MS 1120
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`MS 1120MS 1120
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`MS 1120MS 1120
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`Case 9:09-cv-00111-RC Document 543 Filed 09/13/11 Page 1 of 313 PageID #: 43007
`Jury Trial, Volume 10
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`2919
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF TEXAS
`LUFKIN DIVISION
`
`DOCKET 9:09CV111
`
`JULY 7, 2011
`
`8:31 A.M.
`
`BEAUMONT, TEXAS
`
`||||| ||
`
`PERSONAL AUDIO, LLC
`
`VS.
`
`APPLE, INC., ET AL
`
`--------------------------------------------------------
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`VOLUME 10 OF __, PAGES 2919 THROUGH 3231
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`REPORTER'S TRANSCRIPT OF JURY TRIAL
`
`BEFORE THE HONORABLE RON CLARK
`UNITED STATES DISTRICT JUDGE, AND A JURY
`
`--------------------------------------------------------
`
`APPEARANCES:
`
`FOR THE PLAINTIFF:
`
`RONALD J. SCHUTZ
`JACOB M. HOLDREITH
`CYRUS A. MORTON
`PATRICK M. ARENZ
`ROBINS KAPLAN MILLER & CIRESI - MN
`800 LASALLE AVENUE
`SUITE 2800
`MINNEAPOLIS, MINNESOTA
`
`55402
`
`ANNIE HUANG
`ROBINS KAPLAN MILLER & CIRESI - NY
`601 LEXINGTON AVENUE
`SUITE 3400
`NEW YORK, NEW YORK
`
`10022
`
`LAWRENCE LOUIS GERMER
`GERMER GERTZ
`550 FANNIN
`SUITE 400
`BEAUMONT, TEXAS
`
`77701
`
`Christina L. Bickham, RMR, CRR
`409/654-2891
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`MS 1120 - Page 1
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`Case 9:09-cv-00111-RC Document 543 Filed 09/13/11 Page 2 of 313 PageID #: 43008
`Jury Trial, Volume 10
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`FOR THE DEFENDANTS:
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`2920
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`RUFFIN B. CORDELL
`FISH & RICHARDSON - WASHINGTON DC
`1425 K STREET NW
`SUITE 1100
`WASHINGTON, DC
`
`20005
`
`GARLAND T. STEPHENS
`BENJAMIN C. ELACQUA
`FISH & RICHARDSON
`1221 MCKINNEY
`28TH FLOOR
`HOUSTON, TEXAS
`
`77010
`
`KELLY C. HUNSAKER
`FISH & RICHARDSON
`500 ARGUELLO STREET
`SUITE 500
`REDWOOD CITY, CALIFORNIA
`
`94063
`
`JUSTIN BARNES
`FISH & RICHARDSON
`12390 EL CAMINO REAL
`SAN DIEGO, CALIFORNIA
`
`92130
`
`J. THAD HEARTFIELD
`THE HEARTFIELD LAW FIRM
`2195 DOWLEN ROAD
`BEAUMONT, TEXAS
`
`77706
`
`COURT REPORTER:
`
`CHRISTINA L. BICKHAM, CRR, RMR
`FEDERAL OFFICIAL REPORTER
`300 WILLOW, SUITE 221
`BEAUMONT, TEXAS
`77701
`
`PROCEEDINGS REPORTED USING COMPUTERIZED STENOTYPE;
`TRANSCRIPT PRODUCED VIA COMPUTER-AIDED TRANSCRIPTION.
