Case 1:16-cv-00453-RGA Document 598-2 Filed 10/16/18 Page 1 of 41 PageID #: 48722
`Case 1:16-cv-00453-RGA Document 598-2 Filed 10/16/18 Page 1 of 41 PagelD #: 48722
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`EXHIBIT A-2
`EXHIBIT A-2
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`Case 1:16-cv-00453-RGA Document 598-2 Filed 10/16/18 Page 2 of 41 PageID #: 48723
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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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`FINAL JURY INSTRUCTIONS
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`Case 1:16-cv-00453-RGA Document 598-2 Filed 10/16/18 Page 3 of 41 PageID #: 48724
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`1.
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`INTRODUCTION1
`Members of the jury, now it is time for me to instruct you about the law that you must
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`follow in deciding this case.
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`Each of you has been provided a copy of these instructions. If you prefer, you may read
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`along as I deliver them; however, I would encourage you to focus your attention on me while the
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`instructions are being read. You will be able to take your copies with you into your deliberations
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`and refer to them at any time, if necessary.
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`I will start by explaining your duties and the general rules that apply in every civil case.
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`Then I will explain some rules that you must use in evaluating particular testimony and evidence.
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`Then I will explain the positions of the parties and the law you will apply in this case. And last, I
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`will explain the rules that you must follow during your deliberations in the jury room, and the
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`possible verdicts that you may return.
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`Please listen very carefully to everything I say. Some of these instructions are similar to
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`those I read at the beginning of trial. But it may be helpful to hear them again as a refresher.
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`It is your duty as jurors to follow the law as I shall state it to you, and to apply that law to
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`the facts as you find them from the evidence in the case. You are not to single out one
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`instruction alone as stating the law but must consider the instructions as a whole. You should not
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`be concerned with the wisdom of any rule that I state. Regardless of any opinion that you may
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`have as to what the law may be—or ought to be—it would violate your sworn duty to base a
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`verdict upon any view of the law other than that which I give you.
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`You will have a written copy of these instructions with you in the jury room for your
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`reference during your deliberations. You will also have a verdict form, which will list the
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`questions that you must answer to decide this case.
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`1 1993 Delaware Instructions; AVM Techs., LLC v. Intel Corp., C.A. No. 15-33-RGA-MPT, D.I.
`707 (Proposed Jury Instructions) (D. Del. May 6, 2017) (“AVM 2”); 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
`(Proposed Jury Instructions) (D. Del. Feb. 20, 2018) (“D&M”).
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`- 2 -
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`Case 1:16-cv-00453-RGA Document 598-2 Filed 10/16/18 Page 4 of 41 PageID #: 48725
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`2.
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`JURORS’ DUTIES2
`You have two main duties as jurors. The first one is to decide what the facts are from the
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`evidence that you saw and heard here in court. Deciding what the facts are is your job, not mine,
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`and nothing that I have said or done during this trial was meant to influence your decision about
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`the facts in any way.
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`Your second duty is to take the law that I give you, apply it to the facts, and decide which
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`party should prevail on the issues presented. I will instruct you about the burden of proof
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`shortly. It is my job to instruct you about the law, and you are bound by the oath that you took at
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`the beginning of the trial to follow the instructions that I give you, even if you personally
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`disagree with them. This includes the instructions that I gave you before and during the trial, and
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`these instructions. All the instructions are important, and you should consider them together as a
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`whole.
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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.
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`2 AVM 2; D&M; 1993 Delaware Instructions.
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`Case 1:16-cv-00453-RGA Document 598-2 Filed 10/16/18 Page 5 of 41 PageID #: 48726
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`3.
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`BURDENS OF PROOF3
`Acceleration Bay has the burden of proving patent infringement by what is called a
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`preponderance of the evidence. That means Acceleration Bay has to produce evidence which,
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`when considered in light of all of the facts, leads you to believe that what Acceleration Bay
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`claims is more likely true than not. To put it differently, if you were to put the plaintiff’s and the
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`defendant’s evidence on the opposite sides of a scale, the evidence supporting the plaintiff's
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`claims would have to make the scales tip somewhat on his side.
