Case 1:19-cv-01410-MN Document 243 Filed 09/28/23 Page 1 of 21 PageID #: 9644
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`C.A. No. 1:19-cv-01410-MN
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`VB ASSETS, LLC,
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`
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`v.
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`Plaintiff,
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`
`
`
`AMAZON.COM, INC., AMAZON.COM LLC,
`AMAZON WEB SERVICES, INC., A2Z
`DEVELOPMENT CENTER, INC. d/b/a LAB126,
`RAWLES LLC, AMZN MOBILE LLC, AMZN
`MOBILE 2 LLC, AMAZON.COM SERVICES, INC.
`f/k/a AMAZON FULFILLMENT SERVICES, INC.,
`and AMAZON DIGITAL SERVICES LLC,
`
`
`Defendants.
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`
`
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`[PROPOSED] PRELIMINARY JURY INSTRUCTIONS
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`Case 1:19-cv-01410-MN Document 243 Filed 09/28/23 Page 2 of 21 PageID #: 9645
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`TABLE OF CONTENTS
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`Page
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`I.
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`II.
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`INTRODUCTION AND ROLE OF THE JURY ............................................................. 1
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`OVERVIEW OF THE CASE ........................................................................................... 2
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`III.
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`UNITED STATES PATENTS ......................................................................................... 3
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`IV.
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`EVIDENCE....................................................................................................................... 4
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`V.
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`BURDENS OF PROOF .................................................................................................... 6
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`VI.
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`CREDIBILITY OF WITNESSES; WEIGHING CONFLICTING TESTIMONY .......... 7
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`VII. EXPERT TESTIMONY ................................................................................................... 8
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`VIII. DEPOSITION TESTIMONY AND PRIOR SWORN TESTIMONY ............................. 9
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`IX.
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`ADMITTED FACTS ...................................................................................................... 10
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`X.
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`DEMONSTRATIVES .................................................................................................... 11
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`XI.
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`NOTE-TAKING ............................................................................................................. 12
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`XII. CONDUCT OF THE JURY ........................................................................................... 14
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`XIII. CONFERENCES AND RECESSES .............................................................................. 16
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`XIV. COURSE OF THE TRIAL ............................................................................................. 17
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`XV. TRIAL SCHEDULE ....................................................................................................... 18
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`i
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`Case 1:19-cv-01410-MN Document 243 Filed 09/28/23 Page 3 of 21 PageID #: 9646
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`I.
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`INTRODUCTION AND ROLE OF THE JURY
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`Members of the jury:
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`Now that you have been sworn in, I have the following preliminary instructions for
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`guidance on your role as jurors in this case.
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`These instructions are intended to assist you in discharging your duties as jurors and to
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`introduce you to the case and the law that you will apply to the evidence that you will hear. Also,
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`because this case involves patents, I will give you some preliminary instructions regarding patents.
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`I will give you more detailed instructions on the law at the end of the trial.
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`You will hear the evidence, decide what the facts are, and then apply those facts to the law
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`that I will give to you. You and only you will be the judges of the facts. I play no part in judging
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`the facts. My role is to be the judge of the law. I make whatever legal decisions have to be made
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`during the course of the trial, and I will explain to you the legal principles that must guide you in
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`your decisions. You must follow that law whether you agree with it or not. It is important that you
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`perform your duties fairly. Do not let any bias, sympathy, or prejudice influence your decision in
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`any way. Nothing I may say or do during the course of the trial is intended to indicate what your
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`verdict should be.
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`Source: United States v. Gilead Scis., Inc., No. 19-2103-MN, D.I. 444 at 1 (D. Del. Apr. 26,
`2023) (Court’s Proposed Preliminary Jury Instructions) (Noreika, J.).
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`Case 1:19-cv-01410-MN Document 243 Filed 09/28/23 Page 4 of 21 PageID #: 9647
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`II.
