Case 2:23-cv-00059-JRG Document 215-8 Filed 10/04/24 Page 1 of 65 PageID #: 12047
`Case 2:23-cv-00059-JRG Document 215-8 Filed 10/04/24 Page 1 of 65 PagelD #: 12047
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`EXHIBIT H
`EXHIBIT H
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`Case 2:23-cv-00059-JRG Document 215-8 Filed 10/04/24 Page 2 of 65 PageID #: 12048
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`TOUCHSTREAM TECHNOLOGIES, INC.,
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`Plaintiff,
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`v.
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`CHARTER COMMUNICATIONS, INC. et
`al.,
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`Defendants.
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`TOUCHSTREAM TECHNOLOGIES, INC.,
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`Plaintiff,
`
`v.
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`COMCAST CABLE COMMUNICATIONS,
`LLC, D/B/A XFINITY, et al.,
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`Defendants.
`
`Lead Case No. 2:23-cv-00059-JRG
`Member Case No. 2:23-cv-00062-JRG
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`PROPOSED JURY INSTRUCTIONS1
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`1 Submissions that are agreed to by both Touchstream and Comcast are not highlighted.
`Submissions proposed by Touchstream that are not agreed to by Comcast are bracketed and
`highlighted in green. Submissions proposed by Comcast that are not agreed to by Touchstream are
`bracketed and highlighted in yellow.
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`The parties reserve their respective rights to further object or propose new instructions based on
`their pending motions or further development at trial.
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`PRELIMINARY INSTRUCTIONS
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`Ladies and Gentlemen of the Jury: Before you hear the evidence in this case, I have some
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`preliminary instructions that I need to give you on the record before we start with opening
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`statements from the attorneys and then go on to the evidence.
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`You’ve now been sworn as the jurors in this case. And as the jury, you are the sole judges
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`of the facts. As such, you will determine and decide all the facts in this case.
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`As the Judge, I’ll give you instructions on the law, decide questions of law that might
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`arise during the trial, handle matters related to evidence and procedure, as well as being responsible
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`for the efficient flow of the evidence and maintaining the decorum of the courtroom.
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`At the end of the evidence, I’ll give you detailed instructions about the law to apply in
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`deciding this case, and I’ll give you a list of questions that you are then to answer. This list of
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`questions is called the verdict form. Your answers to those questions will need to be unanimous,
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`and those unanimous answers will constitute the jury’s verdict in this case.
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`Now, let me briefly talk with you about what this case concerns. This case involves a
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`dispute regarding three United States patents. Now, I know that each one of you saw the patent
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`video this morning prepared by the Federal Judicial Center, but I need to give you some instructions
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`now and on the record about a patent how one is obtained.
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`Patents are either granted or denied by the United States Patent and Trademark Office,
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`which you will hear referred to in shortened form simply as the PTO, or as the Patent Office. A
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`valid United States patent gives the patentholder the right for up to 20 years from the date the
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`patent application is filed to prevent others from making, using, offering to sell, or selling the
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`patented invention within the United States or importing it into the United States without the
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`patentholder’s permission.
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`A patent is a form of property called intellectual property and, like with other forms of
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`property, a patent can be bought or sold.
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`A violation of the patentholder’s rights is called infringement. The patentholder may try
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`to enforce a patent against persons it believes to be infringers by filing a lawsuit in federal court,
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`and that’s what we have in this case.
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`Now, the process of obtaining a patent is called patent prosecution. To obtain a patent,
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`one must first file an application with the PTO, the United States Patent and Trademark Office.
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`The PTO, ladies and gentlemen, is an agency of the United States government that employs trained
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`examiners who review patent applications.
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`The application filed with the PTO includes within it something called a specification.
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`The specification contains a written description of the claimed invention telling what the invention
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`is, how it works, how to make it, and how to use it. The specification concludes or ends with one
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`or more numbered sentences. These numbered sentences at the end of the patent are called the
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`patent claims.
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`When a patent is granted by the Patent Office, the claims define the boundaries of its
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`protection and it is the claims that give notice to the public of those boundaries.
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`Now, patent claims may exist in two forms referred to as independent claims and
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`dependent claims. An independent claim does not refer to any other claim in the patent. It is
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`independent. It’s not necessary, ladies and gentlemen, to look to any other claim within the patent
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`to determine what an independent patent claim means.