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`In this case, Activision contends that the Asserted Patents are invalid. Activision has the
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`burden of proving invalidity by clear and convincing evidence. Clear and convincing evidence is
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`evidence that produces an abiding conviction that the truth of a factual contention is highly
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`probable. Proof by clear and convincing evidence is thus a higher burden than proof by a
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`preponderance of 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 or defendant has met
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`its burden of proof.
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`3 AVM 2; D&M; 1993 Delaware Instructions.
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`Case 1:16-cv-00453-RGA Document 598-2 Filed 10/16/18 Page 6 of 41 PageID #: 48727
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`4.
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`EVIDENCE DEFINED4
`You must make your decision based only on the evidence that you saw and heard here in
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`the courtroom. Do not let rumors, suspicions, or anything else that you may have seen or heard
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`outside of court influence your decision in any way.
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`The evidence in this case includes only what the witnesses said while they were testifying
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`under oath (including deposition testimony that has been played or read to you), the exhibits that
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`I allowed into evidence, and any facts that the parties agreed to by stipulation.
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`Nothing else is evidence. The lawyers’ statements and arguments are not evidence.
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`Their questions and objections are not evidence. My legal rulings are not evidence. None of my
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`comments or questions are evidence.
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`During the trial I may not have let you hear the answers to some of the questions that the
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`lawyers asked. I also may have ruled that you could not see some of the exhibits that the lawyers
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`wanted you to see. And sometimes I may have ordered you to disregard things that you saw or
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`heard. You must completely ignore all of these things. Do not speculate about what a witness
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`might have said or what an exhibit might have shown. These things are not evidence, and you
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`are bound by your oath not to let them influence your decision in any way.
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`You may have seen demonstrative exhibits during the trial. These are exhibits that the
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`lawyers or the witnesses have prepared to help you understand particular testimony. While you
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`may consider these exhibits as part of the testimony, they are not evidence unless I specifically
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`admit them into evidence.
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`Make your decision based only on the evidence, as I have defined it here, and nothing
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`else.
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`4 AVM 2; D&M; 1993 Delaware Instructions.
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`Case 1:16-cv-00453-RGA Document 598-2 Filed 10/16/18 Page 7 of 41 PageID #: 48728
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`5.
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`STATEMENTS OF COUNSEL5
`A further word about statements and arguments of counsel. The attorney’s statements
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`and arguments are not evidence. Instead, their statements and arguments are intended to help
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`you review the evidence presented. If you remember the evidence differently from the attorneys,
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`you should rely on your own recollection.
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`The role of attorneys is to zealously and effectively advance the claims of the parties they
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`represent within the bounds of the law. An attorney may argue all reasonable conclusions from
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`evidence in the record. It is not proper, however, for an attorney to state an opinion as to the
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`truth or falsity of any testimony or evidence. What an attorney personally thinks or believes
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`about the testimony or evidence in a case is not relevant, and you are instructed to disregard any
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`personal opinion or belief concerning testimony or evidence that an attorney has offered during
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`opening or closing statements, or at any other time during the course of the trial.
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`5 AVM 2; D&M.
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`Case 1:16-cv-00453-RGA Document 598-2 Filed 10/16/18 Page 8 of 41 PageID #: 48729
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`6.
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`USE OF NOTES6
`You may use notes taken during the trial to assist your memory. Remember that your
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`notes are for your personal use. They may not be given or read to anyone else. Do not use your
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`notes, or any other juror’s notes, as authority to persuade fellow jurors. Your notes are not
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`evidence, and they are by no means a complete outline of the proceedings or a list of the
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`highlights of the trial. Your notes are valuable only as a way to refresh your memory. Your
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`memory is what you should be relying on when it comes time to deliberate and render your
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`verdict in this case.
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`6 AVM 2; D&M.
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`Case 1:16-cv-00453-RGA Document 598-2 Filed 10/16/18 Page 9 of 41 PageID #: 48730
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`7.
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`CONSIDERATION OF EVIDENCE7
`You should use your common sense in weighing the evidence. Consider it in light of
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`your everyday experience with people and events and give it whatever weight you believe it
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`deserves. If your experience tells you that certain evidence reasonably leads to a conclusion, you
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`are free to reach that conclusion.
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`7 AVM 2; D&M; 1993 Model Instructions.
