Case 1:19-cv-01410-MN Document 284 Filed 11/07/23 Page 1 of 33 PageID #: 10988
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`VB ASSETS, LLC,
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`AMAZON.COM SERVICES LLC,
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`Defendant.
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`Plaintiff,
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`v.
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`C.A. No. 19-1410 (MN)
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`THE COURT’S PROPOSED FINAL JURY INSTRUCTIONS
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`Case 1:19-cv-01410-MN Document 284 Filed 11/07/23 Page 2 of 33 PageID #: 10989
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`TABLE OF CONTENTS
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`I.
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`GENERAL ........................................................................................................................ 1
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`A.
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`B.
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`C.
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`Introduction ........................................................................................................... 1
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`Consideration of Evidence .................................................................................... 2
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`Burdens of Proof ................................................................................................... 3
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`II.
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`PATENT JURY INSTRUCTIONS .................................................................................. 4
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`A.
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`B.
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`C.
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`D.
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`E.
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`F.
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`G.
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`H.
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`I.
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`J.
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`K.
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`The Parties’ Contentions ....................................................................................... 4
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`Summary of Patent Issues ..................................................................................... 5
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`The Claims of a Patent .......................................................................................... 7
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`Infringement – Generally ...................................................................................... 8
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`Infringement .......................................................................................................... 5
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`Willful infringement ............................................................................................. 9
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`Invalidity – Generally ......................................................................................... 10
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`Prior Art – Generally .......................................................................................... 11
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`Invalidity – Obviousness..................................................................................... 12
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`Invalidity – Written Description ......................................................................... 15
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`Invalidity – Patent Eligibility .............................................................................. 17
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`III.
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`DAMAGES ..................................................................................................................... 18
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`A.
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`B.
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`C.
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`D.
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`E.
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`F.
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`G.
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`H.
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`Damages – Generally .......................................................................................... 18
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`Reasonable Royalty ............................................................................................ 19
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`Damages – Lump Sum vs. Running Royalty ...................................................... 20
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`Reasonable Royalty – Factors Relevant to the Hypothetical Negotiation .......... 21
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`Reasonable Royalty – Apportionment ................................................................ 23
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`REASONABLE ROYALTY – TIMING............................................................ 24
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`Reasonable Royalty – Comparable License Agreements ................................... 25
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`Reasonable Royalty – Availability of Non-Infringing Alternatives ................... 26
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`IV.
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`DELIBERATIONS AND VERDICT ............................................................................. 27
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`A.
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`B.
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`C.
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`D.
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`E.
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`Deliberations and Verdict – Introduction ........................................................... 27
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`Unanimous Verdict ............................................................................................. 28
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`Duty to Deliberate ............................................................................................... 29
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`Social Media ....................................................................................................... 30
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`Court Has No Opinion ........................................................................................ 31
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`i
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`Case 1:19-cv-01410-MN Document 284 Filed 11/07/23 Page 3 of 33 PageID #: 10990
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`I.
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`GENERAL
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`A.
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`Introduction
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`Members of the jury, now is the time for me to instruct you about the law that you must
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`follow in deciding this case. Please listen carefully to everything I say. You must follow all of
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`my instructions, including the ones that I gave you at the start of the case and the ones I have given
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`during trial, and not single out some and ignore others. They are all important.
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`You will have a written copy of these instructions, as well as my preliminary instructions,
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`with you in the jury room for your reference during your deliberations. You will also have a
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`verdict form, which will list the questions that you must answer to decide this case.
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`I will start by reminding you of the respective burdens in this case, and then I will instruct
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`you concerning the positions of the parties and the law you will apply in this case. Then we will
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`hear the closing arguments. After that, I will explain the rules that you must follow during your
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`deliberations in the jury room.
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`1
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`Case 1:19-cv-01410-MN Document 284 Filed 11/07/23 Page 4 of 33 PageID #: 10991
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`B.
