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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`SIMPLEAIR, INC. * Civil Docket No.
` * 2:11-CV-416
`VS. * Marshall, Texas
` *
` * January 13, 2014
` *
`MICROSOFT CORPROATION, ET AL * 1:04 P.M.
`
`TRANSCRIPT OF JURY TRIAL
`BEFORE THE HONORABLE JUDGE RODNEY GILSTRAP
`UNITED STATES DISTRICT JUDGE
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`APPEARANCES:
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`FOR THE PLAINTIFFS:
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`FOR THE DEFENDANTS:
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`MR. GREGORY DOVEL
`MR. JEFFREY EICHMANN
`Dovel & Luner
`201 Santa Monica Blvd.
`Suite 600
`Santa Monica, CA 90401
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`MR. CALVIN CAPSHAW
`Capshaw DeRieux
`114 East Commerce Avenue
`Gladewater, TX 75647
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`MR. MITCHELL STOCKWELL
`MR. RUSSELL KORN
`Kilpatrick Townsend & Stockton
`1100 Peachtree Street, Suite 2800
`Atlanta, GA 30309
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`APPEARANCES CONTINUED ON NEXT PAGE:
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`COURT REPORTERS:
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`MS. SHELLY HOLMES, CSR
`MS. SUSAN SIMMONS, CSR
`Official Court Reporters
` 100 East Houston, Suite 125
` Marshall, TX 75670
`903/935-3868
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`(Proceedings recorded by mechanical stenography,
`transcript produced on CAT system.)
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`APPEARANCES CONTINUED:
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`FOR THE DEFENDANTS:
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`MS. DANIELLE WILLIAMS
`Kilpatrick Townsend & Stockton
`1001 West Fourth Street
`Winston-Salem, NC 27101
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`MS. JENNIFER PARKER AINSWORTH
`Wilson Robertson & Cornelius
`909 ESE Loop 323, Suite 400
`Tyler, TX 75701
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`***************************************
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` P R O C E E D I N G S
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`(Jury out.)
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`COURT SECURITY OFFICER: All rise.
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`THE COURT: Be seated, please.
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`All right. Before we bring the jury in,
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`I'm going to take up some objections to demonstratives.
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`First of all, Mr. Stockwell, in regard to
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`your question just before we break for lunch, with
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`regard to this slide, that may be used as long as it's
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`used for background only. I don't expect it to be up on
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`the screen very long, but as long as it's used
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`appropriately as part of the background, the objection
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`to it is overruled.
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`MR. STOCKWELL: Understood, Your Honor.
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`THE COURT: Then turning to Google's
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`objections to various demonstratives to be used with
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`Dr. Knox, the first grouping are the dictionary
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`definitions.
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`During the pretrial, those were moved to
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`be pre-admitted as exhibits in the case, and the Court
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`excluded them from being used as exhibits. I was asked
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`if they'd be permissibly used as demonstratives, and to
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`my recollection, I thought that they would be. So to
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`the extent they're used as demonstratives only, then the
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`objection is overruled.
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`With regard to the objections regarding
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`the slides, includes the 30(b)(6) deposition testimony,
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`particularly the objection under Rule 32(c), the Court
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`finds there's good cause to be able to use the
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`transcript before the video is actually played. That's
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`really a matter of staging more than it is substance.
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`So the objection by Defendant is overruled there.
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`On the third grouping of objections,
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`Google objects to the slides from Dr. Knox' report. And
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`typically, the practice here is sections of the report
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`may be used either to refresh his recollection or to
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`impeach him. But as far as actually being offered on
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`direct and being shown to the jury, that's typically not
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`the practice in this Court.
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`He's going to have his report close at
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`hand, or it can be provided to him, if he needs it, to
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`refresh his recollection. If the other side attempts to
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`impeach him with it, then it will be appropriate for
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`that to be put on the screen for impeachment purposes.
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`But I'm going to grant the objection as to it being used
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`strictly for -- published to the jury for anything
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`related to refreshing recollection or offered by the
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`sponsoring party; in this case, the Plaintiff.
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`MR. EICHMANN: Your Honor, may I be heard
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`briefly?
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`THE COURT: I'll come back to you in a
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`minute, Mr. Eichmann. Have a seat.
