`
`UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF VIRGINIA
`ALEXANDRIA DIVISION
`
`
`RAI STRATEGIC HOLDINGS, INC. AND R.J.
`REYNOLDS VAPOR COMPANY
`
`
`Plaintiffs and Counterclaim Defendants,
`
`
`v.
`
`ALTRIA CLIENT SERVICES LLC; PHILIP
`MORRIS USA INC.; and PHILIP MORRIS
`PRODUCTS S.A.
`
`
`Defendants and Counterclaim Plaintiffs.
`
`Case No. 1:20-cv-00393-LO-TCB
`
`
`
`
`
`REYNOLDS’S ADDITIONAL PROPOSED FINAL JURY INSTRUCTIONS
`
`
`
`
`
`
`
`Case 1:20-cv-00393-LO-TCB Document 1302-2 Filed 06/08/22 Page 2 of 3 PageID# 33283
`
`20.
`
`Direct Infringement
`
`To determine whether there has been an act of direct infringement, you must compare the
`
`accused product with each asserted claim.
`
`Direct infringement of an asserted claim occurs when the patent holder proves by a
`
`preponderance of the evidence that an accused product includes all the elements of that claim. If
`
`an accused product did not contain one or more elements recited in a claim, that product does not
`
`infringe that claim.
`
`A party can directly infringe a patent without knowing of the patent or without knowing
`
`that the party’s conduct constitutes patent infringement.
`
`For dependent claims, if you find that a claim to which a dependent claim refers is not
`
`infringed, there cannot be infringement of that dependent claim. On the other hand, if you find
`
`that an independent claim has been infringed, you must still decide, separately, whether the
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`product meets the additional requirements of any claims that depend from the independent claim
`
`to determine whether those dependent claims have also been infringed. A dependent claim
`
`includes all the requirements of any of the claims to which it refers plus additional requirements
`
`of its own.
`
`
`
`
`
`
`
`Authorities:
`
`TecSec, Inc. v. Adobe, Inc., No. 10-cv-115, Dkt. 1351 at 24 (E.D. Va. Dec. 19, 2018) (as modified
`to fit the facts of this case); AIPLA Model Instruction No. V.3.1 (as modified to fit the facts of this
`case); FCBA Model Patent Jury Instructions, No. 3.1a (2020); 35 U.S.C. § 271(a); Commil USA,
`LLC v. Cisco Sys., Inc., 135 S. Ct. 1920 (2015); Medtronic, Inc. v. Mirowski Family Ventures,
`LLC, 571 U.S. 191 (2014); Global-Tech Appliances, Inc. v. SEB, S.A., 563 U.S. 754, 760-61 n.2
`(2011); Warner-Jenkinson Co. v. Hilton Davis Chem. Co., 520 U.S. 17, 35 (1997); SmithKline
`Diagnostics, Inc. v. Helena Labs. Corp., 859 F.2d 878, 889 (Fed. Cir. 1988).
`
`
`
`1
`
`
`
`Case 1:20-cv-00393-LO-TCB Document 1302-2 Filed 06/08/22 Page 3 of 3 PageID# 33284
`
`47.
`
`Damages – Lump Sum vs. Running Royalty
`
`A reasonable royalty can be paid either in the form of a one-time lump sum payment or as
`
`a “running royalty.” Either method is designed to compensate the patent holder based on the
`
`infringer’s use of the patented technology. It is up to you, based on the evidence, to decide what
`
`type of royalty is appropriate in this case. Certain fundamental differences exist between lump-
`
`sum agreements and running-royalty agreements.
`
`Reasonable royalty awards can take the form of a lump sum payment. A lump sum payment
`
`is equal to an amount that the alleged infringer would have paid at the time of a hypothetical
`
`negotiation for a license covering all sales of the licensed product, both past and future. When a
`
`lump sum is paid, the infringer pays a single price for a license covering both past and future
`
`infringing sales.
`
`Reasonable royalty awards may also take the form of a running royalty based on the
`
`revenue from or the volume of sales of licensed products. A running royalty can be calculated, for
`
`example, by multiplying a royalty base by a royalty rate, or by multiplying the number of infringing
`
`products or product units sold by a royalty amount per unit.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Authorities:
`
`FCBA Model Patent Jury Instructions, No. 5.7 (2020); Enplas Display Device Corp. v. Seoul
`Semiconductor Co., