Case 1:20-cv-00692-ADA Document 487 Filed 01/12/24 Page 1 of 46
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`CLERK, U.S. DISTRICT COURT
`WESTERN DISTRICT OF TEXAS
`
`BY: ________________________________
`
`FILED
`
`DEPUTY
`
`January 12, 2024
`
`Jennifer Clark
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`

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`Case 1:20-cv-00692-ADA Document 487 Filed 01/12/24 Page 2 of 46
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`TABLE OF CONTENTS
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`FINAL JURY INSTRUCTIONSwc cccceeccseteesreeterterernnecereeeeerieesneeeneeeeeneeseeeeaeecnaeeae ena niastgeenaat4
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`JURY INSTRUCTION NO. Li INTRODUCTIONices riesreeeseenereneessenseseersnresteetnagienines4
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`JURY INSTRUCTION NO, 2: EVIDENCEweet eeeee reenter rere ener bers nner ner en eeecaterneaseeeenn6
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`JURY INSTRUCTION NO. 3: WITNESSES AND WITNESS CREDIBILITY....... cee7
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`JURY INSTRUCTION NO. 4: DEPOSITION TESTIMONY vo. ccccescssseeesseeneeseeseecnernestaeeaaee 8
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`JURY INSTRUCTION NO. 5: EXPERT TESTIMONYVc cccccccsesecessseenessesnssrsersssesesrnsestonnenss9
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`JURY INSTRUCTION NO. 6: NO INFERENCE FROM FILING SUIT... cece eceteneeeneeens 10
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`JURY INSTRUCTION NO. 7: STIPULATION OP FACT Wo cccesereserreeteesteeereeiestereteeren 11
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`JURY INSTRUCTION NO. 8: LIMITING INSTRUCTION uo eeteccserseescenseessertsernenesienes 12
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`JURY INSTRUCTION NO. 9: CHARTS AND SUMMARIES Q.....cesessscetssceesrectetenenteneessieeeey 13
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`JURY INSTRUCTION NO, 10; DEMONSTRATIVE EXHIBITS... esceceesesrseteseeseseerrseneens 14
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`JURY INSTRUCTION NO. 11: BIAS--CORPORATE PARTY INVOLVED .....cecesstseneens 15
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`FURY INSTRUCTION NO. 12: STANDARDS OF PROOPuc ceccecsstenrteseeeesnererstaeeestenness 16
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`JURY INSTRUCTION NO. 13: SUMMARY OF CONTENTIONS 0. cccscerescneneesereeteeneneeneeaes 17
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`JURY INSTRUCTION NO, 14: PATENT CLAIMSwo cececsi sens crerienreressecnerseetieeienteenenes 18
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`JURY INSTRUCTION NO. 15: “COMPRISING” CLAIMS... cccecsreeesseerseresteeteeereenenies20
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`JURY INSTRUCTION NO, 16: MARKUSH GROUP INFRINGEMENT uu... cece rersenes21
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`JURY INSTRUCTION NO. 17: INDEPENDENT AND DEPENDENT CLAIMS...22
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`JURY INSTRUCTION NO. 18: INFRINGEMENT GENERALLYuo... cee rterteenneceiereies23
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`JURY INSTRUCTION NO, 19: INFRINGEMENT. ...ccsssseesssenesteresteeeresenernnncreenienieenienieecae24
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`JURY INSTRUCTION NO. 20: WILLFUL INFRINGEMENT.....scccseeeseerteerceniestiieenniiy26
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`JURY INSTRUCTION NO. 21: INVALIDITY—GENERALLY ooo. cccecceretecettenesteenieenennees27
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`JURY INSTRUCTION NO. 22: INVALIDITY—PRIOR ART oo ccsecsssessteeseeetietteeteeeeneenaeiees28
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`JURY INSTRUCTION NO. 23: INVALIDITY—LEVEL OF ORDINARYSKILL ........29
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`Case 1:20-cv-00692-ADA Document 487 Filed 01/12/24 Page 3 of 46
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`JURY INSTRUCTION NO. 24: PATENT INVALIDITY—-OBVIOUSNESS ....ccceccserereeecees 30
