Case 6:21-cv-00569-ADA Document 230-2 Filed 07/14/23 Page 1 of 26
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`Exhibit A-2
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`Case 6:21-cv-00569-ADA Document 230-2 Filed 07/14/23 Page 2 of 26
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`TOUCHSTREAM TECHNOLOGIES, INC.,
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`Plaintiff,
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`v.
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`GOOGLE LLC,
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`Defendant.
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`Civil Case No. 6:21-cv-569-ADA
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`JURY TRIAL DEMANDED
`U.S. District Judge Alan Albright
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`[CHARGE] PRELIMINARY JURY INSTRUCTIONS
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`Case 6:21-cv-00569-ADA Document 230-2 Filed 07/14/23 Page 3 of 26
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`TABLE OF CONTENTS
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`JURY INSTRUCTION NO. 1: INSTRUCTIONS FOR BEGINNING OF TRIAL ................ 3
`PRELIMINARY JURY INSTRUCTIONS .............................................................................. 5
`JURY INSTRUCTION NO. 2: PRELIMINARY INSTRUCTION TO THE JURY ............... 5
`JURY INSTRUCTION NO. 3: WHAT IS A PATENT AND HOW ONE IS OBTAINED ... 7
`JURY INSTRUCTION NO. 4: PATENT LITIGATION ........................................................ 10
`JURY INSTRUCTION NO. 5: THE PARTIES AND THEIR CONTENTIONS ................. 11
`JURY INSTRUCTION NO. 6: OUTLINE OF TRIAL.......................................................... 14
`JURY INSTRUCTION NO. 7: EVIDENCE .......................................................................... 16
`JURY INSTRUCTION NO. 8: WITNESSES ........................................................................ 18
`JURY INSTRUCTION NO. 9: DEPOSITION TESTIMONY .............................................. 20
`JURY INSTRUCTION NO. 10: EXPERT TESTIMONY .................................................... 21
`JURY INSTRUCTION NO. 11: STIPULATIONS OF FACT .............................................. 22
`JURY INSTRUCTION NO. 12: BIAS—CORPORATE PARTY INVOLVED ................... 23
`JURY INSTRUCTION NO. 13: BIAS—NO INFERENCE FROM FILING SUIT ............. 24
`JURY INSTRUCTION NO. 14: JUROR NOTEBOOKS ...................................................... 25
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`JURY INSTRUCTION NO. 1: INSTRUCTIONS FOR BEGINNING OF TRIAL
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`Members of the jury panel, if you have a cell phone, PDA, smart phone, iPhone, or any
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`other wireless communication device with you, please take it out now and turn it off. Do not turn
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`it to vibrate or silent; power it down. During jury selection, you must leave it off.
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`There are certain rules you must follow while participating in this trial.
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`First, you may not communicate with anyone about the case, including your fellow jurors,
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`until it is time to deliberate. I understand you may want to tell your family, close friends and other
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`people that you have been called for jury service so that you can explain when you are required to
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`be in court. You should warn them not to ask you about this case, tell you anything they know or
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`think they know about it, or discuss this case in your presence, until after I accept your verdict or
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`excuse you as a juror.
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`Similarly, you must not give any information to anyone by any means about this case. For
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`example, do not talk face-to-face or use any electronic device or media, such as the telephone, a
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`cell or smart phone, camera, recording device, PDA, computer, the Internet, any Internet service,
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`any text or instant messaging service, any Internet chat room, blog, or website such as Facebook,
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`YouTube, Snapchat, Instagram, or Twitter, or any other way to communicate to anyone, to send
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`any information about this case until I accept your verdict or until you have been excused as a
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`juror. This includes any information about the parties, witnesses, participants, claims, evidence, or
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`anything else related to this case.
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`Second, do not speak with anyone in or around the courthouse other than your fellow jurors
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`or court personnel. Some of the people you encounter may have some connection to the case. If
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`you were to speak with them, that could create an appearance or raise a suspicion of impropriety.
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`Third, do not do any research—on the Internet, in libraries, in books, newspapers,
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`magazines, or using any other source or method. Do not make any investigation about this case on
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`your own. Do not visit or view any place discussed in this case and do not use Internet programs
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`or other devices to search for or view any place discussed in the testimony. Do not in any way
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`research any information about this case, the law, or the people involved, including the parties, the
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`witnesses, the lawyers, or the judge, until after you have been excused as jurors. If you happen to
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`see or hear anything touching on this case in the media, turn away and report it to me as soon as
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`possible.
