Case 6:21-cv-00569-ADA Document 238-2 Filed 07/19/23 Page 1 of 70
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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] FINAL JURY INSTRUCTIONS
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`Plaintiff Touchstream Technologies, Inc. and Defendant Google LLC submit the following
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`[Charge] Final Jury Instructions for the trial in this matter. The parties are continuing to meet and
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`confer and expect to further narrow their disputes over these instructions.
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`For the attached set, the parties note their disputes as follows:
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`Where the parties disagree about the inclusion of an instruction, or the version to use for
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`an instruction, the parties indicate as much by labeling the instruction “contested” (underlined)
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`and providing each side’s proposal (to the extent the party proposes an instruction). Where the
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`parties agree on the inclusion of an instruction and are generally in agreement on the wording of
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`the instruction, but there remains some dispute over the exact language, Touchstream’s version of
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`the instruction is in RED and Google’s version of the instruction is in BLUE.
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`Objections are similarly coded, with Touchstream’s objections in RED and Google’s
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`objections in BLUE.
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`The parties reserve all rights to supplement, amend, or otherwise modify these proposed
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`instructions and objections as appropriate, including without limitation the right to revise their
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`positions on the proposed instructions in response to future rulings by the Court or the evidence as
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`it is admitted at trial. The parties submit these proposed jury instructions without waiver of their
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`position that the opposing party has not presented sufficient evidence to submit some or all of its
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`affirmative claims, damages theories, or affirmative defenses to the jury, and without waiver of
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`arguments presented in motions in limine or in other pretrial proceedings.
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`Table of Contents
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`JURY INSTRUCTION NO. 1: JURY CHARGE........................................................................... 5
`JURY INSTRUCTION NO. 2: EVIDENCE .................................................................................. 7
`JURY INSTRUCTION NO. 3: WITNESSES ................................................................................ 9
`JURY INSTRUCTION NO. 4: DEPOSITION TESTIMONY .................................................... 11
`JURY INSTRUCTION NO. 5: EXPERT TESTIMONY ............................................................. 12
`JURY INSTRUCTION NO. 6: INTERROGATORIES ............................................................... 13
`JURY INSTRUCTION NO. 7: BIAS—NO INFERENCE FROM FILING SUIT OR
`DEFENDING THE SUIT ....................................................................................................... 14
`JURY INSTRUCTION NO. 8: STIPULATIONS OF FACT ...................................................... 15
`JURY INSTRUCTION NO. 9: LIMITING INSTRUCTION ...................................................... 16
`JURY INSTRUCTION NO. 10: CHARTS AND SUMMARIES ................................................ 17
`JURY INSTRUCTION NO. 11: DEMONSTRATIVE EXHIBITS ............................................. 18
`JURY INSTRUCTION NO. 12: BIAS-CORPORATE PARTY INVOLVED ............................ 19
`JURY INSTRUCTION NO. 13: BURDENS OF PROOF ........................................................... 20
`JURY INSTRUCTION NO. 14: SUMMARY OF CONTENTIONS .......................................... 21
`JURY INSTRUCTION NO. 15: PATENT CLAIMS .................................................................. 23
`JURY INSTRUCTION NO. 16: INDEPENDENT AND DEPENDENT CLAIMS .................... 25
`CONTESTED: JURY INSTRUCTION NO. 17: INFRINGEMENT-GENERALLY ................ 26
`CONTESTED: JURY INSTRUCTION NO. 18: OTHER PATENTS ........................................ 27
`CONTESTED: JURY INSTRUCTION NO. 19: DIRECT INFRINGEMENT- KNOWLEDGE
`OF THE PATENT AND INFRINGEMENT ARE IMMATERIAL ...................................... 28
`JURY INSTRUCTION NO. 20: INFRINGEMENT BY LITERAL INFRINGEMENT ............. 29
`CONTESTED: JURY INSTRUCTION NO. 21: DIRECT INFRINGEMENT: ACTS OF
`MULTIPLE PARTIES MUST BE COMBINED TO MEET ALL METHOD CLAIM
`LIMITATIONS ....................................................................................................................... 30
`CONTESTED: JURY INSTRUCTION NO. 21: DIVIDED INFRINGEMENT ....................... 32
`CONTESTED: JURY INSTRUCTION NO. 22: WILLFUL INFRINGEMENT ........................ 34
`CONTESTED: JURY INSTRUCTION NO. 23: PATENT INVALIDITY-GENERALLY........ 37
`CONTESTED: JURY INSTRUCTION NO. 24: INVALIDITY-PRIOR ART ........................... 40
`JURY INSTRUCTION NO. 25: LEVEL OF ORDINARY SKILL ............................................. 43