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`JURY INSTRUCTION NO. 25: SCOPE AND CONTENT OF THE PRIOR ART uae 33
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`JURY INSTRUCTION NO. 26: PATENT INVALIDITY—WRITTEN DESCRIPTION.......... 34
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`JURY INSTRUCTION NO, 27; PATENT INVALIDITY—ENABLEMENTD.... cesses 36
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`JURY INSTRUCTION NO. 28: DAMAGES—INTRODUCTION |. ..ceccceesseestserssterrestecens 38
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`JURY INSTRUCTION NO. 29: DAMAGES—DATE OF COMMENCEMENT OF
`DAMAGES voeecccecccccecceneseeneeeeeeseeeeaeseneenecneeeneepeeeteeresnebeQSUUHC8 NU 0804) EEA SEUS SEE CEEEEIEREAESCUCKAES EES ESEEEUUE ESET 39
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`JURY INSTRUCTION NO. 30: REASONABLE ROYALTY—DEFINITION....... eset 40
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`JURY INSTRUCTION NO. 31: DAMAGES-—-REASONABLE ROYALTY—
`RELEVANT FACTORSwi ecceccccneteeenee eee eaeeeeneeeseensesenecseneseceeeseseseepeasanessenesneeeeeseersnesteneaeeeas 4]
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`JURY INSTRUCTION NO. 32: DAMAGES—APPORTIONMENT. 10... ccccsersceereseeesseneetenenees 43
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`JURY INSTRUCTION NO. 33: DAMAGES---COMPARABLE AGREEMENTS... scenes 44
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`JURY INSTRUCTION NO. 34: DUTY TO DELIBERATE; NOTESwo... ccccecretereerenereeneies 45
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`JURY INSTRUCTION NO, 35: SOCIAL MEDIA INSTRUCTION uo ceccsseserstsetenssteeesteenes 46
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`Case 1:20-cv-00692-ADA Document 487 Filed 01/12/24 Page 4 of 46
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`FINAL JURY INSTRUCTIONS
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`JURY INSTRUCTION NO. 1: INTRODUCTION
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`MEMBERSOF THE JURY:
`
`It is my duty and responsibility to instruct you on the law you are to apply in this
`case. The law contained in these instructions is the only law you may follow. It is
`yourduty to follow whatI instruct you the law is, regardless of any opinion that you
`might have as to what the law oughtto be.
`
`Each of you is going to have your own printed copy of these final jury instruction
`that 1am giving you now,so there is really no need for you to take notes unless you
`wantto.
`
`If I have given you the impression during the trial that J favoreither party, you must
`disregard that impression. If I have given you the impression during the trial that I
`have an opinion about the facts ofthis case, you must disregard that impression. You
`are the sole judgesofthe facts of this case. Other than my instructions to you on the
`law, you should disregard anything I may have said or done during the trial in
`arriving at yourverdict.
`
`You should considerall of the instructions about the law as a whole and regard each
`instruction in light of the others, without
`isolating a particular statement or
`paragraph.
`
`Thetestimony ofthe witnesses and otherexhibits introduced by the parties constitute
`the evidence, The statements of counsel are not evidence; they are only arguments.
`It is important for you to distinguish between the arguments of counsel and the
`evidence on whichthose arguments rest. What the lawyers say or do is not evidence,
`You may, however, consider their arguments in light of the evidence that has been
`admitted and determine whether the evidence admitted in this trial supports the
`arguments. You must determine the facts fromall the testimony that you have heard
`and the other evidence submitted. You are the judges of the facts, but in finding those
`facts, you must apply the law as I instruct you.
`
`Youare required by law to decide the case in a fair, impartial, and unbiased manner,
`based entirely on the law and on the evidence presented to you in the courtroom.
