Case 1:16-cv-00453-RGA Document 608 Filed 10/24/18 Page 1 of 19 PageID #: 49434
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`C.A. No. 16-453 (RGA)
`
`)))))))))
`
`
`)
`
`ACCELERATION BAY LLC,
`
`Plaintiff,
`
`v.
`
`ACTIVISION BLIZZARD, INC.,
`
`Defendant.
`
`UPDATED PRELIMINARY JURY INSTRUCTIONS
`
`

`

`Case 1:16-cv-00453-RGA Document 608 Filed 10/24/18 Page 2 of 19 PageID #: 49435
`
`1.
`
`INTRODUCTION1
`Members of the Jury: Now that you have been sworn, I am now going to give you some
`
`preliminary instructions to guide you in your participation in the trial.
`
`These instructions will give you some general guidance that might apply to any civil
`
`case. However, because this is a patent trial, which will deal with subject matter that is not
`
`within the everyday experience of most of us, I will also give you some additional preliminary
`
`instructions regarding patents to assist you in discharging your duties as jurors.
`
`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”).
`
`- 2 -
`
`

`

`Case 1:16-cv-00453-RGA Document 608 Filed 10/24/18 Page 3 of 19 PageID #: 49436
`
`2.
`
`THE PARTIES AND THEIR CONTENTIONS2
`Before I begin with those instructions, however, allow me to give you an overview of
`
`who the parties are and what each contends.
`
`You may recall that during the process that led to your selection as jurors, I advised you
`
`that this is a civil action for patent infringement arising under the patent laws of the United
`
`States. The parties in this case are the plaintiff, Acceleration Bay, LLC, which I will refer to as
`
`“Acceleration Bay” or the “plaintiff” and the defendant, Activision Blizzard, Inc., which I will
`
`refer to as “Activision” or the “defendant.”
`
`The case involves United States Patent Numbers: 6,701,344; 6,714,966; 6,732,147; and
`
`6,910,069, obtained by Fred B. Holt and Virgil E. Bourassa, and assigned to Boeing and then to
`
`Acceleration Bay. For convenience, the parties and I will often refer to these patents by the last
`
`three numbers of the patent. For example, I may simply say “the ‘344 Patent” instead of “U.S.
`
`Patent No. 6,701,344.”
`
`Acceleration Bay filed suit in this court against Activision for allegedly infringing the
`
`Asserted Patents by making, importing, using, selling, and offering for sale in the United States
`
`products that Acceleration Bay argues are covered by claim 12 of the ‘344 Patent, claim 13 of
`
`the ‘966 Patent, claim 1 of the ‘147 Patent, and claims 1 and 11 of the ‘069 Patent. These claims
`
`may be referred to as the “Asserted Claims” of the Asserted Patents. The products that are
`
`alleged to infringe are Call of Duty: Black Ops III and Call of Duty: Advanced Warfare, Destiny,
`
`and World of Warcraft.
`
`Activision denies that it has infringed the Asserted Claims of the Asserted Patents. You
`
`will determine the question of infringement for each Asserted Claim.
`
`During the course of this case, you will hear references to certain terms and phrases from
`
`the Asserted Claims of the Asserted Patents. I will give you a glossary of some of those term
`
`and phrases for which I have provided a definition that you are to use in deciding the issues
`
`2 AVM 2; 1993 Model Instructions; Fed. Cir. Bar Association Model Patent Jury Instructions
`(July 2016)
`
`- 3 -
`
`

`

`Case 1:16-cv-00453-RGA Document 608 Filed 10/24/18 Page 4 of 19 PageID #: 49437
`
`presented to you. Any other terms and phrases that are not included in the glossary should be
`
`given their plain and ordinary meaning.
`
`Your job will be to decide whether or not the Asserted Claims of the Asserted Patents
`
`have been infringed. If you decide that any claim of an Asserted Patent has been infringed, you
`
`will then need to decide any money damages to be awarded to Acceleration Bay to compensate it
`
`for the infringement. You will also need to make a finding as to whether Activision’s
`
`infringement was willful. If you decide that any infringement was willful, that decision should
`
`not affect any damages award you give. I will take willfulness into account later.
`
`- 4 -
`
`