`JURY INSTRUCTION NO. 26: PATENT INVALIDITY- ANTICIPATION ............................ 44
`CONTESTED: JURY INSTRUCTION NO. 27: OBVIOUSNESS ............................................. 45
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`CONTESTED: JURY INSTRUCTION NO. 28: WRITTEN DESCRIPTION REQUIREMENT
`[LACK OF WRITTEN DESCRIPTION] ............................................................................... 51
`CONTESTED: JURY INSTRUCTION NO. 29: DAMAGES-INTRODUCTION ..................... 54
`JURY INSTRUCTION NO. 30: DATE OF COMMENCEMENT OF DAMAGES—
`PRODUCTS ............................................................................................................................ 56
`JURY INSTRUCTION NO. 31: DAMAGES-REASONABLE ROYALTY .............................. 57
`CONTESTED: JURY INSTRUCTION NO. 32: DAMAGES-APPORTIONMENT REQUIRED
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`CONTESTED: JURY INSTRUCTION NO. 33: REASONABLE ROYALTY- RELEVANT
`FACTORS............................................................................................................................... 60
`CONTESTED: JURY INSTRUCTION NO. 34: DAMAGES-COMPARABLE AGREEMENTS
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`CONTESTED: JURY INSTRUCTION NO. 34: DAMAGES—COMPARABLE
`AGREEMENTS ...................................................................................................................... 64
`CONTESTED: JURY INSTRUCTION NO. 35: DAMAGES-RUNNING ROYALTY VS.
`LUMP SUM ............................................................................................................................ 65
`JURY INSTRUCTION NO. 36: JUROR NOTEBOOKS ............................................................ 67
`CONTESTED: JURY INSTRUCTION NO. 37: DOUBTS RESOLVED AGAINST THE
`INFRINGER ........................................................................................................................... 68
`JURY INSTRUCTION NO. 38: DUTY TO DELIBERATE ....................................................... 69
`JURY INSTRUCTION NO. 39: SOCIAL MEDIA INSTRUCTION .......................................... 70
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`JURY INSTRUCTION NO. 1: JURY CHARGE
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`MEMBERS OF THE JURY:
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`It is my duty and responsibility to instruct you on the law you are to apply in this case. The
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`law contained in these instructions is the only law you may follow. It is your duty to follow what
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`I instruct you the law is, regardless of any opinion that you might have as to what the law ought to
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`be.
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`Each of you is going to have your own printed copy of these final jury instructions that I
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`am giving you now, so there is really no need for you to take notes unless you want to.
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`If I have given you the impression during the trial that I favor either party, you must
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`disregard that impression. If I have given you the impression during the trial that I have an opinion
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`about the facts of this case, you must disregard that impression. You are the sole judges of the facts
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`of this case. Other than my instructions to you on the law, you should disregard anything I may
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`have said or done during the trial in arriving at your verdict.
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`You should consider all of the instructions about the law as a whole and regard each
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`instruction in light of the others, without isolating a particular statement or paragraph.
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`The testimony of the witnesses and other exhibits introduced by the parties constitute the
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`evidence. The statements of counsel are not evidence; they are only arguments. It is important for
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`you to distinguish between the arguments of counsel and the evidence on which those arguments
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`rest. What the lawyers say or do is not evidence. You may, however, consider their arguments in
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`light of the evidence that has been admitted and determine whether the evidence admitted in this
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`trial supports the arguments. You must determine the facts from all the testimony that you have
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`heard and the other evidence submitted. You are the judges of the facts, but in finding those facts,
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`you must apply the law as I instruct you.
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`You are required by law to decide the case in a fair, impartial, and unbiased manner, based
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`entirely on the law and on the evidence presented to you in the courtroom. You may not be
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`influenced by passion, prejudice, or sympathy you might have for Touchstream or Google in
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`arriving at your verdict.
