Case 2:23-cv-00059-JRG Document 215-9 Filed 10/04/24 Page 1 of 16 PageID #: 12112
`Case 2:23-cv-00059-JRG Document 215-9 Filed 10/04/24 Page 1 of16 PagelD #: 12112
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`EXHIBIT I
`EXHIBIT I
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`

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`Case 2:23-cv-00059-JRG Document 215-9 Filed 10/04/24 Page 2 of 16 PageID #: 12113
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`
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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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`COMCAST CABLE COMMUNICATIONS,
`LLC, D/B/A XFINITY, et al.,
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`Defendants.
`
`Case No. 2:23-cv-00062-JRG
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`
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`
`
`VERDICT FORM1
`In answering the following questions and completing this Verdict Form, you are to
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`follow all the instructions that I have given you in the Court’s Final Jury Instructions. Your
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`answers to each question must be unanimous. Some of the questions contain legal terms that
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`are defined and explained in detail in the Final Jury Instructions. You should refer to and
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`consider the Final Jury Instructions as you answer the questions in this Verdict Form.
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`
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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. The parties have entered their objections, explanations,
`citations, and commentary in footnotes only.
`The parties reserve their respective rights to further object or propose revisions to this verdict form
`based on their pending motions or further development at trial.
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`1
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`

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`Case 2:23-cv-00059-JRG Document 215-9 Filed 10/04/24 Page 3 of 16 PageID #: 12114
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`As used in this Verdict Form, the following terms have the following meanings:
`“Touchstream” refers to Plaintiff Touchstream Technologies, Inc.
`•
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`•
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`“Comcast” refers to Defendants Comcast Cable Communications, LLC, Comcast
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`Corporation, Comcast Cable Communications Management, LLC, and Comcast of
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`Houston, LLC
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`The “’251 Patent” refers to U.S. Patent No. 8,356,251
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`The “’751 Patent” refers to U.S. Patent No. 11,048,751
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`The “’934 Patent” refers to U.S. Patent No. 11,086,934
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`The “Asserted Patents” refers collectively to the ’251 Patent, the ’751 Patent, and
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`the ’934 Patent
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`The “Asserted Claims” refers collectively to ’251 Patent claims 1, 5, 7, 8, and 9;
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`’751 Patent claims 12, 13, and 14; and ’934 Patent claims 17, 18, 19 and 20
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`•
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`•
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`•
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`•
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`•
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`2
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`Case 2:23-cv-00059-JRG Document 215-9 Filed 10/04/24 Page 4 of 16 PageID #: 12115
`Case 2:23-cv-00059-JRG Document 215-9 Filed 10/04/24 Page 4 of 16 PagelD#: 12115
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`IT IS VERY IMPORTANT THAT YOU FOLLOW THE
`IT IS VERY IMPORTANT THAT YOU FOLLOW THE
`INSTRUCTIONS PROVIDED IN THIS VERDICT FORM
`INSTRUCTIONS PROVIDED IN THIS VERDICT FORM
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`
`
`READ THEM CAREFULLY AND ENSURE THAT YOUR
`READ THEM CAREFULLY AND ENSURE THAT YOUR
`VERDICT COMPLIES WITH THEM
`VERDICT COMPLIES WITH THEM
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`3
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`

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`Case 2:23-cv-00059-JRG Document 215-9 Filed 10/04/24 Page 5 of 16 PageID #: 12116
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`QUESTION 1: INFRINGEMENT
`Has Touchstream proven by a preponderance of the evidence that Comcast infringed any of the
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`following claims?
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`For each claim, answer “Yes” (for Touchstream) or “No” (for Comcast).