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`Case 1:16-cv-00453-RGA Document 598-2 Filed 10/16/18 Page 10 of 41 PageID #: 48731
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`8.
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`DIRECT AND CIRCUMSTANTIAL EVIDENCE8
`There are two kinds of evidence: direct and circumstantial.
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`Direct evidence is direct proof of a fact, such as testimony of an eyewitness.
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`Circumstantial evidence is proof of facts from which you may infer or conclude that other facts
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`exist. As a general rule, the law makes no distinction between these two types of evidence, but
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`simply requires that you find facts from all the evidence in the case, whether direct or
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`circumstantial or a combination of the two.
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`8 AVM 2; 1993 Model Instructions.
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`Case 1:16-cv-00453-RGA Document 598-2 Filed 10/16/18 Page 11 of 41 PageID #: 48732
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`9.
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`CREDIBILITY OF WITNESSES9
`You are the sole judges of each witness’ credibility. You must decide whether the
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`testimony of each witness is truthful and accurate, in part, in whole, or not at all. You also must
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`decide what weight, if any, you give to the testimony of each witness.
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`In evaluating the testimony of any witness, you may consider, among other things:
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` The ability and opportunity the witness had to see, hear, or know the things that the
`witness testified about;
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` The witness’ memory;
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` Any interest, bias, or prejudice the witness may have;
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` The witness’ intelligence;
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` The manner or demeanor of the witness while testifying; and
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` The reasonableness of the witness’ testimony in light of all the evidence in the case.
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`9 AVM 2; D&M.
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`Case 1:16-cv-00453-RGA Document 598-2 Filed 10/16/18 Page 12 of 41 PageID #: 48733
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`10.
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`EXPERT WITNESSES10
`When knowledge of technical subject matter might be helpful to the jury, a person who
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`has special training or experience in that technical field is permitted to state his or her opinion on
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`those technical matters. He or she is called an “expert witness.” However, you are not required
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`to accept that opinion. As with any other witness, it is up to you to judge the credibility of the
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`expert witness and decide whether to rely upon his or her testimony.
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`10 AVM 2; 1993 Model Instructions.
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`Case 1:16-cv-00453-RGA Document 598-2 Filed 10/16/18 Page 13 of 41 PageID #: 48734
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`11.
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`THE PARTIES AND THEIR CONTENTIONS11
`As I previously told you, Acceleration Bay alleges that certain Activision products
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`infringe the Asserted Claims of the Asserted Patents. Specifically, Acceleration Bay alleges that
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`Activision’s Call of Duty: Black Ops III and Call of Duty: Advanced Warfare, and Destiny
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`infringe claims 1, 11, 15, and 16 of the ‘147 Patent, and claims 1 and 11 of the ‘069 Patent, and
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`World of Warcraft infringes claims 12, 13, and 14 of the ‘344 Patent, claims 12 and 13 of the
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`‘966 Patent, and claims 9 and 16 of the ‘497 Patent, and that such infringement is willful.
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`Activision denies that it has infringed the Asserted Claims of the Asserted Patents, and also
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`argues that the Asserted Claims are invalid.
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`In this case, you must decide the issues according to the instructions I give you. In
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`general, these issues are:
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` Whether Acceleration Bay has proven by a preponderance of the evidence that Activision
`has infringed any of the Asserted Claims of the Asserted Patents.
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` Whether Acceleration Bay has proven, by a preponderance of the evidence, that any
`infringement was willful.
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` Whether Activision has proven by clear and convincing evidence that any of the Asserted
`Claims of the Asserted Patents are invalid.
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`
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`If any patent claims are infringed and not invalid, what amount of damages Acceleration
`Bay has proven by a preponderance of the evidence.
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`Your decision will be recorded in a “special verdict” form that I will provide you shortly.
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`11 AVM 2; D&M; 1993 Delaware Instructions.
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`Case 1:16-cv-00453-RGA Document 598-2 Filed 10/16/18 Page 14 of 41 PageID #: 48735
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`12.
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`THE PATENT CLAIMS
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`THE ROLE OF CLAIMS IN THE PATENT12
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`12.1.
`Before you can decide the issues in this case, you will need to understand the role of
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`patent “claims.” The patent claims are the numbered sentences at the end of each patent. The
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`claims are important because it is the words of the claims—not the specification, the
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`embodiments or examples—that define what a patent covers and whether there is infringement.