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`After the remainder of these instructions, you will hear closing arguments from the
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`attorneys. Statements and arguments of the attorneys, I remind you, are not evidence, and they are
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`not instructions on the law. They are intended only to assist the jury in understanding the evidence
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`and the parties’ contentions.
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`A verdict form has been prepared for you. You are to take this verdict form with you to the
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`jury room; and when you have reached a unanimous decision or agreement as to the verdict, you
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`are to have your foreperson fill in the blanks in the verdict form, date it, and sign it.
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`Answer each question in the verdict form from the facts as you find them to be. Do not
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`decide who you think should win the case and then answer the questions to reach that result. Again,
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`your answers and your verdict 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,
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`and other exhibits admitted into evidence, the stipulations to which the lawyers agreed, and any
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`fair inferences and reasonable conclusions you can draw from the facts and circumstances 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 eyewitnesses. 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 of the evidence that you heard in this case,
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`whether direct, circumstantial or any combination.
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`As I instructed you before the trial began, in judging the facts, you must consider all the
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`evidence, both direct and circumstantial. That does not mean you have to believe all of the
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`evidence. It is entirely up to you to give the evidence you receive in this case whatever weight you
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`individually believe it deserves. It will be up to you to decide which witnesses to believe, which
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`witnesses not to believe, the weight you give any testimony you hear, and how much of any
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`witness’s testimony you choose to accept or reject.
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`Objections to questions are not evidence. The attorneys in this case may have objected if
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`they thought that documents or testimony that were offered into evidence were improper under the
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`rules of evidence. My legal rulings as to those objections are not evidence. My comments and
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`questions are not evidence. If I sustained an objection, then just pretend the question was never
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`asked. If there was an answer given, ignore it. If I overruled the objection, act like the objection
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`was never made. If I gave you instructions that some item of evidence was received for a limited
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`purpose, you must follow my instruction. If I gave any limiting instruction during trial, you must
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`follow it. Any testimony I told you to exclude or disregard is not evidence, 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 as I have defined it here, and nothing else.
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`JURY INSTRUCTION NO. 3: WITNESSES
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`You alone determine the questions of credibility or truthfulness of the witnesses. In
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`weighing the testimony of witnesses, you may consider the witness’s manner and demeanor on the
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`witness stand, any feelings or interest in the case, any prejudice or bias about the case, and the
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`consistency or inconsistency of the witness’s testimony considered in the light of circumstances.
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`Has the witness been contradicted by other credible evidence? Has the witness made
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`statements at other times that are contrary to those made here on the witness stand? You must give
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`the testimony of each witness the credibility that you think it deserves.
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`Even though a witness may be a party to the action and therefore interested in the outcome,
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`you may accept the testimony 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 for
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`the opposing sides. Witness testimony is weighed. Witnesses are not counted. The test is not the
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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 testify to the
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`contrary, if after you have considered all of the other evidence you choose to believe the single
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`witness.
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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 time the witness said or did something or failed to say or do something that
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`was at odds with the testimony given at trial. A simple mistake by a witness does not necessarily
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`mean that a witness did not tell the truth as he or she remembers it. We’re people. We forget things.
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`We remember things inaccurately. If a witness has made a misstatement, consider whether that
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`was an intentional falsehood or simply an innocent mistake. The significance of that may depend
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`on whether it has to do with something important or unimportant. But again, this is exclusively in
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`your province of whether or not you believe a witness is telling the truth.
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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
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`sworn, 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 have been shown to you. This
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`deposition testimony is entitled to the same consideration and is to be weighed and otherwise
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`considered by you in the same way as if the witness had been present and had testified from the
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`witness stand in court.
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`Some of the video recordings of witnesses you have seen may have been of lower quality
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`because the witnesses testified from home. You should not hold the quality of the video or the
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`location of the witness against either party.
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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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`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 some
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`science, profession, or business. This skill or knowledge is not common to the average person but
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`has been acquired by the expert through special study or experience.
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`In weighing expert testimony, you may consider the expert’s qualifications, the reasons for
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`the expert’s opinions, and the reliability of the information supporting the expert’s opinions, as
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`well as the factors I have previously mentioned for weighing testimony of any other witness.