`

`Case 1:16-cv-00453-RGA Document 608 Filed 10/24/18 Page 5 of 19 PageID #: 49438
`
`3.
`
`WHAT A PATENT IS AND HOW ONE IS OBTAINED3
`This case involves a dispute relating to United States patents. Before summarizing the
`
`positions of the parties and the legal issues involved in the dispute, let me take a moment to
`
`explain what a patent is and how one is obtained.
`
`Patents are granted by the United States Patent and Trademark Office (sometimes called
`
`“the USPTO” or “the PTO”). A United States patent gives the patent owner the right to prevent
`
`others from making, using, offering to sell, or selling the patented invention within the United
`
`States, or from importing it into the United States, during the term of the patent without the
`
`patent holder’s permission. A violation of the patent owner’s rights is called infringement. The
`
`patent owner may try to enforce a patent against persons believed to be infringers by filing a
`
`lawsuit in federal court.
`
`The process of obtaining a patent is called patent prosecution. To obtain a patent, one
`
`must file an application with the PTO. The PTO is an agency of the Federal Government and
`
`employs trained examiners who review applications for patents. The application includes what is
`
`called a “specification,” which must contain a written description of the claimed invention telling
`
`what the invention is, how it works, how to make it, and how to use it so others skilled in the
`
`field will know how to make or use it. The specification concludes with one or more numbered
`
`sentences. These are the patent “claims.” When the patent is eventually granted by the PTO, the
`
`claims define the boundaries of its protection and give notice to the public of those boundaries.
`
`After the applicant files the application, a PTO Patent Examiner reviews the patent
`
`application to determine whether the claims are patentable and whether the specification
`
`adequately describes the invention claimed. In examining a patent application, the patent
`
`examiner reviews certain information about the state of the technology at the time the application
`
`was filed. The PTO searches for and reviews information that is publicly available or that is
`
`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”).
`
`- 5 -
`
`

`

`Case 1:16-cv-00453-RGA Document 608 Filed 10/24/18 Page 6 of 19 PageID #: 49439
`
`submitted by the applicant. This information is called “prior art.” The Examiner reviews this
`
`prior art to determine whether or not the invention is truly an advance over the state of the art at
`
`the time. Prior art is defined by law, and, in general, prior art includes information that
`
`demonstrates the state of technology that existed before the claimed invention was made or
`
`before the application was filed. A patent lists the prior art that the Examiner considered; this list
`
`is called the “cited references.”
`
`After the prior art search and examination of the application, the patent Examiner informs
`
`the applicant in writing of what the examiner has found and whether the Examiner considers any
`
`claim to be patentable and, thus, would be “allowed.” This writing from the patent Examiner is
`
`called an “Office Action.” If the Examiner rejects the claims, the applicant has an opportunity to
`
`respond to the Examiner to try to persuade the Examiner to allow the claims, and to change the
`
`claims or to submit new claims. This process may go back and forth for some time until the
`
`Examiner is satisfied that the application meets the requirements for a patent and the application
`
`issues as a patent, or that the application should be rejected and no patent should issue.
`
`Sometimes, patents are issued after appeals within the PTO or to a court. The papers generated
`
`during these communications between the Examiner and the applicant are called the “prosecution
`
`history.”
`
`- 6 -
`
`

`

`Case 1:16-cv-00453-RGA Document 608 Filed 10/24/18 Page 7 of 19 PageID #: 49440
`
`4.
`
`MEANING OF THE PATENT AT ISSUE4
`I have already determined the meaning of the Asserted Claims of the Asserted Patents.
`
`You have been given a document reflecting those meanings. For a claim term for which I have
`
`not provided you with a definition, you should apply the ordinary meaning. You are to apply my
`
`definitions of these terms throughout this case. However, my interpretation of the language of
`
`the claims should not be taken as an indication that I have a view regarding issues such as
`
`infringement. Those issues are yours to decide. I will provide you with more detailed
`
`instructions on the meaning of the claims before you retire to deliberate your verdict.
`
`4 Fed. Cir. Bar Association Model Patent Jury Instructions (July 2016)
`
`- 7 -
`
`

`

`Case 1:16-cv-00453-RGA Document 608 Filed 10/24/18 Page 8 of 19 PageID #: 49441
`
`5.
`
`DUTIES OF THE JURY5
`Let me begin with those general rules that will govern the discharge of your duties as
`
`jurors in this case.
`
`It will be your duty to find what the facts are from the evidence as presented at the trial.
`
`You, and you alone, are the judges of the facts. You will have to apply those facts to the law as I
`
`will instruct you at the close of the evidence. You must follow that law whether you agree with
`
`it or not.
`
`In addition to instructing you about the law, I will provide you with instructions as to
`
`what the claims of the patent mean. Again, of course, you are bound by your oath as jurors to
`
`follow these and all the instructions that I give you, even if you personally disagree with them.
`
`All the instructions are important, and you should consider them together as a whole.
`
`You are the judges of the facts. I will decide which rules of law apply to this case.
`
`Perform these duties fairly. Do not let any bias, sympathy, or prejudice that you may feel
`
`toward one side or the other influence your decision in any way. Also, do not let anything that I
`
`may say or do during the course of the trial influence you. Nothing I say or do during the course
`
`of the trial is intended to indicate what your verdict should be.
`
`5 1993 Model Instructions; AVM 2; AVM 1; D&M.
`
`- 8 -
`
`

