Case 2:17-cv-00514-JRG Document 186 Filed 02/19/19 Page 1 of 60 PageID #: 15780
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`IN THE UNITED STATES DISTRICT COURT FOR
`THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`CASE NO. 2:17-cv-514-JRG
`(Lead Case)
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`JURY TRIAL DEMANDED
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`CASE NO. 2:17-CV-515-JRG
`(Member Case)
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`JURY TRIAL DEMANDED
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`§§§§§§§§§
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`§§§§§§§§§
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`AGIS SOFTWARE DEVELOPMENT, LLC
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`Plaintiff,
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`v.
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`HTC CORPORATION, et al.
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`Defendant.
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`AGIS SOFTWARE DEVELOPMENT, LLC
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`Plaintiff,
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`LG ELECTRONICS INC.
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`Defendant.
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`LG ELECTRONICS INC.’S PROPOSED PRELIMINARY JURY INSTRUCTIONS AND
`PROPOSED FINAL JURY INSTRUCTIONS
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`
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`Pursuant to the 4th Amended Docket Control Order (D.I. 141) and Joint Motion to
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`Amend Docket Control Order (D.I. 171), Defendant LG Electronics Inc. hereby submits to the
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`Court its Proposed Preliminary Jury Instruction and Proposed Final Jury Instructions. The
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`parties will continue to meet and confer to attempt to reach further agreement regarding their
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`competing versions of these filings and limit the areas of dispute for the Court. Defendant
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`reserves the right to amend, supplement, or otherwise modify any of these materials leading up
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`to and during trial. Defendant does not waive any objections relating to the court’s claim
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`construction order and expressly preserves any arguments in its claim construction briefing. (See
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`Case No. 17-cv-00513, D.I. 174, 175, 194, 205; Case No. 17-cv-00514, D.I. 93.) By providing
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`Case 2:17-cv-00514-JRG Document 186 Filed 02/19/19 Page 2 of 60 PageID #: 15781
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`these proposed instructions, Defendant does not waive any argument and reserves its rights to
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`contend that an issue is not properly part of the case and/or should go to the jury.
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`Dated: February 19, 2019
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`Respectfully submitted,
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`By:
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`
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`/s/ Michael Berta
`J. Mark Mann (SBN: 12926150)
`G. Blake Thompson (SBN: 24042033)
`MANN TINDEL THOMPSON
`300 West Main Street
`Henderson, Texas 75652
`Tel: (903) 657-8540
`mark@themannfirm.com
`blake@themannfirm.com
`
`Michael A. Berta
`ARNOLD & PORTER KAYE SCHOLER LLP
`Three Embarcadero Center, 10th Floor
`San Francisco, CA 94111-4024
`Tel: (415) 471-3277
`Michael.Berta@arnoldporter.com
`
`James S. Blackburn
`Nicholas H. Lee
`Justin J. Chi
`ARNOLD & PORTER KAYE SCHOLER LLP
`777 South Figueroa Street, 44th Floor
`Los Angeles, CA 90017-5844
`Tel: (213) 243-4156
`James.Blackburn@arnoldporter.com
`Nicholas.Lee@arnoldporter.com
`Justin.Chi@arnoldporter.com
`
`Bonnie Phan
`ARNOLD & PORTER KAYE SCHOLER LLP
`3000 El Camino Real
`Five Palo Alto Square, Suite 500
`Palo Alto, CA 94306-3807
`Tel: (650) 319-4500
`Bonnie.Phan@arnoldporter.com
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`Attorneys for Defendant LG Electronics Inc.
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`Case 2:17-cv-00514-JRG Document 186 Filed 02/19/19 Page 3 of 60 PageID #: 15782
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that counsel of record who are deemed to have
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`consented to electronic services are being served with a copy of this document via the Court’s
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`CM/ECF system per Local Rule CV-5(a)(3) on February 19, 2019.
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`/s/ Michael Berta
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`Case 2:17-cv-00514-JRG Document 186 Filed 02/19/19 Page 4 of 60 PageID #: 15783
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`Preliminary Jury Instructions
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`I.
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`General Preliminary Instructions1
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`I now have some preliminary instructions that I want to give you before we start with the
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`opening statements from the attorneys and then get on to the evidence.
