Case 6:21-cv-00569-ADA Document 246 Filed 07/21/23 Page 1 of 48
`Case 6:21-cv-00569-ADA Document 246 Filed 07/21/23 Page 1 of 48
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`BY:
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`FILED
`July 21, 2023
`CLERK, U.S. DISTRICT COURT
`WESTERN DISTRICT OF TEXAS
`Jennifer Clark
`DEPUTY
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`TOUCHSTREAM TECHNOLOGIES, INC.,
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`Plaintiff,
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`v.
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`GOOGLE LLC,
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`Civil Case No. 6:21-cv-569-ADA
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`JURY TRIAL DEMANDED
`U.S. District Judge Alan Albright
`
` Defendant.
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`FINAL JURY INSTRUCTIONS
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`Page 1 of 48
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`Charter Ex. 1122
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`Table of Contents
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`JURY INSTRUCTION NO. 1: JURY CHARGE......ceccccssecsssessssssssscsssvssesscsssessesasenceesecsesaseses ]
`JURY INSTRUCTION NO.2: EVIDENCE..........cccscssssssessessssessecsssssscsessscesecsessesecsesacsesasensaseees3
`JURY INSTRUCTION NO.3: WITNESSEG.........ccccccessssssssssssessssssssssescsscaecucsesacsessessssssesecees 5
`JURY INSTRUCTION NO. 4: DEPOSITION TESTIMONY ..........ccccccscsssscssssssescsesssseserersess 7
`JURY INSTRUCTION NO. 5: EXPERT TESTIMONY...........cccccsccscsccsssscsessssessceecescecseseseees8
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`JURY INSTRUCTION NO.6: INTERROGATORIES...........c.cssssssssssssssssseressusssssssessssscsseseese 9
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`JURY INSTRUCTIONNO.7: BIAS—NO INFERENCEFROMFILING SUIT OR
`DEFENDING THE SUIT 10000... cescsssssssssseeccssscoeseceeesessssssserssesssssesssessssteceesssesesussssaseneaens 10
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`JURY INSTRUCTION NO. 8: STIPULATIONS OF FACT........ccccssccssscsessssseesrsssssssesssnsaes 11
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`JURY INSTRUCTION NO.9: LIMITING INSTRUCTION.....0.0...ccessssssssssessssseseseseseseanee 12
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`JURY INSTRUCTION NO. 10: CHARTS AND SUMMARIES0... cceesssesceeseseecensseeees 13
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`JURY INSTRUCTION NO. 11: DEMONSTRATIVE EXHIBITS...... ce cescsessesessseeeseeesenes 14
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`JURY INSTRUCTION NO. 12: BIAS—CORPORATE PARTY INVOLVED.................004 15
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`JURY INSTRUCTION NO. 13: BURDENS OF PROOF. .........cccsecsssssesssesesessecesesenseeseeeeeees 16
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`JURY INSTRUCTION NO. 14: SUMMARYOF CONTENTIONS........ccccsesssscsessessesesens 17
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`JURY INSTRUCTION NO.15: PATENT CLAIMS 2.0 cece ccsescseesssesessseneesesseseseseeseee 19
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`JURY INSTRUCTION NO. 16: INDEPENDENT AND DEPENDENTCLAIMG............... 21
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`JURY INSTRUCTION NO. 17: INFRINGEMENT—GENERALLY...........ccssssscssessescneessees 22
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`JURY INSTRUCTION NO. 18: OTHER PATENTS...ccc csssssesseseeesensessessessesseaseees 23
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`JURY INSTRUCTION NO.19: DIRECT INFRINGEMENT—KNOWLEDGEOF THE
`PATENT AND INFRINGEMENT ARE IMMATERIAL... cccccesessseesseeseseeesenseeneees 24
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`JURY INSTRUCTION NO.20: INFRINGEMENT BY LITERAL INFRINGEMENT....... 25
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`JURY INSTRUCTION NO.21: DIRECT INFRINGEMENT: ACTS OF MULTIPLE
`PARTIES MUST BE COMBINED TO MEET ALL METHOD CLAIM LIMITATIONS
`sesateateneunesasacencesssscescnsacssessessnscessesscssecssacanensoeseosacsssssensesssaceatenessueatenseseestententesneseessteneserensentags 26
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`JURY INSTRUCTION NO. 22: PATENT INVALIDITY—GENERALLY......0....essssseees 27
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`JURY INSTRUCTION NO.23: INVALIDITY—PRIORART....... cece ceseeseseeteneeenseeeensens 28
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`JURY INSTRUCTION NO. 24: LEVEL OF ORDINARYSKILL.0.....eccccccssecesessnseseeeeenes 30