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`The figures and text in the rest of the patent provide a description and/or examples of the
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`invention and provide a context for the claims, but it is the claims that define the breadth of the
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`patent’s coverage. Each claim is effectively treated as if it were a separate patent, and each
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`claim may cover more or less than another claim. Therefore, what a patent covers depends, in
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`turn, on what each of its claims covers.
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`You will first need to understand what each claim covers in order to decide whether or
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`not there is infringement of the claim and to decide whether or not the claim is invalid. The law
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`says that it is my role to define the terms of the claims and it is your role to apply my definitions
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`to the issues that you are asked to decide in this case. Therefore, as I explained to you at the start
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`of the case, I have determined the meaning of the claims. I am providing them to you in a
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`document that will be provided to you with these instructions. You must accept my definitions
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`of these words in the claims as being correct. It is your job to take these definitions and apply
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`them to the issues that you are deciding, including the issues of infringement and validity.
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`12 Federal Circuit Bar Association Model Patent Jury Instructions (2016); AVM 2; DVM2.
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`Case 1:16-cv-00453-RGA Document 598-2 Filed 10/16/18 Page 15 of 41 PageID #: 48736
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`HOW A CLAIM DEFINES WHAT IT COVERS13
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`12.2.
`I will now explain how a claim defines what it covers. A claim sets forth, in words, a set
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`of requirements. Each claim sets forth its requirements in a single sentence. If a device or a
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`method satisfies each of these requirements, then it is covered by the claim.
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`There can be several claims in a patent. Each claim may be narrower or broader than
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`another claim by setting forth more or fewer requirements. The coverage of a patent is assessed
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`claim-by-claim. In patent law, the requirements of a claim are often referred to as “claim
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`elements” or “claim limitations.” When a thing (such as a product or a process) meets all of the
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`requirements of a claim, the claim is said to “cover” that thing, and that thing is said to “fall”
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`within the scope of that claim. In other words, a claim covers a product or process where each of
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`the claim elements or limitations is present in that product or process.
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`Sometimes the words in a patent claim are difficult to understand, which is why I have
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`defined certain specific terms in the claims.
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`By understanding the meaning of the words in a claim and by understanding that the
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`words in a claim set forth the requirements that a product or process must meet in order to be
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`covered by that claim, you will be able to understand the scope of coverage for each claim. Once
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`you understand what each claim covers, then you are prepared to decide the issues that you will
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`be asked to decide, such as infringement and invalidity.
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`13 Federal Circuit Bar Association Model Patent Jury Instructions (2016); AVM 2; D&M.
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`Case 1:16-cv-00453-RGA Document 598-2 Filed 10/16/18 Page 16 of 41 PageID #: 48737
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`INDEPENDENT AND DEPENDENT CLAIMS14
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`12.3.
`This case involves two types of patent claims: independent claims and dependent claims.
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`An “independent claim” sets forth all of the requirements that must be met in order to be
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`covered by that claim. Thus, it is not necessary to look at any other claim to determine what an
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`independent claim covers.
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`A “dependent claim” does not itself recite all of the requirements of the claim but refers
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`to another claim for some of its requirements. In this way, the claim “depends” on another
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`claim. A dependent claim incorporates all of the requirements of the claim(s) to which it refers.
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`The dependent claim then adds its own additional requirements. To determine what a dependent
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`claim covers, it is necessary to look at both the dependent claim and any other claim(s) to which
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`it refers. A product that meets all of the requirements of both the dependent claim and the
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`claim(s) to which it refers is covered by that dependent claim.
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`Because a dependent claim incorporates all of the features of the independent claim it
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`refers to, if you find that an independent claim is not infringed, then the claims that depend on
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`that independent claim cannot be infringed. Similarly, if you find that an independent claim is
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`not anticipated or obvious, then the claims that depend on that independent claim are also not
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`anticipated or obvious.
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`14 AVM 2; D&M; 1993 Model Instructions; Federal Circuit Bar Association Model Patent Jury
`Instructions (2016).
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`Case 1:16-cv-00453-RGA Document 598-2 Filed 10/16/18 Page 17 of 41 PageID #: 48738
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`13.