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`You have now been sworn as the jurors in this case. As the jury, you are the judges of
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`the facts, and as such, you will decide and determine all facts in this case. As the Judge, I will
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`give you instructions on the law, decide any questions of law that arise during the trial, handle
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`matters regarding evidence and procedure. And I’m also responsible for the management of the
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`flow of the trial and the maintenance of the decorum of the Court. At the end of the evidence,
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`I’ll give you detailed instructions about the law to apply in deciding this case, and I’ll give you a
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`list of questions that you are then to answer. This list of questions is called the verdict form.
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`Your answers to the questions will need to be unanimous, and those answers will constitute the
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`verdict in this case.
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`II. What A Patent Is and How One Is Obtained2
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`This case involves a dispute over four United States patents. Before summarizing the
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`positions of the parties and the legal issues involved in the dispute, I want to explain what a
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`patent is and how one is obtained. The United States Constitution grants Congress the powers to
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`enact laws “to promote the progress of science and useful arts, by securing for limited times to
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`authors and inventors the exclusive right to their respective writings and discoveries.” Using this
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`power, Congress enacted the patent laws.
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`1 Adapted from Hitachi Consumer Elecs. v. Top Victory Elecs., No. 2:10-cv-260-JRG, Jury Instructions Dkt. 343,
`Tr. at 24-25 (April 8, 2013).
`2 Nat’l Jury Instruction Project, Model Patent Jury Instructions, (June 17, 2009), Instruction No. 1.1; Ambato
`Media, LLC v. Clarion Co., Ltd. et. al., 2:09-CV-242-JRG, Final Preliminary Jury Instructions, Dkt. 373 at 2-4 (July
`6, 2012).
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`Patents are granted by the United States Patent and Trademark Office (sometimes called
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`“the PTO”). A valid United States patent gives the patent holder certain rights for up to 20 years
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`from the date the patent application was filed. The patent holder may prevent others from
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`making, using, offering to sell, or selling the patented invention within the United States, or from
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`importing it into the United States without the patent holder’s permission. A violation of the
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`patent holder’s rights is called infringement. The patent holder may try to enforce a patent
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`against persons believed to be infringers by a lawsuit filed in federal court.
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`The process of obtaining a patent is called patent prosecution. To obtain a patent, one
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`must file an application with the PTO. The PTO is an agency of the federal government and
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`employs examiners who review applications for patents. The application includes a section
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`called the “specification,” which must contain a written description of the claimed invention
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`telling what the invention is, how it works, and how to make and use it, in such full, clear,
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`concise, and exact terms so that others skilled in the field will know how to make and use it. The
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`specification concludes with one or more numbered sentences. These are the patent “claims.” If
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`the patent is eventually granted by the PTO, the claims define the boundaries of its protection
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`and give notice to the public of those boundaries. Claims can be independent or dependent. An
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`independent claim is self-contained. A dependent claim refers back to an earlier claim and
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`includes the requirements of the earlier claim.
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`After the applicant files a patent application, a PTO patent examiner reviews it to
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`determine whether the claims are patentable and whether the specification adequately describes
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`the invention claimed. In examining a patent application, the patent examiner may review
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`certain information about the state of the technology at the time the application was filed. The
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`PTO patent examiner may search for and review information that is publicly available or that is
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`Case 2:17-cv-00514-JRG Document 186 Filed 02/19/19 Page 6 of 60 PageID #: 15785
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`submitted by the applicant. This information is called “prior art.” The Examiner may review
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`some of this prior art in determining whether to grant the application. Prior art is defined by law,
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`and, at a later time, I will give you specific instructions on what constitutes prior art. In general,
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`though, prior art includes things that existed before the claimed invention, that were publicly
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`known or used in this country, or that were patented or described in a publication in any country.
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`The examiner considers, among other things, whether each claim defines an invention that is
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`new, useful, and not obvious when compared with the prior art. A patent lists the prior art the
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`examiner considered; this list is called the “cited references.” The cited references include the
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`prior art found by the examiner as well as any prior art submitted to the PTO by the applicant.
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`After the prior art search and examination of the application, the patent examiner then
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`informs the applicant in writing what the examiner has found and whether any claim is
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`patentable, and thus will be “allowed.” This writing from the patent examiner is called an
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`“office action.” If the examiner rejects any of the claims, the applicant then responds and
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`sometimes changes the claims or submits new claims. This process, which takes place only
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`between the examiner and the patent applicant, may go back and forth for some time until the
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`examiner believes that the application and claims meet the requirements for a patent. The papers
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`generated during this time of communicating back and forth between the patent examiner and the
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`applicant make up what is called the “prosecution history.” All of this material becomes
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`available to the public no later than the date when the PTO grants the patent.