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`However, a dependent claim refers to at least one other claim in the patent. A dependent
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`claim includes all the elements or limitations of that other claim or claims to which it refers or, as
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`is sometimes said, from which it depends, as well as the additional elements or limitations recited
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`within the dependent claim itself. Accordingly, to determine what a dependent patent claim covers,
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`it’s necessary to look at both the dependent claim itself and the independent claim or claims from
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`which it refers or, as we sometimes say, from which it depends.
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`Now, the claims of the patents-in-suit use the word “comprising.” Comprising means
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`including or containing. A claim that includes the word “comprising” is not limited to the methods
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`or devices having only the elements that are recited in the claim, but also covers other methods or
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`devices that include or add additional elements.
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`Let me give you an example. Take, if you will, the example of a table. If a claim recites
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`a table comprising a tabletop, legs, and glue, the claim will cover any table that contains those
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`structures, even if the table also contains other or additional structures such as leaves to expand
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`the size of the tabletop or wheels to go on the ends of the legs. Now, that’s a very simple example
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`using the word “comprising” and what it means. In other words, it can have other features in
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`addition to those that are covered by the patent.
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`After the applicant files his or her application with the Patent Office, an examiner is
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`assigned and the examiner reviews the application to determine whether or not the claims are
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`patentable—that is to say, appropriate for patent protection, and whether or not the specification
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`adequately describes the invention that’s claimed.
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`In examining the patent application, the examiner reviews certain information about the
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`state of the technology at the time the application was filed. The PTO searches for and reviews this
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`type of information that’s publicly available or that might have been submitted by the applicant.
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`And this type of information is called prior art. The examiner reviews this prior art to determine
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`whether or not the invention is truly an advance over the state of the art at the time.
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`Now, prior art is defined by law, and I’ll give you specific instructions at a later time as
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`to what it constitutes. However, ladies and gentlemen, in general, prior art includes information
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`that demonstrates the state of the technology that existed before the claimed invention was made
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`or before the application for a patent was filed with the Patent Office.
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`A patent contains a list of certain prior art that the examiner has reviewed and
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`considered. The items on this list as reflected in the patent are called the cited references. [If the
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`examiner has not reviewed a particular piece of prior art, you may consider this fact when
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`determining invalidity. And, if the PTO did not have all material facts before it, then the
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`challenger’s burden to persuade the jury of its invalidity defense by clear and convincing evidence
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`may be easier to sustain. The prior art in this case was not considered by the PTO.]
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`Now, after the prior art search and an examination of the application, the examiner
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`informs the applicant in writing of what the examiner has found and whether the examiner considers
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`any claim to be patentable in which case it would be allowed. And this writing from the examiner
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`to the applicant is called an office action.
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`Now, if the examiner rejects the claims, the applicant has an opportunity to respond to
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`the examiner to try to persuade the examiner to allow the claims. The applicant also has a chance
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`to change or amend the claims, or to submit new claims. And the papers generated in this back and
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`forth between the examiner and the applicant are called the prosecution history.
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`And this process between the examiner and the applicant may go back and forth for some
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`time until the examiner is satisfied that the application meets the requirements for a patent and, in
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`that case, the application issues as a United States patent; or, in the alternative, if the examiner
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`ultimately concludes that the application should be rejected, then no patent is issued.
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`Now, to help you follow the evidence, I’m going to give you a brief summary of the
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`positions of the parties in this case.
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`As you know, the party that brings a lawsuit is called the plaintiff. And the Plaintiff in
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`this case is Touchstream Technologies, Inc., which you will hear referred to throughout the trial
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`simply as the “Plaintiff” or you may hear it referred to simply as “Touchstream” or “Shodogg,”
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`which is another name the company used for a “doing business as” name. And as you know, the
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`party or parties against whom a lawsuit is brought are called the defendants, and in this case the
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`Defendants are Comcast Cable Communications, LLC, doing business as Xfinity, Comcast
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`Corporation, Comcast Cable Communications Management, LLC, and Comcast of Houston, LLC,
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`which you will hear referred to throughout the trial collectively together either as just the
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`“Defendants” or as “Comcast.”