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`Slide 46, this is the one that makes
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`reference to what the law says. I'm going to -- I'm
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`going to grant this in part and deny it in part.
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`Basically, what I'm going to instruct is
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`that the first two words, law says, come off. And that
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`phrase at the top of that slide will just start with:
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`You are responsible for.
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`I think that removes the communication
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`that it's a statement of the law, per se. And
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`certainly, the witness will be subject to -- whoever
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`cross-examines the witness will certainly be able to go
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`into you're not a lawyer and cross-examine the witness
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`on those type issues.
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`So with regard to the objections on Slide
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`46, it's granted in part to remove the first two words;
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`otherwise, it's overruled.
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`On Slide 47, I've looked at that, and
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`that objection is overruled.
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`And with regard to Slide 135, I
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`understand Google does intend to open the door with the
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`offshore servers. And then my recollection was that
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`earlier in pretrial, I held that if the Defendant did
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`that, then I would pre-admit the 279 patent as an
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`exhibit in the case.
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`Can you confirm that this is your intent?
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`MR. STOCKWELL: That is correct, Your
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`Honor. I simply want to make sure the record is clear.
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`We're continuing our objection on that.
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`THE COURT: So noted. But having heard
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`the objection, I will -- and based on the representation
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`by Defendant that they are going to open the door with
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`that, then I'll pre-admit the 279 patent -- as an
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`exhibit.
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`something.
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`All right. Now, those are my rulings.
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`Mr. Eichmann, you wanted to be heard on
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`MR. EICHMANN: Your Honor, with
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`respect -- would you like me to approach the podium
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`or --
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`THE COURT: Please.
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`MR. EICHMANN: With respect to the
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`portions of the slides that cite Dr. Knox' report, I can
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`relatively easily take out those screenshots of the
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`report, but there's a subset of those that are simply
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`citing the names of source code routines. And it's
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`citing the report rather than having to dig back into
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`the code to do that.
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`And now I understand generally refreshing
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`his recollection is one thing, but experts can't
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`reasonably expect to memorize the names of these source
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`code functions or the pages in these source code
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`exhibits where they're found.
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`So if I take out essentially the prose
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`that has his descriptions of his opinions, which is in
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`some of the slides, but leave the portions that have the
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`source code routine cited and sometimes the Bates page,
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`would that be an acceptable use of the sections of the
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`report as a demonstrative?
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`THE COURT: Does that cure the
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`Defendants' objection?
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`MR. STOCKWELL: Your Honor, I think it --
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`it would cure part of it, but my recollection is there's
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`an awful lot of, you know, paragraphs of his expert
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`report put in there that has his arguments in there. If
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`it's just citing the source code, there's other source
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`code citations. If he needs to refresh, his report will
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`be up there on the stand.
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`So I -- I mean, I -- there's a lot of
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`different slides here with a lot of stuff from his
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`expert report. I'd have to see the exhibit to see if
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`it's an issue.
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`THE COURT: Well, he's the first witness;
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`is that correct?
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`MR. EICHMANN: That's correct.
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`THE COURT: That may be a luxury of time
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`we don't have.
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`MR. EICHMANN: If I understand, Your
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`Honor, his response, it resolves it in part. But what
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`I'm saying is the other part that it doesn't resolve --
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`those are the paragraphs -- I'll take them out right
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`now.
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`I'm talking about the snippets that come
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`at the top.
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`MR. STOCKWELL: That are just --
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`MR. EICHMANN: They happen --
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`MR. STOCKWELL: -- where he copied
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`something from source code into his report, and you
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`copied it into the slide. That's fine.
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`MR. EICHMANN: Yes.
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`MR. STOCKWELL: That's fine.
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`MR. EICHMANN: Just the names of the
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`routines and the Bates pages.
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`THE COURT: Well, if we have an agreement
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`between the parties to modify the slides by agreement,
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`and by agreement, permit their use as demonstratives,
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`I'm certainly not going to stand in the way of that.
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`If we don't have an agreement, we don't
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`have time to reinvent the wheel, so...
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`MR. STOCKWELL: And I don't have time to
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`look at them, so...
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`THE COURT: So we've got to go left or
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`we've got to go right here, gentlemen.