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`The fact that the PTO grants a patent does not necessarily mean that any invention
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`claimed in the patent is, in fact, legally entitled to the protection of a patent. For example, the
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`PTO may not have had available to it all other prior art that will be presented to you. A person
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`accused of infringement has the right to argue here in federal court that a claimed invention in
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`Case 2:17-cv-00514-JRG Document 186 Filed 02/19/19 Page 7 of 60 PageID #: 15786
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`the patent is not entitled to patent protection because it does not meet the requirements for a
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`patent. It is your job to consider the evidence presented by the parties and determine
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`independently whether or not the Defendant has proven that the patent is invalid.3
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`III.
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`The Positions of the Parties4
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`To help you follow the evidence, I’ll now give you a brief summary of the positions of
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`the parties.
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`The Plaintiff and patent owner in this case is AGIS Software Development, LLC, which
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`the parties and I may simply refer to as “AGIS” or “Plaintiff”. The Defendant in this case is LG
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`Electronics Inc., which the parties and I may simply refer to as “LG Korea” or “Defendant”. LG
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`Korea is the only defendant in this case and any other LG Korea subsidiaries or affiliates are not
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`parties to this case, such as LG Electronics Mobilecomm U.S.A. Inc. (now known as LG
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`Electronics U.S.A. Inc.).
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`The Plaintiff contends that certain claims of the following four patents have been
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`infringed. This case concerns U.S. Patent Nos. 8,213,970; 9,408,055; 9,445,251; and 9,467,838.
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`These patents may be referred to in a group as the “Patents-in-Suit” or the “Asserted Patents”.
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`It is common practice to refer to a patent by the last three digits of the patent number,
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`such as the ’970 Patent, the ’055 Patent, the ’251 Patent, and the ’838 Patent.
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`The claims that AGIS contends have been infringed have been referred to as the asserted
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`claims. Over the course of the case, you will learn more about which claims are asserted against
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`LG Korea.
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`3 The Federal Circuit Bar Association, Model Patent Jury Instructions, (Feb. 2012), Instruction A.1; Ambato Media,
`LLC v. Clarion Co., Ltd. et. al., 2:09-CV-242-JRG, Final Preliminary Jury Instructions, Dkt. 373 at 3-4 (July 6,
`2012).
`4 Adapted from Rembrandt Wireless Techs., LP v. Samsung Elecs. Co. Ltd., No. 2:13-cv-213-JRG, Jury Instructions,
`Dkt. 290, Tr. at 9 (Feb. 9, 2015).
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`Case 2:17-cv-00514-JRG Document 186 Filed 02/19/19 Page 8 of 60 PageID #: 15787
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`AGIS filed suit in this court seeking money damages from LG Korea for allegedly
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`directly infringing the Patents-in-Suit by making, using, selling, importing, or offering for sale in
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`the United States products that AGIS argues are covered by Claims 1, 3 and 5 of the ’970 patent;
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`Claims 28, 32, 36, 42, and 49 of the ’055 patent; Claims 24, 27, 29, 31, and 35 of the ’251
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`patent; and Claim 54 of the ’838 patent. AGIS also alleges that LG Korea actively induced
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`infringement by customers of LG Korea’s products of certain asserted claims, specifically
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`Claims 1, 3, 5, and 8 of the ’970 patent; Claims 1, 2, 7, 22, 24, 28, 32, 36, 42, 49, and 54 of
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`the ’055 patent; Claims 1, 5, 6, 12, 15, 19, 24, 27, 29, 31, and 35 of the ’251 patent; and Claims
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`1, 5, 7, 10, 15, 18-20, 27, 38, 40, and 54 of the ’838 patent.
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`The LG Korea products that are alleged to infringe are certain smartphone and tablet
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`products with the Android operating system and either the Find My Device or Google Maps
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`applications. The parties and I may refer to these products as simply the “Accused Products”.
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`The Patents-in-Suit pertain to certain group location sharing and forced message alert software
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`applications.
