Case 1:16-cv-00453-WCB Document 854 Filed 05/03/24 Page 1 of 20 PageID #: 56802
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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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`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
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`Civil Action No. 16-453-WCB
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`FINAL JURY INSTRUCTIONS
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`1.
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`Introduction.
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`Ladies and gentlemen of the jury, you have heard all the evidence in this case. I will now
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`instruct you on the law that you are to apply. Following my instructions, the lawyers for each side
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`will make their final arguments to you. After that, you will retire to the jury room to begin your
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`deliberations.
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`These instructions will be a little lengthy, and they may be somewhat difficult to follow at
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`times. That is because the law in this case is complex. To help you, I have made copies of these
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`instructions that you can use during your deliberations. I mention this so you won’t feel that you
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`have to take notes right now or try to memorize anything as I speak. In fact, I would suggest that
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`you just listen to these instructions without trying to write anything down. If you miss something,
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`you will be able to check the written copy of these instructions once you return to the jury room.
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`When you return to the jury room, your job will be to consider the evidence you have heard
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`and to decide the case in light of the legal principles that I will explain now. You will record your
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`decisions on the various issues in the case by answering the questions on the verdict form that will
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`be waiting for you in the jury room.
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`The decision you make is yours and yours alone. Please remember that nothing I say now
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`or may have said, or any questions I may have asked during the trial, are intended to suggest or
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`should be taken by you as suggesting what I think your verdict should be.
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` Burdens of Proof.
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`I am going to start by returning to the subject of the burden of proof, which we discussed
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`briefly at the beginning of the case.
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`Acceleration Bay has the burden to prove that Activision infringes its asserted patents by
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`a preponderance of the evidence. The preponderance of the evidence means that Acceleration Bay
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`has the burden of persuading you that its assertion of infringement is more likely to be true than
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`untrue.
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`If the evidence persuades you that Acceleration Bay’s assertion is more likely to be true
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`than untrue, that means Acceleration Bay has satisfied its burden. If that happens, you should find
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`in favor of Acceleration Bay on the issue of infringement on that particular claim. If the evidence
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`does not persuade you that Acceleration Bay’s assertion is more likely to be true than untrue, that
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`means Acceleration Bay has failed to satisfy its burden. If that happens, you should find in favor
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`of Activision on the issue of infringement on that particular claim.
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`If you find that Acceleration Bay has proved that Activision has infringed Acceleration
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`Bay’s patent rights, you will need to decide how much money Acceleration Bay should be
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`awarded. On that issue as well, Acceleration has the burden to establish the amount of any money
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`to be awarded to Acceleration Bay.
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` Evidence in the Case; Credibility of Witnesses.
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`As the finders of fact, you are responsible for weighing the evidence in this case. That
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`includes the testimony of the witnesses you have heard, the exhibits that have been introduced as
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`evidence, and any facts that the parties have agreed are true. As a reminder, the lawyers’
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`statements and characterizations of the evidence are not evidence. While the opening statements
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`and closing arguments may have been helpful to you, your decision should ultimately depend on
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`your evaluation of the evidence.
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`As part of your role as jurors, you are entitled to weigh the testimony of the witnesses.
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`That’s a job well suited for jurors like yourselves who have heard and seen the witnesses. For
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`example, if two witnesses offer testimony that is in conflict, you should use your common sense
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`in deciding whether the testimony can be reconciled, and, if not, which witness you think is more
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`believable. You can consider, for example, each witness’s motive, state of mind, knowledge, and
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`manner while on the witness stand. If there is a question as to the relative expertise of two
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`witnesses, you should again use your common sense to decide which witness you find more
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`knowledgeable and more believable. The weight of the evidence to prove a fact does not
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`necessarily depend on the number of witnesses who testify. What is more important is how
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`believable the witnesses were and how much weight you think their testimony deserves. You are
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`entitled to give the testimony of each witness whatever weight you feel is appropriate. You may
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`choose to believe or disbelieve any witness’s testimony, either entirely or in part.
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`1.3. Expert Witnesses
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`Some of the witnesses have testified as expert witnesses because of their special knowledge
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`in their relevant fields. The fact that a witness has testified as an expert does not mean that you
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`must accept that witness’s opinions as true. As with all other witnesses, it is up to you to decide
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`whether you find the witness’s testimony convincing.