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`These rules protect the parties’ right to have this case decided only on evidence they know
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`about, that has been presented here in court. If you do any research, investigation, or experiment
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`that we do not know about, or gain any information through improper communications, then your
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`verdict may be influenced by inaccurate, incomplete, or misleading information that has not been
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`tested by the trial process, which includes the oath to tell the truth and cross-examination. It could
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`also be unfair to the parties’ right to know what information the jurors are relying on to decide the
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`case. Each of the parties is entitled to a fair trial by an impartial jury, and you must conduct yourself
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`so as to maintain the integrity of the trial process. If you decide the case based on information not
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`presented in court, you will have denied the parties a fair trial in accordance with the rules of this
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`country and you will have done an injustice. It is very important that you abide by these rules.
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`Failure to follow these instructions could result in the case having to be retried.
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`Source: Hafeman v. LG Elecs. Inc., 6:21-cv-00696-ADA (W.D. Tex.) (Prelim. Instruction No.
`1); Profectus Tech. LLC v. Google LLC, No. 6:20-cv-00101-ADA (W.D. Tex. Sept. 27, 2021),
`Dkt. 170 (Prelim. Instruction No. 1); Fifth Circuit Pattern Jury Instructions 2020, with revisions
`through June 2020, § 1.1.
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`PRELIMINARY JURY INSTRUCTIONS
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`JURY INSTRUCTION NO. 2: PRELIMINARY INSTRUCTION TO THE JURY
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`MEMBERS OF THE JURY:
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`You have now been sworn as the jury to try this case.
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`As the judge, I will decide all questions of law and procedure. As the jury, you alone are
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`the judges of the facts. At the end of the trial, I will instruct you on the rules of law that you must
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`apply to the facts as you find them.
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`You may take notes during the trial. But do not allow your note-taking to distract you
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`from listening to the testimony. Your notes are only an aid to your memory. If your memory
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`should later be different from your notes, you should rely on your memory. Do not be unduly
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`influenced by the notes of other jurors. A juror’s notes are not entitled to any greater weight than
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`each juror’s individual recollection of the testimony and evidence.
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`Until this trial is over, do not discuss this case with anyone. Do not permit anyone to
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`discuss it in your presence. This includes everyone you know: your spouse, children, relatives,
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`friends, coworkers, and anyone that you deal with during the day. During your jury service, you
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`may not communicate any information about this case through any means or by any tools of
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`technology. For example, do not talk face-to-face or use any electronic device or media, such as
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`the telephone, cell phone, camera, recording device, PDA, computer, the Internet, any Internet
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`service, any text or instant messaging service, any chat room, blog, or social media website such
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`as Facebook, YouTube, SnapChat, Instagram, TikTik, or Twitter, or any other way to
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`communicate to anyone any information about this case until I accept your verdict or excuse you
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`as a juror.
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`Do not conduct any independent investigation of this case. You must make your decision
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`on your verdict exclusively from what you see and hear within this courtroom. Do not try to
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`obtain information from any other source. In particular, you may not use any electronic device
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`or media, such as a telephone, cell phone, smartphone, or computer to research any issue touching
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`on this case. Do not go online or read any newspaper account of this trial or listen to any radio
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`or television newscast about it. Do not visit or view any place discussed in this case and do not
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`use Internet programs or other devices to search for or to view any place discussed in the
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`testimony. In sum, you may not research any information about this case, the law, or the people
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`involved, including the parties, the witnesses, the lawyers, or the judge, until after you have been
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`excused as jurors.
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`Finally, keep an open mind during the entire trial. Do not decide the case until you have
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`heard all of the evidence, my instructions, and the closing arguments.
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`Sources: VLSI v. Intel, 19-cv-00977-ADA, Dkt. 686 (Nov. 15, 2022) (Prelim. Instruction No. 1);
`Freshub, Inc. v. Amazon.com, Inc., No. 6:21-cv-511-ADA (W.D. Tex.); CloudofChange, LLC v.