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`MR. STOCKWELL: Right. I mean, I would
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`like to see it. That's the problem, Your Honor, because
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`there's so many of these slides that have this
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`paragraph --
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`THE COURT: How long will it take you to
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`make the adjustments, Mr. Eichmann, or somebody on your
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`staff?
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`MR. EICHMANN: They're looking at them.
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`15 minutes.
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`THE COURT: Who's doing the opening
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`statement for the Plaintiff?
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`MR. DOVEL: I am, Your Honor.
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`THE COURT: Mr. Dovel is. All right.
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`Well, I'll bring the jury back in. We'll get through
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`opening statements, and before Dr. Knox is called, I'll
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`take a brief recess, and Mr. Stockwell can look at them.
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`But I'm going to charge that time to both sides equally.
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`We've got a limited amount of time to try this case, and
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`this is actually something that should have been done
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`before now.
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`MR. STOCKWELL: Your Honor, I really
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`don't want to have time charged against him for this, so
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`if counsel will represent they'll remove any arguments
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`out of the report, that's fine. Just to be clear, Your
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`Honor, we got these yesterday. We made the objection.
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`I mean, I --
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`THE COURT: Well, let's -- what about
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`this, Mr. Stockwell: You know, you can -- you can have
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`it one way or the other way. We can take a recess and
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`you can review them to your satisfaction, but you're
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`going to have to bear part of the time that's used for
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`that process; or if you don't want that, if something
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`makes it through the process on a slide that you think
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`shouldn't be, I'll hear your objection at that time.
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`MR. STOCKWELL: That would be fine, Your
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`Honor. That would be fine.
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`THE COURT: And I'm sure Mr. Eichmann
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`doesn't want that to happen, so he'll be careful that
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`that's removed.
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`MR. EICHMANN: There's not going to be an
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`issue.
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`THE COURT: Okay. Then is there anything
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`else related to these objections before we bring the
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`jury in and start with the openings? Anything else we
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`need to take up?
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`MR. STOCKWELL: Not from the Defendants.
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`THE COURT: Then we should be able to go
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`directly into Dr. Knox.
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`do.
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`MR. EICHMANN: Okay. Yes.
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`THE COURT: All right. That's what we'll
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`One other housekeeping matter, Counsel.
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`I typically ask whether either side wants to invoke the
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`Rule before opening statements. Do you have any strong
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`feelings about whether it should come before or after
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`the openings?
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`MR. DOVEL: A somewhat strong feeling
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`that it should be after the opening.
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`THE COURT: What's the Defendant say?
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`MR. EICHMANN: Your Honor, we ask to
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`invoke the Rule before opening, and I'd ask that they
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`excuse Mr. von Kaenel during opening.
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`THE COURT: Well, then I'll do it the way
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`I ordinarily do it, barring an agreement.
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`Okay. Let's bring in the jury, please.
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`COURT SECURITY OFFICER: All rise for the
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`jury.
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`(Jury in.)
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`THE COURT: Members of the jury, if you'd
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`stand until I seat you when you come in each time, we'll
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`get everybody in the box. Now, you may be seated.
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`Be seated, Counsel.
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`Welcome back, ladies and gentlemen. I
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`need to give you some preliminary instructions before we
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`proceed with opening statements from counsel and then
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`get on to the evidence in this case.
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`You've now been sworn as the jurors in
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`this case, and as the jury, you are the sole judges of
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`the facts. You will decide and determine what all the
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`facts are in this case.
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`As the Judge, I'll give you instructions
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`on the law, decide any questions of law, procedure, and
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`evidence that arise during the trial and handle the flow
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`of the evidence and the decorum of the courtroom.
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`At the end of the evidence, I'll give you
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`a detailed set of instructions about the law to apply in
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`deciding this case, and I'll also give you a list of
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`questions that you are then to answer. This list of
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`questions is called the verdict form. Your answers to
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`those questions will need to be unanimous, and those
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`answers will constitute your verdict in this case.
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`I now want to briefly tell you what this
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`case is about. This case involves a dispute relating to
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`one United States patent. I know that you've seen the
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`patent video, but I want to give you some detailed
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`instructions here and on the record about a patent and
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`how one is obtained.