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`OVERVIEW OF THE CASE
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`During the jury-selection process, I advised you that this is a civil action arising under the
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`patent laws of the United States. The parties in this case are the Plaintiff, VB Assets, LLC, which
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`I will refer to as “VB Assets,” and the Defendants, Amazon.com, Inc., Amazon.com LLC, Amazon
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`Web Services, Inc., A2Z Development Center, Inc. d/b/a Lab126, Rawles, LLC, AMZN Mobile
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`LLC, AMZN Mobile 2 LLC, Amazon.com Services, Inc. f/k/a Amazon Fulfillment Services, Inc.,
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`and Amazon.com Services LLC, which I will refer to collectively as “Amazon.”1
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`VB Assets is the owner of the patents at issue in this case: U.S. Patent Nos. 8,073,681;
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`9,626,703; 7,818,176; 8,886,536; and 9,269,097. We often refer to these by their last three
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`numbers as the ’681, ’176, ’536, ’097, and ’703 patents, and, together, they are referred to as “the
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`Asserted Patents.” During the trial, the parties will offer testimony and evidence to familiarize you
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`with the technology involved in the asserted patents.
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`VB Assets contends Amazon has infringed the ’681, ’176, ’536, ’097, and ’703 patents and
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`seeks damages. Amazon contends that it does not infringe the asserted patents, that the Asserted
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`Patents are invalid, and that it does not owe any damages to VB Assets.
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`Source: Adapted from United States v. Gilead Scis., Inc., No. 19-2103-MN, D.I. 444 at 2 (D.
`Del. Apr. 26, 2023) (Court’s Proposed Preliminary Jury Instructions) (Noreika, J.).
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` 1
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` The parties are working in good faith to negotiate a stipulation to address certain non-existent entities and to substitute
`Amazon.com Services LLC for defendants Amazon.com, Inc., Amazon.com LLC, Amazon Web Services, Inc., A2Z
`Development Center, Inc. d/b/a Lab 126, AMZN Mobile LLC, AMZN Mobile 2 LLC, Amazon.com Services, Inc.
`f/k/a Amazon Fulfillment Services, Inc., and Amazon Digital Services, LLC as a defendant in-suit.
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`Case 1:19-cv-01410-MN Document 243 Filed 09/28/23 Page 5 of 21 PageID #: 9648
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`III. UNITED STATES PATENTS
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`As I just mentioned, this case is about patents, which is an area unfamiliar to many people.
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`To help you understand what patents are and how they are obtained, you will now be shown a
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`video produced by the Federal Judicial Center. The video will run for approximately 17 minutes.
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`The video refers to a sample patent. While you do not have the sample patent, I don’t think that
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`you need it to follow what is being said. At the conclusion of the video, I will provide you with
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`additional instructions.
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`Source: United States v. Gilead Scis., Inc., No. 19-2103-MN, D.I. 444 at 3 (D. Del. Apr. 26,
`2023) (Court’s Proposed Preliminary Jury Instructions) (Noreika, J.).
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`IV.
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`EVIDENCE
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`The evidence from which you will find the facts will consist of the testimony of witnesses
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`and the documents, and other things admitted into evidence as exhibits; any facts that have been
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`stipulated, that is formally agreed to by the parties; and any facts which I say you must accept as
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`true.
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`Certain things are not evidence. I will list those things for you now:
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`1.
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`2.
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`Statements, arguments, questions, and comments by lawyers are not evidence.
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`Exhibits that are identified by a party but not offered or received into evidence are
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`not evidence. This includes demonstrative exhibits such as PowerPoint presentations.
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`3.
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`Objections to questions are not evidence. Lawyers have an obligation to their clients
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`to object when they believe that the testimony or exhibits being offered into evidence are not proper
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`under the Rules of Evidence. You should not be influenced by a lawyer’s objection or by my ruling
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`on the objection. If I sustain or uphold the objection, you should ignore the question or document
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`in question. If I overrule an objection and allow the matter into evidence, treat the testimony or
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`document like any other evidence. If I instruct you that some item of evidence is admitted for a
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`limited purpose, you must follow that instruction and consider that evidence for that purpose only.
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`If this occurs during the trial, I will try to clarify this for you at that time.
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`4.
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`Testimony and exhibits that I excluded or strike from the record or tell you to
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`disregard are not evidence and must not be considered.
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`5.
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`Anything you see or hear outside the courtroom is not evidence and must be
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`disregarded. You are to decide this case solely on the evidence presented here in the courtroom.