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`’251 Patent:
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`Claim 1:
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`Yes_______
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`Claim 5:
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`Yes_______
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`Claim 7:
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`Yes_______
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`Claim 8:
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`Yes_______
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`Claim 9:
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`Yes_______
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`’751 Patent:
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`Claim 12:
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`Yes_______
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`Claim 13:
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`Yes_______
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`Claim 14:
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`Yes_______
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`’934 Patent:
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`Claim 17:
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`Yes_______
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`Claim 18:
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`Yes_______
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`Claim 19:
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`Yes_______
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`Claim 20:
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`Yes_______
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`No_______
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`No_______
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`No_______
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`No_______
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`No_______
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`No_______
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`No_______
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`No_______
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`No_______
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`No_______
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`No_______
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`No_______
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`If you answered “Yes” to any of the above questions, please proceed to Question 2.
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`If you answered “No” to all of the above questions, do not answer any further questions, and
`go directly to the final page of the verdict form.
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`4
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`

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`Case 2:23-cv-00059-JRG Document 215-9 Filed 10/04/24 Page 6 of 16 PageID #: 12117
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`Touchstream’s Proposed Willful Infringement Question
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`[QUESTION 2: WILLFUL INFRINGEMENT2
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`Answer Question No. 2 ONLY as to any Touchstream Asserted Claim that you have found to be
`infringed by answering “YES” to Question 1.
`
`
`2 Touchstream: As willfulness is an aspect of infringement rather than invalidity, Touchstream
`proposes that the Court instruct the jury on willfulness immediately after infringement (as opposed
`to providing willfulness instructions after damages as Comcast proposes). This would be
`consistent with this Court’s practice for instructing jury in other cases and the Federal Circuit Bar
`Association Model Jury Instructions. See, e.g., Constellation Designs, LLC v. LG Electronics Inc.,
`No. 2:21-cv-00448-JRG (E.D. Tex.) and Netlist, Inc. v. Samsung Electronics Co., No. 2:21-cv-
`00463-JRG (E.D. Tex.); Fed. Cir. Bar Assoc. Model Jury Instrs. at Instr. B.3.
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`Moreover, there is no reason to include the time periods for willfulness in the verdict form, because
`the relevant time for willfulness will be explained to the jury in the Court’s jury instructions (which
`are explicitly incorporated by reference in this verdict form).
`
`Comcast: Although Comcast acknowledges the Federal Circuit’s holding that “the factual
`components of the willfulness question should be resolved by the jury,” WBIP, LLC v. Kohler Co.,
`829 F.3d 1317, 1341 (Fed. Cir. 2016), it preserves the argument that willfulness should be decided
`by the Court and not the jury as argued in Comcast’s Motion in Limine No. 3. See Dkt. 172 at 8-9.
`
`Should any willfulness question be presented to the jury, Comcast proposes that it be given after
`invalidity and damages. There cannot be willful infringement of any invalid claim and willfulness
`should not be discussed prior to the threshold issue of validity. Additionally, any such question
`should come after damages because of the risk that jurors will otherwise think that they should
`consider facts related to willfulness when arriving at the appropriate amount of damages for any
`claim they find valid and infringed. Comcast’s position is consistent with the American Intellectual
`Property Law Association’s Model Patent Jury Instructions, which proposes instructions on willful
`infringement after invalidity and damages. See AIPLA’s Model Patent Jury Instructions at V.11
`(2024); Equistar Chemicals, LP and MSI Tech. LLC v. Westlake Chemical Corp., No. 6:14-cv-
`00068-KNM (E.D. Tex.), ECF 204 at 4 (willfulness question at the end of the verdict form); Force
`Mos Technology Co., Ltd. v. ASUSTeK Computer, Inc., No. 2:22-cv-00460-JRG (E.D. Tex.), ECF
`288-9 at 11-12 (same).
`
`Moreover, for the reasons stated in Comcast’s Motion in Limine No. 3 (Dkt. No. 172 at 8-10),
`Comcast opposes the lack of time periods in Touchstream’s willfulness question. Since willfulness
`is relevant only to enhancement of damages, the applicable time periods for the ’251 Patent are
`(1) from the start of the damages period, February 17, 2017, until the day before the filing of this
`lawsuit, February 16, 2023, and (2) from the filing of this lawsuit on February 17, 2023, onward.
`The jury should additionally only determine post-suit willfulness for the ’751 and ’934 Patents
`pursuant to this Court’s order dismissing claims of pre-suit willfulness for these two patents. Dkt.
