Case 1:16-cv-00453-RGA Document 598-3 Filed 10/16/18 Page 1 of 15 PageID #: 48763
`Case 1:16-cv-00453-RGA Document 598-3 Filed 10/16/18 Page 1 of 15 PagelD #: 48763
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`EXHIBIT B-1
`EXHIBIT B-1
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`Case 1:16-cv-00453-RGA Document 598-3 Filed 10/16/18 Page 1 of 15 PagelD #: 48763
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`EXHIBIT B-1
`EXHIBIT B-1
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`Case 1:16-cv-00453-RGA Document 598-3 Filed 10/16/18 Page 2 of 15 PageID #: 48764
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`C.A. No. 16-453 (RGA)
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`)))))))))
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`ACCELERATION BAY LLC,
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`ACTIVISION BLIZZARD, INC.,
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`Plaintiff,
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`v.
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`Defendant.
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`ACTIVISION’S PROPOSED PRELIMINARY JURY INSTRUCTIONS
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`Pursuant to D. Del. LR 51.1(a), Defendant Activision Blizzard, Inc. (“Activision”) submits these
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`proposed preliminary jury instructions. Activision will continue to meet with Plaintiff in an effort to
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`reach agreement or narrow disputes before trial.
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`OF COUNSEL:
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`Michael A. Tomasulo
`Gino Cheng
`David K. Lin
`Joe S. Netikosol
`WINSTON & STRAWN LLP
`333 South Grand Avenue, 38th Floor
`Los Angeles, CA 90071
`(213) 615-1700
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`David P. Enzminger
`Louis L. Campbell
`WINSTON & STRAWN LLP
`275 Middlefield Road, Suite 205
`Menlo Park, CA 94025
`(650) 858-6500
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`MORRIS, NICHOLS, ARSHT & TUNNELL LLP
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`/s/ JACK B. BLUMENFELD
`_______________________________________
`Jack B. Blumenfeld (#1014)
`Stephen J. Kraftschik (#5623)
`1201 North Market Street
`P.O. Box 1347
`Wilmington, DE 19899
`(302) 658-9200
`jblumenfeld@mnat.com
`skraftschik@mnat.com
`Attorneys for Defendant
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`Case 1:16-cv-00453-RGA Document 598-3 Filed 10/16/18 Page 3 of 15 PageID #: 48765
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`Dan K. Webb
`Kathleen B. Barry
`WINSTON & STRAWN LLP
`35 West Wacker Drive
`Chicago, IL 60601
`(312) 558-5600
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`Krista M. Enns
`WINSTON & STRAWN LLP
`101 California Street, 35th Floor
`San Francisco, CA 94111
`(415) 591-1000
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`Michael M. Murray
`Anup K. Misra
`WINSTON & STRAWN LLP
`200 Park Avenue,
`New York, NY 10166
`(212) 294-6700
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`Andrew R. Sommer
`Thomas M. Dunham
`Michael Woods
`Paul N. Harold
`Joseph C. Masullo
`WINSTON & STRAWN LLP
`1700 K Street, N.W.
`Washington, DC 20006
`(202) 282-5000
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`October 16, 2018
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`Case 1:16-cv-00453-RGA Document 598-3 Filed 10/16/18 Page 4 of 15 PageID #: 48766
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`Members of the jury:
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`Now that you have been sworn, I have the following preliminary instructions for your
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`guidance as jurors in this case.
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`1.1 COURT HAS NO OPINION1
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`You will hear the evidence and decide what the facts are, and then apply those facts to the
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`law as I will give it to you. You and only you will be the judges of the· facts. You will have to
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`decide what happened. I play no part in judging the facts. You should not take anything that I
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`may say or do during the trial as indicating what I think of the evidence or what your verdict
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`should be.
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`1 EMC Corporation et al. v. Pure Storage, Inc., 13-cv-1985-RGA, D.I. 435 (March 3, 2016)
`(“EMC Instructions”).
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`1
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`Case 1:16-cv-00453-RGA Document 598-3 Filed 10/16/18 Page 5 of 15 PageID #: 48767
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`1.2 SUMMARY OF CONTENTIONS2
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`To help you follow the evidence, I will now give you a summary of the· positions of the
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`parties.