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`Finally, some of you may have heard the phrases or terms “direct evidence” and
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`“circumstantial evidence.” Direct evidence is direct proof of a fact, such as testimony of an
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`eyewitness. Circumstantial evidence is proof of a fact or facts from which you may infer or
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`conclude that other facts do or do not exist. For example, the fact that it snowed overnight could
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`be proven directly (“I saw it snow last night”) or circumstantially (“When I went to sleep the grass
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`was green, when I woke up there was a foot of snow on the ground”). Do not be concerned about
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`whether evidence is “direct evidence” or “circumstantial evidence.” As a general rule, the law
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`makes no distinction between these two types of evidence, but simply requires that you find facts
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`from all the evidence in the case, whether direct or circumstantial or a combination of the two. In
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`judging the facts, it will be up to you to decide which witnesses to believe, which witnesses not to
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`believe, and how much of any witness’s testimony to accept or reject.
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`You should consider and weigh all of the evidence that is presented to you. You should use
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`your common sense in weighing the evidence. Consider it in light of your everyday experience
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`with people and events, and give it whatever weight you believe it deserves. If your experience
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`tells you that certain evidence reasonably leads to a conclusion, you are free to reach that
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`conclusion.
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`Source: Adapted from United States v. Gilead Scis., Inc., No. 19-2103-MN, D.I. 444 at 4-5 (D.
`Del. Apr. 26, 2023) (Court’s Proposed Preliminary Jury Instructions) (Noreika, J.).
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`V.
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`BURDENS OF PROOF
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`In any legal action, facts must be proven by the required standard of evidence, known as
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`the burden of proof. In a case involving patents, different burdens of proof are used. The first is
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`called “preponderance of the evidence.” The second is called “clear and convincing evidence.”
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`Your verdict depends on whether you find certain facts have been proved either by a
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`preponderance of the evidence or by clear and convincing evidence.
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`VB Assets has the burden of proving patent infringement by a preponderance of the
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`evidence. That means VB Assets as to prove to you, in light of all the evidence, that what it claims
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`is more likely true than not true. To put it differently, if you were to put the evidence in support of
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`VB Assets’ claims and the evidence weighing against VB Assets’ claims on opposite sides of a
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`scale, the evidence supporting VB Assets’ claims would have to make the scales tip in VB Assets’
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`favor. If the scale should remain equal or tip in favor of Amazon, you must find for Amazon.
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`Amazon has the burden of proving patents are invalid by clear and convincing evidence.
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`That means Amazon has to prove to you, in light of all the evidence that what it claims is highly
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`probable. Proof by clear and convincing evidence is a higher burden of proof than a preponderance
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`of the evidence.
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`You may have heard the term “proof beyond a reasonable doubt.” That is a stricter standard
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`of proof and it applies only to criminal cases. It does not apply to civil cases such as this. You
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`should therefore not consider that burden of proof in this case. You should put it out of your mind.
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`Source: Adapted from United States v. Gilead Scis., Inc., No. 19-2103-MN, D.I. 444 at 6 (D.
`Del. Apr. 26, 2023) (Court’s Proposed Preliminary Jury Instructions) (Noreika, J.); Complete
`Genomics, Inc. v. Illumina, Inc., No. 19-970-MN, D.I. 383 at 6 (D. Del. April, 4, 2022) (Court’s
`Proposed Preliminary Jury Instructions) (Noreika, J.).
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`VI. CREDIBILITY OF WITNESSES; WEIGHING CONFLICTING TESTIMONY
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`You are the sole judges of each witness’s credibility. That is, it will be up to you to decide
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`which witnesses to believe, which witnesses not to believe, and how much of any witness’s
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`testimony to accept or reject. You should consider each witness’s means of knowledge; strength
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`of memory; opportunity to observe; how reasonable or unreasonable the testimony is; whether it
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`is consistent or inconsistent; whether it has been contradicted; the witness’s biases, prejudices, or
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`interests; the witness’s manner or demeanor on the witness stand; and all circumstances that,
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`according to the evidence, could affect the credibility of the testimony. The weight of the evidence
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`to prove a fact does not necessarily depend on the number of witnesses who testify. What is more
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`important is how believable the witnesses were, and how much weight you think their testimony
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`deserves.
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`If you find the testimony to be contradictory, you must try to reconcile it, if reasonably
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`possible, so as to make one harmonious story of it all. But if you can’t do this, then it is your duty
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`and privilege to believe the testimony that, in your judgment, is most believable and disregard any
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`testimony that, in your judgment, is not believable. This instruction applies to the testimony of all
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`witnesses, including expert witnesses.