`156 at 8 (Case No. 2:23-cv-00060).
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`5
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`

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`Case 2:23-cv-00059-JRG Document 215-9 Filed 10/04/24 Page 7 of 16 PageID #: 12118
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`Has Touchstream proven by a preponderance of the evidence that Comcast’s infringement was
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`willful?
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`Answer “Yes” (for Touchstream) or “No” (for Comcast).
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`Yes_______ No_______
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`Continue to Question 3. If you found that a particular claim is infringed by checking “Yes” in
`Question 1, please proceed to Questions 3 and 4 for those claims you answered “Yes” for in
`Question 1. If you found that a particular claim was not infringed by checking “No” in Question
`1, please do not answer the corresponding question regarding that claim in Questions 3 or 4.]
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`6
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`Case 2:23-cv-00059-JRG Document 215-9 Filed 10/04/24 Page 8 of 16 PageID #: 12119
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`QUESTION [3][2]: INVALIDITY3
`Has Comcast proven by clear and convincing evidence that any of the following claims are invalid?
`
`For each claim answer “Yes” (for Comcast) or “No” (for Touchstream).
`If you answered “No” for a claim in Question 1, do not answer the corresponding question
`regarding that claim in Question [3]/[2].
`’251 Patent:
`
`Claim 1:
`
`Yes_______
`
`Claim 5:
`
`Yes_______
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`Claim 7:
`
`Yes_______
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`Claim 8:
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`Yes_______
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`Claim 9:
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`Yes_______
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`’751 Patent:
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`Claim 12:
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`Yes_______
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`Claim 13:
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`Yes_______
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`Claim 14:
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`Yes_______
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`’934 Patent:
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`Claim 17:
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`Yes_______
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`Claim 18:
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`Yes_______
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`Claim 19:
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`Yes_______
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`Claim 20:
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`Yes_______
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`Continue to Question [4]/[3].
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`No_______
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`No_______
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`No_______
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`No_______
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`No_______
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`No_______
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`No_______
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`No_______
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`No_______
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`No_______
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`No_______
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`No_______
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`3 Since the parties disagree on whether the jury should be asked about willful infringement as
`question #2 (Touchstream) or #5 (Comcast), the numbering of the next two questions is
`bracketed.
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`7
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`Case 2:23-cv-00059-JRG Document 215-9 Filed 10/04/24 Page 9 of 16 PageID #: 12120
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`QUESTION [4][3]: INELIGIBILITY4
`Has Comcast proven by clear and convincing evidence that the elements of the Asserted Claims,
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`when taken individually and when taken as an ordered combination, involve only activities or
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`technology which a person of ordinary skill in the art would have considered to be well-understood,
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`routine, and conventional as of the priority date of the invention?
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`For each claim for which you answered “Yes” to Question 1, answer “Yes” (for Comcast) or
`“No” (for Touchstream) in Question [4]/[3].
`If you answered “No” for a claim in Question 1, do not answer the corresponding question
`regarding that claim in Question [4]/[3].
`’251 Patent:
`
`Claim 1:
`
`Yes_______
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`Claim 5:
`
`Yes_______
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`Claim 7:
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`Yes_______
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`Claim 8:
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`Yes_______
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`Claim 9:
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`Yes_______
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`’751 Patent:
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`Claim 12:
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`Yes_______
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`Claim 13:
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`Yes_______
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`Claim 14:
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`Yes_______
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`’934 Patent:
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`Claim 17:
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`Yes_______
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`Claim 18:
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`Yes_______
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`Claim 19:
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`Yes_______
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`No_______
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`No_______
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`No_______
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`No_______
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`No_______
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`No_______
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`No_______
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`No_______
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`No_______
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`No_______
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`No_______
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`4 The parties agree that a question on patent ineligibility should only be given should the Court
`deny both parties’ motions for summary judgment.