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`INFRINGEMENT
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`INFRINGEMENT GENERALLY15
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`13.1.
`Acceleration Bay alleges that Activision infringes the Asserted Patents. I will now
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`instruct you how to decide whether or not Activision has infringed the Asserted Patents.
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`Infringement is assessed on a claim-by-claim basis. Therefore, there may be infringement as to
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`one claim but no infringement as to another.
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`In order to prove infringement, Acceleration Bay must prove that the requirements of
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`infringement are met by a preponderance of the evidence, i.e., that it is more likely than not that
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`all of the requirements of infringement have been proved.
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`Acceleration Bay must prove by a preponderance of the evidence that Activision made,
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`used, sold, offered for sale within, or imported into the United States a product or method that
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`meets all of the requirements of a claim and did so without the permission of Acceleration Bay
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`during the time the Asserted Patents are in force. Activision may infringe the Asserted Patents
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`through its use of the Accused Products, including testing, development and gameplay. You must
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`compare the Accused Products with each and every one of the requirements of a claim to
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`determine whether all of the requirements of that claim are met. If they are met, there is
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`infringement. Infringement does not require proof that Activision intended to infringe.
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`You must determine, separately for each asserted claim, whether or not there is
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`infringement. There is one exception to this rule. If you find that a claim on which other claims
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`depend is not infringed, there cannot be infringement of any dependent claim that refers directly
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`or indirectly to that independent claim. On the other hand, if you find that an independent claim
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`has been infringed, you must still decide, separately, whether the Accused Products meet
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`additional requirements of any claims that depend from the independent claim, thus, whether
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`those claims have also been infringed. A dependent claim includes all the requirements of any of
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`the claims to which it refers plus additional requirements of its own.
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`15 AVM 2; D&M; Federal Circuit Bar Association Model Patent Jury Instructions (2016); Segan
`LLC v. Zynga Inc., No. CV 11-670-GMS, 2013 WL 12156529 (D. Del. May 2, 2013) (accused
`infringer’s “accessing of its own games is sufficient” to constitute “use” under 271(a)).
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`Case 1:16-cv-00453-RGA Document 598-2 Filed 10/16/18 Page 18 of 41 PageID #: 48739
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`There are two types of “direct infringement”: (1) “literal infringement” and (2)
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`“infringement under the doctrine of equivalents.”
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`Case 1:16-cv-00453-RGA Document 598-2 Filed 10/16/18 Page 19 of 41 PageID #: 48740
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`DIRECT INFRINGEMENT BY “LITERAL INFRINGEMENT”16
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`13.2.
`To determine literal infringement, you must compare the Accused Products with each
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`Asserted Claim, using my instructions as to the meaning of the terms in the Asserted Claims. An
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`Accused Product literally infringes a system claim if it includes each and every element of that
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`claim. Similarly, use of an Accused Product literally infringes an asserted method claim if the
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`use involves the performance of each and every step in that method claim.
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`If an Accused Product (or use of an Accused Product) does not satisfy one or more
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`elements recited in an Asserted Claim, the Accused Product (or use of the Accused Product) does
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`not literally infringe that claim. As a reminder, you must determine literal infringement with
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`respect to each Asserted Claim individually.
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`16 AVM 2; D&M; Federal Circuit Bar Association Model Patent Jury Instructions (2016).
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`Case 1:16-cv-00453-RGA Document 598-2 Filed 10/16/18 Page 20 of 41 PageID #: 48741
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`13.3.
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`DIRECT INFRINGEMENT UNDER THE “DOCTRINE OF
`EQUIVALENTS” 17
`The other type of direct infringement is called infringement under the doctrine of
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`equivalents. Under the doctrine of equivalents, an Accused Product infringes a claim if the
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`Accused Product contains features corresponding to each and every element of the claim, where
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`those elements are equivalent to, even though not literally met by, the features of the Accused
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`Product. In other words, it is not required that every claim element be literally met in the
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`Accused Products, as long as the Accused Product includes an equivalent to any claim element
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`that is not literally present.