`JURY INSTRUCTION NO.25: OBVIOUSNESS....... ccc ccecsssesesesseeessesnsssesenesseeenenseesneeseens31
`JURY INSTRUCTION NO. 26: DAMAGES—INTRODUCTION.........ccsccessssssesseserseeees 34
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`JURY INSTRUCTIONNO. 27: DATE OF COMMENCEMENT OF DAMAGES—
`PRODUCTS......cccccccscccssscessssssevesasscssesssssevsessscescsrscnsascseeeseneseneesssensesaeaesesanensesaneenassasensenas 35
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`JURY INSTRUCTION NO. 28: DAMAGES—REASONABLE ROYALTY...cccscccccccscscsees36
`JURY INSTRUCTION NO. 29: DAMAGES—APPORTIONMENTREQUIRED..............37
`JURY INSTRUCTION NO.30: REASONABLE ROYALTY—RELEVANT FACTORS..38
`JURY INSTRUCTION NO. 31: DAMAGES—COMPARABLE AGREEMENTS.............41
`JURY INSTRUCTION NO. 32: DAMAGES-RUNNING ROYALTY VS. LUMP SUM....42
`JURY INSTRUCTION NO.33: JUROR NOTEBOOKS. .....0....ccccccsssssscssssccsssaseesscsssescseeeees43
`JURY INSTRUCTION NO. 34: DUTY TO DELIBERATE.........cccccccssscscssssesececeserscscsesesees44
`JURY INSTRUCTION NO.35: SOCIAL MEDIA INSTRUCTION......cceccccccccceseseeesesees45
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`JURY INSTRUCTION NO.1: JURY CHARGE
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`MEMBERSOF THE JURY:
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`It is my duty and responsibility to instruct you on the law you are to apply in this case. The
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`law containedin theseinstructions is the only law you mayfollow.It is your duty to follow what
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`l instruct you the law is, regardless of any opinion that you might have as to what the law oughtto
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`be.
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`Each of you is going to have your ownprinted copy ofthese final jury instructionsthat I
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`am giving you now,so there is really no need for you to take notes unless you wantto.
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`If I have given you the impression during thetrial that I favor either party, you must
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`disregard that impression.If I have given you the impression duringthetrial that I have an opinion
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`aboutthe facts ofthis case, you must disregard that impression. Youarethe sole judgesofthe facts
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`of this case. Other than my instructions to you on the law, you should disregard anything I may
`havesaid or done duringthetrial in arriving at your verdict.
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`You should consider all of the instructions about the law as a whole and regard each
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`instruction in light of the others, without isolating a particular statement or paragraph.
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`The testimony of the witnesses and other exhibits introduced by the parties constitute the
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`evidence. The statements of counsel are not evidence; they are only arguments.It is important for
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`you to distinguish between the arguments of counsel and the evidence on which those arguments
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`rest. What the lawyers say or do is not evidence. You may, however, consider their arguments in
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`light of the evidence that has been admitted and determine whether the evidence admittedin this
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`trial supports the arguments. You must determine the facts from all the testimony that you have
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`heard and the other evidence submitted. You are the judgesof the facts, but in finding thosefacts,
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`you mustapply the law asI instruct you.
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`You are required by law to decide thecasein a fair, impartial, and unbiased manner, based
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`entirely on the law and on the evidence presented to you in the courtroom. You may not be
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`influenced by passion, prejudice, or sympathy you might have for Touchstream or Google in
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`arriving at your verdict.