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`Now, as I told you during jury selection, this is a case of alleged patent infringement. And
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`as I’ve mentioned, there are three United States patents that have been asserted in this case. Those
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`are United States Patent No. 8,356,251, United States Patent No. 11,048,751, and United States
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`Patent No. 11,086,934. As you may have heard, patents are often referred to by the last three digits
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`of their patent number. So in this case, Patent No. 8,356,251, you’ll hear referred to simply as the
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`“’251 Patent”; you’ll hear Patent No. 11,048,751 referred to as the “’751 Patent”; and you’ll hear
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`Patent No. 11,086,934 referred to as the “’934 Patent.”
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`Now, these patents may be referred to and will be referred to throughout the trial at
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`various times as the patents-in-suit. You may also hear them referred to collectively as the Asserted
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`Patents. Those terms mean the same thing. The Asserted Patents in this case generally relate to
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`technology controlling how to stream or cast content (like videos) from a mobile device (like a
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`cellular phone) to a display device (like a television).
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`Now, the Plaintiff Touchstream contends that the Defendants Comcast are infringing
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`certain claims of the patents-in-suit by using Touchstream’s patented technology. Touchstream
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`further contends that the Defendants’ infringement is willful. And, additionally, Touchstream
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`contends that it is entitled to money damages as a result of the infringement.
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`The Defendants in this case, Comcast, deny that they are infringing any of the Asserted
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`Claims of the patents-in-suit.
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`The Defendants also contend that the Asserted Claims of the patents-in-suit are invalid.
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`[For a patent claim to be invalid, Comcast must prove this by clear and convincing evidence.] Specifically,
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`Comcast contends that each Asserted Claim is invalid because it is anticipated by the prior art,
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`obvious over the prior art, and/or for failure to satisfy the written description requirement.
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`[Comcast also contends that the Asserted Claims of the Asserted Patents claim subject matter that
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`is ineligible for patent protection.] [You will also be asked to decide whether elements of the
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`Asserted Claims involve only technology that was well-understood, routine, and conventional at
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`the time of the alleged invention in October 2010.]
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`Now, I know that there are many new words and new concepts that have been thrown at
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`you, ladies and gentlemen, since you arrived for jury duty this morning. I’m going to define a lot
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`of these words and a lot of these concepts for you as we go through these instructions. The
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`attorneys on both sides of the case are going to discuss them in their opening statements which you’ll
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`hear in a few minutes. The witnesses over the course of the trial are going to help you as they go
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`through their testimony to understand these words and these concepts.
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`So please, ladies and gentlemen, do not feel overwhelmed at this stage. I promise you it
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`will all come together as we go through the trial.
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`Now, one of your jobs in this case is to decide whether or not the Asserted Claims of the
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`patents-in-suit have been infringed. [You’ll also be asked to decide whether or not certain of the
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`Asserted Claims are invalid.] Now, if you decide that any claim of the patents-in-suit has been
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`infringed [by the Defendants and is not invalid], then you’ll be asked to decide [whether or not that
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`infringement that you have found was willful. You will also be asked to decide. whether or not
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`certain of the Asserted Claims are invalid. Then, if at least one claim is infringed and not invalid,
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`you will also need to decide at that point in time what amount of money damages should be
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`awarded to the Plaintiff to compensate it for infringement] [what amount of money damages, if
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`any, should be awarded to the Plaintiff to compensate it for that infringement, and then whether or
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`not that infringement that you have found was willful. The Plaintiff has the burden to prove willful
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`infringement by a preponderance of the evidence.] [If you decide that any infringement has been
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`willful, that should not affect any monetary damages that you might award, and I will take
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`willfulness into account later.]
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`Now, my job in this case is to tell you what the law is, to handle rulings on evidence and
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`procedure that arise during the trial, and to oversee the conduct of the trial efficiently and to
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`maintain the proper decorum of the courtroom.
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`In determining the law, it is specifically my job to determine the meaning of any of the
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`claim language from within the asserted patent that needs interpretation. I’ve already determined
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`the meanings of the claims of the patents-in-suit, and you must accept the meanings that I give you
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`and use those meanings when you decide whether any particular claim has or has not been
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`infringed and when you decide whether or not any particular claim is invalid.
