Case 3:11-cv-02353-N Document 484 Filed 11/01/13 Page 1 of 56 PageID 19634
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF TEXAS
`DALLAS DIVISION
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`MOBILEMEDIA IDEAS LLC,
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`Civil Action No. 3:11-cv-02353-N
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`JURY TRIAL DEMANDED
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`Plaintiff,
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`v.
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`RESEARCH IN MOTION LIMITED and
`RESEARCH IN MOTION
`CORPORATION,
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`Defendants.
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`MOBILEMEDIA’S PROPOSED FINAL JURY INSTRUCTIONS
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`Pursuant to the Court’s Scheduling Order (Dkt. No. 364), Plaintiff MobileMedia Ideas LLC
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`(“MobileMedia”) hereby submits MobilMedia’s Proposed Final Jury Instructions.
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`Respectfully submitted,
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`/s/ Mark D. Strachan
`Mark D. Strachan
`State Bar No. 19351500
`Email: mstrachan@swtriallaw.com
`Richard A. Sayles
`State Bar No. 17697500
`Email: dsayles@swtriallaw.com
`SAYLES WERBNER, PC
`1201 Elm Street, 44th Floor
`Dallas, TX 75270
`Tel.: (214) 939-8700
`Fax: (214) 939-8787
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`Attorneys for Plaintiff
`MobileMedia Ideas LLC
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`November 1, 2013
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`OF COUNSEL:
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`PROSKAUER ROSE LLP
`Steven M. Bauer (admitted pro hac vice)
`Justin J. Daniels (admitted pro hac vice)
`Safraz W. Ishmael (admitted pro hac vice)
`John M. Kitchura, Jr. (admitted pro hac vice)
`Jinnie Reed (admitted pro hac vice)
`One International Place
`Boston, MA 02110
`(617) 526-9600
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`PROSKAUER ROSE LLP
`Kenneth Rubenstein (admitted pro hac vice)
`Baldassare Vinti (admitted pro hac vice)
`Eleven Times Square
`New York, NY 10036
`(212) 969-3000
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` Case 3:11-cv-02353-N Document 484 Filed 11/01/13 Page 2 of 56 PageID 19635
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`CERTIFICATE OF SERVICE
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`I hereby certify that on November 1, 2013, the foregoing document was filed
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`electronically in compliance with Local Rule 5.1 and that all counsel of record are being served
`with a copy of the foregoing instrument via the Court’s ECF notification system.
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`/s/ Mark D. Strachan
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`38804189v1
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`TABLE OF CONTENTS
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`1.  GENERAL INSTRUCTIONS ................................................................................... 1 
`1.1 
`INTRODUCTION ............................................................................................. 1 
`1.2 
`JURORS' DUTIES ........................................................................................... 2 
`1.3 
`EVIDENCE DEFINED ..................................................................................... 3 
`1.4 
`DIRECT AND CIRCUMSTANTIAL EVIDENCE ............................................... 5 
`1.5 
`CONSIDERATION OF EVIDENCE ................................................................. 6 
`1.6 
`USE OF NOTES ............................................................................................. 7 
`1.7 
`CREDIBILITY OF WITNESSES ...................................................................... 8 
`1.8 
`NUMBER OF WITNESSES ........................................................................... 10 
`1.9 
`EXPERT WITNESSES .................................................................................. 11 
`1.10  DEPOSITION TESTIMONY .......................................................................... 12 
`1.11 
`THE PARTIES AND THEIR CONTENTIONS ............................................... 13 
`1.12  BURDENS OF PROOF ................................................................................. 15 
`2.  THE PATENT CLAIMS .......................................................................................... 17 
`2.1 
`PATENT CLAIMS GENERALLY ................................................................... 17 
`2.2 
`DEPENDENT AND INDEPENDENT CLAIMS ............................................... 18 
`2.3 
`CLAIM CONSTRUCTION ............................................................................. 19 
`2.4 
`MEANS-PLUS-FUNCTION CLAIM LIMITATIONS ........................................ 20 
`2.5 
`OPEN-ENDED OR "COMPRISING" CLAIMS ............................................... 21 
`3.  PATENT INFRINGEMENT .................................................................................... 22 
`3.1 
`OVERVIEW ................................................................................................... 22 
`3.2 
`DIRECT INFRINGEMENT BY LITERAL INFRINGEMENT ........................... 23 
`3.3 
`INFRINGEMENT UNDER THE DOCTRINE OF EQUIVALENTS ................. 25 
`3.4 
`INDIRECT INFRINGEMENT – INDUCING PATENT INFRINGEMENT ........ 27 
`4.  VALIDITY .............................................................................................................. 29 
`4.1 
`INTRODUCTION ........................................................................................... 29 
`4.2 
`AFFIRMATIVE DEFENSE OF INVALIDITY GENERALLY ............................ 30 
`4.3 
`PRIOR ART ................................................................................................... 31 
`4.4 
`ANTICIPATION ............................................................................................. 33 
`4.4 
`OBVIOUSNESS ............................................................................................ 35 
`4.5 
`OBJECTIVE CRITERIA CONCERNING NON-OBVIOUSNESS ................... 39 