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`After the remainder of these instructions, you will hear closing arguments from the
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`attorneys. Statements and argumentsofthe attorneys, I remind you, are not evidence, and they are
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`not instructions on the law. They are intended only to assist the jury in understanding the evidence
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`and the parties’ contentions.
`A verdict form has been prepared for you. You are to take this verdict form with youto the
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`jury room; and when you have reached a unanimousdecision or agreementas to the verdict, you
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`are to have your forepersonfill in the blanks in the verdict form, date it, and sign it.
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`Answer each question in the verdict form from the facts as you find them to be. Do not
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`decide who you think should win the case and then answerthe questions to reachthat result. Again,
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`your answers and yourverdict must be unanimous.
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`JURY INSTRUCTION NO.2: EVIDENCE
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`The evidence youare to considerconsists ofthe testimony ofthe witnesses, the documents,
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`and other exhibits admitted into evidence, the stipulations to which the lawyers agreed, and any
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`fair inferences and reasonable conclusions you can draw from the facts and circumstances have
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`been proven. Nothing else is evidence.
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`Generally speaking, there are two types of evidence. One is direct evidence, such as
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`testimony of eyewitnesses. The other is indirect or circumstantial evidence. Circumstantial
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`evidence is evidence that proves a fact from which you can logically conclude another fact exists.
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`As a general rule, the law makesno distinction between direct and circumstantial evidence, but
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`simply requires that you determine the facts from all of the evidence that you heard in this case,
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`whetherdirect, circumstantial or any combination.
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`AsI instructed you before thetrial began, in judging the facts, you must considerall the
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`evidence, both direct and circumstantial. That does not mean you haveto believe all of the
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`evidence. It is entirely up to you to give the evidence you receive in this case whatever weight you
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`individually believe it deserves. It will be up to you to decide which witnesses to believe, which
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`witnesses not to believe, the weight you give any testimony you hear, and how much of any
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`witness’s testimony you chooseto accept orreject.
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`Objections to questions are not evidence. The attorneys in this case may have objected if
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`they thought that documents or testimony that were offered into evidence were improper underthe
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`rules of evidence. Mylegal rulings as to those objections are not evidence. My comments and
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`questions are not evidence. If I sustained an objection, then just pretend the question was never
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`asked. If there was an answergiven, ignore it. If I overruled the objection, act like the objection
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`was never made. If I gave you instructions that some item of evidence was received for a limited
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`3
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`purpose, you must follow myinstruction. If I gave any limiting instruction duringtrial, you must
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`follow it. Any testimony I told you to exclude or disregard is not evidence, may notbe considered.
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`You must not conduct any independent research or investigation. You must make your
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`decision based only on the evidence as I have defined it here, and nothingelse.
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`JURYINSTRUCTIONNO.3:WITNESSES
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`You alone determine the questions of credibility or truthfulness of the witnesses. In
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`weighing the testimony of witnesses, you may consider the witness’s manner and demeanoron the
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`witness stand, any feelings or interest in the case, any prejudice or bias about the case, and the
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`consistency or inconsistency of the witness’s testimony considered in the light of circumstances.
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`Has the witness been contradicted by other credible evidence? Has the witness made
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`statements at other times that are contrary to those made here on the witness stand? You must give
`the testimony ofeach witness the credibility that you think it deserves.
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`Even though a witness maybea party to the action and therefore interested in the outcome,
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`you may accept the testimonyif it is not contradicted by direct evidence or by any inference that
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`maybe drawn from the evidence, if you believe the testimony.
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`Youare not to decide this case by counting the number of witnesses whohavetestified for
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`the opposing sides. Witness testimony is weighed. Witnesses are not counted. Thetest is not the
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`relative numberof witnesses, but the relative convincing force of the evidence. The testimony of
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`a single witness is sufficient to prove any fact, even if a greater numberof witnessestestify to the
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`contrary, if after you have considered all of the other evidence you choose to believe the single
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`witness.
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`In determining the weight to give to the testimony ofa witness, consider whether there was
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`evidencethat at sometime the witness said or did somethingorfailed to say or do something that
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`wasat odds with the testimony givenattrial. A simple mistake by a witness does not necessarily
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`mean that a witness did nottell the truth as he or she remembers it. We’re people. We forget things.
