Case 1:16-cv-00453-WCB Document 846 Filed 04/28/24 Page 1 of 8 PageID #: 56505
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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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`Plaintiff,
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`ACTIVISION BLIZZARD,
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`v.
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`Defendant.
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`Civil Action No. 16-453-WCB
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`PRELIMINARY JURY INSTRUCTIONS
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`Members of the jury, now that you have been sworn in as jurors, we are ready to begin the
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`trial in this case. As I have mentioned, this is a case involving patents. Because you may not be
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`familiar with patents, a 17-minute video will be shown to you as an introduction. The video
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`contains background information to help you understand what patents are, why they are needed,
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`what the role the patent office plays in the process, and why disputes over patents arise. The video
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`was prepared by the Federal Judicial Center, not by the parties in this case. After we play the
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`video, I will talk to you about the general rules that will apply to the trial. Please note that the
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`video discusses patent invalidity, but that is not an issue in this case.
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` We will play the video now:
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`[play video]
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`As you heard on the video, infringement is the legal term for the violation of a patent
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`owner’s rights under a patent. A person or company that is sued for infringing a patent can deny
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`infringement. In this case, Acceleration Bay is the owner of United States Patent Numbers
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`6,701,344 and 6,732,147. These patents will be referred to as the ’344 Patent and the ’147 Patent,
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`which are the last three digits of each patent’s number. Acceleration Bay contends that Activision
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`has infringed certain claims of those patents. As was explained in the video you saw, the “claims”
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`of a patent are the parts that set forth what the inventor asserts he or she has invented and is
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`protected by the patent. The rest of the patent does not define the patent right, only the claims do.
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`Acceleration Bay contends that Activision has infringed by making, using, selling, or offering to
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`sell certain products that Acceleration Bay argues are covered by claim 12 of the ‘344 Patent and
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`claim 1 of the ‘147 Patent. These claims may be referred to as the “Asserted Claims” of the
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`Asserted Patents. The products that are alleged to infringe are World of Warcraft, Call of Duty:
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`Black Ops III, and Call of Duty: Advanced Warfare. These products that Acceleration Bay accuses
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`of infringing its patents will be referred to as the “Accused Products.” Activision denies that it has
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`infringed the Asserted Patents.
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`Your role in this trial will be to find from the evidence what the facts are. You will then
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`apply those facts to the law as I give it to you, and you will be responsible for reaching a verdict.
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`My role is not to suggest to you what that verdict should be, but simply to rule on disputes between
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`the parties that arise in the course of the trial, and to instruct you on the legal principles that you
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`are to apply. Nothing I say or do should be taken by you as indicating what your verdict should
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`be. I may ask questions of the witnesses from time to time, but when I do so it will be only to
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`clarify points in a way that I think may be helpful to you; it is not an indication that I have a view
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`one way or another as to any witness’s testimony or more generally how the case should come out.
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`The evidence from which you will find the facts will include the testimony of witnesses in
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`response to questions asked by the attorneys. The evidence will also include documents and other
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`things received into the record as exhibits and any facts that the lawyers agree to. But certain other
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`things are not evidence. Statements and arguments by the lawyers, for example, are not evidence
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`but are merely intended to guide your consideration of the evidence. At various points, the lawyers
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`may raise objections to certain questions that are asked, and I will rule on those objections. Those
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`objections and my rulings on them are not evidence, and you should not be influenced by any
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`objection or my ruling on it. And if I tell you to disregard a particular question or answer that
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`comes up during the trial, you must do so. Finally, anything you may have seen or heard outside
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`the courtroom is not evidence and must be disregarded. You are to decide the case based solely
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`on the evidence presented here in the courtroom.