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`Consideration of Evidence
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`You must make your decision based only on the evidence that you see and hear in court.
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`Do not let rumors, suspicions, or anything else that you may see or hear outside of court influence
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`your decision in any way.
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`You should use your common sense in weighing the evidence. Consider it in light of your
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`everyday experience with people and events and give it whatever weight you believe it deserves.
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`If your experience tells you that certain evidence reasonably leads to a conclusion, you are free to
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`reach that conclusion.
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`2
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`Case 1:19-cv-01410-MN Document 284 Filed 11/07/23 Page 5 of 33 PageID #: 10992
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`C.
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`Burdens of Proof
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`As I told you on the first day of trial, in a legal action, facts must be proven by a required
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`standard of evidence, known as the “burden of proof.” In a patent case such as this, there are two
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`different burdens of proof. The first is called “preponderance of the evidence.” The second is
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`called “clear and convincing evidence.” I will now remind you what they mean.
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`This is a civil case in which VB Assets alleges that Amazon has infringed four patents VB
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`Assets owns. VB Assets has the burden of proving infringement and the amount of monetary
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`damages for any infringement by a preponderance of the evidence. That means it has to produce
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`evidence that, when considered in light of all of the facts, leads you to believe that what VB Assets
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`claims is more likely true than not. To put it differently, if you were to put the parties’ evidence
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`on opposite sides of a scale, the evidence supporting VB Assets’ claims of infringement and
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`damages must make the scales tip somewhat on its side. If the scale should remain equal or tip in
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`favor of Amazon, you must find for Amazon on the issue of infringement.
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`Amazon contends that VB Assets’ patent is invalid. A party challenging the validity of a
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`patent has the burden of proving by clear and convincing evidence that the asserted claims are
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`invalid. That means it has to produce evidence that, when considered in light of all of the facts,
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`leads you to believe that what Amazon claims is highly probable. Proof by clear and convincing
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`evidence is thus a higher burden than proof by a preponderance of the evidence needed to prove
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`infringement.
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`Some of you may have heard the phrase “proof beyond a reasonable doubt.” That burden
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`is a higher burden of proof that applies only in criminal cases and has nothing to do with a civil
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`case like this one. You should therefore not consider it in this case and put it out of your mind.
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`3
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`Case 1:19-cv-01410-MN Document 284 Filed 11/07/23 Page 6 of 33 PageID #: 10993
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`II.
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`PATENT JURY INSTRUCTIONS
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`A.
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`The Parties’ Contentions
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`VB Assets filed this case in July 2019, alleging patent infringement against Amazon. You
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`have heard evidence regarding the four Asserted Patents in this case: U.S. Patent Nos. 8,073,681;
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`9,626,703; 7,818,176; and 9,269,097, which have been referred to as the ’681, ’703, ’176, and
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`’097 patents, or the “Asserted Patents.”
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`VB Assets alleges that Amazon has infringed claim 13 of the ’681 Patent; claim 25 of the
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`’703 Patent; claim 40 of the ’176 Patent; and claim 23 of the ’097 Patent. You have heard these
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`referred to collectively as the “asserted claims.” VB Assets also alleges that it is entitled to
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`damages for Amazon’s infringement. Amazon denies that it has infringed the asserted claims of
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`the asserted patents, and that VB Assets is entitled to damages. Amazon also contends that all
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`asserted claims of the asserted patents are invalid.
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`4
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`Case 1:19-cv-01410-MN Document 284 Filed 11/07/23 Page 7 of 33 PageID #: 10994
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`A.
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`Infringement
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`You must determine whether VB Assets has proven infringement of one or more of the
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`asserted claims.
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`As I just told you, you must determine, separately for each asserted claim, whether or not
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`there is infringement. There is one exception to this rule. If you find that an independent claim is
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`not infringed, there cannot be infringement of any dependent claim that refers directly or indirectly
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`to that claim. On the other hand, if you find that an independent claim has been infringed, you
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`must still separately decide whether the additional requirements of any claims that depend from
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`that independent claim were met, in order to determine whether the dependent claims have also
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`been infringed. Remember, a dependent claim includes all the requirements of any of the claims
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`to which it refers plus additional requirements of its own.