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`We rememberthings inaccurately. If a witness has made a misstatement, consider whetherthat
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`was an intentional falsehood or simply an innocent mistake. The significance of that may depend
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`on whetherit has to do with something important or unimportant. Butagain,this is exclusively in
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`your province of whetheror not youbelieve a witnessis telling the truth.
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`JURY INSTRUCTION NO.4: DEPOSITION TESTIMONY
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`Certain testimony has been presented to you through a deposition. A deposition is the
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`sworn, recorded answers to questions a witness was asked in advanceofthe trial. Under some
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`circumstances, if a witness cannot be present to testify from the witness stand, that witness’s
`testimony may be presented, under oath,in the form of a deposition. Sometimebeforethistrial,
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`attorneys representing the parties in this case questioned this witness under oath. A court reporter
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`waspresent and recorded the testimony. The questions and answers have been shownto you. This
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`deposition testimony is entitled to the same consideration and is to be weighed and otherwise
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`considered by you in the same wayasif the witness had been present and hadtestified from the
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`witness stand in court.
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`Someofthe video recordings of witnesses you have seen may have been of lower quality
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`because the witnesses testified from home. You should not hold the quality of the video or the
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`location of the witness againsteither party.
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`Deposition testimony is entitled to the same consideration and is to be weighed and
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`otherwise considered by you in the same wayas if the witness had been present and hadtestified
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`from the witness stand in court.
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`JURY INSTRUCTION NO. 5: EXPERT TESTIMONY
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`Expert testimony is testimony from a person whohasa specialskill or knowledge in some
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`science, profession, or business. This skill or knowledge is not commonto the average person but
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`has been acquired by the expert through special study or experience.
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`In weighing expert testimony, you may consider the expert’s qualifications, the reasons for
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`the expert’s opinions, and the reliability of the information supporting the expert’s opinions, as
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`well as the factors I have previously mentioned for weighing testimony of any other witness.
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`Expert testimony should receive whatever weight and credit you think appropriate, given all the
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`other evidence in the case. You are not required to accept the opinion of any expert, rather, you
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`are free to accept or reject the testimony of experts, just as with any other witness.
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`JURY INSTRUCTION NO.6: INTERROGATORIES
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`Evidence has been presented to you in the form of answers of one or the parties to written
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`interrogatories submitted by the other side. These answers were given in writing and under oath
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`before the trial in response to questions that were submitted under established court procedures.
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`You should consider the answers, insofar as possible, in the same wayas if they were made from
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`the witness stand.
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`JURY INSTRUCTION NO. 7: BIAS—NO INFERENCE FROM FILING SUIT OR
`DEFENDING THE SUIT
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`Thefact that one side or the other brought this lawsuit and is in court seeking damages
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`creates no inference on their behalf that they’re entitled to judgment. The act ofmaking a claim in
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`a lawsuit, in this case claims of patent infringement, does not tend to establish the claim is true or
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`not true and cannot be considered by you as evidence.
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`Also, the fact that Google has raised arguments against the claims and says they don’t
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`infringe creates no inference that they’re entitled to a judgment.
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`Both of these actions, the offensive action of filing the suit and the defensive action of
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`defending the suit must be disregarded by you,and neither ofthose actions should tend to establish
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`judgmentin either side’s favor.
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`JURY INSTRUCTION NO. 8: STIPULATIONS OF FACT
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`A “stipulation”is an agreement. Whenthere is no dispute aboutcertain facts, the parties
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`may agreeor “stipulate” to those facts. You must accept a stipulated fact as evidence andtreatthat
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`fact as having been provenhere in court.
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`il
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`JURY INSTRUCTION NO.9: LIMITING INSTRUCTION
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`Whentestimony or an exhibit is admitted for a limited purpose, you may consider that
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`testimony or exhibit only for the specific limited purpose for which it was admitted.
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`JURY INSTRUCTION NO. 10: CHARTS AND SUMMARIES
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`Certain charts and summaries have been shownto yousolely to help explain or summarize
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`the facts disclosed by the books, records, and other documents that are in evidence. These charts
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`and summaries are not evidence or proof of any facts. You should determine the facts from the
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`evidence.