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`Christina L. Bickham, RMR, CRR
`409/654-2891
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`MS 1120 - Page 2
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`Case 9:09-cv-00111-RC Document 543 Filed 09/13/11 Page 3 of 313 PageID #: 43009
`Jury Trial, Volume 10
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`INDEX
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`2921
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`COURT'S INSTRUCTIONS TO THE JURY
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`CLOSING ARGUMENT BY MR. SCHUTZ
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`CLOSING ARGUMENT BY MR. CORDELL
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`REBUTTAL ARGUMENT BY MR. SCHUTZ
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`COURT FINAL INSTRUCTIONS TO THE JURY
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`BENCH TRIAL
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`DIRECT EXAMINATION OF CHARLES CALL
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`JURY NOTE NUMBER 1
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`JURY NOTE NUMBER 2
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`CROSS-EXAMINATION OF CHARLES CALL
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`DIRECT EXAMINATION OF JAMES LOGAN
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`CROSS-EXAMINATION OF JAMES LOGAN
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`JURY NOTE NUMBER 3
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`DEFENDANT RESTS
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`JURY NOTE NUMBER 4
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`CONCORDANCE INDEX
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`Christina L. Bickham, RMR, CRR
`409/654-2891
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`PAGE
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`2923
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`2968
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`3002
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`3045
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`MS 1120 - Page 3
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`Case 9:09-cv-00111-RC Document 543 Filed 09/13/11 Page 4 of 313 PageID #: 43010
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`INDEX OF EXHIBITS
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`Plaintiff's Exhibits 10 through 13
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`Plaintiff's Exhibits 10 through 13
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`Plaintiff's Exhibits 226, 227, 228, and 229
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`Plaintiff's Exhibit 226
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`DX 62
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`DX 116
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`Defendant's Exhibit 1
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`Defendant's Exhibit 1
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`Defendant's Exhibit 1
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`Defendant's Exhibit 153
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`Defendant's Exhibit 270
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`DX 87
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`PAGE
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`3143
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`3170
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`3171
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`3074
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`Christina L. Bickham, RMR, CRR
`409/654-2891
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`MS 1120 - Page 4
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`Case 9:09-cv-00111-RC Document 543 Filed 09/13/11 Page 5 of 313 PageID #: 43011
`Jury Trial, Volume 10
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`(REPORTER'S NOTES PERSONAL AUDIO V. APPLE,
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`2923
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`JURY TRIAL, VOLUME 10, 8:31 A.M., THURSDAY, JULY 7, 2011,
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`BEAUMONT, TEXAS, HON. RON CLARK PRESIDING.)
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`(OPEN COURT, ALL PARTIES PRESENT, JURY
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`PRESENT.)
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`THE COURT:
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`We found, ladies and gentlemen,
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`just at the last minute, two exhibit numbers that were
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`incorrect in the jury instructions.
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`So, what we're going
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`to do is correct those with a pen correction on the
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`copies we're going to be reading and hand them out to you
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`in just a second.
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`Just so you don't think we were goofing off on
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`that, we were here until about 9:00 last night getting
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`this all ready and thought we had it completely
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`proofread.
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`All right.
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`Ladies and gentlemen, you've heard
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`the evidence in the case; and I'll now instruct you on
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`the law.
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`I've provided you with a copy; so, you can
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`follow along with me or you can just listen.
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`I've found
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`that different people listen in different ways, like you
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`sometimes see in church.
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`Some people follow the
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`readings, and some people just listen.
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`You've got your
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`choice.
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`It is your duty to follow the law as I give it
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`to you.
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`On the other hand, you, the jury, are the judges
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`Christina L. Bickham, RMR, CRR
`409/654-2891
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`MS 1120 - Page 5
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`2924
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`of the facts.
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`Do not consider any statement that I have
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`made during the course of the trial, or make in these
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`instructions, as an indication that I have any opinion
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`about the facts of this case.
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`After I instruct you on the law, the attorneys
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`will have an opportunity to make their closing arguments.
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`Statements and arguments of the attorneys are not
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`evidence and are not instructions on the law.
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`They are
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`intended only to assist the jury in understanding the
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`evidence and the parties' contentions.
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`Now, it is my duty as judge to explain what
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`some of the words used in the patent claims mean.
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`Attached as Appendix A to this charge -- which you'll get
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`when you go back to the jury room.
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`It's the same one
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`that was in your juror notebook -- are the claims I have
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`defined for you.
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`These are the same definitions found in
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`the "definitions" section of your juror notebooks.
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`You
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`must accept as correct the definitions contained in
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`Appendix A.
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`Attached as Appendix B to this charge is the
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`definition of a "person of ordinary skill in the art."
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`This is the same definition that is found in the
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`"glossary" section of your juror notebooks.
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`The words
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`and terms of the patents that I have not defined for you
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`in Appendix A are to be given their ordinary and
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`Christina L. Bickham, RMR, CRR
`409/654-2891
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`MS 1120 - Page 6
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`accustomed meaning as understood by a person of ordinary
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`2925
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`skill in the art in the context of the patent
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`specifications and file history.