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`Source: United States v. Gilead Scis., Inc., No. 19-2103-MN, D.I. 444 at 7 (D. Del. Apr. 26,
`2023) (Court’s Proposed Preliminary Jury Instructions) (Noreika, J.).
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`VII. EXPERT TESTIMONY
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`Expert testimony is testimony from a person who has a special skill or knowledge in some
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`science, profession, or business. This skill or knowledge is not common to the average person but
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`has been acquired by the expert through special study or experience. In weighing expert testimony,
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`you may consider the expert’s qualifications, the reasons for the expert’s opinions, and the
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`reliability of the information supporting the expert’s opinions, as well as the factors I have
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`previously mentioned for weighing testimony of any other witness. Expert testimony should
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`receive whatever weight and credit you think appropriate, given all the other evidence in the case.
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`You are free to accept or reject the testimony of experts, just as with any other witness.
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`Source: Adapted from United States v. Gilead Scis., Inc., No. 19-2103-MN, D.I. 444 at 8 (D.
`Del. Apr. 26, 2023) (Court’s Proposed Preliminary Jury Instructions) (Noreika, J.); Complete
`Genomics, Inc. v. Illumina, Inc., No. 19-970-MN, D.I. 383 at 6(D. Del. April, 4, 2022) (Court’s
`Proposed Preliminary Jury Instructions) (Noreika, J.).
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`VIII. DEPOSITION TESTIMONY AND PRIOR SWORN TESTIMONY
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`I will now talk about the form of some of the evidence you will hear during trial. You may
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`hear witnesses testify through deposition testimony or other prior sworn testimony.
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`A deposition is the sworn testimony of a witness taken before trial. The witness is placed
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`under oath and swears to tell the truth, and lawyers for each party may ask questions. A court
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`reporter is present and records the questions and answers. The deposition may also be recorded on
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`videotape.
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`Deposition testimony is entitled to the same consideration and is to be judged in the same
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`way as if the witness had been present to testify.
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`Source: Adapted from United States v. Gilead Scis., Inc., No. 19-2103-MN, D.I. 444 at 9 (D.
`Del. Apr. 26, 2023) (Court’s Proposed Preliminary Jury Instructions) (Noreika, J.).
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`IX. ADMITTED FACTS
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`The parties have stipulated that certain facts are true, and those admitted facts may be read
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`to you during trial. You must treat these admitted facts as having been proven for purposes of this
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`case.
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`Source: United States v. Gilead Scis., Inc., No. 19-2103-MN, D.I. 444 at 10 (D. Del. Apr. 26,
`2023) (Court’s Proposed Preliminary Jury Instructions) (Noreika, J.).
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`X.
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`DEMONSTRATIVES
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`Certain charts and summaries may be shown to you in order to help explain the facts
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`disclosed by the books, records, or other underlying evidence in the case. Those charts or
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`summaries are used for convenience. They are not themselves evidence or proof of any facts. If
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`they do not correctly reflect the facts shown by the evidence in the case, you should disregard these
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`charts and summaries and determine the facts from the documents, testimony, or other underlying
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`evidence.
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`Source: United States v. Gilead Scis., Inc., No. 19-2103-MN, D.I. 444 at 11 (D. Del. Apr. 26,
`2023) (Court’s Proposed Preliminary Jury Instructions) (Noreika, J.).
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`XI. NOTE-TAKING
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`You have been given a notebook and a pen. Inside your notebook, you will find paper, a
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`glossary of patent terms, a copy of the asserted patents, and photographs of each witness. If you
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`wish, you may, but are not required to, take notes to help you remember what witnesses said. Notes
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`may be helpful to you because at the end of the trial, you must make your decision based on what
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`you recall of the evidence. You will not have a written transcript to consult, and it may not be
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`practical for the court reporter to read back lengthy testimony. Therefore, you should pay close
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`attention to the testimony as it is given. I do not suggest that you look to your note taking as a
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`substitute for that written transcript. Instead, as you listen to the testimony, keep in mind that you
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`will be relying on your recollection of the testimony during your deliberations.