`

`Case 1:16-cv-00453-RGA Document 608 Filed 10/24/18 Page 9 of 19 PageID #: 49442
`
`6.
`
`EVIDENCE6
`The evidence from which you will find the facts will consist, in part, of the testimony of
`
`witnesses. The testimony of witnesses consists of the answers of the witnesses to questions
`
`posed by the attorneys or the court; you may not ask the witnesses questions. Evidence will also
`
`consist of documents and other things received into the record as exhibits, and any facts that the
`
`lawyers agree to or that I may instruct you to find.
`
`Certain things are not evidence and must not be considered by you. I will list them for
`
`you now:
`
`1.
`
`2.
`
`Statements, arguments, and questions by lawyers are not evidence.
`
`Objections to questions are not evidence. Lawyers have an obligation to their
`
`clients to make objections when they believe evidence being offered is improper under the rules
`
`of evidence. You should not be influenced by the objection or by the court’s ruling on it. If the
`
`objection is sustained, ignore the question. If it is overruled, treat the answer like any other. If
`
`you are instructed that some item of evidence is received for a limited purpose only, you must
`
`follow that instruction. If this occurs during the trial, I will try to clarify this for you at that time.
`
`3.
`
`Testimony that the court has excluded or told you to disregard is not evidence and
`
`must not be considered.
`
`4.
`
`Anything you may have seen or heard outside the courtroom is not evidence and
`
`must be disregarded. You are to decide the case solely on the evidence presented here in the
`
`courtroom.
`
`There are two kinds of evidence: direct and circumstantial. Direct evidence is evidence
`
`that does not require an inference, such as the testimony of an eyewitness, which, if you believe
`
`it, directly proves a fact. If a witness testified that he or she saw it raining outside, and you
`
`believed him or her, that would be direct evidence that it was raining.
`
`Circumstantial evidence is proof of facts from which you may infer or conclude that other
`
`facts exist. If someone walked into the courtroom wearing a raincoat covered with drops of
`
`6 AVM 2; AVM 1 (D.I. 245 at 5–6); D&M; 1993 Model Instructions.
`
`- 9 -
`
`

`

`Case 1:16-cv-00453-RGA Document 608 Filed 10/24/18 Page 10 of 19 PageID #: 49443
`
`water and carrying a wet umbrella, that would be circumstantial evidence from which you could
`
`conclude that it was raining.
`
`As a general rule, the law makes no distinction between these two types of evidence, nor
`
`does it say that one is any better evidence than the other. Rather, the law simply requires that
`
`you find facts from all the evidence in the case, whether direct or circumstantial or a combination
`
`of the two.
`
`- 10 -
`
`

`

`Case 1:16-cv-00453-RGA Document 608 Filed 10/24/18 Page 11 of 19 PageID #: 49444
`
`7.
`
`CREDIBILITY OF WITNESSES7
`You are the sole judges of each witness’s credibility. You should consider each witness’
`
`means of knowledge; strength of memory; opportunity to observe; how reasonable or
`
`unreasonable the testimony is; whether it is consistent or inconsistent; whether it has been
`
`contradicted; the witness’s biases, prejudices, or interests; the witness’s manner or demeanor on
`
`the witness stand; and all circumstances that, according to the evidence, could affect the
`
`credibility of the testimony.
`
`In determining the weight to give to the testimony of a witness, you should ask yourself
`
`whether there was evidence tending to prove that the witness testified falsely about some
`
`important fact, or, whether there was evidence that at some other time the witness said [or did]
`
`something, [or failed to say or do something] that was different from the testimony he gave at the
`
`trial.
`
`You should remember that a simple mistake by a witness does not necessarily mean that
`
`the witness was not telling the truth. People may tend to forget some things or remember other
`
`things inaccurately. If a witness has made a misstatement, you must consider whether it was
`
`simply an innocent lapse of memory or an intentional falsehood, and that may depend upon
`
`whether it concerns an important fact or an unimportant detail.
`
`7 AVM 1; AVM2; D&M; 1993 Model Instructions.
`
`- 11 -
`
`