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`Now, when words in these instructions and in
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`the definitions in Appendix A are used in a sense that
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`varies from their commonly understood meaning, you are
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`given a proper legal definition which you are bound to
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`accept in place of any other meaning.
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`The other words in
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`these instructions and in the definitions I have provided
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`to you have the meaning commonly understood.
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`Answer each question based on the facts as you
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`find them.
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`Do not decide who you think should win and
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`then answer the questions accordingly.
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`Your answers and
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`your verdict must be unanimous.
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`Now, you will be instructed to answer some
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`questions based upon a preponderance of the evidence.
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`This means you must be persuaded by the evidence that
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`what the party seeks to prove is more likely true than
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`not true.
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`You will be instructed to answer other
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`questions by clear and convincing evidence.
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`This is a
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`higher burden than by a preponderance of the evidence,
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`but it does not require proof beyond a reasonable doubt.
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`Clear and convincing evidence is evidence that shows what
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`the party seeks to prove is highly probable.
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`In deciding whether any fact has been proved
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`Christina L. Bickham, RMR, CRR
`409/654-2891
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`MS 1120 - Page 7
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`in the case, you may, unless otherwise instructed,
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`consider the testimony of all witnesses, regardless of
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`who may have called them, and all exhibits received in
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`evidence, regardless of who may have produced them, and
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`the facts to which the parties have stipulated.
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`Attached as Appendix C to this charge is a
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`list of facts to which the parties have stipulated.
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`You
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`must treat all of the stipulated facts as having been
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`proved.
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`Now, in determining the weight to give to the
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`testimony of a witness, you should ask yourself whether
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`there was evidence tending to prove that the witness
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`testified falsely concerning some important fact or
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`whether there was evidence that at some other time the
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`witness said or did something, or failed to say or do
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`something, that was different from the testimony the
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`witness gave before you during the trial.
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`You should keep in mind, however, that a
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`simple mistake by a witness does not necessarily mean
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`that the witness was not telling the truth as he or she
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`remembers it, because people may forget some things or
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`remember other things inaccurately.
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`So, if a witness has
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`made a misstatement, you need to consider whether that
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`misstatement was an intentional falsehood or simply an
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`innocent lapse of memory; and the significance of that
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`Christina L. Bickham, RMR, CRR
`409/654-2891
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`MS 1120 - Page 8
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`may depend on whether it has to do with an important fact
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`2927
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`or only with an unimportant detail.
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`Now, if scientific, technical, or other
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`specialized knowledge may be helpful to the jury, a
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`witness with special training or experience, sometimes
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`called an "expert," may testify and state an opinion
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`concerning such matters.
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`However, you are not required
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`to accept that opinion.
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`You should judge such testimony
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`like any other testimony.
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`You may accept it or reject it
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`and give it as much weight as you think it deserves,
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`considering the witness' education and experience, the
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`soundness of the reasons given for the opinion, and all
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`the other evidence in the case.
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`In deciding whether to
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`accept or rely upon the opinion of such a witness, you
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`may consider any bias of the witness, including any bias
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`you may infer from evidence that the witness has been or
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`will be paid for reviewing the case and testifying, or
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`from evidence that he or she testifies regularly.
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`In making up your mind and reaching your
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`verdict, do not make your decisions simply because there
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`were more witnesses on one side than the other.
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`Do not
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`reach a conclusion on a particular point just because
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`there were more witnesses testifying for one side on that
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`point.
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`The testimony of a single witness may be
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`sufficient to prove any fact, even if a greater number of
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`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`MS 1120 - Page 9
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`Case 9:09-cv-00111-RC Document 543 Filed 09/13/11 Page 10 of 313 PageID #: 43016
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`witnesses may have testified to the contrary, if after
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`considering all the other evidence, you believe that
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`2928
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`single witness.
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`While you should consider only the evidence in
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`this case, you are permitted to draw such reasonable
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`inferences from the testimony and exhibits as you feel
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`are justified in light of common experience.
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`In other
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`words, you may make deductions and reach conclusions that
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`reason and common sense lead you to draw from the facts
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`that have been established by the testimony and evidence
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`in the case.
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`There are two types of evidence that you may
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`consider in properly finding the truth as to the facts in
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`the case.
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`One is direct evidence, such as testimony of
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`an eyewitness.