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`Expert testimony should receive whatever weight and credit you think appropriate, given all the
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`other evidence in the case. You are not required to accept the opinion of any expert, rather, you
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`are free to accept or reject the testimony of experts, just as with any other witness.
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`JURY INSTRUCTION NO. 6: INTERROGATORIES
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`Evidence has been presented to you in the form of answers of one or the parties to written
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`interrogatories submitted by the other side. These answers were given in writing and under oath
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`before the trial in response to questions that were submitted under established court procedures.
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`You should consider the answers, insofar as possible, in the same way as if they were made from
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`the witness stand.
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`JURY INSTRUCTION NO. 7: BIAS—NO INFERENCE FROM FILING SUIT OR
`DEFENDING THE SUIT
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`The fact that one side or the other brought this lawsuit and is in court seeking damages
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`creates no inference on their behalf that they’re entitled to judgment. The act of making a claim in
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`a lawsuit, in this case claims of patent infringement, does not tend to establish the claim is true or
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`not true and cannot be considered by you as evidence.
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`Also, the fact that Google has raised arguments against the claims and says they don’t
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`infringe creates no inference that they’re entitled to a judgment.
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`Both of these actions, the offensive action of filing the suit and the defensive action of
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`defending the suit must be disregarded by you, and neither of those actions should tend to establish
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`judgment in either side’s favor.
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`JURY INSTRUCTION NO. 8: STIPULATIONS OF FACT
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`A “stipulation” is an agreement. When there is no dispute about certain facts, the parties
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`may agree or “stipulate” to those facts. You must accept a stipulated fact as evidence and treat that
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`fact as having been proven here in court.
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`JURY INSTRUCTION NO. 9: LIMITING INSTRUCTION
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`When testimony or an exhibit is admitted for a limited purpose, you may consider that
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`testimony or exhibit only for the specific limited purpose for which it was admitted.
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`JURY INSTRUCTION NO. 10: CHARTS AND SUMMARIES
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`Certain charts and summaries have been shown to you solely to help explain or summarize
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`the facts disclosed by the books, records, and other documents that are in evidence. These charts
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`and summaries are not evidence or proof of any facts. You should determine the facts from the
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`evidence.
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`JURY INSTRUCTION NO. 11: DEMONSTRATIVE EXHIBITS
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`Certain exhibits shown to you, such as PowerPoint presentations, posters, or models, are
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`illustrations of the evidence, but are not themselves evidence. Such exhibits are demonstrative
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`exhibits. A demonstrative exhibit is a party’s description, picture, or model used to describe
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`something involved in this trial. If your recollection of the evidence differs from the exhibit, rely
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`on your recollection.
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`JURY INSTRUCTION NO. 12: BIAS-CORPORATE PARTY INVOLVED
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`Do not let bias, prejudice, or sympathy play any part in your deliberations. Whether you
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`are familiar with one party or the other should not play any part in your deliberations. A corporation
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`and all other persons are equal before the law and must be treated as equals in a court of justice.
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`JURY INSTRUCTION NO. 13: BURDENS OF PROOF
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`For each issue in this case, either Touchstream or Google bears the burden of proof, which
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`means that it bears the burden of persuading you to find in its favor. In a patent case such as this,
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`there are two different burdens of proof. The first is called “preponderance of the evidence.” The
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`second is called “clear and convincing evidence.”
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`Here, Touchstream has the burden of proving by a preponderance of the evidence that
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`Google has infringed the Asserted Claims of the Asserted Patents, that such infringement has been
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`willful, and the amount of damages Touchstream should receive to compensate it for any
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`infringement. A preponderance of the evidence means evidence that persuades you that a claim is
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`more probably true than not true. Sometimes this is talked about as being the greater weight and
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`degree of credible testimony.
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`Google has the burden of proving patent invalidity and that an alleged product or
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`publication is prior art by clear and convincing evidence. Clear and convincing evidence means
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`evidence that produces in your mind a firm belief or conviction as to the truth of the matter sought
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`to be established. It is evidence so clear, direct, weighty and convincing as to enable you to come
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`to a clear conviction without hesitancy.