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`You may find that a feature or step is equivalent to an element or step recited in a claim if
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`a person having ordinary skill in the field of technology of the patent would have considered the
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`differences between them to be “insubstantial.” One way to determine if the differences are
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`insubstantial would be to determine whether the accused feature or step (1) performs
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`substantially the same function and (2) works in substantially the same way (3) to achieve
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`substantially the same result as the requirement of the claim.
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`Another way to determine if the differences are insubstantial is to determine whether the
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`feature or step in the Accused Product is “interchangeable” with the element or step recited in the
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`claim. In order for the feature or step to be considered interchangeable, the feature or step must
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`have been known at the time of the alleged infringement to a person having ordinary skill in the
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`field of technology of the patent. Interchangeability at the present time is not sufficient.
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`Finally, in order to prove infringement by “equivalents,” Acceleration Bay must prove
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`the equivalency of the feature or step to a claim element by a preponderance of the evidence.
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`In determining infringement by equivalents, you must still use the meanings for the claim terms
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`that I have provided.
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`17 AVM 2; D&M; Federal Circuit Bar Association Model Patent Jury Instructions (2016).
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`Case 1:16-cv-00453-RGA Document 598-2 Filed 10/16/18 Page 21 of 41 PageID #: 48742
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`13.4.
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` DIRECT INFRINGEMENT OF SYSTEM CLAIMS: ONE OR MORE
`SYSTEM COMPONENTS LOCATED OUTSIDE THE UNITED STATES
`
`Activision can also liable for direct infringement of Acceleration Bay’s system claims if
`
`
`
`it uses the infringing system within the United States, even if some of the elements of an accused
`
`system are located abroad. Activision uses an accused system in the United States if it puts the
`
`invention into service by controlling the system as a whole and obtaining the benefit from its use
`
`in the United States.18
`
`
`18 35 U.S.C. § 271(a); Carnegie Mellon Univ. v. Marvell Tech. Grp., Ltd., 807 F.3d 1283, 1306
`(Fed. Cir. 2015) (infringement under § 271(a) includes “making or using or selling in the United
`States or importing into the United States, even if one or more of those activities also occur
`abroad”); Fed. Cir. Bar Assoc. Model Patent Jury Instructions at § 3.6; Northern District of
`California Model Patent Instructions (Aug. 2017) at § 3.3 (“If one party controls and makes use
`of a system that contains all the requirements of the claim, that party may be an infringer even
`though the parts of the system do not all operate in the same place or at the same time “) (citing
`Centillion Data Sys., LLC v. Qwest Comm’ns Int’l, 631 F.3d 1279 (Fed. Cir. 2011); see also
`NTP, Inc. v. Research In Motion, Ltd., 418 F.3d 1282, 1317 (Fed. Cir. 2005) (“The use of a
`claimed system under section 271(a) is the place at which the system as a whole is put into
`service, i.e., the place where control of the system is exercised and beneficial use of the system
`obtained.”); Intellectual Ventures I LLC v. Motorola Mobility LLC, 870 F.3d 1320, 1329 (Fed.
`Cir. 2017) (“In an analysis of a system claim under Centillion, proof of an infringing “use” of the
`claimed system under § 271(a) requires the patentee to demonstrate that the direct infringer
`obtained “benefit” from each and every element of the claimed system.”); Federal Circuit Bar
`Association Model Patent Jury Instructions (2016).
`
`

`

`Case 1:16-cv-00453-RGA Document 598-2 Filed 10/16/18 Page 22 of 41 PageID #: 48743
`
`13.5.
`
` DIRECT INFRINGEMENT OF METHOD CLAIMS: JOINT
`INFRINGEMENT19
`
`Activision can also be liable for direct infringement of Acceleration Bay’s method claims
`
`if more than one actor is involved in practicing the steps, so long as the acts of another are
`
`attributable to Activision. Activision is responsible for another actor’s performance of the
`
`method steps if it directs or controls the other actor’s performance. Activision may also be held
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`liable if it (1) conditions participation in an activity or receipt of a benefit upon performance of a
`
`step of a patented method and (2) establishes the manner or timing of that performance. In such
`
`circumstances, Activision is considered a single actor chargeable for direct infringement.
`
`
`19 Travel Sentry, Inc. v. Tropp, 877 F.3d 1370, 1378 (Fed. Cir. 2017); Eli Lilly & Co. v. Teva
`Parenteral Medicines, Inc., 845 F.3d 1357, 1361 (Fed. Cir. 2017); Akamai Techs., Inc. v.