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`Patents are either granted or denied by
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`the United States Patent and Trademark Office, sometimes
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`called the PTO. A valid United States patent gives the
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`patentholder the right for up to 20 years from the date
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`the patent application was filed to prevent others from
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`making, using, offering to sell, or selling the patented
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`invention within the United States or from importing it
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`into the United States without the patentholder's
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`permission.
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`A violation of the patentholder's rights
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`is called infringement. The patentholder may try to
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`enforce a patent against persons it believes to be
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`infringers by a lawsuit filed in federal court. That's
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`what we have in this case.
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`The process of obtaining a patent is
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`called patent prosecution. To obtain a patent, one must
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`first file an application with the PTO. The PTO, the
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`United States Patent and Trademark Office, is an agency
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`of the United States government and employs trained
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`examiners who review applications for patents.
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`The application includes what is called a
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`specification. The specification contains a written
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`description of the claimed invention telling what the
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`invention is, how it works, how to make it, and how to
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`use it.
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`The specification includes or ends with
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`one or more numbered sentences. These numbered
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`sentences are the patent claims. When the patent is
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`eventually granted by the PTO, the claims define the
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`boundaries of its protection and give notice to the
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`public of those boundaries. After the applicant files
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`the application, an examiner reviews the application to
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`determine whether or not the claims are patentable --
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`that is to say appropriate for patent protection -- and
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`whether or not the specification adequately describes
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`the invention claimed.
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`In examining a patent application, the
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`examiner reviews certain information about the state of
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`the technology at the time the application was filed.
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`The PTO searches for and reviews this type of
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`information that is publicly available or has been
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`submitted by the applicant. This type of information is
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`called prior art.
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`The examiner reviews this prior art to
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`determine whether or not the invention is truly an
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`advance over the state of the art at the time. Prior
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`art is defined by law, and I will give you at a later
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`time specific instructions as to what constitutes prior
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`art.
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`In general, though, prior art includes
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`information that demonstrates the state of the
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`technology that existed before the claimed invention was
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`made or before the application for a patent was filed.
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`A patent lists the prior art that the
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`examiner has considered. The items on this list are
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`called the cited references.
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`After the prior art search and
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`examination of the application, the examiner informs the
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`applicant in writing of what the examiner has found and
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`whether the examiner considers any claim to be
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`patentable and thus allowed. This is called an Office
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`Action. However, if the examiner rejects the claims,
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`the applicant has an opportunity to respond to the
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`examiner to try to persuade the examiner to allow the
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`claims.
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`The applicant also has the chance to
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`change the claims or to submit new claims, and this
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`process may go back and forth between the applicant and
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`the examiner for some time until the examiner is
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`satisfied that the application meets the requirements
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`for a patent. And in that case, the application issues
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`as a United States patent.
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`Or in the alternative, if the examiner
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`ultimately concludes that the application should be
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`rejected, then no patent should issue.
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`Sometimes patents are issued after
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`appeals within the PTO or to a court. The papers
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`generated during these communications back and forth
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`between the examiner and the applicant are called the
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`prosecution history. The fact that the PTO grants a
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`patent does not necessarily mean that any invention
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`claimed in the patent, in fact, deserves the protection
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`of a patent. While the issued patent is presumed valid,
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`a person accused of infringement has the right to argue
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`here in federal court that a claimed invention in a
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`patent is invalid.
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`For example, the PTO may not have had
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`available to it all the other prior art that will be
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`presented to you. It's your job as the jury to consider
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`the evidence presented by the parties and to determine
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`independently and for yourselves whether or not the
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`Defendant has proven that the patent is invalid.
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`To help you follow the evidence, I'll now
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`give you a summary of the positions of the parties.
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`The Plaintiff in this case is SimpleAir,
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`Inc. The Defendant in this case is Google, Inc.
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`SimpleAir alleges that Google has
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`infringed a United States patent that it owns. The
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`1 2 3 4 5 6 7 8 9
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`patent relates to wireless notification technology, and
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`SimpleAir has accused certain of the services Google
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`provides of infringing SimpleAir's patent. SimpleAir
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`contends that Google owes it damages to compensate it
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`for Google's infringement. Google denies that it
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`infringes the asserted claims of the patent and also
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`contends that the asserted claims of the Google patent
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`are invalid.