`NCR Corp., No. 6:19-cv-513-ADA (W.D. Tex.); ESW Holdings, Inc. v. Roku, Inc., No. 6:19-cv-
`44-ADA (W.D. Tex.).
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`JURY INSTRUCTION NO. 3: WHAT IS A PATENT AND HOW ONE IS OBTAINED
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`This case involves a dispute relating to United States patents. Patents are granted by the
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`United States Patent and Trademark Office (sometimes called “the PTO”). A valid United States
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`patent gives the patent holder the right for up to 20 years from the date the patent application was
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`filed to prevent others from making, using, offering to sell, or selling the patented invention
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`within the United States, or from importing it into the United States, without the patent holder’s
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`permission. A violation of the patent holder’s rights is called infringement. The patent holder
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`may try to enforce a patent against persons believed to be infringers by a lawsuit filed in federal
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`court.
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`The process of obtaining a patent is called patent prosecution. To obtain a patent, one must
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`first file an application with the PTO. The PTO is an agency of the Federal Government and
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`employs trained Examiners who review applications for patents. The application includes what is
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`called a “specification,” which contains a written description of the claimed invention telling what
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`the invention is, how it works, how to make it, and how to use it. The specification concludes with
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`one or more numbered sentences. These are the patent “claims.” If a patent is eventually granted
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`by the PTO, the claims define the boundaries of its protection and give notice to the public of those
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`boundaries.
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`After the applicant files the application, an Examiner reviews the application to determine
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`whether or not the claims are patentable (appropriate for patent protection) and whether or not the
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`specification adequately describes the invention claimed. In examining a patent application, the
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`Examiner reviews certain information about the state of the technology at the time the application
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`was filed. The PTO searches for and reviews information that is publicly available or that is
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`submitted by the applicant. This information is called “prior art.” The Examiner reviews this prior
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`art to determine whether or not the invention is truly an advance over the state of the art at the
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`time. Prior art is defined by law, and I will give you, at a later time during these instructions,
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`specific instructions as to what constitutes prior art. However, in general, prior art includes
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`information that demonstrates the state of technology that existed before the claimed invention
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`was made or before the application was filed. A patent lists the prior art that the Examiner
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`considered; this list is called the “cited references.”
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`After the prior art search and examination of the application, the Examiner informs the
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`applicant in writing of what the Examiner has found and whether the Examiner considers any claim
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`to be patentable and, thus, would be “allowed.” This writing from the Examiner is called an “Office
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`Action.” If the Examiner rejects the claims, the applicant has an opportunity to respond to the
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`Examiner to try to persuade the Examiner to allow the claims, and to change the claims or to submit
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`new claims. This process may go back and forth for some time until the Examiner is satisfied that
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`the application meets the requirements for a patent and the application issues as a patent, or that
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`the application should be rejected and no patent should issue. Sometimes, patents are issued after
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`appeals within the PTO or to a court. The papers generated during these communications between
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`the Examiner and the applicant are called the “prosecution history.”
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`The fact that the PTO grants a patent does not necessarily mean that any invention claimed
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`in the patent, in fact, deserves the protection of a patent. For example, the PTO may not have had
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`available to it all other prior art that will be presented to you. In addition, there is the possibility
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`that mistakes were made or that information was overlooked. Examiners have a lot of work to do
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`and no process is perfect. Also, unlike a court proceeding, patent prosecution takes place without
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`input from those who are later alleged to infringe the patent. A person accused of infringement has
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`the right to argue here in federal court that a claimed invention in the patent is invalid because it
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`does not meet the requirements for a patent. It is your job to consider the evidence presented by
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`the parties and determine independently whether or not Google has proven that one or more of the
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`patents in this case are invalid. The PTO, or Patent Office, does not consider or decide issues of
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`infringement with respect to a patent.
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`Source: Hafeman v. LG Elecs. Inc., 6:21-cv-00696-ADA (Prelim. Instruction No. 3); Federal
`Circuit Bar Association Model Patent Jury Instructions § A.1 (May 2020).