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`JURY INSTRUCTION NO, 11: DEMONSTRATIVE EXHIBITS
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`Certain exhibits shown to you, such as PowerPoint presentations, posters, or models, are
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`illustrations of the evidence, but are not themselves evidence. Such exhibits are demonstrative
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`exhibits. A demonstrative exhibit is a party’s description, picture, or model used to describe
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`something involved in this trial. If your recollection of the evidence differs from the exhibit, rely
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`on your recollection.
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`JURY INSTRUCTION NO.12: BIAS—CORPORATE PARTY INVOLVED
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`Do notlet bias, prejudice, or sympathy play any part in your deliberations. Whether you
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`are familiar with onepartyor the other shouldnot play anypart in your deliberations. A corporation
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`and all other persons are equal before the law and must betreated as equalsin a court ofjustice.
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`JURY INSTRUCTION NO.13: BURDENS OF PROOF
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`For each issuein this case, either Touchstream or Google bears the burden ofproof, which
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`meansthatit bears the burden of persuading you tofind in its favor. In a patent case such as this,
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`there are two different burdens of proof. Thefirst is called “preponderance of the evidence.” The
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`secondis called “clear and convincing evidence.”
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`Here, Touchstream has the burden of proving by a preponderance of the evidence that
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`Google has infringed the Asserted Claims of the Asserted Patents and the amount of damages
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`Touchstream should receive to compensate it for any infringement. A preponderance of the
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`evidence means evidence that persuades you that a claim is more probably true than nottrue.
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`Sometimesthis is talked about as being the greater weight and degree of credible testimony.
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`Google has the burden of proving patent
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`invalidity and that an alleged product or
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`publication is prior art by clear and convincing evidence. Clear and convincing evidence means
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`evidence that produces in your minda firm beliefor conviction as to the truth ofthe matter sought
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`to be established. It is evidence so clear, direct, weighty and convincing as to enable you to come
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`to a clear conviction without hesitancy.
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`These standards are different from what you may have learned about
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`in criminal
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`proceedings wherea fact is proven beyond a reasonable doubt. On a scale of the various standards
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`of proof, as you move from the preponderance of the evidence, where the proof need only be
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`sufficient to tip the scales in favor of the party proving the fact, to at the other end, beyond a
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`reasonable doubt, where the fact must be proven to a very high degree of certainty, you may think
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`of clear and convincing evidence as being between these two ends of the spectrum or those two
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`standards.
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`JURY INSTRUCTION NO. 14: SUMMARY OF CONTENTIONS
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`As I did at the start ofthe case, I will first give you a summary ofeach side’s contentions
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`in this case. I will then provide you with detailed instructions on what each side must prove to win
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`on each ofits contentions.
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`As I previously told you, Touchstream asserts that Google has infringed claims | and 8 of
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`the ’251 patent; claims 1 and 14 of the ’528 patent; and claims 1 and 2 of the ’289 patent, and that
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`Touchstream is entitled to money damages for Google’s alleged infringement. Those patents and
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`claims are referred to as the “Asserted Patents” and the “Asserted Claims.”
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`Touchstream alleges that Google infringes the Asserted Claims of the Asserted Patents
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`through the operation of Google devices that are ‘“cast-enabled.” Touchstream asserts those
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`products include the following:
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`(1) standalone Chromecast devices (e.g., Chromecast 1st
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`Generation, Chromecast 2nd Generation, Chromecast 3rd Generation, Chromecast Audio,
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`Chromecast Ultra, and Chromecast with Google TV); (2) the following devices that implement
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`Chromecastbuilt-in: (a) third-party devices running the Android TV operating system and with
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`Google TV; and (b) third-party televisions and speakers with “Chromecast Built-In”; and (3)
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`Google Home/Nest products capable of receiving cast content (e.g., Google Home, Google Home
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`Mini, Google Home Max, Google Home Hub/Nest Hub, Google Home Hub/Nest Hub Max,
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`Google Nest Hub Generation 2, Google Nest Audio, Google Nest Mini, and Google Nest Wifi
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`Point (wifi extender with speaker)). These products are referred to as the “Accused Products.”