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`Now, you’ll be given a document in a few moments that reflects these meanings that the
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`Court has already arrived at. For any claim term for which the Court has not provided you
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`with an interpretation or a definition, you’ll sometimes hear that referred to as a construction, you
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`should apply the plain and ordinary meaning. But if I have provided you with a definition or
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`construction, you are to apply my definition to those terms throughout the case.
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`However, ladies and gentlemen, my interpretation as required by the law of the language
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`within the claims should not be taken by you as any indication that the Court has any personal
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`opinion or opinion at all regarding the issues of infringement, invalidity, or any other issue in this
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`case. Those issues are yours alone to decide. And I’ll provide you with more detailed instructions
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`on the meaning of the claim terms before you retire to the jury room to deliberate upon and reach
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`your verdict.
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`Now, in deciding the issues that are before you, you’ll be asked to consider specific legal
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`rules, and I’ll give you an overview of those rules now, and then at the conclusion of the case I’ll
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`give you more detailed instructions.
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`The first issue that you’re asked to decide is whether or not the Defendants, Comcast, have
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`infringed any of the Asserted Claims of the patents-in-suit as brought by Touchstream.
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`Infringement, ladies and gentlemen, is assessed and determined on a claim-by-claim
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`basis. And Touchstream, the Plaintiff, must show by a preponderance of the evidence that a claim
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`has been infringed. Accordingly, there may be infringement as to one claim but no infringement
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`as to another claim.
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`A defendant may infringe a method claim by performing in the United States each and
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`every requirement or limitation of the claim. [Now, if you decide that any claim of the patent-
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`in-suit has been infringed, then you’ll need to decide whether or not that infringement was willful.]
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`And I’ll provide you with more detailed instructions on the requirements for infringement [and
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`willfulness] at the conclusion of the case.
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`The [second] issue that you are asked to decide as the jury is whether the Asserted Patents
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`are invalid. Invalidity is a defense to infringement. [For a patent claim to be invalid, Comcast must prove
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`this by clear and convincing evidence.] Even though the PTO has allowed the Asserted Claims, you the
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`jury must decide whether those claims are invalid after hearing the evidence presented during this
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`trial.
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`You may find that a patent claim is invalid for any of a number of reasons, including
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`because it [claims] [contains]subject matter that is not new [, or in other words, anticipated by the
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`prior art as of the date of the invention.]For a patent claim to be invalid because it is [anticipated
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`by prior art] [not new], the Defendants must show by clear and convincing evidence that [that all
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`of the elements of a claim are present in a single previous device or method, or sufficiently
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`described in a single previous printed publication or patent. We call these “prior art.”] [all the
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`elements or limitations of a claim are sufficiently described in a single previously printed
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`publication or patent, or all the elements or limitations could be performed using a previously
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`created product or system. If a claim is not new, ladies and gentlemen, it is said to be anticipated
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`by the prior art.]
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`A claim may also be invalid as “obvious” over prior art. For a patent claim to be invalid
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`because it is obvious, the Defendants must show by clear and convincing evidence that the claim
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`would have been obvious to a person of ordinary skill in the field of the technology of the patent
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`at the time of the invention. Unlike anticipation, which allows consideration of only one item of prior art,
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`obviousness may be shown by considering one or more than one item of prior art.
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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 possessed
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`the invention as broadly as claimed in the claims of the issued patent.
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`Now, you’ll need to consider a number of questions in deciding whether the invention
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`claimed in the Asserted Patents is [anticipated by prior art] [not new], obvious, or lacks sufficient
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`written description, and I’ll provide you with more detailed instructions on these questions at the
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`conclusion of the trial.
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`[Comcast also contends that the Asserted Claims of the Asserted Patents claim subject
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`matter that is ineligible for patent protection. Patent eligibility and infringement are separate and
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`distinct issues. While it is my job to decide whether the Asserted Claims are eligible for patent
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`protection, you must decide whether the Defendant has proven by clear and convincing evidence
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`that each claim element of the Asserted Patents, both individually and by ordered combination of
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`those elements, involve activities that were purely well-understood, routine, or conventional at the
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`time of the alleged invention.]
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`[Now, patents must claim patent eligible subject matter. In general, a patent is directed
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`toward an eligible subject matter if it claims a process, machine, manufacture or composition of
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`matter or any new or useful improvement thereon or thereof. However, if the Court determines
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`that a patent is also directed towards an abstract idea, then the jury must determine whether the
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`patent only covers activities that were well-understood, routine, and conventional at the time of
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`the alleged invention. I'll provide you with more detailed instructions on this question at the
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`conclusion of the trial.]