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`You maynot be influenced by passion, prejudice, or sympathy you might have for
`Ravgen or Natera in arriving at yourverdict.
`
`After the remainderof these instructions, you will hear closing arguments from the
`attorneys. Statements and arguments ofthe attorneys, | remind you,are not evidence,
`and they are not instructions on the law. They are intended only to assist the jury in
`understanding the evidence and the parties’ contentions.
`
`A verdict form has been prepared for you. You are to take this verdict form with you
`to the jury room; and when you have reached a unanimous decision or agreement as
`to the verdict, you are to have yourforepersonfill in the blanks in the verdict form,
`date it, and sign it. Answer each question in the verdict form from the facts as you
`find them to be. Do not decide who you think should win the case and then answer
`the questions to reachthat result.
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`Again, your answers and yourverdict must be unanimous.
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`JURY INSTRUCTION NO. 2: EVIDENCE
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`The evidence you are to consider consists of the testimony of the witnesses, the
`documents, and other exhibits admitted into evidence, the stipulations to which the
`lawyers agreed, and any fair inferences and reasonable conclusions you can draw
`from the facts and circumstances that have been proven. Nothing else is evidence.
`
`Generally speaking, there are two types of evidence. Oneis direct evidence, such as
`testimony of an eyewitness. The other is indirect or circumstantial evidence.
`Circumstantial evidence is evidence that proves a fact from which you can logically
`conclude anotherfact exists. As a generalrule, the law makesno distinction between
`direct and circumstantial evidence, but simply requires that you determine the facts
`from all the evidence that you hear in this case, whether direct, circumstantial, or
`any combination.
`
`As | instructed you before the trial began, in judging the facts, you must considerall
`the evidence, both direct and circumstantial. That does not mean you haveto believe
`all of the evidence. It is entirely up to you to give the evidence you receive in this
`case whatever weight you individually believe it deserves. It will be up to you to
`decide which witnesses to believe, which witnesses not to believe, the weight you
`give any testimony you hear, and how muchof any witness’s testimony you choose
`to acceptorreject.
`
`You should never be influenced by my ruling on any objection. If I sustained an
`objection, then just pretend the question was never asked. If there was an answer
`given, ignore it. If I overruled the objection, act like the objection was never made,
`If I gave you instructions that some item of evidence was received for a limited
`purpose, you must follow my instruction. If I gave any limiting instruction during
`trial, you must follow it. Any testimony I tell you to exclude or disregard is not
`evidence and may not be considered.
`
`You must not conduct any independent research or investigation, You must make
`your decision based only on the evidence here, and nothing else.
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`JURY INSTRUCTION NO. 3: WITNESSES AND WITNESS CREDIBILITY
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`You alone are to determine the questions of credibility or truthfulness of the
`witnesses, In weighing the testimony of the witnesses, you may consider the
`witness’s manner and demeanoron the witness stand, any feelings or interest in the
`case, or any prejudice or bias about the case, that he or she may have, and the
`consistency or inconsistency of his or her testimony considered in the light of the
`circumstances. For instance, has the witness been contradicted by other credible
`evidence? Has he or she made statementsat other times and places contrary to those
`made here on the witness stand? You must give the testimony of each witness the
`credibility that you think it deserves.
`
`In determining the weight to give to the testimony of a witness, consider whether
`there was evidence that at some other time the witness said or did something, or
`failed to say or do something, that was different from the testimony given by that
`witnessattrial.
`
`A simple mistake by a witness does not necessarily mean that the witness did not
`tell the truth as he or she remembers it. We’re people. People may forget some
`things or remember other things inaccurately.
`If a witness made a misstatement,
`consider whether that misstatement was an intentional falsehood or just a mistake.
`The significance of that may depend on whether it has to do with an important fact
`or with only an unimportantdetail. This instruction applies to the testimony ofall
`witnesses.