`Limelight Networks, Inc., 797 F.3d 1020 (Fed. Cir. 2015)
`
`

`

`Case 1:16-cv-00453-RGA Document 598-2 Filed 10/16/18 Page 23 of 41 PageID #: 48744
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`LITERAL INFRINGEMENT OF MEANS-PLUS-FUNCTION CLAIMS20
`
`13.6.
`The Court has instructed you that certain claims of the Asserted Patents contain means-
`
`plus-function clauses. To establish infringement, Acceleration Bay must prove that it is more
`
`likely than not that an Accused Product:
`
`(1) performs or is capable of performing the function identified in the Court’s claim
`
`constructions; and
`
`(2) uses or includes hardware or software that is identical or equivalent to the
`
`corresponding structures identified in the Court’s claim constructions.
`
`In deciding whether Acceleration Bay has proven that Activision’s Accused Products
`
`include structure covered by a the means-plus-function clauses, you must first decide whether the
`
`Accused Product has any structure that performs the specific function provided by the Court.
`
`If you find that an Accused Product includes some structure that performs this specific
`
`function, you must next decide whether the structure in the Accused Products is the same as, or
`
`equivalent to the structure recited in the Court’s construction.
`
`Whether the structure of an Accused Product is equivalent to structure identified in the
`
`Court’s claim construction is decided from the perspective of a person of ordinary skill in the art.
`
`If a person of ordinary skill in the art would consider the differences between the structure found
`
`in an Accused Product and structure identified in the Court’s construction to be insubstantial, the
`
`structures are equivalent. One way of showing that an element is only insubstantially different is
`
`
`20 AIPLA Model Patent Jury Instructions (2017); 35 U.S.C. § 112; Williamson v. Citrix Online,
`LLC, 792 F.3d 1339 (Fed. Cir. 2015) (en banc); Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448,
`1457 (Fed. Cir. 1998) (en banc); In re Donaldson Co., Inc., 16 F.3d 1189, 1193 & 1195 (Fed.
`Cir. 1994) (en banc); Chicago Bd. Options Exchange, Inc. v. Int’l Secs. Exchange, LLC, 677
`F.3d 1361, 1366-69 (Fed. Cir. 2012); Uniloc USA, Inc. v. Microsoft Corp., 632 F.3d 1292, 1304-
`05 (Fed. Cir. 2011); General Protecht Gp., Inc. v. Int’l Trade Comm’n., 619 F.3d 1303, 1312-13
`(Fed. Cir. 2010); Baran v. Med. Device Tech., Inc., 616 F.3d 1309, 1316-17, (Fed. Cir. 2010);
`Intellectual Sci. and Tech., Inc. v. Sony Elecs., Inc., 589 F.3d 1179, 1183 (Fed. Cir. 2009);
`Applied Med. Res. Corp. v. U.S. Surgical Corp., 448 F.3d 1324, 1333-34 (Fed. Cir. 2006);
`Chiuminatta Concrete Concepts, Inc. v. Cardinal Indus., Inc., 145 F.3d 1303, 1307-09 (Fed. Cir.
`1998); Kraft Foods Inc. v. Int’l Trade Comm., 203 F.3d 1362, 1371-73 (Fed. Cir. 2000); Odetics,
`Inc. v. Storage Tech. Corp., 185 F.3d 1259, 1266-68 (Fed. Cir. 1999); A1-Site Corp. v. VSI Int’l,
`Inc., 174 F.3d 1308, 1319-21 (Fed. Cir. 1999).
`
`
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`

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`Case 1:16-cv-00453-RGA Document 598-2 Filed 10/16/18 Page 24 of 41 PageID #: 48745
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`to show that it performs the same function, in substantially the same way, to achieve
`
`substantially the same result as would be achieved by the element that is not literally present in
`
`the accused structure.
`
`This analysis of “equivalents” here is specific to means-plus-function clauses for
`
`determining literal infringement and is not the same as infringement under the doctrine of
`
`equivalents described above. You may find separately that the function and structure identified
`
`in the Court’s claim construction are also equivalent and infringe under th