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`Google denies that it has infringed the Asserted Claims of the Asserted Patents and argues
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`that the Asserted Claimsare invalid.
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`Google contendsthat:
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`e Claims 1 and 8 of the ’251 patent are obviousin view of:
`o GTS
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`o The combination of GTS and Muthukumarasamy
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`e Claims | and 14 of the ’528 patent are obvious in view of:
`o The combination of GTS and Muthukumarasamy
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`« Claims 1 and 2 of the ’289 patent are obvious in view of:
`o The combination of GTS and Muthukumarasamy
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`Yourjob is to decide whether Google has infringed the Asserted Claims of the Asserted
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`Patents and whether any of the Asserted Claims of the Asserted Patents are invalid. If you decide
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`that any Asserted Claim ofthe Asserted Patents has been infringed andis not invalid, you will then
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`need to decide any money damages to be awarded to Touchstream to compensate it for the
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`infringement.
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`JURY INSTRUCTION NO. 15: PATENT CLAIMS
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`Before you can decide manyofthe issues in this case, you’ll need to understand the role
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`of the patent “claims.” The claimsof a patent are the numbered sentencesat the end of the patent.
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`Theclaimsare important becauseit is the words of the claims themselves that define whata patent
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`covers. The figures and the text in the rest of the patent provide a description or examples of the
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`claimed invention and provide a context for the claims, butit is the claims that define the breadth
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`of the patent’s coverage. Therefore, what a patent covers depends, in turn, on what each ofits
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`claims covers.
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`The requirements of a claim are often referred to as “claim elements,”
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`27 46
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`“claim steps,” or
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`“claim limitations.” The coverage ofa patent is assessed claim-by-claim. When a thing (such as a
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`product or a process) meets all of the requirements of a claim, the claim is said to “cover”that
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`thing, and that thingis said to “fall” within the scope of that claim. In other words, a claim covers
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`a product or process where each of the claim elements or limitations is present in that product or
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`process.
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`Youwill first need to understand what each claim covers in order to decide whether ornot
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`there is infringementof that claim and to decide whetheror not the claim is invalid. The first step
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`is to understand the meaning of the words used in the patent claim.
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`It is my role to define the terms of the claims andit is your role to apply mydefinitions of
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`the termsI have construedto the issues that you are asked to decidein this case.
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`I have determined
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`that you are to use the plain and ordinary meaning of the words ofthe patent claims as understood
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`by a person ofordinary skill in the art, whichis to say, in the field of technology ofthe patentat
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`the time of the invention. The meaningsof the wordsof the patent claims must be the same when
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`deciding both the issues of infringementandvalidity.
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`Case 6:21-cv-00569-ADA Document 246 Filed 07/21/23 Page 23 of 48
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`The beginning portion of a claim, also known as the preamble, often uses the word
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`“comprising.” The word “comprising,” when used in the preamble, means “including but not
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`limited to” or “containing but not limited to.” When “comprising” is used in the preamble of a
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`claim, if you decide that an accused product or process includes all of the requirements of that
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`claim, the claim is infringed. Thisis true even if the accused productor process contains additional
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`elements. For example, a claim to “a table comprising a tabletop, legs, and glue” would cover a
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`table that includes a tabletop, legs, and glue, even if the table also includes wheels on the table’s
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`legs.
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`Case 6:21-cv-00569-ADA Document 246 Filed 07/21/23 Page 24 of 48
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`JURY INSTRUCTION NO.16: INDEPENDENT AND DEPENDENT CLAIMS
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`This case involves two types of Asserted Claims:
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`independent claims and dependent
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`claims.
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`An “independent claim”sets forth all of the requirements that must be metin order to be
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`covered by that claim. Thus, it is not necessary to look at any other claim to determine what an
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`independentclaim covers. In this case, asserted claim 1 of the ‘251 patent, asserted claim 1 of the
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`‘528 patent, and asserted claims 1 and 6 ofthe ‘289 patent are each independentclaims.