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`8
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`Case 2:23-cv-00059-JRG Document 215-9 Filed 10/04/24 Page 10 of 16 PageID #: 12121
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`Claim 20:
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`Yes_______
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`
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`No_______
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`Please proceed to Question [4] [5] only if there is at least one claim of the Asserted Patents for
`which you answered “Yes” in Question 1 AND for the same claim you answered “No” in
`Question [3] [2] and [4] [3].
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`Otherwise, do NOT answer Question[s] [4 or 5] [5], and go directly to the final page of the
`verdict form.
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`9
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`Case 2:23-cv-00059-JRG Document 215-9 Filed 10/04/24 Page 11 of 16 PageID #: 12122
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`Touchstream’s Proposed Damages Question
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`[QUESTION 5: Damages5
`(a) Only if you have found a claim both infringed and valid, what amount would fairly and
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`reasonably compensate Touchstream for Comcast’s infringement?
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`
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` $_______________________________________
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`
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`(b) Is the amount you awarded in Question 5(a) above a lump-sum covering past and future
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`infringement by Comcast, or is that amount a running royalty covering Comcast’s infringement
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`only through the date of today’s verdict?
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`Check one of the following
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`Paid up Lump sum: _____
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`
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`Running royalty: _____]
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`5 Touchstream disagrees that there is any requirement to have the jury award damages on a
`patent-by-patent basis for three reasons. First, the expert opinions on damages do not opine that
`a reasonable royalty should be awarded on a patent-by-patent basis. Second, the damages period
`for each patent will be provided to the jury in the Court’s jury instructions, and those damages
`periods do not need to be repeated here. Third, this Court has previously used a single damages
`line in cases involving multiple patents. See, e.g., Ollnova Techs. Ltd. v. ecobee Techs. ULC, No.
`2:22-CV-00072-JRG, Dkt. 225 at 2-3 (E.D. Tex.) (denying defendant’s motion for new trial and
`declining to amend final judgment in a case in which the verdict form used single infringement
`and damages lines for four patents).
`
`Comcast opposes Touchstream’s proposed damages question because it does not split out
`requested damages by patent. The ’751 Patent did not issue until June 29, 2021 and the ’934
`Patent did not issue until August 10, 2021. Touchstream’s damages question improperly implies
`that Touchstream may receive damages for the entire damages period for all three patents. See
`Force Mos Technology Co., Ltd. v. ASUSTeK Computer, Inc., No. 2:22-cv-00460-JRG (E.D.
`Tex.), ECF 288-9 at 9-10 (damages question split out by patent on plaintiff’s proposed verdict
`form).
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`10
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`Case 2:23-cv-00059-JRG Document 215-9 Filed 10/04/24 Page 12 of 16 PageID #: 12123
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`Comcast’s Proposed Damages Question
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`[QUESTION 4: DAMAGES6
`
`Answer Question No. 4 ONLY as to any Asserted Claim that you have found BOTH to be
`infringed AND not invalid by answering “YES” to Question 1 and “NO” to Questions 2 and 3
`for the same claim.
`
`The damages period for any infringement of the ’251 Patent in this case begins on February 17,
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`2017. The damages period for any infringement of the ’751 Patent in this case begins on June 29,
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`2021. The damages period for any infringement of the ’934 Patent in this case begins on August
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`10, 2021.
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`(a) For the claims you have found both infringed and valid in the ’251 Patent, what amount would
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`fairly and reasonably compensate Touchstream for Comcast’s infringement?
`
`
`
` $_______________________________________
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`
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`(b) For the claims you have found both infringed and valid in the ’751 Patent, what amount would
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`fairly and reasonably compensate Touchstream for Comcast’s infringement?
`
`
`
` $_______________________________________
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`(c) For the claims you have found both infringed and valid in the ’934 Patent, what amount would
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`fairly and reasonably compensate Touchstream for Comcast’s infringement?
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`
`
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`6 Comcast proposes a damages question that properly identifies the damages period for each
`patent.
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`Touchstream refers to its argument for why this is unnecessary in footnote 5.