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`1.4. Depositions – Use as Evidence.
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`During the trial, some of the testimony was presented not through a live witness, but
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`through a deposition. The deposition testimony that you heard at trial is entitled to the same
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`consideration as any other evidence in the case, and you should judge its credibility and weight
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`just the same as if the witness had been present and testified in person here in the courtroom.
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`1.5. Demonstratives.
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`During the course of the trial, the lawyers and witnesses occasionally presented slides,
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`charts, and animations that were not formally admitted into evidence. Those items are commonly
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`referred to as demonstratives. They are not evidence and were intended only to aid in your
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`understanding of the evidence in the case. It is the underlying testimony of the witnesses and the
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`admitted trial exhibits that are the evidence in this case on which you should base your decisions.
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`1.6. The Parties’ Contentions and Questions to Decide.
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`Acceleration Bay alleges that Activision’s Accused Products infringe the asserted claims
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`of the asserted patents. Activision denies that it has infringed any claims of Acceleration Bay’s
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`patents.
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`I will now summarize the issues that you must decide. I will provide instructions on the
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`issues to guide your deliberations.
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`First, you must decide whether Acceleration Bay has proved, by a preponderance of the
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`evidence, that Activision has infringed either of the asserted claims of the asserted patents.
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`Second, if you find that Activision has infringed either asserted claim, you must decide
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`what amount of money Activision should be required to pay Acceleration Bay to compensate
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`Acceleration Bay for the infringement. The legal term for money that one party must pay to
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`another because of a legal wrong is “money damages.”
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`2.
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`Patent Claims.
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`To decide what is covered by a patent, we look at the patent’s claims, which are the
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`numbered paragraphs at the end of the patent. The figures and text in the rest of the patent provide
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`a description of the invention or context for the claims, but it is the claims that define what the
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`patent covers. You will be called upon to decide whether Activision infringed two of the claims
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`of Acceleration Bay’s patents: claim 12 of the ’344 patent and claim 1 of the ’147 patent. Those
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`claims are set out at the back of the printed version of my instructions, and they will be listed for
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`you on the verdict form.
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`There are two types of claims at issue in this case. Claim 1 of the ’147 patent is a method
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`claim, meaning that it covers the steps of a process accused of infringement. Claim 12 of the ’344
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`patent is a system claim, meaning that it covers the components of a system accused of
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`infringement.
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`To find infringement, you must find that each of the requirements of a particular claim is
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`present in the accused product. In patent law, the requirements of a claim are sometimes referred
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`to as elements or limitations. Those terms all mean the same thing. A method claim is infringed
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`if the accused infringer performs every step of the claimed method. A system claim is infringed
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`if the accused product contains every element of the claimed system.
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`2.1. Dependent and Independent Claims.
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`As you have heard during the trial, an “independent claim” is a claim that sets forth all the
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`requirements that must be met in order for something to be covered by that claim. A “dependent
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`claim” is a claim that refers to an independent claim for some of its requirements. That is, a
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`dependent claim incorporates all the requirements of the independent claim to which it refers and
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`adds one or more additional requirements as well. Claim 1 of the ’147 Patent is an independent
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`claim. Claim 12 of the ’344 Patent is a dependent claim, so when you consider asserted claim 12
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`of the ’344 patent, you need to treat it as containing all the requirements of claim 1 and the
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`additional requirement of claim 12.
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`Many of the terms used in the claims will be familiar to you, but others might not be. One
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`term that is used a lot in patents, and is used in one of the asserted patents in this case, is the term
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`“comprising.” In the patent context, “comprising” means “including” or “containing.” So if a claim
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`states that an invention “comprises” a particular feature, that means that a product can infringe that
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`claim if it contains that feature, even if it contains other features in addition to those claimed in the
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`patent.
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`2.2. Claim Constructions
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`I have defined several of the other terms that are used in the claims. The chart at the end
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`of these instructions sets forth the meanings of the words and groups of words from the patent
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`claims as I defined them. You are to apply these definitions when considering what the claims
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`cover. I will explain some of the more difficult definitions to you now.
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`The first term I have defined is “participant.” A participant is a computer and/or computer
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`process that participates in a network.
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`The second term I have defined is “neighbor.” In this context, a participant’s neighbor is
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`another participant that has a connection to the first participant, with no other participants in
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`between.