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`If you do take notes, please keep them to yourself until you and your fellow jurors go to
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`the jury room to decide this case. Do not let note-taking distract you to the point that you miss
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`hearing other testimony from the witness. Your notes are only a tool to aid your own individual
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`memory and you should not compare your notes with other jurors in determining the content of
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`any testimony or in evaluating the importance of any evidence. Your notes are not evidence and
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`are not a complete outline of the proceedings or a list of the highlights of the trial. Do not use your
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`notes, or any other juror’s notes, as authority to persuade fellow jurors.
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`During the trial, documents or other physical items may be received into evidence. At
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`present, however, you will not be supplied with a list of exhibits that are received in evidence.
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`Therefore, you may wish to make notes about the exhibits, especially their description and number,
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`so that you can refer to those exhibits while you are deliberating. You will be given a hardcopy of
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`every admitted exhibit to take to the jury room to use during deliberations.
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`When we take our recess each day for the lunchtime break and when we take our recess
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`each night, please take your notes to the jury room and leave your notes there. Do not take your
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`notes away from the Court at any time. No one will read your notes but you. Your notes will be
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`destroyed after the trial is over.
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`Source: Adapted from United States v. Gilead Scis., Inc., No. 19-2103-MN, D.I. 444 at 12-13
`(D. Del. Apr. 26, 2023) (Court’s Proposed Preliminary Jury Instructions) (Noreika, J.).
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`XII. CONDUCT OF THE JURY
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`Now, a few words about your conduct as jurors.
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`First, during the trial and until you have heard all of the evidence and retired to the jury
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`room to deliberate, you are not to discuss the case with anyone, not even among yourselves. If any
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`lawyer, party, or witness does not speak to you when you pass in the hall, ride the elevator, or the
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`like, remember it is because they are not supposed to talk with you, nor you with them. If anyone
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`should try to talk to you about the case, please bring it to my attention promptly.
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`Second, do not read or listen to anything touching on this case that is not admitted into
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`evidence. By that I mean, if there is a newspaper or internet article or radio or television report
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`relating to this case, do not read the article or watch or listen to the report.
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`Third, do not try to do any research or investigate the case on your own. Let me elaborate.
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`During the course of the trial, you must not conduct any independent research about the case, the
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`matters in the case, the technology involved in the case, or the individuals or entities involved in
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`the case. In other words, you should not consult dictionaries or reference materials (in print,
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`electronic, or other format) or search websites or blogs on the internet. Also, again, should there
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`happen to be a newspaper article, internet article, or television or radio report relating to this case,
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`do not read the article or watch or listen to the report. It is important that you decide this case based
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`solely on the evidence presented in the courtroom. Please do not try to find out information from
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`any other sources.
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`I know that many of you use cell phones, iPhones and other smartphones, iPads and other
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`tablets, the internet, and other forms of technology. You must not talk to anyone about this case or
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`use these tools to communicate electronically with anyone about the case. This includes your
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`family and friends. You may not communicate with anyone about the case on your cell phone or
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`smartphone, through e-mail, your tablet, text messaging, on Twitter, through any blog or website,
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`through any internet chat room, or by way of any other social networking web sites, including but
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`not limited to Facebook, X (formerly known as Twitter), Instagram, TikTok, WeChat, WhatsApp,
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`Snapchat, LinkedIn, and YouTube.
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`Finally, you should not form any conclusion as to the issues in the case until all of the
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`evidence is in. Keep an open mind until you start your deliberations at the end of the case. You
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`will receive detailed instructions on the law at the end of the case, and those instructions will
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`control your deliberations and decision.
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`Source: United States v. Gilead Scis., Inc., No. 19-2103-MN, D.I. 444 at 14-15 (D. Del. Apr. 26,
`2023) (Court’s Proposed Preliminary Jury Instructions) (Noreika, J.).
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`XIII. CONFERENCES AND RECESSES
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`During the trial it may be necessary for me to talk with the lawyers outside your hearing,
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`either by having a bench conference while you are present in the courtroom, sometimes called a
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`sidebar, or by me calling a recess. That may mean that some of the lawyers and I go out into the
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`hall for a few minutes so that we can talk or that I excuse you. If we have a bench conference,
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`please understand that while you are waiting, the lawyers and I are working. And know that even
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`then the parties are being charged for the time, i.e., the time spent comes out of their total trial
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`time. We are not trying to keep important information from you. The purpose of these conferences
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`is to decide how certain evidence is to be treated under the rules of evidence that govern the trial,
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`and to avoid confusion and error.