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`This is a civil case arising under the patent laws of the United States. The Plaintiff in this
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`case is Acceleration Bay LLC, whom I will generally refer to as “Acceleration Bay” except
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`where it is important to your deliberations that you consider them as separate companies. The
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`Defendant in this case is Activision Blizzard, Inc., which the: parties and I will often refer to
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`simply as "Activision." Acceleration asserts infringement of five United States Patents which are
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`directed towards a specific broadcasting channel for communicating information in a network.
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`Each patent is identified by a seven-digit number, but, for your convenience, the parties and I
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`will usually refer to each patent by the last three numbers of the patent number. Therefore, you
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`will hear reference to the '344 Patent, the '966 Patent, the '069 Patent, the '147 Patent, and the
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`'497 Patent. The parties and I will also usually refer to the patents collectively as the Asserted
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`Patents.
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`In this case, Acceleration Bay alleges that Activision has infringed certain claims of the
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`six Asserted Patents. Activision denies that it infringes any of the Asserted Patents. Activision
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`also contends that all Asserted Claims of the Asserted Patents are invalid for various reasons.
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`As I mentioned, the Asserted Patents relate to a broadcasting channel for communicating
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`information in a network. During the trial, the parties will offer testimony to familiarize you with
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`this technology. We will also play a 20-minute video to give you an overview of the patent
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`system.
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`2 EMC Instructions.
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`2
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`Case 1:16-cv-00453-RGA Document 598-3 Filed 10/16/18 Page 6 of 15 PageID #: 48768
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`In this case, you are going to decide issues according to the instructions I give you. The
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`issues are (1) whether Acceleration Bay has proven by a preponderance of the evidence that
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`Activision has infringed the Asserted Claims of the Asserted Patents, and (2) whether Activision
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`has proven by clear and convincing evidence that any of the Asserted Claims of the Asserted
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`Patents are invalid.
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`If you decide that any of the Asserted Claims of the Asserted Patents has been infringed
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`and is not invalid, you will then need to decide any money damages to be awarded to
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`Acceleration Bay to compensate it for the infringement.
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`3
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`Case 1:16-cv-00453-RGA Document 598-3 Filed 10/16/18 Page 7 of 15 PageID #: 48769
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`1.3 JUROR CONDUCT3
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`A few words about your conduct as jurors.
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`First, during trial and until you have heard all of the evidence and retire to the jury room
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`to deliberate, you are not to discuss the case with anyone, not even amongst yourselves. If
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`anyone should try to talk to you about the case, including a fellow juror, bring it to my attention
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`promptly. There are good reasons for not having discussions, most important being the need for
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`you to keep an open mind through the presentation of the evidence.
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`Many of you use cell phones, smart phones, and other portable electronic devices and
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`computers to access the Internet to communicate with others. You must not talk to anyone about
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`this case or use any of these tools to communicate electronically with anyone about this case.
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`That includes your family and friends. You must not communicate orally with anyone about the
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`case on your cell phone, your smart phone, or any kind of computer or device of any kind, and
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`you also cannot use these devices to communicate electronically by messages or postings of any
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`kind, including e~mail, instant messages, text messages, Twitter, blogs, Internet chat rooms, or
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`social networking websites such as Facebook. You cannot do any of this during the trial.
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`If any lawyer, party, or witness does not speak to you in the hall or in the elevator, it is
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`not because they are being rude. They are not supposed to talk or visit with you· either. That is
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`the reason you are asked to wear your juror tags. It shows you are someone who is not to be
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`approached in any way.
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`Do not read or listen to anything related to this case that is not admitted into evidence. If
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`there is a newspaper article or radio or television report relating to this case, do not read the
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`article or watch or listen to the report.
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`3 EMC Instructions.
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`4
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`Case 1:16-cv-00453-RGA Document 598-3 Filed 10/16/18 Page 8 of 15 PageID #: 48770
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`In addition, do not do any independent research or investigation on your own on matters
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`relating to this case or this type of case. Do not do any research on the Internet, do not ask your
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`friends who you think know more about this than you do or what they know about it. There will
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`be quite a bit of complicated material, and it is up to the lawyers in this case to explain it to you
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`so that you can comprehend it well enough to render a fair verdict.