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`The third term I have defined is m-regular. M is just a placeholder for a number. An m-
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`regular state refers to a state the network is configured to maintain, where each participant is
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`connected to exactly m number of neighbor participants. For example, in a 3-regular network,
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`each participant would be connected to three other participants.
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`An important part of being in an m-regular state is that the network is “configured to
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`maintain” that state. To qualify as m-regular, the network must be in an m-regular state nearly all
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`the time. Additionally, the network must be configured to maintain m-regularity for it to infringe
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`the claim, meaning that the network itself, and not the players’ actions, make it m-regular.
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` The fourth term I have defined is “broadcast channel.” A broadcast channel is a
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`communications network consisting of interconnected participants where each participant receives
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`all data broadcasted on the communications network.
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`The fifth term I have defined is “connection port search message.” A connection port
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`search message is “a message sent to locate a participant with fewer than m neighbors.”
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`I have defined several of the other terms that are used in the claims. A chart at the back of
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`the written instructions sets forth the meanings of the words and groups of words from the patent
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`claims as I have defined them. You are to apply those definitions when considering what the
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`claims cover. Any terms that I have not defined should be given their ordinary meaning.
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`3.
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`Infringement
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`Acceleration Bay asserts that Activision has directly infringed Acceleration Bay’s asserted
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`patents. Activision is liable for directly infringing Acceleration Bay’s asserted patents if you find
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`that Acceleration Bay has proved that it is more likely than not that Activision made, used, offered
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`to sell, or sold a product that was covered by at least one claim of Acceleration Bay’s asserted
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`patents.
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`A product directly infringes a claim if the product includes each and every element of that
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`claim. You are to make a separate determination of direct infringement for each of the two asserted
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`claims of the asserted patents. Direct infringement does not require proof that the accused infringer
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`intended to infringe the patent in question. Someone can directly infringe a patent without
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`knowing that what they were doing constituted infringement.
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`3.1
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`Infringement of Claim 12 of the ’344 Patent
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`Activision can be liable for direct infringement of claim 12 of the ’344 patent if it uses the
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`claimed network within the United States, even if some of the elements of an accused system are
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`located abroad. Activision uses an accused system in the United States if it puts the invention into
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`service by controlling the system as a whole and obtaining the benefit from its use in the United
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`States.
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`3.2
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`Infringement of Claim 1 of the ’147 Patent
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`Activision can be liable for direct infringement of claim 1 of the ’147 patent, but only if
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`Acceleration Bay proves that Activision performed each and every step of the claimed method in
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`the United States.
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`Claim 1 of the ’147 patent is referred to as a “method” claim because it is directed to a
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`method—in this case, a method of disconnecting a first computer from a second computer.
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`Activision asserts that it has not infringed that claim because it did not perform each step of the
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`claimed method, and that others performed one or more of the steps necessary to infringe.
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`You may find that Activision infringes an asserted claim if you find: (1) that Activision
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`performed all the steps of the method necessary to infringe; or (2) that the steps performed by other
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`persons are attributable to Activision. You may find that the steps are attributable to Activision if
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`you find that Activision exercised direction or control over the other persons when those persons
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`performed those acts.
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`4. Money Damages.
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`If you find that either asserted claim is infringed, Acceleration Bay is entitled to money
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`damages for that infringement, beginning no earlier than March 11, 2015, and ending upon the
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`expiration of each of the asserted patents. The ’344 patent expired on September 21, 2021 and the
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`’147 patent expired on July 20, 2022.
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`If you find that neither of the asserted claims is infringed, then Acceleration Bay is not
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`entitled to money damages, and you need not address damages in your deliberations. I will now
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`instruct you about the measure of damages. By instructing you on damages, I am not suggesting
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`which party should win this case, or which should prevail on any issue.
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`Any award of money damages must be adequate to compensate Acceleration Bay for the
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`infringement. An award of money damages is not meant to punish an infringer. Your damages
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`award, if you reach this issue, should put Acceleration Bay in approximately the same financial
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`position it would have been in if the parties had agreed to license the patents at the appropriate
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`time.