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`To determine infringement, you must compare the accused products or process with each
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`asserted claim to determine whether each and every one of the requirements of that claim is
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`satisfied. A patent claim is infringed only if the product or process includes each and every
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`limitation in that patent claim. If the accused product or process does not contain one or more
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`elements or steps recited in a claim, there is no infringement. The presence of other elements or
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`additional steps in the accused product or process is beyond those claimed, however, does not
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`avoid infringement, as long as every claimed element is present.
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`Proof of infringement may be based on circumstantial evidence.
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`One may infringe a patent unknowingly – that is, without knowledge that what one is doing
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`is an infringement of the patent. One can be an infringer of a patent even if that person believes
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`in good faith that he is not infringing any patent or even if he does not know of the patent.
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`All steps of the claimed method must be performed for there to be infringement of an
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`asserted claim. If any step of an asserted claim is not performed, there is no infringement.
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`5
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`Case 1:19-cv-01410-MN Document 284 Filed 11/07/23 Page 8 of 33 PageID #: 10995
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`B.
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`Summary of Patent Issues
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`You must decide the following issues in this case according to the instructions that I give
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`you:
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`1.
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`2.
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`3.
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`Whether VB Assets has proven by a preponderance of the evidence that
`Amazon infringes the asserted claims;
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`Whether VB Assets has proven by a preponderance of evidence that
`Amazon willfully infringed one or more of the asserted claims; and
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`Whether Amazon has proven by clear and convincing evidence that one or
`more of the asserted claims of the asserted patents is invalid.
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`If you decide that Amazon infringes any asserted claim of the asserted patents that is not
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`invalid, then you will also need to decide what money damages should be awarded to compensate
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`VB Assets.
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`6
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`Case 1:19-cv-01410-MN Document 284 Filed 11/07/23 Page 9 of 33 PageID #: 10996
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`C.
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`The Claims of a Patent
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`Before you can decide many of the issues in this case, you need to understand the role of
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`patent “claims.” The claims are the numbered sentences at the end of a patent. The claims are
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`important because the words of a claim define the scope of the patent right. The figures and text
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`in the rest of the patent provide a description and examples of the invention and provide a context
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`for the claims, but the claims define the extent of the patent’s coverage.
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`Here, you will need to understand what each of the asserted claims covers to decide whether
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`or not that claim is infringed and whether or not each claim is invalid.
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`It is my job to define the terms of the claims and instruct you about the meaning. It is your
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`role to apply my definitions to the issues that you are asked to decide. In this case, I have
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`determined the meanings of the following terms:
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`•
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`“speech recognition engine” / “speech recognition” means “software or hardware
`that recognizes the words or phrases in the natural language utterance.” These
`terms appear in the ’703 Patent, claim25 and the ’176 Patent, claim 40.
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`You must accept my definition of this term as being correct. It is your job to take this
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`definition and apply it to the issues that you are deciding, including the issues of infringement and
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`invalidity.
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`For any words in the claim for which I have not provided you with a definition, you should
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`apply the ordinary meaning in the field of the patents. You should not take my definition of the
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`language of the claims as an indication that I have a view regarding how you should decide the
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`issues that you are being asked to decide, such as infringement and invalidity. These issues are
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`yours to decide.
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`7
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`Case 1:19-cv-01410-MN Document 284 Filed 11/07/23 Page 10 of 33 PageID #: 10997
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`D.
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`Infringement – Generally
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`The United States’ patent law gives the owner of a valid patent the right to exclude others
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`from importing, making, using, offering to sell, or selling the patented product or method in the
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`United States during the term of the patent. Any person or company that has engaged in any of
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`those acts without the patent owner’s permission infringes the patent.