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`The other is indirect or circumstantial
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`evidence, the proof of a chain of circumstances that
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`indicates the existence or nonexistence of certain other
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`facts.
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`As a general rule, the law makes no distinction
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`between direct and circumstantial evidence but simply
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`requires that you find the facts from all the evidence,
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`both direct and circumstantial.
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`Now, during the trial, I sustained objections
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`to certain questions.
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`You must disregard those questions
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`entirely.
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`Do not speculate as to what the witness would
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`25
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`have said if he or she would have been permitted to
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`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`MS 1120 - Page 10
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`2929
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`answer the question.
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`I also sustained objections to
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`certain exhibits.
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`You must disregard these exhibits
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`entirely.
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`Do not speculate as to what facts or
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`information may have been supported by the exhibit if it
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`had been admitted into evidence.
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`Certain exhibits were admitted for a limited
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`purpose.
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`You should not consider these exhibits for any
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`purpose other than that for which they were admitted.
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`Now, these exhibits are:
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`Plaintiff's Exhibits
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`771A through Plaintiff's Exhibit 781A and Plaintiff's
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`Exhibit 748A, admitted only for the purpose of
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`summarizing or listing many of the exhibits upon which
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`Dr. Almeroth relied for his testimony.
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`These summary
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`exhibits are not themselves evidence and are intended
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`only to provide you with a guide to Dr. Almeroth's
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`testimony and point you to the relevant underlying
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`exhibits that have been admitted.
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`Plaintiff's Exhibit 10 through Plaintiff's
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`Exhibit 13, admitted for the purpose of background
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`information, but they are not admitted as comparable
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`license agreements.
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`Then we have DDX 608, 610, 611, DDX 616
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`through DDX 626, DDX 629 through DDX 634, DDX 636, 638
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`through 641, DDX 643, DDX 647 through DDX 655, DDX 657,
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`DDX 658, DDX 660 through DDX 663, and DDX 669 through
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`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`MS 1120 - Page 11
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`Case 9:09-cv-00111-RC Document 543 Filed 09/13/11 Page 12 of 313 PageID #: 43018
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`2930
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`DDX 705.
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`These were admitted only for the purpose of
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`summarizing or listing many of the exhibits upon which
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`Dr. Wicker relied for his testimony.
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`These summary
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`exhibits are not themselves evidence and are intended
`
`only to provide you with a guide to Dr. Wicker's
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`testimony and point you to the relevant underlying
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`exhibits that have been admitted.
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`And then, finally, DDX 827.
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`This was admitted
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`only for the purpose of summarizing or listing many of
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`the exhibits upon which Dr. Ugone relied for his
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`testimony.
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`DDX 827 is not in itself evidence and is
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`intended only to provide you with a guide to Dr. Ugone's
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`testimony and point you to the relevant underlying
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`exhibits that have been admitted.
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`On each of those limitations when I'm talking
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`about the underlying exhibits, those are in evidence.
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`You'll have them back there with an exhibit list.
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`You
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`can look up those numbers, and you can look at the
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`exact -- the actual exhibit.
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`And it's the actual exhibit
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`that's numbered and in evidence that you are to rely on.
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`Those summaries are there just to help provide you with a
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`guideline of who said what.
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`Also, do not assume from anything that I may
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`have done or said during the trial that I have any
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`25
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`opinion concerning any of the issues in this case.
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`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`MS 1120 - Page 12
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`Case 9:09-cv-00111-RC Document 543 Filed 09/13/11 Page 13 of 313 PageID #: 43019
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`2931
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`Except for the instructions to you on the law, you should
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`disregard anything I may have said during the trial in
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`arriving at your own findings as to the facts.
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`If you've taken notes, they are to be used
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`only as aids to your memory; and if your memory should be
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`different from your notes, you should rely on your
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`memory, not on your notes.
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`If you did not take notes,
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`rely on your own independent memory of the testimony.
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`Do
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`not be unduly influenced by the notes of other jurors.
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`A
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`juror's notes are not entitled to any greater weight than
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`the recollection of each juror concerning the testimony.
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`Now, the patents involved in this case are
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`referred to as the "'076 and the '178 patents."
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`The
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`plaintiff, Personal Audio, LLC, ("Personal Audio")
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`contends that the defendant, Apple, Inc., ("Apple")
`
`infringes claims 1, 3, and 15 of the '076 patent and
`
`claims 1, 6, 13, and 14 of the '178 patent.