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`You are going to have some questions about things. Hopefully those questions will be
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`answered in the courtroom while the trial goes on. But if they are not answered in the courtroom,
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`do not go looking for the answers somewhere else. If you hear a word that you do not
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`understand, do not look it up in the dictionary to see what it means. Do not use websites or any
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`other electronic tools to find out anything that could help you. decide this case. You are to decide
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`the case based upon the evidence presented at trial. Please do not try to find out information from
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`any source outside the confines of this courtroom.
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`Do not reach any conclusions on the claims or defenses until all the evidence is in. Keep
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`an open mind until you start deliberations at the end of the case.
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`During the trial, it may be necessary for me to talk to lawyers outside of your hearing by
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`having a sidebar. If this happens, please be patient. We are not trying to keep important
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`information from you. These sidebars are necessary for me to fulfill my responsibility, which is
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`to be sure that evidence that is presented to you is properly presented to you under the law. We
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`will do what we can to keep the number and length of sidebars to a minimum.
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`5
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`Case 1:16-cv-00453-RGA Document 598-3 Filed 10/16/18 Page 9 of 15 PageID #: 48771
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`1.4 EVIDENCE DEFINED4
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`You must make your decision based only on the evidence that you will see and hear here
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`in court. Generally speaking, evidence from which are you are to find the facts consists of the
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`following: the testimony of witnesses; documents and other things received as exhibits; and any
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`facts that are stipulated, that is, formally agreed to by the parties.
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`The following things are not evidence: statements, arguments, and questions of the
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`lawyers for the parties of this case; objections by lawyers; any testimony I tell you to disregard;
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`and anything you may see or hear about this case outside the courtroom.
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`There are rules that control what can be received into evidence. When a lawyer asks a
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`question or offers an exhibit into evidence and a lawyer on the other side thinks it is not
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`permitted by the rules of evidence, that lawyer may object. This simply means the lawyer is
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`requesting that I make a legal decision on a particular rule of evidence. You should not be
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`influenced by the fact that an objection is made. Objections are not evidence. Lawyers have an
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`obligation to their clients to make objections when they believe that evidence being offered is
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`improper under the rules of evidence. You should not be influenced by the objection or my
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`ruling on it. If the objection is sustained, ignore the question. If it is overruled, treat the answer to
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`the question like any other.
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`If you are instructed that an item of evidence is received for a limited purpose, you must'
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`follow that instruction.
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`It is possible that I will order certain testimony or other evidence struck from the record.
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`If I do so, you will be instructed to disregard this evidence. Do not consider any testimony or
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`4 EMC Instructions.
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`6
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`Case 1:16-cv-00453-RGA Document 598-3 Filed 10/16/18 Page 10 of 15 PageID #: 48772
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`other evidence that gets struck or excluded. Do not speculate about what a witness might have
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`said or what an exhibit might have shown.
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`7
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`Case 1:16-cv-00453-RGA Document 598-3 Filed 10/16/18 Page 11 of 15 PageID #: 48773
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`1.5 DIRECT AND CIRCUMSTANTIAL EVIDENCE5
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`There are two kinds of evidence: direct evidence and circumstantial evidence. Direct
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`evidence is direct proof of a fact, such as the testimony of an eyewitness. For example, if a
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`witness testified that she saw it raining outside, and you believed her, that would be direct
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`evidence that it was raining.
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`Circumstantial evidence is indirect proof of a fact, i.e., proof of facts from which you
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`may infer or conclude that other facts exist. For example, if someone walked into the courtroom
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`wearing a raincoat covered with drops of water and carrying a wet umbrella, that would be
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`circumstantial evidence from which you could conclude that it was raining.
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`The law makes no distinction between the weight that you should give to either direct or
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`circumstantial evidence, nor does it say that one type of evidence is any better evidence than the
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`other. You should consider all the evidence, both direct and circumstantial, and give it whatever
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`weight you believe it deserves.