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`These standards are different from what you may have learned about in criminal
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`proceedings where a fact is proven beyond a reasonable doubt. On a scale of the various standards
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`of proof, as you move from the preponderance of the evidence, where the proof need only be
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`sufficient to tip the scales in favor of the party proving the fact, to at the other end, beyond a
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`reasonable doubt, where the fact must be proven to a very high degree of certainty, you may think
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`of clear and convincing evidence as being between these two ends of the spectrum or those two
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`standards.
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`JURY INSTRUCTION NO. 14: 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
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`in this case. I will then provide you with detailed instructions on what each side must prove to win
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`on each of its contentions.
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`As I previously told you, Touchstream asserts that Google has infringed claims 1 and 8 of
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`the ’251 patent; claims 1 and 14 of the ’528 patent; and claims 1 and 2 of the ’289 patent, that such
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`infringement has been willful, and that Touchstream is entitled to money damages for Google’s
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`alleged infringement. Those patents and claims are referred to as the “Asserted Patents” and the
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`“Asserted Claims.”
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`Touchstream alleges that Google infringes the Asserted Claims of the Asserted Patents
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`through the operation of Google devices that are “cast-enabled.” Touchstream asserts those
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`products include the following: (1) standalone Chromecast devices (e.g., Chromecast 1st
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`Generation, Chromecast 2nd Generation, Chromecast 3rd Generation, Chromecast Audio,
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`Chromecast Ultra, and Chromecast with Google TV); (2) the following devices that implement
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`Chromecast built-in: (a) third-party devices running the Android TV operating system and with
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`Google TV; and (b) third-party televisions and speakers with “Chromecast Built-In”; and (3)
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`Google Home/Nest products capable of receiving cast content (e.g., Google Home, Google Home
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`Mini, Google Home Max, Google Home Hub/Nest Hub, Google Home Hub/Nest Hub Max,
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`Google Nest Hub Generation 2, Google Nest Audio, Google Nest Mini, and Google Nest Wifi
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`Point (wifi extender with speaker)). These products are referred to as the “Accused Products.”
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`Google denies that it has infringed the Asserted Claims of the Asserted Patents and argues
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`that the Asserted Claims are invalid.
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`Google contends that claims 1 and 8 of the ʼ251 patent are anticipated by GTS.
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`Google also contends that:
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` Claims 1 and 8 of the ’251 patent are obvious in view of:
`o GTS
`o The combination of GTS and Muthukumarasamy
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` Claims 1 and 14 of the ’528 patent are obvious in view of:
`o The combination of GTS and Hayward
`o The combination of GTS and Muthukumarasamy
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` Claims 1 and 2 of the ’289 patent are obvious in view of:
`o The combination of GTS and Hayward
`o The combination of GTS and Muthukumarasamy
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`Google also contends that the Asserted Claims of the Asserted Patents are invalid for
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`failure of the patent to provide an adequate written description of the claimed invention.
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`Your job is to decide whether Google has infringed the Asserted Claims of the Asserted
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`Patents and whether any of the Asserted Claims of the Asserted Patents are invalid. If you decide
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`that any Asserted Claim of the Asserted Patents has been infringed and is not invalid, you will then
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`need to decide any money damages to be awarded to Touchstream to compensate it for the
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`infringement. You will also need to make a finding as to whether the infringement was willful. If
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`you decide that any infringement was willful, that decision should not affect any damages award
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`you make. I will take willfulness into account later.
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`JURY INSTRUCTION NO. 15: PATENT CLAIMS
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`Before you can decide many of the issues in this case, you’ll need to understand the role
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`of the patent “claims.” The claims of a patent are the numbered sentences at the end of the patent.
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`The claims are important because it is the words of the claims themselves that define what a patent
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`covers. The figures and the text in the rest of the patent provide a description or examples of the
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`claimed invention and provide a context for the claims, but it is the claims that define the breadth
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`of the patent’s coverage. Therefore, what a patent covers depends, in turn, on what each of its
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`claims covers.
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`The requirements of a claim are often referred to as “claim elements,” “claim steps,” or
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`“claim limitations.” The coverage of a patent is assessed claim-by-claim. When a thing (such as a
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`product or a process) meets all of the requirements of a claim, the claim is said to “cover” that
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`thing, and that thing is said to “fall” within the scope of that claim. In other words, a claim covers
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`a product or process where each of the claim elements or limitations is present in that product or
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`process.