`
`Each of the
`
`asserted patent claims is to be considered separately as
`
`1 2 3 4 5 6 7 8 9
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`10
`
`11
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`12
`
`13
`
`14
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`15
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`16
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`17
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`18
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`19
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`a separate invention.
`
`Personal Audio contends that the
`
`20
`
`following Apple products infringe the asserted claims of
`
`21
`
`the patents-in-suit:
`
`22
`
`Group 1, iPod classic Generation 3.
`
`There's
`
`23
`
`1,627,691 units sold.
`
`24
`
`And these listings of the numbers sold will
`
`25
`
`become relevant to you when you get the verdict form
`
`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`MS 1120 - Page 13
`
`
`
`Case 9:09-cv-00111-RC Document 543 Filed 09/13/11 Page 14 of 313 PageID #: 43020
`Jury Trial, Volume 10
`
`because you'll be asked to, if you get that far, if you
`
`get that far, to make some damage calculations based on
`
`2932
`
`these numbers.
`
`Group 2, iPod mini Generations 1 and 2 and
`
`iPod classic Generation 4.
`
`11,433,022 units sold.
`
`Group 2, iPod classic Generation 5.
`
`15,219,066 units sold.
`
`Group 4, iPod nano Generation -- 10,673,749
`
`units sold.
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`Group 5, iPod nano Generation 2.
`
`13,379,878
`
`11
`
`units sold.
`
`12
`
`13
`
`14
`
`Group 6, the iPod nano Generation 3 and iPod
`
`classic Generation 6.
`
`21,872,953 units sold.
`
`Group 7, the iPod nano Generation 4.
`
`15
`
`10,946,988 units sold.
`
`16
`
`And Group 8, iPod nano Generation 5.
`
`17
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`8,642,082 units sold.
`
`18
`
`Now, Apple denies that it is infringing the
`
`19
`
`patents-in-suit.
`
`Apple also contends that the
`
`20
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`patents-in-suit are invalid because the inventions in the
`
`21
`
`patents are described in one or more prior art
`
`22
`
`references.
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`23
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`You have the responsibility of deciding
`
`24
`
`whether Apple has infringed the asserted claims of the
`
`25
`
`patents-in-suit; and even though the PTO examiner has
`
`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`MS 1120 - Page 14
`
`
`
`Case 9:09-cv-00111-RC Document 543 Filed 09/13/11 Page 15 of 313 PageID #: 43021
`Jury Trial, Volume 10
`
`allowed the claims of the patents, you, as the jury, also
`
`have the responsibility for deciding whether the claims
`
`2933
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`of the patents are invalid [sic].
`
`Now, to decide the questions of infringement
`
`and invalidity, you must first understand what the claims
`
`of the patent cover; that is, what they prevent anyone
`
`else from doing.
`
`This is called "claim interpretation."
`
`You must use the same claim interpretation for both your
`
`decisions on infringement and your decisions on
`
`1 2 3 4 5 6 7 8 9
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`10
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`invalidity.
`
`I instructed you earlier on the definitions
`
`11
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`12
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`13
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`14
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`15
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`you must use in interpreting claims.
`
`Now, the patent claims are the numbered
`
`sentences at the end of the patents-in-suit.
`
`Each claim
`
`describes a separate invention.
`
`The claims are word
`
`pictures intended to define, in words, the boundaries of
`
`16
`
`the inventions.
`
`Only the claims of a patent can be
`
`17
`
`infringed.
`
`Neither the written description, sometimes
`
`18
`
`called the "specification," nor the drawings of a patent
`
`19
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`can be infringed.
`
`Each of the claims must be considered
`
`20
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`individually.
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`21
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`The claims are divided into parts called
`
`22
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`"limitations."
`
`These limitations are also referred to as
`
`23
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`"elements."
`
`You shall give your decisions on
`
`24
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`infringement based only on the asserted claims; namely,
`
`25
`
`claims 1, 3, and 15 of the '076 patent and claims 1, 6,
`
`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`MS 1120 - Page 15
`
`
`
`Case 9:09-cv-00111-RC Document 543 Filed 09/13/11 Page 16 of 313 PageID #: 43022
`Jury Trial, Volume 10
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`2934
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`13, and 14 of the '178 patent.