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`5.  DAMAGES ............................................................................................................ 41 
`5.1 
`DAMAGES - GENERALLY ............................................................................ 41 
`5.2 
`DATE OF COMMENCEMENT OF DAMAGES ............................................. 42 
`5.3 
`REASONABLE ROYALTY ............................................................................ 43 
`6.  WILLFUL INFRINGEMENT ................................................................................... 47 
`7.  DELIBERATION AND VERDICT ........................................................................... 48 
`7.1 
`INTRODUCTION ........................................................................................... 48 
`7.2 
`UNANIMOUS VERDICT................................................................................ 49 
`7.3 
`DUTY TO DELIBERATE ............................................................................... 50 
`7.4 
`COURT HAS NO OPINION ........................................................................... 52 
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`1.
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`GENERAL INSTRUCTIONS
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`1.1
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`INTRODUCTION
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`Members of the jury, now it is time for me to instruct you about the law that
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`you must follow in deciding this case. I will start by explaining your duties and the
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`general rules that apply in every civil case. I will explain some rules that you must use
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`in evaluating particular testimony and evidence. I will explain the positions of the parties
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`and the law you will apply in this case. Last, I will explain the rules that you must follow
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`during your deliberations in the jury room. Please listen very carefully to everything I
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`say.
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`You will have a written copy of these instructions with you in the jury room
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`for your reference during your deliberations. You will also have a verdict form, which
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`will list the interrogatories, or questions, that you must answer to decide this case.
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`Source: District of Delaware Model Jury Instructions (Judge Sue Robinson).
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`1.2
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`JURORS' DUTIES
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`You have two main duties as jurors. The first one is to decide what the
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`facts are from the evidence that you saw and heard here in court. Deciding what the
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`facts are is your job, not mine, and nothing that I have said or done during this trial was
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`meant to influence your decision about the facts in any way.
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`Your second duty is to take the law that I give you, apply it to the facts,
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`and decide which party should prevail on the issues presented. I will instruct you about
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`the burden of proof shortly. It is my job to instruct you about the law, and you are bound
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`by the oath that you took at the beginning of the trial to follow the instructions that I give
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`you, even if you personally disagree with them. This includes the instructions that I
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`gave you before and during the trial, and these instructions. All the instructions are
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`important, and you should consider them together as a whole.
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`Perform these duties fairly. Do not let any bias, sympathy or prejudice
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`that you may feel toward one side or the other influence your decision in any way.
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`Source: District of Delaware Model Jury Instructions (Judge Sue Robinson).
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`1.3 EVIDENCE DEFINED
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`You must make your decision based only on the evidence that you saw
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`and heard here in the courtroom. Do not let rumors, suspicions, or anything else that
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`you may have seen or heard outside of court influence your decision in any way. The
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`evidence in this case includes only what the witnesses said while they were testifying
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`under oath (including deposition testimony that has been played or read to you), the
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`exhibits that I allowed into evidence, and any facts that the parties agreed to by
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`stipulation.
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`Nothing else is evidence. The lawyers' statements and arguments are not
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`evidence. Their questions and objections are not evidence. My legal rulings are not
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`evidence. None of my comments or questions are evidence. The notes taken by any
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`juror are not evidence. Your knowledge or belief as to how the BlackBerry products
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`work, or how the technology in the BlackBerry products works, is not evidence.