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` You are the sole judges of each witness’s credibility. You should consider each witness’s
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`knowledge and memory, whether the witness’s testimony is consistent or has been contradicted,
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`whether the witness has any bias in favor of one side, the witness’s manner on the witness stand,
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`and any other circumstance that you would consider in gauging a person’s credibility in everyday
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`life. The weight of the evidence to prove a fact does not necessarily depend on the number of
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`witnesses who testify. What is more important is how believable the witnesses were, and how
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`much weight you think their testimony deserves. You are not required to believe any witness if
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`you do not find their testimony believable.
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`Much of the evidence you will hear will be in the form of testimony from live witnesses
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`through direct examination by one side and cross-examination by the other. But you will also hear
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`some evidence that will be presented through what we call deposition testimony. A deposition is
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`the sworn, recorded testimony of a witness that is taken in advance of trial, typically when a
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`witness is not available to testify in person at the trial. You should judge deposition testimony in
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`the same way that you judge live testimony.
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`You will also hear testimony from witnesses referred to as expert witnesses. When
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`knowledge of technical subject matter may be helpful to a jury, a person who has special training
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`or experience in that technical field is permitted to state his or her opinion on those technical
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`matters. That person is referred to as an expert witness. But you are not required to accept that
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`opinion simply because it comes from an expert. As in the case of every other witness, it is up to
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`you to decide whether to rely on it.
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`Now let me talk a bit about burdens of proof. We use the word “burden” because the
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`person that has the burden of proof on a particular issue is the party that must persuade you with
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`respect to that issue. If at the end of the trial you’re not persuaded by the party that has the burden
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`on a particular issue, then that party loses on that issue.
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`As the patent owner, Acceleration Bay has the burden of proving infringement, and it is
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`required to prove infringement by what is called the preponderance of the evidence. That means
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`Acceleration Bay has to produce evidence which, considered in the light of all the facts, leads you
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`to believe that what Acceleration Bay alleges is more likely true than not. If Acceleration Bay
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`does not satisfy that burden, you must rule in favor of Activision on that issue.
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`Acceleration Bay also contends that Activision willfully infringed Acceleration Bay’s
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`patents. Acceleration Bay has the burden of proving willful infringement by a preponderance of
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`the evidence.
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`Those of you who may be familiar with the burden of proof in criminal cases will have
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`heard of the burden of proof beyond a reasonable doubt, which is a very high burden. That burden
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`does not apply to a civil case such as this one, so you should put that burden of proof out of your
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`mind.
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`In this case, you will be asked to decide several things according to the legal instructions I
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`will give you at the end of the trial. Those instructions will cover some of the same ground that I
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`have discussed today, only in more detail. You will be required to decide three things: first, you
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`must decide whether Acceleration Bay has proved by a preponderance of the evidence that the
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`Accused Products infringe one or more of the Asserted Claims; second, if you find that
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`Activision’s Accused Products infringe one or more of the Asserted Claims, you must decide the
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`amount of money, if any, to award to Acceleration Bay to compensate it for the infringement; and
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`third, if you find that one or more of the Asserted Claims are infringed, you must decide whether
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`Acceleration Bay has proved by a preponderance of the evidence that Activision’s infringement
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`was willful.
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`Now let me say a few words about your conduct as jurors:
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`First, during the trial you may find that people want to talk to you about the case. This is
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`very natural and quite common. You go home, someone says, “What is the case about?” As much
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`as you might want to talk about the case, you need to tell that person that you cannot discuss it
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`until it’s over. You can tell them that you were selected for a jury in a civil case—that it’s not a
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`criminal case—but that is as much as you should say. The reason is that if you start down the road
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`of talking about the case, you never know what will happen.
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`You might talk to someone who says, “Oh, yes, I sat on a case like that, and here’s what
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`happened,” and suddenly you have outside information coming in and influencing the way you
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`look at this case. We do not want that. So if anyone starts to talk to you about the case, just tell
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`them politely that you cannot discuss it until it is over.