`
`Patent claims exist in two forms, referred to
`
`as "independent claims" and "dependent claims."
`
`An
`
`independent claim does not refer to any other claim of
`
`the patent.
`
`Thus, it is not necessary to look at any
`
`other claim to determine what an independent claim
`
`covers.
`
`Claim 1 of the '076 patent and claims 1 and 14
`
`of the '178 patent are independent claims.
`
`Now, a dependent claim refers to at least one
`
`other claim in the patent.
`
`A dependent claim includes
`
`each of the limitations of the other claim or claims to
`
`which it refers as well as the additional limitations
`
`recited in the dependent claim itself.
`
`Therefore, to
`
`determine what is covered by a dependent claim, it is
`
`necessary to look both at the dependent claim itself and
`
`the claim or claims to which it refers.
`
`Claims 3 and 15
`
`of the '076 patent and claims 6 and 13 of the '078 [sic]
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`1 2 3 4 5 6 7 8 9
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`10
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`11
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`12
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`13
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`14
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`15
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`16
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`17
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`18
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`patent are dependent claims.
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`19
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`So, claim 3 of the '076 patent depends from
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`20
`
`claim 2, which depends from claim 1.
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`21
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`Claim 15 of the '076 patent depends from
`
`22
`
`claim 14.
`
`23
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`Claim 6 of the '178 patent depends from
`
`24
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`claim 5, which depends from claim 4, which depends from
`
`25
`
`claim 3, which depends from claim 2, which depends from
`
`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`MS 1120 - Page 16
`
`
`
`Case 9:09-cv-00111-RC Document 543 Filed 09/13/11 Page 17 of 313 PageID #: 43023
`Jury Trial, Volume 10
`
`2935
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`claim 1.
`
`And claim 13 of the '178 patent depends from
`
`claim 9, which depends from claim 1.
`
`Now, the patent laws give the owner of a valid
`
`patent the right to exclude others from making, using,
`
`selling, or offering to sell the patented invention
`
`within the United States during the term of the patent.
`
`Any person or business entity that engages in any of
`
`those acts without the patent owner's permission
`
`infringes the patent.
`
`Knowledge of the patent or intent to infringe
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`1 2 3 4 5 6 7 8 9
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`10
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`11
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`12
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`is immaterial.
`
`Someone can infringe a patent without
`
`13
`
`knowing that what they are doing is an infringement of
`
`14
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`the patent.
`
`Someone may also infringe a patent even
`
`15
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`16
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`17
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`18
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`though they believe in good faith that what they are
`
`doing is not an infringement of any patent.
`
`Someone can
`
`also infringe a patent even if they have one or more of
`
`their own patents covering parts or components of the
`
`19
`
`accused product.
`
`On the other hand, someone does not
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`20
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`21
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`infringe by inventing a new and different way of
`
`accomplishing the same result; that is, to create a
`
`22
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`product that does not incorporate all of the limitations
`
`23
`
`of any claim of the patents-in-suit.
`
`24
`
`Now, only the claims of a patent can be
`
`25
`
`infringed.
`
`You must compare the elements of the asserted
`
`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`MS 1120 - Page 17
`
`
`
`Case 9:09-cv-00111-RC Document 543 Filed 09/13/11 Page 18 of 313 PageID #: 43024
`Jury Trial, Volume 10
`
`2936
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`claims to each accused product or product group to
`
`determine whether or not there is infringement.
`
`You
`
`should not compare the accused products with any specific
`
`example set out in the patents' specification.
`
`The only
`
`correct comparison is with the language of the asserted
`
`claims themselves, with the meanings that I have given
`
`you.
`
`You must determine separately for each of the
`
`asserted claims and separately for each accused product
`
`group whether or not there is infringement.
`
`Now, as I
`
`have explained to you, a dependent claim includes all of
`
`the requirements of the claim or claims to which it
`
`refers plus additional requirements of its own.
`
`Therefore, to find a dependent claim is infringed, you
`
`must first find that any claim from which it depends is
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`1 2 3 4 5 6 7 8 9
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`10
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`11
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`12
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`13
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`14
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`15
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`16
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`infringed.
`
`For example, to find that dependent claim 3
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`17
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`18
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`of the '076 patent is infringed, you must first find that
`
`independent claim 1 and dependent claim 2 of the
`
`19
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`'076 patent are infringed.