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`The amount you decide to award as money damages must be based on the value attributable
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`to the infringing features of the patented invention, as distinct from unpatented features of the
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`accused product or other factors such as marketing, advertising, or the parties’ size or market
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`positions. The process of separating the value of the allegedly infringing features from the value of
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`all other features is called apportionment. When the accused infringing products have both patented
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`and unpatented features, your award must be apportioned so that it is based only on the value of the
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`patented features, as distinguished from non-patented elements such as the graphics, marketing,
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`gameplay or story.
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`Acceleration Bay has the burden to establish the amount of money damages to which it is
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`entitled by a preponderance of the evidence. In other words, you should award only those damages
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`that Acceleration Bay establishes it is more likely than not to be entitled to. While Acceleration
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`Bay is not required to prove the amount of its damages with mathematical precision, it must prove
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`them with reasonable certainty. You may not award damages that are speculative, damages that
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`are only possible, or damages that are based on guesswork.
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`4.1
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`Reasonable Royalty.
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`As a measure of damages, Acceleration Bay is seeking what is referred to as a reasonable
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`royalty. A royalty is a payment made to a patent owner in exchange for the right to make, use, or
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`sell the claimed invention. A reasonable royalty is defined as the amount of money that two parties
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`who were willing to enter a license to use the patents would have agreed upon as a fee for the use
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`of the inventions at the time just prior to when the alleged infringement began. That amount is
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`considered to be an appropriate way to determine the value of a patented invention.
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`It does not matter if there were no actual negotiations for permission to use the claimed
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`inventions. The question you must ask is, if there had been such a negotiation between parties
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`willing to reach an agreement, what amount of money would the parties have agreed to as the price
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`for allowing the use of the inventions.
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`This kind of imaginary negotiation is referred to as a hypothetical negotiation, as you have
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`heard during the trial. In this case, the hypothetical negotiation would have occurred in September
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`2012, which is the date Activision’s sales of the Accused Products began. The hypothetical
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`negotiation at that time would have been between Boeing and Activision.
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`You should focus on what amount Boeing and Activision would have agreed to at the time
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`the infringement began if both sides had been reasonably and voluntarily trying to reach an
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`agreement. That is, the amount that a prudent licensee would have been willing to pay as a royalty
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`and yet be able to make a reasonable profit and which amount would have been acceptable to a
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`patentee who was willing to grant a license.
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`In answering that question, you must assume that both parties would have believed the
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`patent was valid and infringed and that both parties would have been willing to enter into such an
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`agreement. The reasonable royalty you determine must be the royalty that would have resulted
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`from the hypothetical negotiation, and not simply a royalty either party would have preferred. You
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`are required to determine the proper amount of damages based on the evidence.
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`4.2
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`Factors To Consider in Determining a Reasonable Royalty.
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`You may consider evidence such as the following factors, in addition to any other evidence
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`presented by the parties that would shed light on the economic value of the asserted patents:
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`1.
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`The extent to which use has been made of the inventions and any evidence that
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`2.
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`3.
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`4.
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`5.
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`6.
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`7.
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`shows the value of that use.
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`The opinion testimony of qualified experts.
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`The value of the invention to Activision as a generator of sales of its non-patented
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`items.
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`The duration of the asserted patents and the term of the license.
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`The utility and benefits of the patented invention.
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`The anticipated commercial success of the accused products.
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`Any other economic factor that a normally prudent business person, under similar
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`circumstances, would take into consideration in negotiating the hypothetical
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`license.
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`In determining the amount of a reasonable royalty, you should consider all the facts known
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`and available to the parties at the time the infringement began. Damages are not to be based on a
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`hindsight evaluation of what happened, but on what would have been agreed to at the time of the
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`hypothetical negotiation. However, you may consider information the parties would have
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`anticipated or foreseen during the hypothetical negotiation. In so doing, you can consider what
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`happened after the date of the hypothetical negotiation, but only to the limited extent that it sheds
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`light on the core question of what the parties would have anticipated. No one factor is dispositive,
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`and you can and should consider all the evidence that has been presented to you in this case that
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`would have increased or decreased the royalty the parties would have agreed upon, acting as
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`normally prudent businesspeople.
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`4.3
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`Reasonable Royalty – Use of Comparable License Agreements.