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`Your job is to decide whether the
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`asserted claims have been infringed and whether the
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`asserted claims of the patent are invalid.
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`If you decide that the asserted claims
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`have been infringed and are not invalid, you will then
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`need to decide an amount of money to be awarded to
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`SimpleAir as compensation for the infringement.
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`Now, my job in this case is to tell you
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`what the law is, handle the procedure, oversee the
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`conduct of the trial as efficiently and effectively as
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`possible. In determining the law, it is specifically my
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`job to determine the meaning of any claim language that
`
`needs interpretation. Claim language is the language in
`
`those numbered paragraphs at the end of each patent.
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`You must accept the meanings that I give you and use
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`those meanings when you decide whether any particular
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`claim has or has not been infringed and whether or not
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`1 2 3 4 5 6 7 8 9
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`any claim is invalid. You'll be given a document in a
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`moment that reflects those meanings, which I have
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`determined.
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`Also for any claim term for which I have
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`not provided you with the definition, you should apply
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`the ordinary meaning. If I have provided you with a
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`definition, however, then you are to apply my
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`definitions to those terms throughout the case.
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`Nonetheless, my interpretation of the
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`language of the claims should not be taken by you as an
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`indication that I have a personal opinion or any opinion
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`at all regarding the issues, such as infringement and
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`invalidity. Those issues are yours alone to decide.
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`I'll provide you with more detailed instructions on the
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`meaning of the claims before you retire to deliberate
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`and reach your verdict.
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`In deciding the issues that are before
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`you, you'll be asked to consider specific legal rules,
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`and I'll give you an overview of those rules now, and
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`then I'll give you much more detailed instructions
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`later.
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`The first issue you'll be asked to decide
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`is whether Google has infringed the asserted claims of
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`the patent-in-suit. Infringement is assessed on a
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`claim-by-claim basis. Therefore, there may be
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`infringement as to one claim but no infringement as to
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`another.
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`There are also a few different ways that
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`a patent may be infringed. I'll explain the
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`requirements for each of these types of infringement in
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`detail at the conclusion of the case. In general,
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`however, Google may infringe the asserted patent by
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`making, using, selling, or offering for sale in the
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`United States or by importing into the United States a
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`product or by using a method meeting all the
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`requirements of a claim of the asserted patent.
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`I'll provide you with more detailed
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`instructions on the requirements for infringement at the
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`conclusion of the case.
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`Another issue you're going to be asked to
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`decide is whether the patent is invalid. A patent is
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`presumed valid, but may be found to be invalid for a
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`number of reasons, including because the claims --
`
`because -- including because it claims subject matter
`
`that is not new or obvious.
`
`For a claim to be invalid because it is
`
`not new, Google must show by clear and convincing
`
`evidence that all the elements of a claim are present in
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`a single previous device or method, or sufficiently
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`described in a single previous printed publication or
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`1 2 3 4 5 6 7 8 9
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`patent. We call these prior art.
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`11
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`If a claim is not new, it is said to be
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`anticipated. Another way that a claim may be found to
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`be invalid is that it may have been obvious. Even
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`14
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`though every element of a claim is not shown or
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`15
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`sufficiently described in a single piece of prior art,
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`the claim may still be invalid, if it would have been
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`17
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`obvious to a person of ordinary skill in the field of
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`technology of the patent at the relevant time.
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`You'll need to consider a number of
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`questions in deciding whether the invention claimed in
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`the asserted -- in the asserted patent is obvious.
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`Google also asserts that the asserted
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`claims fail to possess an adequate written description
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`and enablement. I'll provide you detailed instructions
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`on these questions at the conclusion of the case.
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`If you decide that the asserted claims of
`
`the patent-in-suit have been infringed and the patent is
`
`not invalid -- that is, its presumption of validity has
`
`survived -- you will then need to decide what amount of
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`money damages are to be awarded to SimpleAir to
`
`compensate it for the infringement.
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`A damages award should put SimpleAir in
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`approximately the same financial position that it would
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`have been in had the infringement not occurred, but in
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`1 2 3 4 5 6 7 8 9
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`no event may the damages award be less than what
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`SimpleAir would have received had it been paid a
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`reasonable royalty for the use of its patent.
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`I will instruct you later on the meaning
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`of a reasonable royalty.