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`Certain charts and graphics have been used to illustrate testimony from
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`witnesses. Unless I have specifically admitted them into evidence, these charts and
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`graphics are not themselves evidence even if they refer to, identify, or summarize
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`evidence.
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`During the trial I may not have let you hear the answers to some of the
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`questions that the lawyers asked. I also may have ruled that you could not see some of
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`the exhibits that the lawyers wanted you to see. And sometimes I may have ordered
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`you to disregard things that you saw or heard. You must completely ignore all of these
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`things. Do not speculate about what a witness might have said or what an exhibit might
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`have shown. These things are not evidence, and you are bound by your oath not to let
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`them influence your decision in any way.
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`Make your decision based only on the evidence, as I have defined it here,
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`and nothing else.
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`Source: District of Delaware Model Jury Instructions (Judge Sue Robinson).
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`1.4 DIRECT AND CIRCUMSTANTIAL EVIDENCE
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`Some of you may have heard
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`the
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`terms "direct evidence" and
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`"circumstantial evidence."
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`Direct evidence is simply evidence like the testimony of any eyewitness
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`which, if you believe it, directly proves a fact. If a witness testified that he saw it raining
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`outside, and you believed him, that would be direct evidence that it was raining.
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`Circumstantial evidence is simply a chain of circumstances that indirectly
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`proves a fact. If someone walked into the courtroom wearing a raincoat covered with
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`drops of water and carrying a wet umbrella, that would be circumstantial evidence from
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`which you could conclude that it was raining.
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`It is your job to decide how much weight to give the direct and
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`circumstantial evidence. The law makes no distinction between the weight that you
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`should give to either one, nor does it say that one is any better evidence than the other.
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`You should consider all the evidence, both direct and circumstantial, and give it
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`whatever weight you believe it deserves.
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`Source: District of Delaware Model Jury Instructions (Judge Sue Robinson).
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`1.5 CONSIDERATION OF EVIDENCE
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`You should use your common sense in weighing the evidence. Consider
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`it in light of your everyday experience with people and events, and give it whatever
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`weight you believe it deserves. If your experience tells you that certain evidence
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`reasonably leads to a conclusion, you are free to reach that conclusion.
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`Source: District of Delaware Model Jury Instructions (Judge Sue Robinson).
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`1.6 USE OF NOTES
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`You may use notes taken during the trial to assist your memory.
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`Remember that your notes are for your personal use. They may not be given or read to
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`anyone else. Do not use your notes, or any other juror's notes, as authority to persuade
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`fellow jurors. Your notes are not evidence, and they are by no means a complete
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`outline of the proceedings or a list of the highlights of the trial. Some testimony that is
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`considered unimportant at the time presented and, thus, not written down, may take on
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`greater importance later on in the trial in light of all the evidence presented. Your notes
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`are valuable only as a way to refresh your memory. Your memory is what you should
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`be relying on when it comes time to deliberate and render your verdict in this case.
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`Source: District of Delaware Model Jury Instructions (Judge Sue Robinson).
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`1.7 CREDIBILITY OF WITNESSES
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`You, the jurors, are the sole judges of the credibility, or the believability, of
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`the witnesses you have seen during the trial and the weight their testimony deserves.
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`You should carefully scrutinize all the testimony each witness has given
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`and every matter of evidence that tends to show whether he or she is worthy of belief.
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`Consider each witness's intelligence, motive, and state of mind, as well as his or her
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`demeanor while on the stand. Consider the witness's ability to observe the matters as
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`to which he or she has testified and whether he or she impresses you as having an
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`accurate recollection of these matters. Consider also any relation each witness may
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`bear to each side of the case, the manner in which each witness might be affected by
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`the verdict, the interest any witness may have in the verdict, and the extent to which, if
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`at all, each witness is either supported or contradicted by other evidence in the case.
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`Discrepancies in the testimony of different witnesses may, or may not,
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`cause you to discredit such testimony. Two or more persons witnessing an incident or
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`transaction may see or hear it differently. Likewise, in determining the weight to give to
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`the testimony of a witness, you should ask yourself whether there was evidence tending
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`to prove that the witness testified falsely about some important fact, or whether there
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`was evidence that at some other time the witness said or did something, or failed to say
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`or do something, that was different, or inconsistent, from the testimony that he or she
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`gave during the trial. It is the province of the jury to determine whether a false
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`statement or a prior inconsistent statement discredits the witness's testimony.