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`We will, of course, do what we can to keep the number and length of these conferences to
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`a minimum. If you would like to stand or stretch or walk around the jury box while we are
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`conferring, you should feel free to do so.
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`I may not always grant a lawyer’s request for a conference. Do not consider my granting
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`or denying a request for a conference as any indication of my opinion of the case or of what your
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`verdict should be.
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`Source: United States v. Gilead Scis., Inc., No. 19-2103-MN, D.I. 444 at 16 (D. Del. Apr. 26,
`2023) (Court’s Proposed Preliminary Jury Instructions) (Noreika, J.).
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`Case 1:19-cv-01410-MN Document 243 Filed 09/28/23 Page 19 of 21 PageID #: 9662
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`XIV. COURSE OF THE TRIAL
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`The trial will begin shortly.
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`First, each side may make an opening statement. An opening statement is not evidence but
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`is simply an outline of what that party intends to prove to help you follow the evidence that will
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`be presented.
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`After the opening statements, the parties will present their evidence. VB Assets will go
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`first and present its case and witnesses, who counsel for Amazon may cross-examine. Amazon
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`will then present their case and witnesses who counsel for VB Assets may cross-examine. VB
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`Assets will then have an opportunity to present its rebuttal to Amazon’s invalidity case.
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`After that, I will give you instructions on the law and the attorneys will make their closing
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`arguments to summarize and interpret the evidence for you. And then you will retire to the jury
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`room to deliberate on your verdict.
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`Source: United States v. Gilead Scis., Inc., No. 19-2103-MN, D.I. 444 at 17 (D. Del. Apr. 26,
`2023) (Court’s Proposed Preliminary Jury Instructions) (Noreika, J.).
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`17
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`Case 1:19-cv-01410-MN Document 243 Filed 09/28/23 Page 20 of 21 PageID #: 9663
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`XV. TRIAL SCHEDULE
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`Though you have heard this before, I want to again outline the schedule I will maintain
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`during the course of this trial.
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`As mentioned previously, once trial begins, this case is expected to take up to five business
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`days to try, between now and Wednesday, November 8, 2023.
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`The trial will normally begin each day at 9:00 A.M. and will go until around 12:30 P.M.,
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`when there will be about a 30 to 45 min break for lunch before continuing until 4:30 or 4:45 P.M.
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`There will be a fifteen-minute break in the morning and a fifteen-minute break in the afternoon.
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`What I have just outlined is the general schedule. It is possible there will be some
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`interruptions if I need to attend to other matters.
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`The only significant exception to this schedule may occur when the case is submitted to
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`you for your deliberations. At that point, you will be permitted to deliberate as late as you wish.
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`This is a timed trial. That means that I have allocated each party a maximum number of
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`hours in which to present all portions of its case. This allows me to assure you that the case is
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`expected to be completed by November 8.
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`Of course, you can help us stay on schedule by being here promptly each morning and
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`being ready to proceed at the end of each break.
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`
`
`Source: United States v. Gilead Scis., Inc., No. 19-2103-MN, D.I. 444 at 18 (D. Del. Apr. 26,
`2023) (Court’s Proposed Preliminary Jury Instructions) (Noreika, J.).
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`18
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`Case 1:19-cv-01410-MN Document 243 Filed 09/28/23 Page 21 of 21 PageID #: 9664
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`Dated: September 28, 2023
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`SMITH, KATZENSTEIN & JENKINS, LLP
`
`
`/s/ Neal C. Belgam
`Neal C. Belgam (No. 2721)
`Jason Z. Miller (No. 6310)
`1000 West Street, Suite 1501
`Wilmington, DE 19801
`(302) 652-8400
`nbelgam@skjlaw.com
`jmiller@skjlaw.com
`
`Attorneys for Plaintiff
`
`
`
`
`
`
`
`ASHBY & GEDDES
`
`
`/s/ Steven J. Balick
`Steven J. Balick (No. 2114)
`Andrew C. Mayo (No. 5207)
`500 Delaware Avenue
`P.O. Box 1150
`Wilmington, DE 19899
`(302) 654-1888
`sbalick@ashbygeddes.com
`amayo@ashbygeddes.com
`
`Attorneys for Defendants
`
`
`19
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