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`AGIS seeks damages in the form of a reasonable royalty to compensate it for the alleged
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`infringement of the Patents-in-Suit.
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`LG Korea denies that it infringes the asserted claims. LG Korea also contends that all of
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`the asserted claims are invalid because they are either anticipated by or rendered obvious by one
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`or more prior art references. Invalidity is a defense to infringement. Therefore, even though the
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`U.S. Patent and Trademark Office has allowed the asserted claims and issued a patent, you, the
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`jury, must decide whether those claims are invalid. Your job is to decide whether or not any of
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`the asserted claims have been infringed and whether or not any of the asserted claims of the
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`Patents-in-Suit are invalid.
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`If you decide that any claim of the Patents-in-Suit has been infringed and is not invalid,
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`then you’ll need to decide what amount of money damages are to be awarded to AGIS as
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`compensation for such infringement. Now, my job in this case is to tell you what the law is,
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`handle the rulings on evidence and procedure, and to oversee the conduct of the trial as
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`effectively and efficiently as possible. I’ve already determined the meaning of the claim
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`language in the Patents-in-Suit. Claim language is the language in those numbered paragraphs at
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`the end of the patent. You must accept the meanings that I give you and use those meanings
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`when you decide whether any particular claim has or has not been infringed and whether or not
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`any claim is invalid. You’ll be given a document in a moment that reflects those meanings that I
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`have determined.
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`For any claim term for which I have not provided you with a definition or construction,
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`you should apply the plain and ordinary meaning of that term. If I’ve provided you with the
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`definition, however, you are to apply my definition to those terms throughout the case.
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`However, my interpretation of the language of the claims should not be taken as an indication to
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`you that I have a personal opinion or any opinion at all regarding the issues such as infringement
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`and invalidity. Those issues are yours and yours alone to decide as the jury in this case.
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`I’ll provide you with more detailed instructions on the meaning of the claims before you
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`retire to deliberate and reach your verdict. In deciding the issues that are before you, you will be
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`asked to consider specific legal rules, and I’ll give you an overview of those rules now. And
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`then later, I will give you much more detailed instructions.
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`The first issue that you’re going to be asked to decide is whether LG Korea has infringed
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`any of the asserted claims. The owner of a patent has the right, for the life of the patent, to
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`prevent others from making, using, offering for sale, or selling in the United States the invention
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`Case 2:17-cv-00514-JRG Document 186 Filed 02/19/19 Page 10 of 60 PageID #: 15789
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`covered by the patent. A patent is granted for a set period of time. During the term of the patent
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`if another person makes, uses, offers to sell, or sells something that is covered by the patent
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`without the patent owner’s consent, that person is said to infringe the patent.5
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`To determine infringement, you must compare the accused products with each claim that
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`AGIS asserts is infringed.6 Infringement is assessed on a claim-by-claim basis, and AGIS must
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`show by a preponderance of the evidence that a claim has been infringed. Accordingly, there
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`may be infringement as to one claim but no infringement as to another claim. There are a few
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`different ways that a patent may be infringed. I will explain the requirements for each of these
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`types of infringement to you in detail at the conclusion of the case.
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`In general, however, LG Korea may directly infringe the Patents-in-Suit by making,
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`using, selling, or offering for sale in the United States, or by importing into the United States, a
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`product meeting all the requirements of a claim of the Patents-in-Suit. In order to directly
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`infringe, the accused product must contain all of the infringing functionality as-sold and without
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`modification, such as the downloading of additional software, post-sale, by the user of the
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`accused device.
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`LG Korea may also indirectly infringe the Patents-in-Suit by inducing another person or
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`entity to infringe, or contributing to the infringement of another person or entity. I will provide
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`you with more detailed instructions on the requirements for each of these types of infringement
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`at the conclusion of the case.
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`AGIS has the burden of proving that LG Korea infringes one or more of those claims in
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`the Patents-in-Suit by a preponderance of the evidence. Now, when a party has the burden of
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`proof on any claim by a preponderance of the evidence, it means that you must be persuaded by
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`5 Personal Audio, LLC v. Apple, Inc., et al., No. 9:09CV111 (E.D. Tex.), Dkt. No. 534, Tr. at 75 (June 23, 2011).
`6 Personal Audio, LLC v. Apple, Inc., et al., No. 9:09CV111 (E.D. Tex.), Dkt. No. 534, Tr. at 77 (June 23, 2011).