`
`Even though a witness may be a party to the action and therefore interested in its
`outcome, the testimony may be acceptedif it is not contradicted by direct evidence
`or by any inference that may be drawn from the evidence, if you believe the
`testimony.
`
`You are not to decide this case by counting the number of witnesses who have
`testified on the opposing sides. Witness testimony is weighed; witnesses are not
`counted. Thetest is not the relative numberof witnesses, but the relative convincing
`force of the evidence. The testimony of a single witness is sufficient to prove any
`fact, even if a greater number of witnesses testified to the contrary,
`if after
`considering all of the other evidence, you believe that witness.
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`JURY INSTRUCTION NO. 4: DEPOSITION TESTIMONY
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`Certain testimony has been presented to you through a deposition. A deposition is
`the sworn, recorded answers to questions a witness was asked in advanceofthetrial.
`Undersome circumstances, if a witness cannot be presentto testify from the witness
`stand, that witness’s testimony may be presented, under oath,
`in the form of a
`deposition. Sometime before this trial, attorneys representing the parties in this case
`questioned this witness under oath. A court reporter was present and recorded the
`testimony. The questions and answers have been shown to you. This deposition
`testimony is entitled to the same consideration and weighed and otherwise
`considered by you in the same way as if the witness had been present and had
`testified from the witness stand in court.
`
`Someofthe video recordings and live remote video of witnesses you have seen may
`have been of lower quality because the witnessestestified from home. You should
`not hold the quality of the video orthe location of the witness against eitherparty.
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`JURY INSTRUCTION NO, 5: EXPERT TESTIMONY
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`Expert testimony is testimony from a person who has a special skill or knowledge in
`somescience, profession, or business. This skill or knowledge is not commonto the
`average person but has been acquired by the expert through special study or
`experience.
`
`In weighing expert testimony, you may consider the expert’s qualifications, the
`reasons for the expert’s opinions, and the reliability of the information supporting
`the expert’s opinions, as well as the factors I have previously mentioned for
`weighing testimony of any other witness.
`
`Expert testimony should receive whatever weight and credit you think appropriate,
`givenall the other evidence in the case. You are not required to accept the opinion
`of any expert, rather, you are free to accept orreject the testimony of experts, just as
`with any other witness.
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`JURY INSTRUCTION NO. 6: NO INFERENCE FROM FILING SUIT
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`The fact that a person brought a lawsuit and is in court seeking damagescreates no
`inference that the person is entitled to a judgment. Anyone may make a claim and
`file a lawsuit. The act of making a claimin a lawsuit, by itself, does not in any way
`tend to establish that claim and is not evidence.
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`JURY INSTRUCTION NO. 7: STIPULATION OF FACT
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`A “stipulation” is an agreement. When there is no dispute about certain facts, the
`parties may agree or “stipulate” to those facts. You must accept a stipulated fact as
`evidence and treat that fact as having been proven here in court.
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`JURY INSTRUCTIONNO. 8: LIMITING INSTRUCTION
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`Whentestimony or an exhibit is admitted for a limited purpose, you may consider
`that testimony or exhibit only for the specific limited purpose for which it was
`admitted.
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`JURY INSTRUCTION NO. 9; CHARTS AND SUMMARIES
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`Certain charts and summaries have been shown to you solely to help explain or
`summarize the facts disclosed by the books, records, and other documents that are
`in evidence. These charts and summaries are not evidence or proof of any facts. You
`should determine the facts from the evidence.
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`JURY INSTRUCTIONNO. 10: DEMONSTRATIVE EXHIBITS
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`Certain exhibits shown to you, such as PowerPoint presentations, posters, or models,
`are illustrations of the evidence, but are not themselves evidence. It is a party’s
`description, picture, or model used to describe something involved in this trial. Hf
`yourrecollection of the evidencediffers from the demonstrative exhibit, rely on your
`recollection.