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`11
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`Case 2:23-cv-00059-JRG Document 215-9 Filed 10/04/24 Page 13 of 16 PageID #: 12124
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` $_______________________________________
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`(d) Is the amount you awarded in Questions 4(a)-(c) above a lump-sum covering past and future
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`infringement by Comcast, or is that amount a running royalty covering Comcast’s infringement
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`only through the date of today’s verdict?
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`Check one of the following
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`Paid up Lump sum:_____
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`
`Running royalty:_____
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`Continue to Question 5.]
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`12
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`Case 2:23-cv-00059-JRG Document 215-9 Filed 10/04/24 Page 14 of 16 PageID #: 12125
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`Comcast’s Proposed Willful Infringement Question
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`[QUESTION 5: WILLFUL INFRINGEMENT7
`Answer Question No. 5 ONLY as to any Touchstream Asserted Claim that you have found
`BOTH to be infringed AND not invalid by answering “YES” to Question 1 and “NO” to
`Questions 2 and 3 for the same claim.
`
`
`
`Has Touchstream proven by a preponderance of the evidence that Comcast’s infringement of
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`Claims 1, 5, 7, 8, or 9 of the ’251 Patent was willful between February 17, 2017 and February 16,
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`2023?
`
`Answer “Yes” (for Touchstream) or “No” (for Comcast).
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`Yes_______ No_______
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`
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`Has Touchstream proven by a preponderance of the evidence that Comcast’s infringement of
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`Claims 1, 5, 7, 8, or 9 of the ’251 Patent was willful after Touchstream filed suit on February 17,
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`2023?
`
`Answer “Yes” (for Touchstream) or “No” (for Comcast).
`
`
`7 Comcast opposes any question on willfulness for the reasons stated in n.2. Should any willfulness
`question be given to the jury, Comcast’s proposes that it be provided after invalidity and damages
`for the reasons stated in n.2 above.
`
`Comcast additionally proposes that the question of willful infringement be split up by patent, since
`pre-suit willful infringement is only at issue for the ’251 Patent and Touchstream is only alleging
`post-suit willful infringement for the ’751 and ’934 Patents.
`
`Touchstream disagrees that there is any requirement to have the jury determine willfulness on a
`patent-by-patent basis. Both the jury instructions and this verdict form instruct the jury that they
`may only consider willfulness for patents they found infringed, and the jury instructions provide
`the relevant period for each patent for willfulness. This Court has previously used a single
`willfulness question in cases involving multiple patents. See, e.g., Constellation Designs, LLC v.
`LG Electronics Inc., No. 2:21-cv-00448-JRG, Dkt. 277 at 6 (E.D. Tex.).
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`13
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`Case 2:23-cv-00059-JRG Document 215-9 Filed 10/04/24 Page 15 of 16 PageID #: 12126
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`Yes_______ No_______
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`
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`Has Touchstream proven by a preponderance of the evidence that Comcast’s infringement of
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`Claims 12, 13, or 14 of the ’751 Patent was willful after Touchstream filed suit on February 17,
`
`2023?
`
`Answer “Yes” (for Touchstream) or “No” (for Comcast).
`
`Yes_______ No_______
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`
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`Has Touchstream proven by a preponderance of the evidence that Comcast’s infringement of
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`Claims 17, 18, 19, or 20 of the ’934 Patent was willful after Touchstream filed suit on February
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`17, 2023?
`
`Answer “Yes” (for Touchstream) or “No” (for Comcast).
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`Yes_______ No_______]
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`14
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`Case 2:23-cv-00059-JRG Document 215-9 Filed 10/04/24 Page 16 of 16 PageID #: 12127
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`FINAL PAGE OF JURY VERDICT FORM
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`You have now reached the end of the Verdict Form and should review it to ensure it
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`accurately reflects your unanimous determinations. The Jury Foreperson should then sign and
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`date the Verdict Form in the spaces below. Once this is done, notify the Court Security Officer
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`that you have reached a verdict. The Jury Foreperson should keep the Verdict Form and bring it
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`when the jury is brought back into the courtroom.
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`Signed this ____ day of ___________ 2024.
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` __________________________
` Jury Foreperson
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`15
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