`

`Case 1:16-cv-00453-RGA Document 608 Filed 10/24/18 Page 12 of 19 PageID #: 49445
`
`8.
`
`DEPOSITION TESTIMONY8
`You may hear witnesses testify through deposition testimony. A deposition is the sworn
`
`testimony of a witness taken before trial. The witness is placed under oath and swears to tell the
`
`truth, and lawyers for each party may ask questions. A court reporter is present and records the
`
`questions and answers. The deposition may also be recorded on videotape. Deposition
`
`testimony is entitled to the same consideration and is to be judged, insofar as possible, in the
`
`same way as if the witness had been present to testify.
`
`8 AVM2; AVM1; D&M.
`
`- 12 -
`
`

`

`Case 1:16-cv-00453-RGA Document 608 Filed 10/24/18 Page 13 of 19 PageID #: 49446
`
`9.
`
`EXPERT WITNESSES9
`You will also hear testimony from expert witnesses. When knowledge of technical
`
`subject matter may be helpful to the jury, a person who has special training or experience in that
`
`technical field—he or she is called an expert witness—is permitted to state his or her opinion on
`
`those technical matters. However, you are not required to accept that opinion. As with any other
`
`witness, it is up to you to decide whether to rely upon it.
`
`9 AVM 2; AVM1; D&M; 1993 Model Instructions.
`
`- 13 -
`
`

`

`Case 1:16-cv-00453-RGA Document 608 Filed 10/24/18 Page 14 of 19 PageID #: 49447
`
`10.
`
`BURDEN OF PROOF10
`This is a civil case in which Acceleration Bay is alleging patent infringement by
`
`Activision. The plaintiff has the burden of proving infringement and damages by what is called
`
`a preponderance of the evidence. That means the plaintiff has to produce evidence which, when
`
`considered in the light of all the facts, leads you to believe that what the plaintiff claims is more
`
`likely true than not. To put it differently, if you were to put the plaintiff's and the defendant's
`
`evidence on the opposite sides of a scale, the evidence supporting the plaintiff's claims would
`
`have to make the scales tip somewhat on its side. If plaintiff fails to meet this burden, your
`
`verdict must be for defendant.
`
`Those of you who are familiar with criminal cases will have heard the term "proof
`
`beyond a reasonable doubt." That burden does not apply in a civil case and you should,
`
`therefore, put it out of your mind in considering whether or not the plaintiff has met its burden of
`
`proof by a preponderance of the evidence in this case.
`
`I will give you detailed instructions on the law at the end of the case. But in order to help
`
`you follow the evidence, I will give you a brief summary of the issues.
`
`10 1993 Model Instructions; AVM 2; AVM 1
`
`- 14 -
`
`

`

`Case 1:16-cv-00453-RGA Document 608 Filed 10/24/18 Page 15 of 19 PageID #: 49448
`
`11.
`
`GENERAL GUIDANCE REGARDING PATENTS11
`Before I describe the parties’ contentions further, at this time, we are going to show a
`
`video that will provide background information to help you understand what patents are, why
`
`they are needed, the role of the Patent Office, and why disputes over patents arise. This video
`
`was prepared by the Federal Judicial Center, not the parties in this case, to help introduce you to
`
`the patent system. During the video, reference will be made to a sample patent.
`
`[The video will be played.]
`
`11 AVM 2; IDT.
`
`- 15 -
`
`

`

`Case 1:16-cv-00453-RGA Document 608 Filed 10/24/18 Page 16 of 19 PageID #: 49449
`
`12.
`
`SUMMARY OF THE PATENT ISSUES12
`In this case, you must decide several things according to the instructions that I will give
`
`you at the end of the trial. Those instructions will repeat this summary and will provide more
`
`detail. In essence, you must decide:
`
`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.
`
`2.
`
`If any of the Asserted Claims are infringed, whether Activision willfully infringed
`any of the Asserted Patents.
`
`3. The amount of damages that will adequately compensate Acceleration Bay for
`Activision’s infringement of any infringed Asserted Patent.
`
`12 1993 Model Instructions; AVM 2; D&M.
`
`- 16 -
`
`