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`Case 2:17-cv-00514-JRG Document 186 Filed 02/19/19 Page 11 of 60 PageID #: 15790
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`the evidence that the claim is more likely true than not true. You should base your decision on
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`all the evidence, regardless of which party presented it.7
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`Another issue that you’ll be asked to decide is whether the asserted claims are invalid. A
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`patent is presumed valid but may be found to be invalid for a number of reasons, including
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`because it claims subject matter that is not new (which is called being “anticipated”) or is
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`obvious.
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`A claim can be found invalid if it is not new. If a claim is not new, it is said to be
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`anticipated. For a claim to be invalid because it is anticipated, LG Korea must show by clear and
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`convincing evidence that all of the elements of a claim are present in a printed publication or
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`patent, or are present in a product that was publicly available, in public use, or on sale before the
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`invention of the claimed invention. We call these prior art. A claim can also be anticipated if
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`the invention defined by that claim was invented by another person in the United States before it
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`was invented by the patentee, and that person did not abandon, suppress, or conceal the
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`invention.
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`Another way that a claim can be found to be invalid is that it may have been obvious.
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`Even though every element of a claim is not shown or sufficiently described in a single piece of
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`prior art, and so is not anticipated, the claim may still be invalid if it would have been obvious to
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`a person of ordinary skill in the field of technology of the patent at the relevant time. You will
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`need to consider a number of questions in deciding whether the inventions claimed in the
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`asserted claims are obvious. I will provide you detailed instruction on these questions at the
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`conclusion of the case.
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`7 Personal Audio, LLC v. Apple, Inc., et al., No. 9:09CV111 (E.D. Tex.), Dkt. No. 534, Tr. at 77 (June 23, 2011).
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`Case 2:17-cv-00514-JRG Document 186 Filed 02/19/19 Page 12 of 60 PageID #: 15791
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`A patent may also be invalid if its description in the specification does not meet certain
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`requirements. To be valid, a patent must meet the “written description” requirement. In order to
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`meet this written description requirement, the description of the invention in the specification
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`portion of the patent must be detailed enough to demonstrate that the applicant actually
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`possessed the invention as broadly as claimed in the claims of the issued patent. The disclosure
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`of a patent must also meet the “enablement” requirement. To meet this requirement, the
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`description in the patent has to be sufficiently full and clear to have allowed persons of ordinary
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`skill in the field of technology of the patent to make and use the invention without undue
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`experimentation, at the time the patent application was originally filed.
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`LG Korea bears the burden of proving invalidity by clear and convincing evidence.
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`Proof by clear and convincing evidence is a higher burden of proof than by a preponderance of
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`the evidence. Clear and convincing evidence of invalidity is evidence that shows that it is highly
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`probable that the claims of the Patents-in-Suit are invalid.8
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`If you decide that any claim of the asserted patents has been infringed and is not invalid,
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`then you will need to decide what amount of money damages are to be awarded to AGIS as
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`compensation to them for the infringement of LG Korea. A damages award must be adequate to
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`compensate AGIS for the infringement, but should not be less than the damage award that AGIS
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`would have received had it been paid a reasonable royalty for the use of its patents. I’ll instruct
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`you later on the meaning of a reasonable royalty.
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`The damages you are to award, if any, are to compensate AGIS and not to punish LG
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`Korea. You may not include in your award any additional amount as a fine or penalty above
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`8 Personal Audio, LLC v. Apple, Inc., et al., No. 9:09CV111 (E.D. Tex.), Dkt. No. 534, Tr. at 79-80 (June 23, 2011).
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`Case 2:17-cv-00514-JRG Document 186 Filed 02/19/19 Page 13 of 60 PageID #: 15792
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`what is necessary to fully compensate the patent-holder for the infringement. I’ll give you more
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`detailed instructions on the calculation of damages at the conclusion of the trial.
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`IV.
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`Credibility of Witnesses9
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`Now, ladies and gentleman, you’re going to be hearing from a number of fact witnesses
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`in this case, and I want you to keep an open mind while you’re listening to the evidence and not
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`decide any of the facts until you’ve heard all of the evidence.
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`While the fact witnesses are testifying, remember that you will be the ones who will have
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`to decide the degree of credibility and believability to allocate to each of the witnesses.