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`To prove infringement, a patent owner must prove that the requirements for infringement
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`are met by a preponderance of the evidence that all of the requirements of infringement have been
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`proved.
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`Infringement is assessed on a claim-by-claim basis. Thus, a patent owner bears the burden
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`of proving by a preponderance of the evidence that each of the asserted claims of its asserted
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`patents is infringed. Therefore, you, the jury, must determine infringement for each patent and
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`each claim separately.
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`I will now explain each type of infringement in more detail.
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`8
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`Case 1:19-cv-01410-MN Document 284 Filed 11/07/23 Page 11 of 33 PageID #: 10998
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`E. Willful infringement
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`If you find that Amazon infringed a valid claim of VB Assets’ patents, then you must also
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`determine whether or not such infringement was willful.
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`To show that infringement was willful, VB Assets must prove by a preponderance of the
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`evidence that Amazon knew of the asserted patents and intentionally infringed at least one asserted
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`claim of the asserted patents. To show willfulness, you must find that Amazon has engaged in
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`conduct evidencing deliberate or reckless disregard for VB Assets’ patent rights. However, you
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`may not find that infringement was willful merely because Amazon knew about the asserted
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`patents, without more. In determining whether VB Assets has proven that Amazon’s infringement
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`was willful, you must consider all of the circumstances and assess Amazon’s knowledge at the
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`time the challenged conduct occurred, including: whether Amazon intentionally copied the
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`patented technology in developing the accused products; whether Amazon knew or should have
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`known, that its conduct involved an unreasonable risk of infringement; and whether Amazon had
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`a reasonable belief that its products did not infringe the asserted patent or that the patent was
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`invalid.
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`If you determine that any infringement was willful, you may not allow that decision to
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`affect the amount of any damages award you give for infringement.
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`9
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`Case 1:19-cv-01410-MN Document 284 Filed 11/07/23 Page 12 of 33 PageID #: 10999
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`F.
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`Invalidity – Generally
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`I will now instruct you on the rules you must follow in deciding whether or not Amazon has
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`proven that the asserted claims of VB Assets’ patent are invalid. As I previously told you, to prove
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`that a claim of a patent is invalid, Amazon must persuade you by clear and convincing evidence.
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`Like infringement, you must determine whether each asserted claim is invalid. As I
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`instructed you earlier, there are independent claims and dependent claims in a patent. A dependent
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`claim recites all the requirements of its independent claim and adds additional requirements. This
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`means the scope of the dependent claim should be narrower than the scope of the independent
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`claim from which it depends. Finding the broader independent claim to be invalid does not mean
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`the narrower dependent claims are also invalid. If you find a narrower dependent claim to be
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`invalid, however, you must find the broader independent claim from which it depends is also
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`invalid.
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`Case 1:19-cv-01410-MN Document 284 Filed 11/07/23 Page 13 of 33 PageID #: 11000
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`G.
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`Prior Art – Generally
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`For someone to be entitled to a patent, the invention must actually be “new” and not
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`obvious over what came before, which is referred to as the prior art. Prior art is considered in
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`determining whether the asserted claims of the asserted patents would have been obvious to a
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`person of skill in the art at the time of the invention.
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`Here, the parties agree that the invention dates for the asserted patents, for purposes of
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`assessing prior art, are as follows:
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`•
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`•
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`•
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`October 16, 2006 for the ’681 Patent;
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`February 6, 2007 for the ’176, and ’097 Patents; and
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`September 16, 2014 for the ’703 Patent.
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`Prior art may include items that were publicly known or that have been used or offered for
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`sale, or references, such as publications or patents, or products, systems, or technologies that
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`disclose the claimed invention or elements of the claimed invention.
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`Amazon contends that the following is prior art to the asserted patents:
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`•
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`•
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`•
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`The MIT Galaxy System;
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`The UNITED System;
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`United States Patent No. 7,376,586 to Partovi et al. (referred to as “Partovi”).