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`JURY INSTRUCTION NO.11; BIAS—CORPORATE PARTY INVOLVED
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`Donot let bias, prejudice, or sympathy play any part in your deliberations. Whether
`you are familiar with one party or the other should not play any part in your
`deliberations. A corporation andall other persons are equal before the law and must
`be treated as equals in a court ofjustice.
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`JURY INSTRUCTION NO. 12: STANDARDS OF PROOF
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`AsIdiscussed in my preliminary instructions to you, there are two standards of proof
`that you will apply to the evidence, depending on the issue you are deciding.
`
`On some issues, you must decide whether certain facts have been proven by a
`preponderanceof the evidence. A preponderance of the evidence meansthat the fact
`that is to be proven is morelikely true than not, i.e., that the evidence in favorof that
`fact being true is sufficient to tip the scale, even if slightly, in its favor.
`
`On other issues that I will identify for you, you must use a higher standard and decide
`whether a fact has been proven by clear and convincing evidence. Clear and
`convincing evidence is evidence that produces in your mind a firm belief or
`conviction as to the truth of the matter sought to be established. It is evidence so
`clear, direct, weighty and convincing as to enable you to cometo a clear conviction
`without hesitancy.
`
`These standards are different from what you may have heard about in criminal
`proceedings where a fact must be proven beyond a reasonable doubt. On a scale of
`these various standards of proof, as you move from preponderance ofthe evidence,
`where the proof need only be sufficient to tip the scale in favor of the party proving
`the fact, to beyond a reasonable doubt, where the fact must be proven to a very high
`degree of certainty, you may think of clear and convincing evidence as being
`between the two standards.
`
`Ravgen has the burden of proving the elements of its claim for patent infringement
`by a preponderance of the evidence. In other words, Ravgen must prove by a
`preponderanceof the evidence that Natera has infringed each asserted patent claim;
`and Ravgen must also prove, by a preponderance of the evidence, the amount of
`damages(if any) to which Ravgenis entitled as a result of any patent infringement
`by Natera. Natera does not have any burden of proof on the issues of patent
`infringement or damages.
`
`On the other hand, Natera has the burden to prove invalidity of any asserted patent
`claim by clear and convincing evidence.
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`JURY INSTRUCTION NO. 13: SUMMARY OF CONTENTIONS
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`As I did at the start of the case, I will first give you a summary of each side’s
`contentions in this case. I will then provide you with detailed instructions on what
`each side must prove to win on eachofits contentions.
`
`As I previously told you, Ravgen seeks money damages from Natera for allegedly
`infringing claims 125 and 132 of the ’277 patent by using Natera’s Panorama
`Noninvasive Prenatal Test, which may also be called the “Accused Test,” in a way
`that Ravgen argues is covered by claims 125 and 132 of the ’277 patent. These are
`the “Asserted Claims”of the ’277 patent.
`
`Natera deniesthat it has infringed the Asserted Claimsof the ’277 patent and argues
`that the Asserted Claims and the ’277 patent are invalid. Ravgen denies that the
`Asserted Claimsof the ’277 patent are invalid.
`
`Yourjob is to decide whether Natera has infringed any of the Asserted Claimsofthe
`°277 patent and whether any of the Asserted Claims are invalid. If you decide that
`any Asserted Claim has been infringed and is not invalid, you will then need to
`decide any money damages to be awarded to Ravgen to compensate it for the
`infringement. You will also need to make a finding as to whetherthe infringement
`waswillful. If you decide that any infringement was willful, that decision should not
`affect any damages award you make.I will take willfulness into accountlater.
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`JURY INSTRUCTION NO. 14: PATENT CLAIMS
`
`Before you can decide many of the issues in this case, you will need to understand
`the role of patent “claims.”
`
`The patent claims are the numbered sentences at the end of each patent. The claims
`are important becauseit is the words of the claims that define what a patent covers.