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`The damages you award are meant to
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`compensate SimpleAir and not to punish Google. You may
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`not include in your award any additional amount as a
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`fine or penalty above what is necessary to compensate
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`19
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`SimpleAir for the infringement. I'll give you more
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`detailed instructions on the calculation of damages at
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`the conclusion of the case.
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`Now, you're going to be hearing from a
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`23
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`number of witnesses, and I want you to keep an open mind
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`24
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`while you're listening to the evidence and not decide
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`25
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`the facts until you've heard all the evidence. While
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`

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`21
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`the witnesses are testifying, remember that you and you
`
`alone will have to decide the degree of credibility and
`
`believe -- believability to allocate to the witness and
`
`the evidence.
`
`So while these witnesses are testifying,
`
`you should be asking yourself: Does the witness impress
`
`you as being truthful?
`
`Does he or she have a reason not to tell
`
`the truth?
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`1 2 3 4 5 6 7 8 9
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`10
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`Does he or she have any personal interest
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`11
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`in the outcome of the case?
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`12
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`Does the witness seem to have a good
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`13
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`memory?
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`14
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`Did he or she have an opportunity and
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`15
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`ability to observe accurately the things they testified
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`16
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`about?
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`17
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`Did the witness appear to understand the
`
`18
`
`questions clearly and answer them directly?
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`19
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`And, of course, does the witness'
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`20
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`testimony differ from that of another witness? And if
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`21
`
`it does, how does it differ?
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`22
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`These are the kinds of things that you
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`23
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`should be thinking about while you're listening to each
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`24
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`witness in this case.
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`25
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`The court reporter in front of me is
`
`

`
`22
`
`taking down everything that is said during the trial.
`
`But the written transcription of that will not be ready
`
`in time for you to use during your deliberations. It's
`
`prepared in case there is an appeal of this case.
`
`So that being the case, you'll have to
`
`rely on your memories of the evidence. In a moment,
`
`you're each going to be given a juror notebook. One of
`
`the things in the back of that notebook are blank pages
`
`that you can use to take notes upon. It's up to each of
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`1 2 3 4 5 6 7 8 9
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`10
`
`you to decide whether or not you want to take notes.
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`11
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`And if so, how detailed you want those notes to be.
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`12
`
`But remember, those notes are for your
`
`13
`
`own personal use. You're going to have to rely on your
`
`14
`
`own memory of the evidence, which is why you should pay
`
`15
`
`close attention to the testimony of each witness. You
`
`16
`
`should not abandon your own recollection because
`
`17
`
`somebody else's notes indicate something differently.
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`18
`
`Your notes are to refresh your recollection, and that's
`
`19
`
`the only reason that you should be keeping them.
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`20
`
`I'm now going to ask Mr. Floyd, our Court
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`21
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`Security Officer, to hand out those juror notebooks to
`
`22
`
`each of you.
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`23
`
`In those notebooks, ladies and gentlemen,
`
`24
`
`you'll see that you each have a copy of the asserted
`
`25
`
`patent that we've talked about. Also in those
`
`

`
`23
`
`notebooks, you'll see you have some pages listing the
`
`claim terms. Those are the words that are found in
`
`those numbered claims that I've told you about.
`
`And then over to the side of that, you'll
`
`see the construction column. Those are the definitions
`
`that the Court has given you to work with with regard to
`
`those terms. You'll also have pages with witness
`
`photographs and names for the witnesses that are going
`
`to testify.
`
`1 2 3 4 5 6 7 8 9
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`10
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`It is possible that additional witness
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`11
`
`pages may need to be added as we go through the trial.
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`12
`
`They may not. We'll just have to see.
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`13
`
`When you leave the courthouse each day at
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`14
`
`the end of that day's portion of the trial, you need to
`
`15
`
`leave those juror notebooks on the table in the jury
`
`16
`
`room. Now, they either need to be with you in the jury
`
`17
`
`box or on the table in the courtroom -- excuse me -- on
`
`18
`
`the table in the jury room and nowhere else.
`
`19
`
`You'll also notice there's a legal pad in
`
`20
`
`the back. That's for you to take notes upon, if you
`
`21
`
`wish.