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`11
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`Case 1:19-cv-01410-MN Document 284 Filed 11/07/23 Page 14 of 33 PageID #: 11001
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`H.
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`Invalidity – Obviousness
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`A claimed invention is invalid as “obvious” if it would have been obvious to the person of
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`ordinary skill in the art at the time the invention was made. The issue is not whether the claimed
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`inventions would have been obvious to you as a layperson or to me as the judge, or to a genius in
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`the relevant field, but whether it would have been obvious to one of ordinary skill in the art at the
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`time the invention was made.
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`In this case, Amazon contends that the asserted claims are invalid for obviousness.
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`Obviousness can only be found if you find that a reason existed at the time of the invention
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`to combine the elements of the prior art to arrive at the claimed invention, and there would have
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`been a reasonable expectation of success for doing so. In determining whether the claimed
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`invention was obvious, consider each claim separately. Obviousness may be shown by considering
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`one or more than one item of prior art.
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`In determining whether an asserted claim is obvious, you must first consider the level of
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`ordinary skill in the pertinent field that someone would have had at the time the invention was
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`made, the scope and content of the prior art, any differences between the prior art and the asserted
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`claims, and, if present, objective evidence or secondary considerations. You must determine what
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`is the level of ordinary skill according to the instruction I gave you earlier.
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`Second, you must determine what is the prior art that may be considered in determining
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`whether the asserted claims are obvious. A prior art reference may be considered if it discloses
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`information designed to solve any problems or need addressed by the patent or if the reference
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`discloses information that has obvious uses beyond its main purpose that a person of ordinary skill
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`in the art would reasonably examine to solve any problem or need addressed by the patent.
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`Third, you must decide what difference, if any, existed between the claimed invention and
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`the prior art.
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`Case 1:19-cv-01410-MN Document 284 Filed 11/07/23 Page 15 of 33 PageID #: 11002
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`In deciding obviousness, you must avoid using hindsight; that is, you should not consider
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`what is known today or what was learned from the teachings of the asserted patents. As I instructed
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`you earlier, you must put yourself in the place of a person of ordinary skill in the art at the time
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`the invention was made.
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`In considering whether a claimed invention is obvious, you should consider whether, at the
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`relevant time, there was a reason that would have prompted a person having ordinary skill in the
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`field of the invention to combine the known elements in the prior art in a way the claimed invention
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`does, taking into account such factors as (1) whether the claimed invention was merely the
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`predictable result of using prior art elements according to their known function(s); (2) whether the
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`claimed invention provides an obvious solution to a known problem in the relevant field;
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`(3) whether the prior art teaches or suggests the desirability of combining elements claimed in the
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`invention; (4) whether the prior art teaches away from combining elements in the claimed
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`invention; (5) whether it would have been obvious to try the combinations of elements, such as
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`when there is a design incentive or market pressure to solve a problem and there are a finite number
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`of identified, predictable solutions. To find it rendered the claimed invention obvious, you must
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`find that the prior art provided a reasonable expectation of success.
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`Finally, in determining whether the claimed invention is obvious, you should consider any
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`of the following factors (called “secondary considerations”) that you find have been shown by the
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`evidence:
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`1.
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`2.
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`3.
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`4.
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`Whether the claimed invention was commercially successful as a result of
`the merits of the claimed invention;
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`Whether others had tried and failed to make the claimed invention;
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`Whether others copied the claimed invention;
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`Whether the claimed invention satisfied a long-felt need;
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`Case 1:19-cv-01410-MN Document 284 Filed 11/07/23 Page 16 of 33 PageID #: 11003
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`When evidence establishes the presence of one or more of these secondary considerations,
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`it tends to prove the inventions were not obvious. These factors should be considered along with
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`all the other evidence in the case in determining whether the asserted claims would have been
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`obvious. In considering this kind of evidence, you should consider whether the secondary
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`consideration was attributable to the features of the asserted claims as opposed to features already
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`found in the prior art.