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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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`you will also need to decide what amount of money damages [, if any,] should be awarded to
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`the Plaintiff [Touchstream] to compensate it for that infringement [of the Defendants Comcast].
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`[If you decide a] [A] damages award [is appropriate], ladies and gentlemen, [it] must be
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`adequate to compensate the patentholder for the infringement. And in no event may a damages
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`award be less than what the patentholder would have received if it had been paid a reasonable
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`royalty for the use of its patent. However, the damages that you award, if any, are meant to
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`compensate the patentholder, and they are not meant to punish the Defendants. You may not
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`include in any damages award an additional amount as a fine or a penalty above what is necessary
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`to fully compensate the patentholder for the infringement.
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`[Further, every Asserted Claim in this case is a method claim. A method claim is not
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`infringed unless a defendant performs each and every requirement or limitation of that claim. The
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`Asserted Claims cannot be infringed by the mere sale or distribution of a product capable of
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`performing the claimed method. Damages for a method claim must be correlated to the extent the
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`infringing method is used. Therefore, because mere capability is not enough, Touchstream cannot
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`simply count the number of set-top boxes capable of being used with the Accused Functionalities
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`as the basis for calculating damages. Damages should be limited to products that were actually
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`used to perform the claimed method or a reasonable approximation thereof.]
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`Additionally, damages cannot be speculative, and the Plaintiff Touchstream must prove
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`the amount of its damages for the alleged infringement by a preponderance of the evidence.
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`Now, I’ll give you more detailed instructions on the calculation of damages for the
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`Defendants’ alleged infringement of the patents-in-suit at the conclusion of the trial, including by
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`giving you specific instructions with regard to the calculation of a reasonable royalty. However,
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`ladies and gentlemen, the fact that I’m instructing you on damages does not mean that Touchstream
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`is or is not entitled to recover damages.
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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 also need to decide whether or not that infringement was willful. Whether the
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`infringement was willful is a separate question from whether there was infringement or the amount
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`of damages that would compensate the patentholder for any infringement.]
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`Now, you’re going to be hearing from a number of witnesses over the course of this trial,
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`and I want you to keep an open mind while you’re listening to the evidence and not to decide any
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`of the facts until you have heard all the evidence.
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`This is important. While the witnesses are testifying, remember, you'll have to decide the
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`degree of credibility and believability to allocate to each of the witnesses and the evidence and
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`testimony that they give.
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`So while the witnesses are testifying from the witness stand during this trial, you should
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`be asking yourselves things like this: Does the witness impress you as being truthful? Does he or
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`she have a reason not to tell the truth? Does he or she have any personal interest in the outcome
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`of the case? Does the witness seem to have a good memory? Did he or she have the opportunity
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`and ability to observe accurately the things that they’ve testified about? Did the witness appear to
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`understand the questions clearly and answer them directly? And, of course, does the witness’
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`testimony differ from the testimony of other witnesses? And if it does, how does it differ? These
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`are some of the things that you should be thinking about while you’re listening to each and every
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`one of the witnesses.
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`Also, I want to talk to you briefly about expert witnesses. When knowledge of a technical
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`or specialized subject may be helpful to you, the jury, a person who has special training and
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`experience in that particular field, we refer to them as an expert witness, is permitted to testify to
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`you about his or her opinions on those technical or specialized matters.
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`However, ladies and gentlemen, keep in mind you’re not required to accept an expert’s
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`opinion or any other opinion at all. It’s up to you to decide whether you believe any expert witness
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`or any witness, for that matter, and whether you determine that what they’re telling you is correct or
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`incorrect, or whether or not you want to believe what they have to say.
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`Now, I anticipate that there will be expert witnesses testifying in support of each of the
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`sides in this case. But when they do, it will be up to you to listen to their qualifications. And when
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`they give you an opinion and explain the basis for that opinion, you will have to evaluate what
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`they say and whether you believe it, and to what degree, if any, that you want to give that opinion
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`weight. Remember, ladies and gentlemen, judging and evaluating the credibility and believability
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`of each and every witness is an important part of your job as jurors.