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`JURY INSTRUCTION NO. 4: PATENT LITIGATION
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`Someone is said to be infringing a claim of a patent when they, without permission from
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`the patent owner, import, make, use, offer to sell, or sell the claimed invention, as defined by
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`the claims of the patent, within the United States before the term of the patent expires. A patent
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`owner who believes someone is infringing the exclusive rights of a patent may bring a lawsuit,
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`just like this one, in an effort to stop the alleged infringing acts or to recover damages, generally
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`meaning money paid by the infringer to the patent owner to compensate for harm caused by the
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`infringement.
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`The patent owner must prove infringement of at least one claim of the patent. The patent
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`owner must also prove the amount of damages the patent owner is entitled to receive from the
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`infringer as compensation for the infringing acts.
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`It is ultimately up to you and exclusively up to you to decide based on the law the factual
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`question of whether the patent owner, in this case the plaintiff, has proven infringement of any
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`valid patent claim.
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`A party accused of infringing a patent may deny infringement, and/or prove that the
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`asserted claims of the patent are invalid. A patent when issued is presumed to be valid. In other
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`words, it is presumed to have been properly granted by the PTO. But that presumption of
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`validity can be overcome if clear and convincing evidence is presented in court that proves the
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`patent is invalid.
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`Source: VLSI v. Intel, 19-cv-00977-ADA, Dkt. 686 (Nov. 15, 2022) (Prelim. Instruction No. 4).
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`JURY INSTRUCTION NO. 5: THE PARTIES AND THEIR CONTENTIONS
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`To help you follow the evidence, I will now give you some information about the parties
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`and their contentions in this case.
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`This is a civil action for patent infringement arising under the patent laws of the United
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`States. The plaintiff is Touchstream Technologies, Inc., which I will call “Plaintiff” or
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`“Touchstream.” The defendant is Google LLC, which I will call “Defendant” or “Google.”
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`There are three patents assigned to Touchstream that are at issue in this case:
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`U.S. Patent No. 8,356,251
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`U.S. Patent No. 8,782,528
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`U.S. Patent No. 8,904,289
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`The lawyers, witnesses, and I may refer to these patents, collectively, as the “Asserted
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`Patents.” The lawyers, witnesses, and I may refer to each individual patent by its last three digits.
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`For example, I may refer to U.S. Patent Number 8,356,251 as “the ‘251 Patent.” A copy of these
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`patents will be given to you in the binders you will receive, along with these preliminary
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`instructions and paper for taking notes during the trial.
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`Touchstream contends that Google infringes the Asserted Patents through operation of
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`Google devices that are “cast-enabled,” referred to as the “Accused Products,” and that Google’s
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`infringement has been willful. The claims which Touchstream contends that Google infringes are:
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`Claims 1 and 8 of the ’251 Patent.
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`Claims 1 and 14 of the ’528 Patent.
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`Claims 1 and 2 of the ’289 Patent.
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`These claims may be collectively referred to as the “Touchstream Patent claims” or the “Asserted
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`Claims.”
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`To determine the question of infringement, you must compare the Accused Products with
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`each Asserted Claim individually.
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`A patent claim to a method is literally infringed only if each and every step in the claimed
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`method exists in the Accused Products or was performed by an Accused Product as it is described
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`in the claim language.
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`A patent claim to a method is infringed under the doctrine of equivalents if the Accused
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`Products practice something equivalent to a claim element. An equivalent of a claim element is a
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`component or method step that is only insubstantially different form the claim element.
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`Infringement is willful if Google knew of an Asserted Patent and intentionally infringed at
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`least one asserted claim of an Asserted Patent. However, you may not find that Google’s
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`infringement was willful merely because Google knew about the patent, without more.
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`Google denies that it has infringed the Asserted Claims of the Asserted Patents. Google
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`also argues that the Asserted Claims are invalid. I will instruct you in more detail at the end of trial
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`as to the ways in which a patent may be invalid. In general, however, a patent claim is invalid if it
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`is not new, which means the claim is “anticipated,” or is obvious in view of the state of the art at
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`the relevant time, or if it lacks adequate written description in the patent specification.
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`For a claim to be invalid because it is not new, all of the requirements of a claim must be
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`present in a single piece of prior art. If a claim is not new, it is said to be anticipated.
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`Another way that a claim may be invalid is that it may have been obvious. Even if it was
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`not previously disclosed or described in full, a patent claim is invalid if the claimed invention
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`would have been obvious to a person of ordinary skill in the patent’s field of technology before
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`the filing date of the patent.