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`14
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`Case 1:19-cv-01410-MN Document 284 Filed 11/07/23 Page 17 of 33 PageID #: 11004
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`I.
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`Invalidity – Written Description
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`A patent must contain a written description of the patent claims. The written-description
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`requirement helps ensure that the patent applicant actually invented the claimed subject matter.
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`To satisfy the written-description requirement, the patent specification must describe each and
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`every limitation of a patent claim, in sufficient detail, although the exact words found in the claim
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`need not be used. When determining whether the specification discloses the invention, the claim
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`must be viewed as a whole.
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`In this case, Amazon contends that the asserted claims are invalid for failure to satisfy the
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`written-description requirement. Amazon bears the burden of establishing by clear and
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`convincing evidence that the specification fails to satisfy the written-description requirement. If a
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`patent claim lacks adequate written description, it is invalid.
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`The written description requirement is satisfied if persons of ordinary skill in the field of
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`the invention would recognize, from reading the patent specification, that the inventor possessed
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`the subject matter finally claimed in the patent. The written-description requirement is satisfied if
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`the specification shows that the inventor possessed his or her invention as of the effective filing
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`date of the claimed invention, even though the claims may have been changed or new claims added
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`since that time.
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`It is unnecessary to spell out every detail of the invention in the specification, and specific
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`examples are not required; but enough must be included in the specification to convince persons
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`of ordinary skill in the art that the inventor possessed the full scope of the invention.
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`The written description requirement may be satisfied by for example any combination of
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`the words, structures, figures, diagrams and formulas contained in the patent specification.
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`However, a mere wish or plan for obtaining the claimed invention is not an adequate written
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`description. In evaluating whether the specification has provided an adequate written description,
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`Case 1:19-cv-01410-MN Document 284 Filed 11/07/23 Page 18 of 33 PageID #: 11005
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`you may consider such factors as:
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`1.
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`2.
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`3.
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`4.
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`the nature and scope of the patent claims;
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`the complexity, predictability, and maturity of the technology at issue;
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`the existing knowledge in the relevant field; and
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`the scope and content of the prior art.
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`If you find that Amazon has proven by clear and convincing evidence that any of the asserted
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`claims do not contain adequate written description for the inventions recited in the asserted claims,
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`then you must find that the claim(s) are invalid.
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`16
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`Case 1:19-cv-01410-MN Document 284 Filed 11/07/23 Page 19 of 33 PageID #: 11006
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`J.
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`Invalidity – Patent Eligibility
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`Amazon contends that the asserted claims are invalid because they claim subject matter
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`that is not eligible for patent protection. You must decide if Amazon has proven by clear and
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`convincing evidence that the elements in each of these claims, considered individually and as an
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`ordered combination, involve only activities which a person of ordinary skill in the art would have
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`considered to be well-understood, routine, and conventional as of their effective filing dates.
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`Whether a particular technology was well-understood, routine, and conventional goes
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`beyond what was simply known in the prior art. The mere fact that something was disclosed in a
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`piece of prior art, for example, does not mean it was well-understood, routine, and conventional.
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`In determining whether a patent claim involves the performance of well-understood, routine, and
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`conventional activities, you may consider statements made in the patent’s specification, as well as
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`evidence of the prior art.
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`Case 1:19-cv-01410-MN Document 284 Filed 11/07/23 Page 20 of 33 PageID #: 11007
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`III. DAMAGES
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`A.
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`Damages – Generally
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`I will next instruct you on damages. You must not take these instructions as implying that
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`VB Assets is entitled to recover damages. Instructions regarding the measure of damages are given
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`for your guidance in the event you find that Amazon infringed one or more valid patent claims.
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`If you find that Amazon is liable for infringing one or more of the asserted claims, and that
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`the asserted claims are not invalid, you must determine the amount of money damages to be
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`awarded to VB Assets. On the other hand, if you find that none of the asserted claims is infringed,
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`or that all of the asserted claims are invalid, or that each of the asserted claims that you find
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`infringed is invalid, then you should not consider damages in your deliberations.