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`The remainder of the Asserted Claims in the Asserted Patents are “dependent claims.” A
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`dependent claim does notitself recite all of the requirements of the claim but refers to another
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`claim for someofits requirements. In this way, the claim “depends” on another claim. A dependent
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`claim incorporatesall of the requirements of the claim(s) to which it refers. The dependent claim
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`then adds its own additional requirements. To determine what a dependent claim covers, it is
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`necessary to look at both the dependent claim and any other claim(s) to whichit refers. A product
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`or process that meetsall ofthe requirements ofboth the dependent claim and the claim(s) to which
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`the dependent claim refers is covered by that dependent claim.
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`Ifany requirement ofa dependentclaim is not met, or ifany requirementofthe independent
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`claim from which the dependent claim depends is not met, then the product or process is not
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`covered by that dependent claim.
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`On the other hand, if the requirements of an independent claim are met by a product or
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`process, but a requirement ofa dependentclaim is not met, the independentclaimisstill infringed.
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`JURY INSTRUCTIONNO.17: INFRINGEMENT—GENERALLY
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`I will nowinstruct you as to the rules you must follow when deciding whether Touchstream
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`has proven that Google infringed any of the Asserted Claims ofthe Asserted Patents.
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`Patent law gives the owner of a valid patent the right to exclude others from importing,
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`making,using, offeringto sell, or selling a claimed invention within the United States during the
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`term of the patent. Any personor businessentity that has engaged in any of those acts without the
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`patent owner’s permission infringes the patent.
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`Infringementis assessed on a claim-by-claim basis by comparing the operation ofGoogle’s
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`accused products to the elements or steps of each claim. There may be infringementas to one
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`claim but no infringementas to another claim.
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`To prove infringement of a claim, Touchstream must prove infringement by a
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`preponderance ofthe evidence, that is, that it is more likely than not that infringement has been
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`proven.
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`Case 6:21-cv-00569-ADA Document 246 Filed 07/21/23 Page 26 of 48
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`JURY INSTRUCTION NO. 18: OTHER PATENTS
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`You have heard certain arguments and evidence regarding Google’s patents. The fact that
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`Google has patents does not mean thatit has a right to use Touchstream’s patented technology and
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`has no impact on whether Google has or has not infringed the Asserted Patents.
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`Case 6:21-cv-00569-ADA Document 246 Filed 07/21/23 Page 27 of 48
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`JURY INSTRUCTION NO.19: DIRECT INFRINGEMENT—KNOWLEDGEOF THE
`PATENT AND INFRINGEMENT ARE IMMATERIAL
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`In this case, Touchstream asserts that Google has directly infringed the Asserted Patents.
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`You must compare the accused product or process with each and every one of the requirements of
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`a claim to determine whetherall of the requirements of that claim are met. A party can directly
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`infringe a patent without knowing of the patent or without knowing that what the party is doing is
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`patent infringement. There is no intent elementto direct infringement. Evidence of independent
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`developmentis not relevant to an infringement determination. Copying is not a required element
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`of infringement. Even ifthe party independently creates the accused product,it canstill infringe.
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`Case 6:21-cv-00569-ADA Document 246 Filed 07/21/23 Page 28 of 48
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`JURY INSTRUCTION NO.20: INFRINGEMENT BY LITERAL INFRINGEMENT
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`In order to prove infringement by literal infringement, Touchstream must prove by a
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`preponderanceof the evidence,i.e., that it is more likely than not, that Google made, used, sold,
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`or offered for sale within the United States, or imported into the United States, a product or process
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`that meets all of the requirements of a claim and did so without the permission of Touchstream.
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`You must compare the product or process with each and every one of the requirements of a claim
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`to determine whetherall of the requirements of that claim are met.
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`A claim elementis literally present if it exists in an Accused Product or was performed by
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`an Accused Productas it is described in the claim language. For a method claim to be infringed,
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`Touchstream must prove by a preponderance of the evidence that Google performed each and
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`every step of the claimed method in the United States. If an Accused Product omits any
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`requirementrecited in one of the Asserted Claims, then that product or process doesnotinfringe
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`that claim.
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`You must determine, separately for each asserted claim, whether or not
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`there is
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`infringement. For dependent claims, if you find that a claim to which a dependentclaim refersis
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