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`So while the witnesses are testifying, you should consider the following factors:
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`(1) the opportunity and ability of the witness to see or hear or know the things testified to;
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`(2) the witness’s memory;
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`(3) the witness’s manner while testifying;
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`(4) the witness’s interest in the outcome of the case and any bias or prejudice;
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`(5) whether other evidence contradicted the witness’s testimony;
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`(6) the reasonableness of the witness’s testimony in light of all the evidence; and
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`(7) any other factors that bear on believability
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`These are some of the kinds of things that you should be thinking about while you’re
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`listening to each and every witness.
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`V.
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`Expert Witnesses10
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`9 Hitachi Consumer Elecs. v. Top Victory Elecs., No. 2:10-cv-260-JRG, Jury Instructions Dkt. 343, Tr. at 34-35
`(April 8, 2013); Rembrandt Wireless Techs., LP v. Samsung Elecs. Co. Ltd., No. 2:13-cv-213-JRG, Jury
`Instructions, Dkt. 290, Tr. at 20-21 (Feb. 9, 2015).
`10 Rembrandt Wireless Techs., LP v. Samsung Elecs. Co. Ltd., No. 2:13-cv-213-JRG, Jury Instructions, Dkt. 290, Tr.
`at 22 (Feb. 9, 2015).
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`10
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`Case 2:17-cv-00514-JRG Document 186 Filed 02/19/19 Page 14 of 60 PageID #: 15793
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`Now, I also want to talk with you briefly about expert witnesses. When knowledge of a
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`technical subject may be helpful to you, the jury, a person who has special training or experience
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`in that particular field—we may refer to them as an expert witness—is permitted to testify in this
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`trial about his or her opinions on technical matters.
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`You are not required to accept an expert’s or any other witness’s opinions at all. It’s up
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`to you to decide whether you believe an expert witness, or any witness for that matter, whether
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`that witness is correct or incorrect, or whether or not you want to believe what they say. This
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`said, you are not at liberty to disregard arbitrarily the unequivocal, uncontradicted and
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`unimpeached testimony of an expert witness where the testimony bears on technical questions
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`beyond the competence of lay determinations.11
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`I anticipate that there will be expert witnesses testifying in support of each side in this
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`case, but it will be up to you to listen to their qualifications, and when they give an opinion and
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`explain the basis for it, you will have to evaluate what they say and whether you believe it, and
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`to what degree, if any, that you want to give it weight.
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`VI.
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`Deposition Testimony12
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`Now, during the trial, I also anticipate that testimony is going to be presented to you
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`through what we call depositions. In trials such as this, it’s tough to get every witness here
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`physically at the same time. So lawyers from each side, prior to the trial, take the depositions of
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`the witnesses.
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`In a deposition, they have a court reporter present; the witness is sworn and is under oath,
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`just as if he or she were present in the courtroom; and the parties, through their lawyers, ask them
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`questions; and it’s recorded.
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`11 Webster v. Offshore Food Serv., Inc., 434 F.2d 1191, 1193 (5th Cir. 1970).
`12 Rembrandt Wireless Techs., LP v. Samsung Elecs. Co. Ltd., No. 2:13-cv-213-JRG, Jury Instructions, Dkt. 290, Tr.
`at 23 (Feb. 9, 2015).
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`11
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`Case 2:17-cv-00514-JRG Document 186 Filed 02/19/19 Page 15 of 60 PageID #: 15794
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`Portions of those video recordings of these questions and answers may be played back to
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`you as part of this trial so that you can see the witnesses and hear their testimony.
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`That deposition testimony is entitled to the same consideration insofar as possible and is
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`to be judged as to the credibility, weight, and otherwise considered by you, the jury, in the same
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`way as if the witness had been present physically and had given their testimony from the witness
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`stand in open court.
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`VII. Ruling On Objections13
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`During the trial, it’s possible that the lawyers from time to time will make certain
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`objections, and I’ll make rulings on those objections. It’s the duty of an attorney for each side of
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`a case to object when the other side offers testimony or other evidence that the attorney believes
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`is not proper under the orders of the Court and the rules of evidence.
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`If I sustain an objection to a question addressed to a witness, then you must disregard the
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`question entirely, and you may draw no inference from the wording of it or speculate about what
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`the witness would have said, if I had permitted the witness to answer the question.