`The figures and text in the rest of the patent provide a description and/or examples
`of the invention and provide a context for the claims, but it is the claims that define
`the breadth of the patent’s coverage. Therefore, what a patent covers depends, in
`turn, on what each ofits claims covers.
`
`To know what a claim covers, a claim sets forth, in words, a set of requirements,
`Each claim sets forth its requirements in a single sentence. The requirements of a
`claim are often referred to as “claim elements” or “claim limitations.” The coverage
`of a patent is assessed claim-by-claim. When a thing (such as a productor a process)
`meets all of the requirements of a claim, the claim is said to “cover” that thing, and
`that thing is said to “fall” within the scope of that claim. In other words, a claim
`covers a product or process where each ofthe claim elementsorlimitations is present
`in that product or process.
`
`You will first need to understand what each claim covers in order to decide whether
`or not there is infringement of the claim. The first step is to understand the meaning
`of the words used in the patent claims.
`
`The law saysthat it is my role to define the terms of the claims and it is yourrole to
`apply my definitions of the terms I have construed to the issues that you are asked
`to decide in this case. Therefore, as I explained to youat the start of the case, I have
`determined the meaning of certain claim terms and I have provided to you my
`definitions of certain claim terms. You must accept my definitions of these words in
`the claims as being correct. It is your job to take these definitions and apply them to
`the issues that you are deciding.
`
`For any words in the claim for which I have not provided you with a definition, you
`should apply the plain and ordinary meaning ofthose termsin the field of the patent.
`You should not take my definition of the language ofthe claims as an indication that
`I have a view regarding how you should decide the issues that you are being asked
`to decide.
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`AsI just instructed you, there are certain specific terms that I have defined and you
`are to apply the definitions that I provide to you.
`
`Claim Term
`“agent that [inhibits cell lysis to inhibit the
`lysis of cells/inhibits lysis of cells]. .
`.wherein said agent is selected from the
`group consisting of membranestabilizer,
`crosslinker, and cell lysis inhibitor”
`
`Myclaim constructions are as follows:
`
`
`Court’s Claim Construction
`
`A substance that inhibits the
`
`rupture of cells that is selected
`from the group consistent of
`
`membranestabilizer, cross-linker
`
`and cell lysis inhibitor, and does
`
`not include chelators used as
`anticoagulants nor endogenous
`
`(277 Patent, Claims 8, 55)
`
`substances
`
`Conditions “[inhibits cell lysis to
`‘if cells are present”
`inhibit the lysis of cells/inhibits
`lysis of cells]”
`
`
`(277 Patent, Claim8, 55)
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`JURY INSTRUCTION NO. 15: “COMPRISING” CLAIMS
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`Claims | and 55 of the ’277 patent uses the words “comprising” and “comprises.”
`For example claim 1 says “method for detecting the presence or absence of a fetal
`chromosomal abnormality, said method comprising:” and claim 55 says “method
`comprising determining the sequence of a locus of interest” and “wherein said
`sample comprises an agentthat inhibits lysis of cells.” The words “comprising” and
`“comprises” means
`“including the
`following but not
`excluding others.”
`A claim that includes the words “comprising” or “comprises” is not limited to
`systems or methods having only the elements recited in the claim, but also covers
`systems and methodsthat add additional elements.
`
`For example, a claim to “a table comprising a tabletop, legs, and glue” would cover
`a table that includes a tabletop, legs, and glue, even if there also includes wheels on
`the table’s legs.
`
`If you find that Natera’s Panoramatest includes all the elements in the Asserted
`Claims, even if Natera’s Panoramatest includes additional steps, you must find that
`Natera’s products infringe the claim,
`
`But ifa product is missing even one limitation or element of a patent claim,then that
`product is not covered by the claim and doesnot infringe. Likewise, if a prior art
`reference is missing one limitation or element of a patent claim, then that prior art
`reference alone does not invalidate the claim. For example, a claim wherein “a table
`comprises a tabletop, legs, and glue” would not covera table that includes a tabletop
`and legs, but no glue.