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`You will first need to understand what each claim covers in order to decide whether or not
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`there is infringement of that claim and to decide whether or not the claim is invalid. The first step
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`is to understand the meaning of the words used in the patent claim.
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`It is my role to define the terms of the claims and it is your role to apply my definitions of
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`the terms I have construed to the issues that you are asked to decide in this case. I have determined
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`that you are to use the plain and ordinary meaning of the words of the patent claims as understood
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`by a person of ordinary skill in the art, which is to say, in the field of technology of the patent at
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`the time of the invention. The meanings of the words of the patent claims must be the same when
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`deciding both the issues of infringement and validity.
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`23
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`Case 6:21-cv-00569-ADA Document 238-2 Filed 07/19/23 Page 24 of 70
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`The beginning portion of a claim, also known as the preamble, often uses the word
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`“comprising.” The word “comprising,” when used in the preamble, means “including but not
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`limited to” or “containing but not limited to.” When “comprising” is used in the preamble of a
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`claim, if you decide that an accused product or process includes all of the requirements of that
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`claim, the claim is infringed. This is true even if the accused product or process contains additional
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`elements. For example, a claim to “a table comprising a tabletop, legs, and glue” would cover a
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`table that includes a tabletop, legs, and glue, even if the table also includes wheels on the table’s
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`legs.
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`24
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`Case 6:21-cv-00569-ADA Document 238-2 Filed 07/19/23 Page 25 of 70
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`JURY INSTRUCTION NO. 16: INDEPENDENT AND DEPENDENT CLAIMS
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`This case involves two types of Asserted Claims: independent claims and dependent
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`claims.
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`An “independent claim” sets forth all of the requirements that must be met in order to be
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`covered by that claim. Thus, it is not necessary to look at any other claim to determine what an
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`independent claim covers. In this case, asserted claim 1 of the ‘251 patent, asserted claim 1 of the
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`‘528 patent, and asserted claims 1 and 6 of the ‘289 patent are each independent claims.
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`The remainder of the Asserted Claims in the Asserted Patents are “dependent claims.” A
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`dependent claim does not itself recite all of the requirements of the claim but refers to another
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`claim for some of its requirements. In this way, the claim “depends” on another claim. A dependent
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`claim incorporates all of the requirements of the claim(s) to which it refers. The dependent claim
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`then adds its own additional requirements. To determine what a dependent claim covers, it is
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`necessary to look at both the dependent claim and any other claim(s) to which it refers. A product
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`or process that meets all of the requirements of both the dependent claim and the claim(s) to which
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`the dependent claim refers is covered by that dependent claim.
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`If any requirement of a dependent claim is not met, or if any requirement of the independent
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`claim from which the dependent claim depends is not met, then the product or process is not
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`covered by that dependent claim.
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`On the other hand, if the requirements of an independent claim are met by a product or
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`process, but a requirement of a dependent claim is not met, the independent claim is still infringed.
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`25
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`Case 6:21-cv-00569-ADA Document 238-2 Filed 07/19/23 Page 26 of 70
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`CONTESTED: JURY INSTRUCTION NO. 17: INFRINGEMENT-GENERALLY
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`I will now instruct you as to the rules you must follow when deciding whether Touchstream
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`has proven that Google infringed any of the Asserted Claims of the Asserted Patents.
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`[Touchstream: Patent law gives the owner of a valid patent the right to exclude others from
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`importing, making, using, offering to sell, or selling a claimed invention within the United States
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`during the term of the patent. Any person or business entity that has engaged in any of those acts
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`without the patent owner’s permission infringes the patent.] [Google: A person or business entity
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`that imports, makes, uses, sells, or offers to sell an invention claimed in a patent infringes that
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`patent.]
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`Infringement is assessed on a claim-by-claim basis by comparing the operation of Google’s
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`accused products to the elements or steps of each claim. There may be infringement as to one
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`claim but no infringement as to another claim.
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`To prove infringement of a claim, Touchstream must prove infringement by a
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`preponderance of the evidence, that is, that it is more likely than not that infringement has been
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`proven.
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`Google’s Objections to Touchstream’s Proposed Instruction:
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`Google o