
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`9.
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`EXPERT WITNESSES9
`You will also hear testimony from expert witnesses. When knowledge of technical
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`subject matter may be helpful to the jury, a person who has special training or experience in that
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`technical field—he or she is called an expert witness—is permitted to state his or her opinion on
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`those technical matters. However, you are not required to accept that opinion. As with any other
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`witness, it is up to you to decide whether to rely upon it.
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`9 AVM 2; AVM1; D&M; 1993 Model Instructions.
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`10.
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`BURDEN OF PROOF10
`This is a civil case in which Acceleration Bay is alleging patent infringement by
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`Activision. The plaintiff has the burden of proving infringement and damages by what is called
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`a preponderance of the evidence. That means the plaintiff has to produce evidence which, when
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`considered in the light of all the facts, leads you to believe that what the plaintiff claims is more
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`likely true than not. To put it differently, if you were to put the plaintiff's and the defendant's
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`evidence on the opposite sides of a scale, the evidence supporting the plaintiff's claims would
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`have to make the scales tip somewhat on his side. If plaintiff fails to meet this burden, your
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`verdict must be for defendant.
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`In this case, defendant is urging that plaintiff's patents are invalid. A patent, however, is
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`presumed to be valid. Accordingly, defendant has the burden of proving that the patent-in-suit is
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`invalid by clear and convincing evidence. Proof by clear and convincing evidence is evidence
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`that produces an abiding conviction that the truth of a factual contention is highly probable.
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`Thus, proof by clear and convincing evidence is a higher burden of proof that a preponderance of
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`the evidence.
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`Those of you who are familiar with criminal cases will have heard the term "proof
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`beyond a reasonable doubt." That burden does not apply in a civil case and you should,
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`therefore, put it out of your mind in considering whether or not the plaintiff has met his burden
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`of proof by a preponderance of the evidence in this case.
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`I will give you detailed instructions on the law at the end of the case. But in order to help
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`you follow the evidence, I will give you a brief summary of the issues.
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`10 1993 Model Instructions; AVM 2; AVM 1
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`11. GENERAL GUIDANCE REGARDING PATENTS11
`Before I describe the parties’ contentions further, at this time, we are going to show a
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`video that will provide background information to help you understand what patents are, why
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`they are needed, the role of the Patent Office, and why disputes over patents arise. This video
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`was prepared by the Federal Judicial Center, not the parties in this case, to help introduce you to
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`the patent system. During the video, reference will be made to a sample patent.
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`[The video will be played.]
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`11 AVM 2; IDT.
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`12.
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`SUMMARY OF THE PATENT ISSUES12
`In this case, you must decide several things according to the instructions that I will give
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`you at the end of the trial. Those instructions will repeat this summary and will provide more
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`detail. In essence, you must decide:
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`1. Whether Acceleration Bay has proven by a preponderance of the evidence that
`Activision has infringed, literally or under the doctrine of equivalents, any of the
`Asserted Claims.
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`2. Whether Activision has proven by clear and convincing evidence that any of the
`infringed Asserted Claims are invalid.
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`3. If any of the Asserted Claims are infringed and not invalid, whether Activision
`willfully infringed any of the Asserted Patents.
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`4. The amount of damages that will adequately compensate Acceleration Bay for
`Activision’s infringement of any valid and infringed Asserted Patent.
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`12 1993 Model Instructions; AVM 2; D&M.
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`13.
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`CONDUCT OF THE JURY13
`Now, a few words about your conduct as jurors. First, I instruct you that during the trial
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`you are not to discuss the case with anyone or permit anyone to discuss it with you. Until you
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`retire to the jury room at the end of the case to deliberate on your verdict, you simply are not to
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`talk about this case. If any lawyer, party, or witness does not speak to you when you pass in the
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`hall, ride the elevator, or the like, remember it is because they are not supposed to talk with you
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`nor you with them. In this way, any unwarranted and unnecessary suspicion about your fairness
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`can be avoided. If anyone should try to talk to you about it, bring it to the court’s attention
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`promptly. There are good reasons for this ban on discussions. The most important is the need
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`for you to keep an open mind throughout the presentation of the evidence.
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`Second, do not read or listen to anything touching on this case in any way. By that I
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`mean, if there may be a newspaper article or radio or television report relating to this case, do not
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`read the article or watch or listen to the report. In addition, do not try to do any independent
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`research or investigation on your own on matters relating to the case, including using the
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`Internet.
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`I know that many of you use cell phones, smart phones, tablets, and other portable
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`electronic devices, as well as laptops, netbooks, and other computers. You must not talk to
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`anyone at any time about this case or otherwise use these or other electronic devices to
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`communicate with anyone about the case or, as I noted, get information about the case, the
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`parties or any of the witnesses or lawyers involved in the case. This includes your family and
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`friends. You may not communicate with anyone about the case on your cell phone, through e-
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`mail, text messaging, Facebook, Snapchat, Twitter, Instagram, or through any blog or website.
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`You may not use any similar technology or social media to get information about this case, even
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`if I have not specifically mentioned it here.
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`13 Third Circuit Model Civil Jury Instruction (“Third Circuit Model Instructions”); 1993 Model
`Instructions; In MIICS & Partners v. Funai Elec., Civ. Action No. 1:14-cv-00804-RGA
`Preliminary jury instructions; D&M; AVM 2; AVM 1; IDT.
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`Finally, do not form any opinion until all the evidence is in. Keep an open mind until you
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`start your deliberations at the end of the case.
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`During the trial, you may, but are not required to, take notes regarding testimony; for
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`example, exhibit numbers, impression of witnesses or other things related to the proceedings. A
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`word of caution is in order. Your notes are only a tool to aid your own individual memory and
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`you should not compare your notes with other jurors in determining the content of any testimony
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`or in evaluating the importance of any evidence. Your notes are not evidence, and are by no
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`means a complete outline of the proceedings or a list of the highlights of the trial. Also, keep in
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`mind that you will not have a transcript of the testimony to review. So, above all, your memory
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`will be your greatest asset when it comes time to deliberate and render a decision in this case.
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`If you do take notes, you must leave them in the jury deliberation room which is secured
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`at the end of each day. And, remember that they are for your own personal use.
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`14.
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`COURSE OF THE TRIAL14
`The trial will now begin. First, each side may make an opening statement. An opening
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`statement is neither evidence nor argument. It is an outline of what that party intends to prove,
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`and is presented to help you follow the evidence as it is offered.
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`After the opening statements, the plaintiff will present evidence which may include
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`testimony from live witnesses, previously recorded testimony, and documents, and things.
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`During the trial, it may be necessary for me to talk with the lawyers out of your hearing
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`by having a bench conference, which is also called a sidebar. If that happens, please be patient.
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`We are not trying to keep important information from you. These conferences are necessary for
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`me to fulfill my responsibility to be sure that evidence is presented to you correctly under the
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`law. We will, of course, do what we can to keep the number and length of these conferences to a
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`minimum. While we meet, feel free to stand up and stretch and walk around the jury box, if you
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`wish. I may not always grant an attorney’s request for a sidebar. Do not consider my granting or
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`denying a request for a conference as any indication of my opinion of the case or of what your
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`verdict should be.
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`After all of the evidence is presented, the attorneys will make their closing arguments to
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`summarize and interpret the evidence for you, and I will give you instructions on the law and
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`describe for you the matters you must resolve. The instructions I give you at the end of the case
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`will control your deliberations and decision. You will then retire to the jury room to deliberate
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`on your verdict.
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`14 1993 Model Instructions; AVM2; AVM1; IDT.
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`- 19 -
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`