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`JURY INSTRUCTION NO.16: MARKUSH GROUP INFRINGEMENT
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`A “Markush”claimis a particular kind of patent claimthatlists alternative elements
`that can be selected as part ofthe claimed invention. A Markush grouplists specified
`alternatives in a patent claim, typically in the form: “a member selected from the
`group consisting of A, B, and C.” So, tfa patent claim recites “a memberselected
`from the group consisting of A, B, and C,” the “member” is closed to alternative
`ingredients D, EF, and F.
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`JURY INSTRUCTION NO. 17: INDEPENDENT AND DEPENDENT CLAIMS
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`This case involves two types of patent claims: independent claims and dependent
`claims.
`
`An “independent claim”sets forth all of the requirements that must be met in order
`to be covered by that claim. Thus, it is not necessary to look at any other claim to
`determine what an independent claim covers.
`
`All the Asserted Claims of the ’277 patent are “dependent claims.” A dependent
`claim does notitself recite all of the requirements of the claim but refers to another
`claim for some of its requirements. In this way, the claim “depends” on another
`claim. A dependent claim incorporates all of the requirements of the claim(s) to
`whichit refers. The dependentclaim then adds its own additional requirements.
`
`To determine what a dependent claim covers, it is necessary to look at both the
`dependent claim and any other claim(s) to which it refers. Using a product in a
`manner that meets all of the requirements of both the dependent claim and the
`claim(s) to which it refers is covered by that dependent claim. The asserted claims
`refer to other claims as follows:
`
`e Claim 125 of the ’277 patent depends fromclaims 1, 4, 8, 9 and 10; and
`e Claim 132 of the ’277 patent depends from claims 55, 59 and 60.
`If any requirement of a dependent claim is not met, or if any requirement of the
`independent claim from which the dependent claim dependsis not met, then use of
`the product is not covered by that dependent claim.
`
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`Case 1:20-cv-00692-ADA Document 487 Filed 01/12/24 Page 23 of 46
`
`JURY INSTRUCTIONNO.18: INFRINGEMENT GENERALLY
`
`I will now instruct you how to decide whether or not Ravgen has proven that Natera
`has infringed the ’277 patent.
`
`A patent ownerhasthe right to prevent others from using the invention covered by
`his or her patent claimsin the United States during thelife ofthe patent. If any person
`uses within the United States the method covered by the patent claims without the
`patent owner’s permission, that person is said to infringethe patent.
`
`In order to prove infringement, Ravgen must prove that the requirements for
`infringement are met by a preponderance ofthe evidence, thatis, that it is morelikely
`than not that all of the requirements of infringement have been proved.
`
`In this case, Ravgen alleges that Natera infringesliterally and equivalently.
`now explain these two types of infringement in more detail.
`
`I will
`
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`Case 1:20-cv-00692-ADA Document 487 Filed 01/12/24 Page 24 of 46
`
`JURY INSTRUCTION NO. 19: INFRINGEMENT
`
`There are two types of infringement relevant to this case: (1) “literal infringement”
`and (2) “infringement underthe doctrine of equivalents.”
`
`In orderto prove direct infringement, Ravgen must prove by a preponderanceofthe
`evidence,i.e., that it is more likely than not, that Natera used within the United States
`the Accused Test in a mannerthat meetsall of the requirements of an Asserted Claim
`and did so without the permission of Ravgen during the time the patent wasin force.
`You must compare the use of the Accused Test with each and every one of the
`requirements of a claim to determine whetherall of the requirements of that claim
`are met.
`
`You must not compare the Accused Test with a specific example set out in the patent,
`with the priorart, or with any other product, including Ravgen’s tests, in reaching
`yourdecision on infringement. The only correct comparison is with the language of
`the claim itself, as I have explained its meaning to you.
`
`If you find it is more likely than not that the Accused Test performs each step of an
`Asserted Claim, then the Accused Test infringes that claim.