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`VB Assets has the burden of proving damages by a preponderance of the evidence.
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`Although VB Assets is not required to prove the amount of its damages with mathematical
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`precision, it must prove the amount of damages with reasonable certainty. You may not award
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`damages that are speculative, damages that are only possible, or damages that are based on
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`guesswork.
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`If proven by VB Assets, the amount of damages must be adequate to compensate VB Assets
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`for the infringement. The damages award cannot in any event be less than a reasonable royalty.
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`You may not add anything to the amount of the damages to punish an accused infringer or to set
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`an example. You also may not add anything to the amount of damages for interest.
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`18
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`Case 1:19-cv-01410-MN Document 284 Filed 11/07/23 Page 21 of 33 PageID #: 11008
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`B.
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`Reasonable Royalty
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`VB Assets is seeking damages in the amount of a reasonable royalty. A royalty is a
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`payment made to a patent holder in exchange for the right to make, use, or sell the claimed
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`invention. A reasonable royalty is the royalty payment that would have resulted from one or more
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`hypothetical negotiations between the patent owner and the alleged infringer just before the alleged
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`infringement began.
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`The hypothetical negotiation dates for the asserted patents are as follows:
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`•
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`•
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`November 2014 for the ’176, ʼ097, and ’681 Patents; and
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`April 2017 for the ’703 Patent.
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`In considering this hypothetical negotiation, you should focus on what the expectations of
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`the patent owner and Amazon would have been if they had entered into an agreement and if they
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`had acted reasonably in their negotiations. In determining this, you must assume that all parties to
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`the hypothetical negotiation believed the patent was valid and infringed and that all parties were
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`willing to enter into an agreement. The reasonable royalty you determine must be a royalty that
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`would have resulted from the hypothetical negotiation, and not simply a royalty that one party
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`would have preferred.
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`19
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`Case 1:19-cv-01410-MN Document 284 Filed 11/07/23 Page 22 of 33 PageID #: 11009
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`C.
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`Damages – Lump Sum vs. Running Royalty
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`A reasonable royalty can be paid either in the form of a one-time lump sum payment or as
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`a “running royalty.” Either method is designed to compensate the patent holder based on the
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`infringer’s use of the patented technology. It is up to you, based on the evidence, to decide what
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`type of royalty, if any, is appropriate in this case.
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`Reasonable royalty awards can take the form of a lump sum payment. A lump sum
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`payment is equal to an amount that the alleged infringer would have paid at the time of a
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`hypothetical negotiation for a license covering all sales of the licensed product, both past and
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`future. When a lump sum is paid, the infringer pays a single price for a license covering both past
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`and future infringing sales.
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`Reasonable royalty awards may also take the form of a running royalty based on the
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`revenue from or the volume of sales of licensed products. A running royalty can be calculated, for
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`example, by multiplying a royalty base by a royalty rate, or by multiplying the number of infringing
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`products or product units sold by a royalty amount per unit.
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`20
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`Case 1:19-cv-01410-MN Document 284 Filed 11/07/23 Page 23 of 33 PageID #: 11010
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`D.
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`Reasonable Royalty – Factors Relevant to the Hypothetical Negotiation
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`In determining the amount of a reasonable royalty, you may consider evidence on any of
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`the following factors. This is not every possible factor, but it will give you an idea of the kinds of
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`things to consider in setting a reasonable royalty.
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`1.
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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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`8.
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`9.
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`10.
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`Any royalties received by the licensor for the licensing of the ’681 Patent, ’703
`Patent, ’176 Patent, and ’097 Patent, proving or tending to prove an established
`royalty.
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`The nature and scope of a license, as exclusive or non-exclusive, or as restricted or
`non-restricted in terms of its territory or with respect to whom the manufactured
`product may be sold.
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`The commercial relationship between the l