`
`If you find that an
`
`20
`
`21
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`independent claim is infringed, you must then decide
`
`separately whether the additional requirements of any
`
`22
`
`claims that depend from it have also been infringed.
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`23
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`There are two ways in which a patent claim can
`
`24
`
`be infringed:
`
`One, literal infringement and, two,
`
`25
`
`infringement under the doctrine of equivalents.
`
`I'll
`
`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`MS 1120 - Page 18
`
`
`
`Case 9:09-cv-00111-RC Document 543 Filed 09/13/11 Page 19 of 313 PageID #: 43025
`Jury Trial, Volume 10
`
`2937
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`first explain to you the circumstances under which you
`
`may find literal infringement or infringement under the
`
`doctrine of equivalents.
`
`Then I'll explain to you a
`
`particular kind of claim limitation called a
`
`"means-plus-function" limitation and the circumstances
`
`under which you may find infringement of a claim that
`
`contains a means-plus-function limitation.
`
`Now, to show literal infringement of a claim,
`
`Personal Audio must prove by a preponderance of the
`
`evidence that during the time the patent is in force,
`
`Apple has made, used, sold, or offered to sell within the
`
`United States a product that incorporates all of the
`
`limitations of that claim and has done so without
`
`Personal Audio's permission.
`
`Personal Audio contends
`
`that claims 1, 3, and 15 of the '076 patent are literally
`
`1 2 3 4 5 6 7 8 9
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`10
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`11
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`12
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`13
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`14
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`15
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`16
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`infringed.
`
`You must compare each of the accused products
`
`17
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`18
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`19
`
`20
`
`21
`
`separately with each and every one of the limitations of
`
`each asserted claim to determine whether Personal Audio
`
`has shown, by a preponderance of the evidence, that each
`
`limitation of a claim is found in that product.
`
`A claim limitation is present in an accused
`
`22
`
`product if it exists in the product just as it is
`
`23
`
`described in the claim language, either as I have defined
`
`24
`
`that language for you or, if I did not define it, as that
`
`25
`
`language is commonly understood.
`
`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`MS 1120 - Page 19
`
`
`
`Case 9:09-cv-00111-RC Document 543 Filed 09/13/11 Page 20 of 313 PageID #: 43026
`Jury Trial, Volume 10
`
`In general, a product does not infringe if it
`
`2938
`
`must be altered in order to satisfy all the limitations
`
`of a claim.
`
`However, if a product is sold or packaged
`
`with components that are intended to be attached or
`
`connected before operation and the seller provides
`
`instructions for such attachment or connection, the
`
`product may infringe if, when the components are attached
`
`or connected as instructed, the product includes all the
`
`limitations of the claim.
`
`A claim limitation that describes the
`
`capability for doing something is present in an accused
`
`product if the accused product includes components or
`
`structures capable of operating as described in the
`
`claim, even if a user never actually operates the product
`
`1 2 3 4 5 6 7 8 9
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`10
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`11
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`12
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`13
`
`14
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`15
`
`in the manner described.
`
`16
`
`17
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`18
`
`If an accused product omits even a single
`
`element recited in a claim, then you must find that with
`
`respect to that product, Apple has not literally
`
`19
`
`infringed that claim.
`
`20
`
`21
`
`If during the time a patent is in force
`
`someone made, used, sold, offered to sell, or imported
`
`22
`
`within the United States a product that does not
`
`23
`
`incorporate all of the limitations of an asserted claim,
`
`24
`
`there can still be infringement if the product satisfies
`
`25
`
`that claim under the doctrine of equivalents.
`
`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`MS 1120 - Page 20
`
`
`
`Case 9:09-cv-00111-RC Document 543 Filed 09/13/11 Page 21 of 313 PageID #: 43027
`Jury Trial, Volume 10
`
`Under the doctrine of equivalents, a product
`
`2939
`
`satisfies a claim if, for each and every limitation of
`
`the claim that is not literally present in the accused
`
`product, the accused product includes some corresponding
`
`alternative that is equivalent to the unmet claim
`
`requirement.
`
`Personal Audio contends that the "downloading
`
`from one or more server computers" limitations of the
`
`'178 patent, which are limitations number 1A in claim 1
`
`and 14E in claim 14 in your juror notebooks, are not
`
`literally present in the accused product but that the
`
`accused products include an equivalent alternative.