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`Another way that a claim may be invalid is that it lacks written description support. The
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`written description requirement asks whether the patent specification describes in full, clear, and
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`exact terms the nature and extent of the claimed invention. If the specification fails to provide this
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`description, the claim lacks written description support.
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`I will give you detailed instructions on the law at the end of the case, and those instructions
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`will control your deliberations and decision. Your job will be to decide: (1) whether Touchstream
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`has proven by a preponderance of the evidence that Google had infringed the Asserted Claims; (2)
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`whether Google has proven by clear and convincing evidence that any of the Asserted Claims is
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`invalid; and (3) whether Touchstream has proven by a preponderance of the evidence that any
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`infringement of a valid claim was willful.
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`If you decide that any of the Asserted Claims has been infringed and is not invalid, you
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`will then need to decide monetary damages to be awarded to Touchstream to compensate it for the
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`infringement. If you decide that any infringement was willful, that decision should not affect any
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`damages award you give. I will take willfulness into account later.
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`Source: Federal Circuit Bar Association Model Patent Jury Instructions § A.2 (May 2020);
`AIPLA Model Patent Jury Instructions § 2 (2019); VLSI v. Intel, 19-cv-00977-ADA, Dkt. 686
`(Nov. 15, 2022) (Prelim. Instruction No. 5); Federal Circuit Bar Association Model Patent Jury
`Instructions § A.4 (May 2020); Applied Computing III, Inc. v. Redfin Corp., No. 6:20-cv-00376-
`ADA (W.D. Tex.) (Preliminary Charge, No. 8); Profectus Technology LLC v. Google LLC, 6:20-
`cv-00101-ADA (W.D. Tex.) (Preliminary Jury Charge and Interrogatories, No. 3); ESW
`Holdings, Inc. v. Roku, Inc., No. 6:19-cv-44-ADA (W.D. Tex.) (Preliminary Jury Instructions);
`Freshub, Inc. v. Amazon.com, Inc., No. 6:21-cv-511-ADA, Dkt. 247 at 30 (W.D. Tex. June 22,
`2021); see also PPS Data, LLC v. Jack Henry & Assocs., Inc., No. 2:18-cv-00007-JRG, Dkt. 175
`at 23:22-24:11 (E.D. Tex. Sept. 13, 2019); Maxell, Ltd. v. ZTE USA Inc., No. 16-cv-00179-RWS,
`Dkt. 223 at 26 (E.D. Tex. June 29, 2018)); Innovation Scis. LLC v. Amazon.com, Inc., No. 4:18-
`cv-00474-ALM, Dkt. 845 at 22-23 (E.D. Tex. Sept. 2, 2020).
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`JURY INSTRUCTION NO. 6: OUTLINE OF TRIAL
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`The trial will begin shortly. First, each side may make an opening statement. An opening
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`statement is not evidence. It is simply an opportunity for the lawyers to explain what they expect
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`the evidence will show.
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`There are two standards of proof that you will apply to the evidence, depending on the
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`issue you are deciding. On some issues, you must decide whether certain facts have been proven
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`by a preponderance of the evidence. For a fact to be proven by a preponderance of the evidence,
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`you must find that the fact is more likely true than not, that is, the evidence in favor of that fact
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`being true is sufficient to tip the scale, even if slightly, in its favor. On other issues that I will
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`identify for you, you must use a higher standard and decide whether the fact has been proven by
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`clear and convincing evidence, that is, that you have been left with a clear conviction that the fact
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`has been proven.
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`These standards are different from what you may have heard about in criminal proceedings
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`where a fact must be proven beyond a reasonable doubt. On a scale of these various standards of
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`proof, as you move from preponderance of the evidence, where the proof need only be sufficient
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`to tip the scale in favor of the party proving the fact, to beyond a reasonable doubt, where the fact
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`must be proven to a very high degree of certainty, you may think of clear and convincing evidence
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`as being between the two standards.
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`After the opening statements, Touchstream will present its evidence in support of its
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`contention that the Asserted Claims of the Asserted Patents have been infringed by Google and
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`that the infringement has been willful. To prove infringement of any claim, Touchstream must
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`persuade you that it is more likely than not that Google has infringed that claim. To persuade you
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`that any infringement was willful, Touchstream must also prove that it is more likely than not that
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`the infringement was willful.