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`Now, during the course of the trial it’s possible that there will be testimony from one or
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`more witnesses that are going to be presented to you through what’s called a deposition. In trials
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`like this, it’s difficult to get every witness here in the courtroom in person at the same time to
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`testify, so lawyers for each side, prior to the trial, take the depositions of the witnesses.
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`In a deposition, the witness is present, they’re sworn and placed under oath, a court
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`reporter is present, counsel for both of the parties are present, and counsel asks the witness
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`questions and the witness’ answers to those questions are taken down, both the questions and the
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`answers are recorded. Often those depositions are video recorded.
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`Now, it’s important for you to understand, ladies and gentlemen, that during the course
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`of this trial, when these deposition witnesses might be presented to you, you’ll be seeing, in all
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`likelihood, clips from recorded video depositions, and you’ll be seeing the portions of those
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`depositions that counsel believe are relevant and important for you to see.
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`Let me explain it to you this way. During a typical deposition in advance of a trial, the
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`witness is questioned and answers are given for many hours, usually up to a maximum of seven
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`hours. And so to keep you from listening to every question and every answer for seven hours
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`regarding a witness who can’t physically be here in person to testify, the parties will be able to
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`select designations and counter designations from that deposition and the transcript and if it was
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`videoed, the video that they believe relate to the important relevant things that you should see.
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`Case 2:23-cv-00059-JRG Document 215-8 Filed 10/04/24 Page 16 of 65 PageID #: 12062
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`And because of that process, when you have a witness presented to you who testified by
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`deposition as opposed to coming in person and testifying in open court, you’re going to see breaks
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`in that testimony when it’s played back to you, you’re going to hear changes in voices, you’re
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`going to see little irregularities, and that’s unavoidable because they are cutting out pieces across
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`many hours of testimony and putting them together. And I promise you that is a much better
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`alternative than listening to an entire multi-hour deposition to get five minutes’ worth of testimony
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`out of it.
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`But when that happens, disregard the differences in voice, disregard the differences in
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`tone or sound. If it looks like there’s a clip where something’s put together, it probably is, but don’t
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`focus on that. Listen to the testimony that’s given when a witness testifies by deposition and pay
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`attention to the substance of the questions and the answers and don't get distracted by any of those
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`irregularities that are necessary to avoid all of us having to listen to hours and hours of testimony
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`when there’s only an included portion, a smaller portion, that’s relevant to what’s at issue during
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`the trial.
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`So if it jumps around, if you hear different voices, don’t focus on that; focus again on
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`the substance of what’s asked and the substance of what’s said.
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`Now, assuming that there will be some witnesses who cannot appear in person and are
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`presented to you by deposition, I want you to understand that that deposition testimony is entitled,
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`insofar as possible, and is to be judged by you as to its credibility and believability and otherwise
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`considered in the same way if the witness had appeared in person and testified live from the witness
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`stand.
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`Also, ladies and gentlemen, information on some of the documents that you may see
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`over the course of the trial may include what are called redactions. There may be portions of
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`Case 2:23-cv-00059-JRG Document 215-8 Filed 10/04/24 Page 17 of 65 PageID #: 12063
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`documents that are presented to you as exhibits that have some of the document blacked out,
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`redacted, and that happens because there are often portions of that document that are not important
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`and, in fact, irrelevant for you to see. And those portions, pursuant to the Court’s prior order, have
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`been blacked out or redacted.
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`Just like I said with the depositions, don’t focus on the redactions, don't focus on what’s
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`blacked out, don’t try to guess what was said before it was blacked out, don’t speculate; focus on
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`the part that’s clear and legible and that’s presented to you in the document. Don’t worry about
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`what’s blacked out or redacted, and don’t consider that or get distracted by it. Again, focus on what
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`is clearly printed and able to be read from any documents that might otherwise include sections or
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`provisions or words that are blacked out or redacted.
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`Now, during the course of the trial, it’s possible that the lawyers will make certain
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`objections, and when they do, I will give rulings on those objections. And remember, it’s the duty
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`of an attorney for each side to object when the other side offers testimony or evidence which the
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`attorney believes is not proper under the orders of the Court, the Rules of Civil Procedure, or the
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`rules of evidence.
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`Now, upon the Court allowing the testimony or other evidence to be introduced over an
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`objection of an attorney in the case that I overrule that objectio