`
`Personal Audio, therefore, contends that claim 1 and the
`
`asserted claims that depend from it, claims 6 and 13, as
`
`well as claim 14 of the '178 patent are infringed under
`
`the doctrine of equivalents.
`
`As with literal
`
`infringement, Personal Audio must prove infringement
`
`under the doctrine of equivalents by a preponderance of
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`the evidence.
`
`20
`
`21
`
`In making your decision as to whether or not
`
`an accused product is equivalent under the doctrine of
`
`22
`
`equivalents, you must look at each and every limitation
`
`23
`
`of a claim and decide whether or not the accused product
`
`24
`
`includes that limitation or includes an alternative that
`
`25
`
`is equivalent to the unmet limitation.
`
`If it does, the
`
`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`MS 1120 - Page 21
`
`
`
`Case 9:09-cv-00111-RC Document 543 Filed 09/13/11 Page 22 of 313 PageID #: 43028
`Jury Trial, Volume 10
`
`2940
`
`product satisfies the claim under the doctrine of
`
`equivalents.
`
`If instead, one, the product includes an
`
`alternative to the unmet limitation but the alternative
`
`is not equivalent to the unmet limitation or, two, the
`
`product includes no corresponding alternative to the
`
`unmet limitation, you must find that the limitation is
`
`not satisfied under the doctrine of equivalents and there
`
`is no infringement under the doctrine of equivalents.
`
`Under the doctrine of equivalents, an
`
`alternative is considered to be equivalent to an unmet
`
`claim limitation if a person having ordinary skill in the
`
`art, as I have defined that person for you, would have
`
`considered the differences between the unmet limitation
`
`and the alternative to be insubstantial at the time of
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
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`12
`
`13
`
`14
`
`15
`
`the alleged infringement.
`
`16
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`17
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`18
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`19
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`20
`
`In deciding whether an alternative in an
`
`accused product is insubstantially different from an
`
`unmet claim limitation, you may consider whether the
`
`alternative and the unmet limitation, one, perform
`
`substantially the same function and, two, work in
`
`21
`
`substantially the same way, three, to achieve
`
`22
`
`substantially the same result.
`
`23
`
`You may also consider whether, at the time of
`
`24
`
`the alleged infringement, a person having ordinary skill
`
`25
`
`in the art would have known of the interchangeability of
`
`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`MS 1120 - Page 22
`
`
`
`Case 9:09-cv-00111-RC Document 543 Filed 09/13/11 Page 23 of 313 PageID #: 43029
`Jury Trial, Volume 10
`
`the alternative and the unmet claim limitation.
`
`Interchangeability at the present time is not sufficient.
`
`2941
`
`Rather, in order for the alternative to be considered
`
`interchangeable with the unmet limitation, the
`
`interchangeability must have been known to persons of
`
`ordinary skill in the art at the time of the infringement
`
`and be only insubstantially different.
`
`The doctrine of equivalents must be applied to
`
`the individual limitations of a claim, not to the
`
`invention as a whole, because each limitation in a patent
`
`claim is deemed material in defining the scope and limits
`
`of the patented invention.
`
`The public is entitled to
`
`rely on the limitations of the claims in order to avoid
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`infringement.
`
`Therefore, the doctrine of equivalents
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`cannot be used to eliminate a claim limitation or render
`
`any claim limitation unnecessary.
`
`Means-plus-function limitations.
`
`The claims
`
`of the patents-in-suit contain what are called
`
`"means-plus-function" limitations.
`
`For each
`
`means-plus-function limitation in issue, I have defined
`
`21
`
`for you the function to be performed.
`
`Now, these are set
`
`22
`
`out in Appendix A.
`
`For each means-plus-function
`
`23
`
`limitation in issue, I have also defined for you the
`
`24
`
`corresponding means or structures that were described in
`
`25
`
`the patents' specification for performing the claimed
`
`Christina L. Bickham, RMR, CRR
`409/654-2891
`
`MS 1120 - Page 23
`
`
`
`Case 9:09-cv-00111-RC Document 543 Filed 09/13/11 Page 24 of 313 PageID #: 43030
`Jury Trial, Volume 10
`
`functions.
`
`You will also find these in Appendix A.
`
`You
`
`must use my definitions of the
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