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`Google will then present its evidence that the Asserted Claims of the Asserted Patents are
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`invalid. To prove invalidity of any claim, Google must persuade you by clear and convincing
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`evidence that the claim is invalid. In addition to presenting its evidence of invalidity, Google will
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`put on evidence responding to Touchstream’s evidence of infringement and willfulness.
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`Touchstream may then put on evidence responding to Google’s evidence that the claims of
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`the Asserted Patents are invalid, and to offer any additional evidence of infringement and
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`willfulness. This is referred to as “rebuttal” evidence. Touchstream’s “rebuttal” evidence may
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`respond to any evidence offered by Google.
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`After the evidence has been presented, the attorneys will make closing arguments and I
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`will give you final instructions on the law that applies to the case. These closing arguments by the
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`attorneys are not evidence. After the closing arguments and instructions, you will then decide the
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`case.
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`Source: Federal Circuit Bar Association Model Patent Jury Instructions § A.5 (May 2020).
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`JURY INSTRUCTION NO. 7: EVIDENCE
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`The evidence you will hear consists of the testimony of the witnesses, the documents, and
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`other exhibits admitted into evidence, the stipulations to which the lawyers agreed, and any fair
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`inferences and reasonable conclusions you can draw from the facts and circumstances that have
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`been proven. Nothing else is evidence.
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`Generally speaking, there are two types of evidence. One is direct evidence, such as
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`testimony of an eyewitness. The other is indirect or circumstantial evidence. Circumstantial
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`evidence is evidence that proves a fact from which you can logically conclude another fact exists.
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`As a general rule, the law makes no distinction between direct and circumstantial evidence, but
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`simply requires that you determine the facts from all the evidence that you will hear in this case,
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`whether direct, circumstantial, or any combination.
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`In judging the facts, you must consider all the evidence, both direct and circumstantial.
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`That does not mean you have to believe all of the evidence. It is entirely up to you to give the
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`evidence you will receive in this case whatever weight you individually believe it deserves. It will
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`be up to you to decide which witnesses to believe, which witnesses not to believe, the weight you
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`give any testimony you hear, and how much of any witness’s testimony you choose to accept or
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`reject.
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`Objections to questions are not evidence. The attorneys in this case may object if they think
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`that documents or testimony offered into evidence are improper under the rules of evidence. My
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`legal rulings as to those objections are not evidence. My comments and questions are not evidence.
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`If I sustain an objection, then just pretend the question was never asked. If there is an answer given,
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`ignore it. If I overrule the objection, act like the objection was never made. If I give you instructions
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`that some item of evidence is to be received for a limited purpose, you must follow my instruction.
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`Case 6:21-cv-00569-ADA Document 230-2 Filed 07/14/23 Page 18 of 26
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`If I give any limiting instruction during trial, you must follow it. Any testimony I tell you to exclude
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`or disregard is not evidence and may not be considered.
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`You must not conduct any independent research or investigation. You must make your
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`decision based only on the evidence here, and nothing else.
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`Source: Freshub, Inc. v. Amazon.com, Inc., No. 6:21-cv-511-ADA, Dkt. 247 at 5-6 (W.D. Tex.
`June 22, 2021); Fifth Circuit Pattern Jury Instructions 2020, with revisions through June 2020,
`§ 3.3; see also MV3 Partners, LLC v. Roku, Inc., No. 6:18-cv-00308-ADA, Dkt. 379 at 3-4 (W.D.
`Tex. Oct. 14, 2020); ESW Holdings, Inc. v. Roku, Inc., No. 6:19-cv-00044-ADA, Dkt. 172 at 1-2
`(W.D. Tex. Apr. 9, 2021); CloudofChange, LLC v. NCR Corp., No. 6-19-cv-513-ADA, Dkt. 150
`at 4 (W.D. Tex. May 19, 2021); Densys Ltd. v. 3Shape Trios A/S, No. 6:19-cv-00680-ADA, Dkt.
`156 (Apr. 4, 2022); MV3 Partners, LLC v. Roku, Inc., No. 6:18-cv00308-ADA (W.D. Tex.), 2020-
`10-05 Trial Tr. (D.I. 389) 40:16-42:17.