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`When determining a reasonable royalty, you may consider evidence concerning the
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`amounts that other parties have paid for rights to the asserted patents, or for comparable rights to
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`similar technologies. A license agreement need not be perfectly comparable to a hypothetical
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`license that would be negotiated between the parties to a hypothetical negotiation in order for you
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`to consider it. But if a license is not sufficiently comparable to provide a reliable indicator of the
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`amount that the parties would agree to, you should not consider it.
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`5.
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`5.1
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`Jury Deliberations
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`Election of a Foreperson.
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`Before sending you to begin your deliberations, I first need to appoint a foreperson. As
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`juror number 1, Ms. Ross, you will be designated the foreperson of the jury. You will be
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`responsible for communicating with the court as needed.
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`5.2
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`Verdict – Unanimous – Duty to Deliberate.
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`Your verdict on each issue must be unanimous. There will be a verdict form in the jury
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`room waiting for you when you retire for your deliberations. You will note that the verdict form
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`has a series of questions to be answered during the course of your deliberations. The questions on
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`the form correspond to the jury instructions that I have just given you. When you reach a
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`unanimous verdict as to each question on the verdict form, the foreperson is to fill in the answers
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`on the verdict form, and then sign and date the verdict form.
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`Please make sure to read the questions carefully, and note that some of the questions may
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`not require answers, depending on how you answer other questions.
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`Do not reveal your answers to any of the questions to anyone outside of the jury until you
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`finish your deliberations and return to the courtroom to deliver your verdict. If there is a divided
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`vote on any of the issues at some point during your deliberations, you should not reveal how the
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`vote is divided on any issue, even to me. It frequently happens that there is disagreement among
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`jurors when they begin deliberating. But part of your responsibility as jurors is to continue to
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`deliberate in order to attempt to reach a unanimous verdict on each of the questions you are being
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`asked to answer. In the course of respectful discussion among the jurors, it almost always happens
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`that the jurors can reach a unanimous verdict, even if they are divided at the outset.
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`When you return to the courtroom to announce your verdict, please bring the completed
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`verdict form with you. You will give the completed and signed verdict form to the court security
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`officer, who will give it to me. I will then examine the verdict form to be sure everything it filled
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`out that needs to be filled out, and I will read the verdict aloud.
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`At that point, I may do what is called “polling the jury,” which means asking each of you
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`if the verdict I just read is your verdict. That is not because there is a problem or because I am
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`skeptical of what you have reported. It is just a standard procedure to ensure that each juror agrees
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`to the verdict. I will then ask you to return to the jury room where you can gather your things. I
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`will then come to the jury room to thank you for your service and to discharge you.
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`5.3 Outside Communication.
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`During your deliberations you must not communicate with or obtain any information
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`relating to this case from any source other than your fellow jurors. This means that you may not
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`consult any outside sources, such as the Internet, during your deliberations. Of course, you can
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`have contact with the court security officer or other court staff as necessary to deal with any needs
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`you may have, but you should not discuss the case itself with anyone outside the jury.
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`5.4
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`Jury’s Responsibility.
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`I expect that when you get to the jury room to begin your deliberations, you may feel a
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`little overwhelmed. That is not uncommon. This has been a complicated case, and there will be a
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`lot of evidence and argument to think about. But I think you will be pleasantly surprised that as
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`you start working methodically through the case, things will begin to seem more manageable.
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`I hope and expect that you will listen to one another’s views respectfully, even if initially
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`you disagree on some issues. Discussing the issues from different perspectives can often help in
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`formulating your own ideas about how particular issues should be decided.
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`5.5
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`Communications Between Court and Jury During Deliberations.
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`If you wish to see any of the exhibits, you are free to see them. All you need to do is have
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`your foreperson sign a note asking for the exhibit and provide that note to the court security officer
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`who is taking care of you during your deliberations. You can ask to see all the exhibits or you can
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`just ask for some of them, if you like. Just let us know what you want, and we will get those
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`exhibits for you.
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`If you have a question or otherwise want to communicate with me at any time, please
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`follow the same procedure by providing a written message or question to the court security officer,
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`who will then bring it to me. You probably will not get a reply right away, as I will usually need
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`to summon all the lawyers and get their input before I can respond to the question. That just means
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`I usually cannot get back to you right away, but we will do our best to get you an answer to your
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`question as soon as we can.