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`You should remember that a simple mistake by a witness does not mean
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`that the witness was not telling the truth. People may tend to forget some things or
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`remember other things inaccurately. If a witness has made a misstatement, you must
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`consider whether it was simply an innocent lapse of memory or an intentional falsehood,
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`and that may depend upon whether it concerns an important fact or an unimportant
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`detail.
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`Source: District of Delaware Model Jury Instructions (Judge Sue Robinson).
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`1.8 NUMBER OF WITNESSES
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`One more point about the witnesses. Sometimes jurors wonder if the
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`number of witnesses who testified makes any difference. Do not make any decisions
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`based only on the number of witnesses who testified. What is more important is how
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`believable the witnesses were, and how much weight you think their testimony
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`deserves. Concentrate on that, not the numbers.
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`Source: District of Delaware Model Jury Instructions (Judge Sue Robinson).
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`1.9 EXPERT WITNESSES
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`When knowledge of technical subject matter might be helpful to the jury, a
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`person who has special training or experience in that technical field — he or she is
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`called an expert witness — is permitted to state his or her opinion on those technical
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`matters. However, you are not required to accept that opinion. As with any other
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`witness, it is up to you to judge the credentials and credibility of the expert witness and
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`decide whether to rely upon his or her testimony.
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`You should consider each expert opinion received in evidence in this
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`case, and give it such weight as you think it deserves. If you decide that the opinion of
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`an expert witness is not based upon sufficient education and experience, or if you
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`conclude that the reasons given in support of the opinion are not sound, or if you feel
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`that the opinion is outweighed by other evidence, you may disregard the opinion in
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`whole or in part.
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`Source: District of Delaware Model Jury Instructions (Judge Sue Robinson).
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`1.10 DEPOSITION TESTIMONY
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`During the trial, certain testimony was presented to you through
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`depositions that were read into evidence or electronically played. This testimony must
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`be given the same consideration you would give it had the witness personally appeared
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`in court. Like the testimony of a live witness, the statements made in a deposition are
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`made under oath and are considered evidence that may be used to prove particular
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`facts.
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`Source: District of Delaware Model Jury Instructions (Judge Sue Robinson).
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`1.11 THE PARTIES AND THEIR CONTENTIONS
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`I will now review for you the parties in this action and the positions of the
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`parties that you will have to consider in reaching your verdict.
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`The plaintiff is MobileMedia Ideas LLC, which I will refer to as
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`“MobileMedia.” MobileMedia owns patents relating to innovations concerning mobile
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`phones. These patents are inventions from Sony and Nokia, but the five patents in this
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`particular lawsuit are all from Sony.
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`MobileMedia is the current owner of:
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`U.S. Patent No. RE39,231 (the “’231 patent”);
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`U.S. Patent No. 5,737,394 (the “’394 patent”);
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`U.S. Patent No. 6,070,068 (the “’068 patent”).
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`U.S. Patent No. 6,389,301 (the “’301 patent”); and
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`U.S. Patent No. 6,871,048 (the “’048 patent”).
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`I may refer to these patents collectively as “the MobileMedia patents” or “the patents-in-
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`suit.”
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`The defendants are two related companies, Research in Motion Limited
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`and Research in Motion Corporation. I will refer to them collectively as, “BlackBerry.”
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`BlackBerry designs, manufactures, markets and sells mobile communication and media
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`devices.
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`MobileMedia contends that certain BlackBerry products infringe certain
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`claims of MobileMedia’s patents. These claims may be referred to collectively as the
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`“asserted claims.” BlackBerry contends it does not infringe the asserted claims of the
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`patents-in-suit. BlackBerry further contends that the asserted claims are invalid due to
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`anticipation and/or obviousness.