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`However, if I overrule the objection, then you should consider the question and the
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`answer just as if no objection had been made. Upon allowing testimony or other evidence to be
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`introduced over the objection of an attorney, the Court does not, unless expressly stated, indicate
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`an opinion as to the weight or effect of such evidence.
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`If you are shown an exhibit, that means the Court’s already ruled on its admissibility, and
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`counsel can present the exhibit and ask such questions as they believe are proper to put it in
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`context. You should know that the law of the United States permits a judge to comment to the
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`jury on the evidence in a case, but such comments by the judge on the evidence are only an
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`13 Adapted from Rembrandt Wireless Techs., LP v. Samsung Elecs. Co. Ltd., No. 2:13-cv-213-JRG, Jury
`Instructions, Dkt. 290, Tr. at 23-26 (Feb. 9, 2015).
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`12
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`Case 2:17-cv-00514-JRG Document 186 Filed 02/19/19 Page 16 of 60 PageID #: 15795
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`expression of the judge’s opinion as to the evidence, and the jury may disregard such comments
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`in their entirety, because as I’ve said before, you, the jury, are the sole judges of the facts, the
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`credibility of the witnesses, and how much weight you want to give to the testimony in this case.
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`But as I’ve indicated to you earlier, despite the right to comment on the evidence, I intend
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`to work very hard not to comment on any of the evidence or the witnesses throughout the trial for
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`those reasons that I’ve given you.
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`VIII. Juror Notebooks14
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`The court reporter in front of me, ______, is here making a record in this case and taking
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`down everything that’s said. But a transcript or written version of what’s been said will not be
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`available for your use during your deliberations. The transcript is prepared in the event that
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`there’s an appeal to an appellate court to review this case after the trial is complete. So each of
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`you are going to have to rely on your memories of the evidence in this case. In a moment, each
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`of you is going to be given a juror notebook. Two of the things in that notebook are blank pages
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`and a legal pad that you can use to take notes on. It’s up to each of the members of the jury to
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`decide whether or not you want to take notes during the trial, and if you do, how detailed you
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`want those notes to be. But, remember, those notes are for your own personal use. You have to
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`rely on your memory of the evidence, which is why you should pay close attention to the
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`testimony of each and every witness. You should not abandon your own recollection because
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`somebody else’s notes indicate something different. Your notes are to refresh your recollection,
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`and that’s the only reason that you should be keeping them. Whenever you leave each day, you
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`should leave those juror notebooks on the table in the jury room. They should either be with you
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`at all times in the courtroom or on the table in the jury room and not anywhere else.
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`14 Adapted from Rembrandt Wireless Techs., LP v. Samsung Elecs. Co. Ltd., No. 2:13-cv-213-JRG, Jury
`Instructions, Dkt. 290, Tr. at 26-28 (Feb. 9, 2015).
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`13
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`IX.
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`Burden of Proof and Evidence15
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`In determining whether any fact has been proven in this case, there are two types of
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`evidence that you may consider in properly finding the truth as to the facts of this case. One is
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`direct evidence, such as the testimony of the eyewitness. The other is indirect or circumstantial
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`evidence; that is, the proof of a chain of circumstances that indicates the existence or non-
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`existence of certain other facts. As a general rule the law makes no distinction between direct
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`and circumstantial evidence but simply requires that you find the facts based on the evidence
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`presented, both direct and circumstantial.
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`As I already mentioned, there are two standards of proof that you’ll be asked to apply to
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`the evidence depending on the issue that you’ll be deciding. As the jury, you may apply a
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`burden of proof known as a preponderance of the evidence, as well as a different burden of proof
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`known as clear and convincing evidence.
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`On some issues, you must decide whether certain facts have been proven by a
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`preponderance of the evidence. As we discussed earlier, a preponderance of the evidence means
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`that the fact to be proven has to be shown to be more likely true than not true. On the other hand,
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`when a party has the burden of proof on any defense by clear and convincing evidence, it means
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`that you the jury must have an abiding conviction that the truth of the parties’ factual contentions
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`is highly probable. That’s a higher standard of proof than a preponderance of the evidence.
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`These standards are different from what you may have heard about in criminal cases
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`where the burden of proof is beyond a reasonable doubt. That does not apply in this case. That’s
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`a very high standard used only in criminal cases when deciding whether a