`
`22
`
`Now, if you'll just put those notebooks
`
`23
`
`down for a second. You're going to have time to look at
`
`24
`
`those in greater detail later. I want to give you my
`
`25
`
`final instructions before we hear the opening statements
`
`

`
`24
`
`from the lawyers.
`
`Each side is going to make an opening
`
`statement in just a moment. You need to understand that
`
`each side's opening statement is not evidence. What the
`
`lawyers tell you is not evidence. It's simply their
`
`explanation of what they hope and expect the evidence
`
`will show.
`
`The evidence in this case is the sworn
`
`testimony of the witnesses together with -- with the
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`1 2 3 4 5 6 7 8 9
`
`10
`
`exhibits that are admitted into evidence for your
`
`11
`
`consideration. That and that alone is the evidence in
`
`12
`
`this case.
`
`13
`
`There are two standards of proof that
`
`14
`
`you'll be asked to apply to the evidence, depending on
`
`15
`
`the issue that you're dealing with. As the jury, you
`
`16
`
`may apply the burden of proof known as a preponderance
`
`17
`
`of the evidence as well as a different burden of proof
`
`18
`
`known as clear and convincing evidence.
`
`19
`
`I need to instruct you that when a party
`
`20
`
`has the burden of proof by a preponderance of the
`
`21
`
`evidence, this means that you, the jury, must be
`
`22
`
`persuaded by the credible or believable evidence that
`
`23
`
`the claim or affirmative defense is more probably true
`
`24
`
`than not true. This is sometimes talked about as being
`
`25
`
`the greater weight and degree of credible testimony.
`
`

`
`25
`
`On the other hand, when a party has the
`
`burden of proof as to any defense by clear and
`
`convincing evidence, it means you, the jury, must have
`
`an abiding conviction of the truth of the parties' --
`
`that the truth of the parties' factual contentions are
`
`highly probable. That's a higher standard of proof than
`
`the preponderance of the evidence.
`
`During jury selection, which happened
`
`just a short time ago, I gave you illustration for both
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`1 2 3 4 5 6 7 8 9
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`10
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`of these burdens of proof using these Scales of Justice
`
`11
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`and balancing the evidence. That same illustration
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`12
`
`applies to these instructions now. So I won't go over
`
`13
`
`it again with you since you just heard it.
`
`14
`
`Now, none of these burdens of proof are
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`15
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`to be confused with a different burden of proof called
`
`16
`
`beyond a reasonable doubt. That's used in a criminal
`
`17
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`case. It has no application in a civil case such as
`
`18
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`this. So you should not confuse clear and convincing
`
`19
`
`evidence with beyond a reasonable doubt. It's not as
`
`20
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`high as beyond a reasonable doubt, but it is higher than
`
`21
`
`a preponderance of the evidence.
`
`22
`
`Now, I want to talk with you briefly
`
`23
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`about expert witnesses. When knowledge of a technical
`
`24
`
`subject matter may be helpful to you, the jury, a person
`
`25
`
`who has special training and experience in that
`
`

`
`26
`
`particular technical field, we refer to them as an
`
`expert witness, who is permitted to testify to you about
`
`his or her opinions on technical matters.
`
`However, you're not required to accept
`
`those opinions at all. It's up to you to decide whether
`
`you believe what an expert witness tells you or what any
`
`witness tells you for that matter and whether you
`
`believe it to be correct or incorrect.
`
`I anticipate also that there will be
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`1 2 3 4 5 6 7 8 9
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`10
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`expert witnesses testifying in support of each side in
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`11
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`this case, but it will be up to you, the jury, to listen
`
`12
`
`to their qualifications. And when an expert witness
`
`13
`
`gives you an opinion and explains the basis for it, you
`
`14
`
`will have to decide what they have said and whether you
`
`15
`
`believe it and what extent or degree to any that you
`
`16
`
`want to give it any weight.
`
`17
`
`Now, during the trial, I also anticipate
`
`18
`
`that there's -- you're going to be presented with what
`
`19
`
`are called depositions. In trials such as this, ladies
`
`20
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`and gentlemen, it's nearly impossible to get every
`
`21
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`witness to appear live in open court. So before the
`
`22
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`trial begins, the lawyers on each side take depositions
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`23
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`of the witnesses.
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`24
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`In a deposition, the witness is t

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