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`You will be asked to determine the issues of infringement and validity
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`according to instructions I will give you in a moment. The asserted claims of the
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`patents-in-suit are:
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`a. Claims 2, 3, 4, and 12 of the ‘231 patent;
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`b. Claim 19 of the ‘394 patent;
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`c. Claims 1 and 10 of the ‘068 patent;
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`d. Claims 1 and 2 of the ‘301 patent; and
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`e. Claims 1, 2, 4, and 5 of the ‘048 patent.
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`Source: District of Delaware Model Jury Instructions (Judge Sue Robinson) (as
`revised).
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`1.12 BURDENS OF PROOF
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`In any legal action, facts must be proven by a required standard of
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`evidence, known as the “burden of proof.” In a patent case such as this, there are two
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`different burdens of proof that you must consider.
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`The first is called “preponderance of the evidence.” MobileMedia must
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`prove its claims of patent infringement by a preponderance of the evidence. When a
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`party has the burden of proof by a preponderance of the evidence, it means that you
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`must be persuaded that what the party seeks to prove is more probably true than not
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`true. To put it differently, if you were to put MobileMedia’s and BlackBerry’s evidence of
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`infringement on opposite sides of a scale, the evidence supporting MobileMedia’s
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`assertions would have to make the scale tip at least a little more to MobileMedia’s side.
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`The second burden of proof is called “clear and convincing” evidence.
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`Clear and convincing evidence is a higher burden of proof than a preponderance of the
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`evidence. BlackBerry has the burden of proving that each one of the asserted claims of
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`the patents-in-suit are invalid by clear and convincing evidence. Clear and convincing
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`evidence is evidence that produces an abiding conviction that the truth of a fact is highly
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`probable. You must decide, as to each of the asserted claims, whether BlackBerry has
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`proven, by clear and convincing evidence, that the claim is invalid by reason of
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`anticipation and/or obviousness in light of the prior art and the ordinary skill of one in the
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`art. I will explain these concepts to you further in a moment.
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`Those of you who are familiar with criminal cases will have heard the term
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`“proof beyond a reasonable doubt.” That burden does not apply in a civil case, such as
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`this one, and you, therefore, should put it out of your mind in considering whether or not
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`MobileMedia has met its “more likely than not” burden of proof or BlackBerry has met its
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`“clear and convincing” burden of proof.
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`Source: District of Delaware Model Jury Instructions (Judge Sue Robinson) (as
`revised).
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`2.
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`THE PATENT CLAIMS
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`2.1 PATENT CLAIMS GENERALLY
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`Before you can decide whether or not any of the asserted claims are
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`infringed or invalid, you will have to understand what patent “claims” are. Patent claims
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`are the numbered paragraphs at the end of a patent.
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`The purpose of the claims is to provide notice to the public of what a
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`patent covers and does not cover. The claims are “word pictures” intended to define, in
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`words, the boundaries of the invention described and illustrated in the patent.
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`Claims are usually divided into parts, called “limitations.” For example, a
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`claim that covers the invention of a table may recite the tabletop, four legs, and the glue
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`that secures the legs to the tabletop. The tabletop, legs and glue are each a separate
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`limitation of the claim.
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`Source: District of Delaware Model Jury Instructions (Judge Sue Robinson) (as
`revised).
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`2.2 DEPENDENT AND INDEPENDENT CLAIMS
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`There are two different types of claims in a patent. The first type is called
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`an “independent” claim. An independent claim does not refer to any other claim of the
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`patent. An independent claim is read alone to determine its scope.
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`For example, claim 12 of the ’231 patent is an independent claim. You
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`know this because claim 12 does not refer to any other claims. Accordingly, the words
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`of this claim are read by themselves in order to determine what the claim covers.
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`The second type, a “dependent” claim, refers to at least one other claim in
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`the patent and, thus, incorporates whatever that other claim says. Accordingly, to
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`determine what a dependent claim covers, you must read both the dependent claim and
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`the claim or claims to which it refers.
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`For example, claim 2 of the ’231 patent is a dependent claim. If you look
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`at claim 2, it refers to claim 12. Therefore, to determine what claim 2 covers, you must
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`consider both the words of claims 12 and 2 together.
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`Source: District of Delaware Model Jury Instructions (Judge Sue Robinson) (as
`revised).