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`If a lawyer or other member of one of the trial teams should encounter you in the hall or in
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`the elevator, they will not speak with you. That is not because they are unfriendly; it is because
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`they are not supposed to talk with you during the trial. If anyone does try to talk to you about the
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`case, please bring it to my attention. After you have returned a verdict and the case is at its end
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`you will be free to discuss the case with others, or not to discuss it, as you choose. That is your
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`decision.
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`I know that many of you probably use cell phones, tablets, email, the Internet, and other
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`technology to communicate. You must not use those tools to communicate with anyone else about
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`the case. That includes your family and friends.
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`Second, do not read or listen to anything related to this case in any way. By that I mean
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`that if there is a newspaper article or Internet post or a radio or television report about the case, do
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`not read the article or watch or listen to the report.
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`Third, do not do any research or investigation about the case on your own. That is, you
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`must not look up any individuals or companies involved in the case, or consult dictionaries or
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`reference materials, including the Internet, with regard to the case. It is important that you decide
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`this case based solely on the evidence presented in this courtroom.
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`Finally, do not make up your mind about the case until you have heard all the evidence.
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`Keep an open mind until you start your deliberations with your fellow jurors. It is best not to talk
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`among yourselves about the merits of the case before all the evidence is in and you have heard the
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`arguments of the lawyers, because sometimes something that looks clear to you at the beginning
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`may look very different after you have heard all the evidence and the arguments from both sides.
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`All of you will be given notebooks containing some helpful information. The notebooks
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`will also contain blank pages on which you can keep notes if you choose to do so. During the trial,
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`you can use the notebook to take notes about testimony or other aspects of the trial, but you are
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`not required to. And I would caution you that taking notes is not for everybody. Some people find
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`that taking notes is helpful to them, and others find that it interferes with their ability to concentrate
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`on what is being said. Do what works for you. Whether or not you use the notebooks for keeping
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`notes, you should leave the notebooks in the jury room at the end of each day.
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`During the trial, it may be necessary for me to talk with the lawyers out of your hearing by
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`having conferences here at the bench. If that happens, please be patient. We are not trying to keep
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`important information from you. These conferences are necessary for me to fulfill my
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`responsibility to be sure that evidence is presented to you consistent with the rules of evidence.
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`We will do our best to keep these conferences to a minimum and keep them short. If you would
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`like to stand or stretch or walk around the jury box during any of those conferences, you should
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`feel free to do so.
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`Now let me give you an idea of what the sequence of events will be in this trial. After I
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`finish these preliminary remarks, the lawyers for each side will make what are called opening
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`statements. These will be brief statements that are not evidence in the case, but will give you a
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`sort of roadmap for the case, as the lawyers tell you what they expect the evidence in the case to
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`show.
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`Next, the evidence will be presented to you through calling and questioning of witnesses,
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`along with the introduction of exhibits. After each witness testifies for one party, the other party’s
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`attorney will be allowed to cross-examine the witness. Acceleration Bay will go first. Then, when
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`Acceleration Bay has presented its evidence on infringement, Activision will present its evidence
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`that it has not infringed the patents.
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`After the evidence is complete, I will give you detailed instructions as to the legal principles
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`you are to apply during your deliberations. Following those instructions, the parties will present
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`their final arguments to you.
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`You will then be ready to retire to the jury room to begin your deliberations. I will give
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`you a few final instructions regarding how to conduct the deliberations. When you all agree on a
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`verdict—and it has to be unanimous—you will return from the jury room and deliver your verdict.
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`I have one final comment. As I indicated earlier, this case is expected to take five days to
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`try. But there is a lot to cover in those five days, so if we are going to get through everything we
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`have to cover, it is absolutely critical that we start on time each day. That means everyone needs
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`to be in the jury room and ready to go at 9:00 a.m. Please make it a point to be on time each day.
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`If anyone is late, the entire trial will be delayed, and as a result it is possible that we will not be
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`able to finish within the five days we have set aside for the trial.
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`That is all I have for now. I will now turn things over to the attorneys for their opening
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`statements.
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