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`Case 6:21-cv-00569-ADA Document 230-2 Filed 07/14/23 Page 19 of 26
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`JURY INSTRUCTION NO. 8: WITNESSES
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`You alone are to determine the questions of credibility or truthfulness of the witnesses. In
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`weighing the testimony of the witnesses, you may consider the witness’s manner and demeanor
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`on the witness stand, any feelings or interest in the case, or any prejudice or bias about the case,
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`that he or she may have, and the consistency or inconsistency of his or her testimony considered
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`in the light of the circumstances. Has the witness been contradicted by other credible evidence?
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`Has he or she made statements at other times and places contrary to those made here on the witness
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`stand? You must give the testimony of each witness the credibility that you think it deserves.
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`In determining the weight to give to the testimony of a witness, consider whether there was
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`evidence that at some other time the witness said or did something, or failed to say or do something,
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`that contradicted the testimony given by that witness at trial.
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`A simple mistake by a witness does not necessarily mean that the witness did not tell the
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`truth as he or she remembers it. We are people. People may forget some things or remember other
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`things inaccurately. If a witness made a misstatement, consider whether that misstatement was an
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`intentional falsehood or just a mistake. The significance of that misstatement may depend on
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`whether it has to do with an important fact or with only an unimportant detail. That being said, it
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`is exclusively in your province to believe every word that any witness says, or to disregard
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`anything they say or do, because you all are the exclusive judges of the facts in this case.
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`Even though a witness may be a party to the action and therefore interested in its outcome,
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`the testimony may be accepted if it is not contradicted by direct evidence or by any inference that
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`may be drawn from the evidence, if you believe the testimony.
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`You are not to decide this case by counting the number of witnesses who have testified on
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`the opposing sides. Witness testimony is weighed; witnesses are not counted. The test is not the
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`Case 6:21-cv-00569-ADA Document 230-2 Filed 07/14/23 Page 20 of 26
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`relative number of witnesses, but the relative convincing force of the evidence. The testimony of
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`a single witness is sufficient to prove any fact, even if a greater number of witnesses testified to
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`the contrary, if after considering all of the other evidence, you believe that witness.
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`Source: Densys Ltd. v. 3Shape Trios A/S, No. 6:19-cv-00680-ADA, Dkt. 156 (Apr. 4, 2022); MV3
`Partners LLC v. Roku, Inc., No. 6:18-cv-00308-ADA, Dkt. 379 (Oct. 14, 2020); ESW Holdings,
`Inc. v. Roku, Inc., No. 6:19-cv-00044-ADA, Dkt. 172 (Apr. 9, 2021); Freshub, Inc. v. Amazon.com,
`Inc., No. 6:21-cv-00511-ADA, Dkt. 247 (June 22, 2021); Fifth Circuit Pattern Jury Instructions
`2020, with revisions through June 2020, § 2.11.
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`Case 6:21-cv-00569-ADA Document 230-2 Filed 07/14/23 Page 21 of 26
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`JURY INSTRUCTION NO. 9: DEPOSITION TESTIMONY
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`Certain testimony may be presented to you through a deposition. A deposition is the sworn,
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`recorded answers to questions a witness was asked in advance of the trial. Under some
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`circumstances, if a witness cannot be present to testify from the witness stand, that witness’s
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`testimony may be presented, under oath, in the form of a deposition. Sometime before this trial,
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`attorneys representing the parties in this case questioned this witness under oath. A court reporter
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`was present and recorded the testimony. The questions and answers may be shown to you.
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`Deposition testimony is entitled to the same consideration and is to be weighed and
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`otherwise considered by you in the same way as if the witness had been present and had testified
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`from the witness stand in court.
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`Source: Fifth Circuit Pattern Jury Instructions 2020, with revisions through June 2020, § 2.13 (with
`modifications); Freshub, Inc. v. Amazon.com, Inc., No. 6:21-cv-511-ADA, Dkt. 247 at 8-9 (W.D.
`Tex. June 22, 2021) (with modifications); see also ESW Holdings, Inc. v. Roku, Inc., No. 6:19-cv-
`00044-ADA, Dkt. 172 at 9 (W.D. T