`Infringement does not
`require proofthat the accused infringer copied.
`
`A party can infringe a patent without knowing ofthe patent or without knowing that
`what the party is doing is patent infringement. The ownership or existence ofanother
`patent is not a defense to infringement of the Asserted Patent, noris it a defense to
`patent infringement if the Accused Test meet the claims of a patent otherthan the
`Asserted Patent. That is, a party may make improvements to a patented invention
`and may get a patent on those improvements, but that does not mean it does not
`infringe the earlier patent.
`
`If Natera uses in the United States, a method that does not literally meet all of the
`requirements of an Asserted Claim and those does not literally infringe the claim,
`there can still be infringementif that use satisfies the claim requirements “under the
`doctrine of equivalents.”
`
`Underthe doctrine of equivalents, a method infringes a claimif it includes elements
`that literally meet or are equivalent to each and every requirement ofthe claim.
`
`24
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`

`

`Case 1:20-cv-00692-ADA Document 487 Filed 01/12/24 Page 25 of 46
`
`You may find that a step is equivalentto an elementof a claimthat is not metliterally
`if a person having ordinary skill in the field of technology of the patent would have
`considered the differences between them to be “insubstantial” or would have found
`that the structure or action: (1) performs substantially the same function and (2)
`works in substantially the same way (3) to achieve substantially the same result as
`the element of the claim. In order to prove infringement by “equivalents,” Ravgen
`must prove the equivalency of the action to the claim element by a preponderance
`of the evidence. Thus each element of a claim must be met by the accusedtesteither
`literally or under the doctrine of equivalents for you to find infringement.
`
`25
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`

`Case 1:20-cv-00692-ADA Document 487 Filed 01/12/24 Page 26 of 46
`
`JURY INSTRUCTION NO.20: WILLFUL INFRINGEMENT
`
`In this case, Ravgen argues that Natera willfully infringed the claims 125 and 132 of
`the °277 patent.
`
`If you have decided that Natera has infringed an Asserted Claim, you must go on
`and address the additional issue of whetherornot this infringement was willful.
`
`Willfulness requires you to determine whether Ravgen provedthat it is more likely
`than not that Natera knew of the ’277 patent and that Natera infringed intentionally
`or acted with reckless disregard of or deliberate indifference to the ’277 patent. That
`is, you may find Natera’s infringement was willful if it knew or should have known
`that its actions constituted an unjustifiably high risk of infringement ofa valid patent.
`You may not determine that the infringement was willful just because Natera was
`aware of the ’277 patent and you found infringement.
`
`To determine whether Natera acted willfully, considerall facts and assess Natera’s
`knowledge at the time of the challenged conduct. Facts that may be considered
`include, but are not limited,to:
`
`(1) Whetheror not Natera acted consistently with the standards of
`behaviorforits industry;
`
`(2) Whetheror not Natera intentionally copied a method of Ravgen that is
`covered by an Asserted Claim of the ’277 patent;
`
`(3) Whetheror not Natera reasonably believed it did not infringe or that the
`patent was invalid;
`
`(4) Whetheror not Natera made a good-faith effort to avoid infringing the
`Asserted Claims, for example, whether Natera attempted to design
`around the Asserted Claims; and
`
`(5) Whetheror not Natera tried to coverup its infringement.
`
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`Case 1:20-cv-00692-ADA Document 487 Filed 01/12/24 Page 27 of 46
`
`JURY INSTRUCTION NO. 21: INVALIDITY—GENERALLY
`
`I will now instruct you on the rules you must follow in deciding whether or not
`Natera has proven that the Asserted Claims of the ’277 patent are invalid. A patent
`is presumed valid, The burden of establishing invalidity of a patent or any claim
`rests solely on Natera as the party asserting invalidity.
`
`To prove that any claim of a patent is invalid, Natera must persuade you by clear and
`convincing evidence, that is, you must be left with a clear conviction that the claim
`is inv