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`2.3 CLAIM CONSTRUCTION
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`It is my duty under the law to define what the patent claims mean and to
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`instruct you about that meaning. You must accept the meanings I give you and use the
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`meaning of each claim for your decisions on infringement and validity.
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`You must ignore any different interpretation given to these terms by the
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`witnesses or by attorneys.
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`I instruct you that the following claim terms have the following definitions:
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`[INSERT COURT’S CLAIM CONSTRUCTIONS – INCLUDING ANY CLARIFICATIONS
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`REQUESTED BY THE PARTIES]
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`If I have not provided a specific definition for a given term, you are to use
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`the plain and ordinary meaning of that term.
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`Source: District of Delaware Model Jury Instructions (Judge Sue Robinson) (as
`revised).
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`2.4 MEANS-PLUS-FUNCTION CLAIM LIMITATIONS
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`As you just heard, some of the asserted claims use the phrase “means for
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`….” This “means for” phrase has a special meaning in patent law. It is called a “means-
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`plus-function” requirement. It does not cover all of the structures that could perform the
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`function set forth in the claim. Instead, it covers a structure or set of structures that
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`performs that function and that is either identical or “equivalent” to at least one of the
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`structures described in the patent for performing that function. The issue of whether two
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`structures are identical or equivalent is for you to decide. I will explain to you later how
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`to determine whether two structures or two sets of structures are “equivalent” to one
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`another.
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`When I read you my definitions for certain claim terms a few moments
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`ago, I identified the structures described in the patents for performing certain relevant
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`functions. You should apply my definition of the functions and the structures described
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`in the patents as you would apply my definition of any other claim term.
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`Source: Fed. Cir. Bar Ass’n Model Patent Jury Instructions § 2.3a (2012) (as revised).
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` Case 3:11-cv-02353-N Document 484 Filed 11/01/13 Page 25 of 56 PageID 19658
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`2.5 OPEN-ENDED OR "COMPRISING" CLAIMS
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`Several claims of the patents-in-suit use the transitional term “comprising.”
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`“Comprising” is interpreted the same as “including” or “containing.” In patent claims,
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`comprising means that the claims are open-ended, that is, the claims are not limited to
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`products that include only what is in the claim and nothing else.
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`If you find that the accused products include all of the limitations in any of
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`the asserted claims that use the term “comprising,” the fact that the accused products
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`may also include additional elements or features is irrelevant. The presence of
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`additional elements or features in an accused product does not mean that the product
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`does not infringe a patent claim.
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`Similarly, if you find that the prior art includes all of the limitations in any of
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`the asserted claims that use the word “comprising,” the fact that it may also include
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`additional elements or features is irrelevant. The presence of additional elements or
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`features does not mean that the prior art does not invalidate a patent claim.
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`
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`Source: District of Delaware Model Jury Instructions (Judge Sue Robinson) (as
`revised).
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`3.
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`PATENT INFRINGEMENT
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`3.1 OVERVIEW
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`If any person makes, uses, sells (within the United States), offers to sell
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`(from within the United States), or imports what is covered by the patent claims without
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`the patent owner's permission, that person is said to infringe the patent.
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`In this case, MobileMedia alleges that BlackBerry’s products directly
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`infringe the asserted claims either literally or under the doctrine of equivalents.
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`MobileMedia also asserts that BlackBerry induces its customers to infringe the asserted
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`claims and contributes to their infringement.
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`You must decide whether or not MobileMedia has proven, by a
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`preponderance of the evidence, that BlackBerry has made, used, sold (within the United
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`States), offered for sale (from within the United States), or imported into the United
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`States a product covered by any of the claims at issue in this case. If BlackBerry
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`infringes one claim of any patent-in-suit, then BlackBerry infringes that patent.
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`BlackBerry’s knowledge or intent to infringe is not relevant to whether BlackBerry
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`directly infringes the asserted claims, but is relevant to whether BlackBerry indirectly
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`infringes either by inducing or contributing its customers to infringe.
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`
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`Source: District of Delaware Model Jury Instructions (Judge Sue Robinson) (as
`revised).
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`3.2 DIRECT INFRINGEMENT BY LITERAL INFRINGEMENT
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`In order to prove direct infringement, MobileMedia must prove, by a
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`preponderance of the evidence, that each limitation of the asserted claims is present in
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`th