`

`Case 1:16-cv-00453-RGA Document 608 Filed 10/24/18 Page 17 of 19 PageID #: 49450
`
`13.
`
`CONDUCT OF THE JURY13
`Now, a few words about your conduct as jurors. First, I instruct you that during the trial
`
`you are not to discuss the case with anyone or permit anyone to discuss it with you. Until you
`
`retire to the jury room at the end of the case to deliberate on your verdict, you simply are not to
`
`talk about this case. If any lawyer, party, or witness does not speak to you when you pass in the
`
`hall, ride the elevator, or the like, remember it is because they are not supposed to talk with you
`
`nor you with them. In this way, any unwarranted and unnecessary suspicion about your fairness
`
`can be avoided. If anyone should try to talk to you about it, bring it to the court’s attention
`
`promptly. There are good reasons for this ban on discussions. The most important is the need
`
`for you to keep an open mind throughout the presentation of the evidence.
`
`Second, do not read or listen to anything touching on this case in any way. By that I
`
`mean, if there may be a newspaper article or radio or television report relating to this case, do not
`
`read the article or watch or listen to the report. In addition, do not try to do any independent
`
`research or investigation on your own on matters relating to the case, including using the
`
`Internet.
`
`I know that many of you use cell phones, smart phones, tablets, and other portable
`
`electronic devices, as well as laptops, netbooks, and other computers. You must not talk to
`
`anyone at any time about this case or otherwise use these or other electronic devices to
`
`communicate with anyone about the case or, as I noted, get information about the case, the
`
`parties or any of the witnesses or lawyers involved in the case. This includes your family and
`
`friends. You may not communicate with anyone about the case on your cell phone, through e-
`
`mail, text messaging, Facebook, Snapchat, Twitter, Instagram, or through any blog or website.
`
`You may not use any similar technology or social media to get information about this case, even
`
`if I have not specifically mentioned it here.
`
`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.
`
`- 17 -
`
`

`

`Case 1:16-cv-00453-RGA Document 608 Filed 10/24/18 Page 18 of 19 PageID #: 49451
`
`Finally, do not form any opinion until all the evidence is in. Keep an open mind until you
`
`start your deliberations at the end of the case.
`
`During the trial, you may, but are not required to, take notes regarding testimony; for
`
`example, exhibit numbers, impression of witnesses or other things related to the proceedings. A
`
`word of caution is in order. Your notes are only a tool to aid your own individual memory and
`
`you should not compare your notes with other jurors in determining the content of any testimony
`
`or in evaluating the importance of any evidence. Your notes are not evidence, and are by no
`
`means a complete outline of the proceedings or a list of the highlights of the trial. Also, keep in
`
`mind that you will not have a transcript of the testimony to review. So, above all, your memory
`
`will be your greatest asset when it comes time to deliberate and render a decision in this case.
`
`If you do take notes, you must leave them in the jury deliberation room which is secured
`
`at the end of each day. And, remember that they are for your own personal use.
`
`- 18 -
`
`

`

`Case 1:16-cv-00453-RGA Document 608 Filed 10/24/18 Page 19 of 19 PageID #: 49452
`
`14.
`
`COURSE OF THE TRIAL14
`The trial will now begin. First, each side may make an opening statement. An opening
`
`statement is neither evidence nor argument. It is an outline of what that party intends to prove,
`
`and is presented to help you follow the evidence as it is offered.
`
`After the opening statements, the plaintiff will present evidence which may include
`
`testimony from live witnesses, previously recorded testimony, and documents, and things.
`
`During the trial, it may be necessary for me to talk with the lawyers out of your hearing
`
`by having a bench conference, which is also called a sidebar. If that happens, please be patient.
`
`We are not trying to keep important information from you. These conferences are necessary for
`
`me to fulfill my responsibility to be sure that evidence is presented to you correctly under the
`
`law. We will, of course, do what we can to keep the number and length of these conferences to a
`
`minimum. While we meet, feel free to stand up and stretch and walk around the jury box, if you
`
`wish. I may not always grant an attorney’s request for a sidebar. Do not consider my granting or
`
`denying a request for a conference as any indication of my opinion of the case or of what your
`
`verdict should be.
`
`After all of the evidence is presented, the attorneys will make their closing arguments to
`
`summarize and interpret the evidence for you, and I will give you instructions on the law and
`
`describe for you the matters you must resolve. The instructions I give you at the end of the case
`
`will control your deliberations and decision. You will then retire to the jury room to deliberate
`
`on your verdict.
`
`14 1993 Model Instructions; AVM2; AVM1; IDT.
`
`- 19 -
`
`