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`If you do have a question that is hanging you up, you are entitled to ask. I have to tell you,
`
`however, that once the case is submitted to you, as it will be in a moment, we will not be able to
`
`take any additional evidence, and I may just have to tell you to rely on your collective recollection
`
`of what the evidence was and tell you that you have to decide the case based on the evidence you
`
`have heard. I think you will find in most instances, if you put your heads together, you will recall
`
`the evidence that you need to get over the problem. That’s one of the reasons there are seven of
`
`you. Seven memories are better than one.
`
`Finally, and most importantly, trust your common sense throughout. One of the strongest
`
`traditions of our justice system is the confidence we place in the sound common sense of an
`
`American jury. The parties in this case have confidence in you. And so do I. You may now retire
`
`for your deliberations.
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`
`
`
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`15
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`

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`Case 1:16-cv-00453-WCB Document 854 Filed 05/03/24 Page 16 of 20 PageID #: 56817
`
`APPENDIX
`
`
`U.S. Patent No. 6,701,344 – Dependent Claim 12
`
`
`CLAIMS AT ISSUE
`
`A computer network for providing a game environment for a plurality of participants,
`1.
`each participant having connections to at least three neighbor participants, wherein an originating
`participant sends data to the other participants by sending the data through each of its connections to
`its neighbor participants and wherein each participant sends data that it receives from a neighbor
`participant to its other neighbor participants, further wherein the network is m-regular, where m is the
`exact number of neighbor participants of each participant and further wherein the number of
`participants is at least two greater than m thus resulting in a non-complete graph.
`
`The computer network of claim 1 wherein the interconnections of participants form a
`12.
`broadcast channel for a game of interest.
`
`
`U.S. Patent No. 6,732,147 – Independent Claim 1
`
`
`A method of disconnecting a first computer from a second computer, the first computer
`1.
`and the second computer being connected to a broadcast channel, said broadcast channel forming an
`m-regular graph where m is at least 3, the method comprising:
`
`when the first computer decides to disconnect from the second computer, the first computer
`sends a disconnect message to the second computer, said disconnect message including a list of
`neighbors of the first computer; and
`
`
`when the second computer receives the disconnect message from the first computer, the second
`computer broadcasts a connection port search message on the broadcast channel to find a third
`computer to which it can connect in order to maintain an m-regular graph, said third computer being
`one of the neighbors on said list of neighbors.
`
`
`
`
`
`
`
`16
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`

`

`Case 1:16-cv-00453-WCB Document 854 Filed 05/03/24 Page 17 of 20 PageID #: 56818
`
`CHART OF MEANINGS OF CLAIM TERMS
`
`Definition
`For the ’344 patent: “a state that the network is configured to
`maintain, where each participant is connected to exactly m neighbor
`participants”
`For the ’147 patent: “a state that the network is configured to
`maintain, where each computer is connected to exactly m neighbor
`computers.
`To qualify as m-regular, the network must be in an m-regular state
`nearly all the time. Additionally, the network must be configured to
`maintain m-regularity for it to infringe the claim, meaning that the
`network itself, and not the players’ actions, make it m-regular.
`For the ’344 patent:
`“connection between two participants, with no other participants in
`between, through which data can be sent and received”
`For the ’147 patent:
`“connection between two computers, with no other computers in
`between, through which data can be sent and received”
`
`“group of connected computers or group of connected computer
`processes”
`
`“data is sent from an originating participant to the other participants
`by broadcasting data through each of its connections to its neighbor
`participants”
`
`“each participant receives data from a neighboring participant and
`rebroadcasts the received data to its other neighbor participants”
`
`Term
`“m-regular”
`“m-regular network”
`
`“connection”
`
`“computer network” (’344
`patent only)
`
`“wherein an originating
`participant sends data to the
`other participants by
`sending the data through
`each of its connections to
`its neighbor participants”
`(’344 patent only)
`
`“wherein each participant
`sends data that it receives
`from a neighbor participant
`to its other neighbor
`participants”
`(’344 patent only)
`
`
`17
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`
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`
`
`

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`Case 1:16-cv-00453-WCB Document 854 Filed 05/03/24 Page 18 of 20 PageID #: 56819
`
`Term
`[1] “neighbor”;
`[2] “neighbors”;
`[3] “neighboring”
`
`“broadcast channel(s)”
`
`“in order to maintain an m