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`5 EMC Instructions.
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`8
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`Case 1:16-cv-00453-RGA Document 598-3 Filed 10/16/18 Page 12 of 15 PageID #: 48774
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`1.6 QUESTIONING OF WITNESSES AND TAKING NOTES6
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`Only the lawyers and I are allowed to ask questions of witnesses. You are not permitted
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`to ask questions of witnesses.
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`If you wish, you may take notes during the presentation of evidence, the summations of
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`the attorneys at the conclusion of the evidence, and during my instructions to you on the law. My
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`courtroom deputy will arrange for pens, pencils and paper. Your notes are for your own personal
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`use. They are not to be read or given to your fellow jurors.
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`The court reporters will be transcribing the testimony during the course of the trial. But
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`you should not assume that the transcripts will be available for your review during your
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`deliberations. Nor should you consider notes that you or your fellow jurors may take as a kind of
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`written transcript. Instead, as you listen to the testimony, keep in mind that you will be relying on
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`your memory of that testimony during your deliberations.
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`Note-taking is permitted, but it is not required. If you do take notes, do not take them
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`away from court. At the end of each day, leave your notes in the jury room. At the conclusion of
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`the case, after you have reached a verdict, a court officer will collect and destroy your notes.
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`6 EMC Instructions.
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`9
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`Case 1:16-cv-00453-RGA Document 598-3 Filed 10/16/18 Page 13 of 15 PageID #: 48775
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`1.7 BURDEN OF PROOF7
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`In any legal action, facts must be proven by a required standard of evidence, known as
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`the "burden of proof." In a patent case such as this, there are two different burdens of proof. The
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`first is called "preponderance of the evidence." The second is called "clear and convincing
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`evidence."
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`Acceleration Bay has the burden of proving patent infringement and damages by what is
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`called a preponderance of the evidence. That means Acceleration Bay has to produce evidence
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`which, when considered in light of all of the facts, leads you to believe that the infringement and
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`damages are more likely true than not. To put it differently, if you were to put Acceleration
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`Bay's and Activision's evidence on the opposite sides of a scale, the evidence supporting
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`Acceleration Bay's claims would have to make the scales tip somewhat on Acceleration Bay's
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`side. If the evidence is so evenly balanced that you are unable to say that the evidence on either
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`side of the issue is stronger, your finding on that issue must be against the party who has the
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`burden of proving it. Acceleration has the burden on the issues of infringement and damages and
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`if the evidence appears to be equally balanced or if you cannot say on which side it weighs
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`heavier, then you must enter a finding for Activision because Acceleration Bay has not met its
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`burden of proof.
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`Activision has challenged the validity of the asserted claims on a number of grounds, and
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`Activision has the burden of proving the invalidity of the asserted claims by clear and convincing
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`evidence. Although the patent was granted by the Patent and Trademark Office, it is your job to
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`determine whether Activision has proven, by clear and convincing evidence, that the legal
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`7 Based on EMC Instructions.
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`10
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`Case 1:16-cv-00453-RGA Document 598-3 Filed 10/16/18 Page 14 of 15 PageID #: 48776
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`requirements for patentability were not met. Clear and convincing evidence means that you must
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`be left with a clear conviction that the claim is invalid.
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`Case 1:16-cv-00453-RGA Document 598-3 Filed 10/16/18 Page 15 of 15 PageID #: 48777
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`1.8 OUTLINE OF TRIAL8
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`The trial will proceed in the following manner.
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`First, we are going to play a 20-minute patent video to give you an overview of the
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`system. Then, each side may make an opening statement. An opening statement is not evidence.
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`It is simply an opportunity for the lawyers to explain what they expect the evidence will show.
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`After the opening statements, the parties will present evidence which may include
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`testimony from live witnesses, previously recorded testimony, and documents.
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`After the evidence has been presented, I will give you final instructions on the law that
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`applies to the case. Then the attorneys will make closing arguments. These closing arguments by
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`the attorneys are not evidence. After the instructions and closing arguments, you will then decide
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`the case.
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`8 EMC Instructions.
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`12
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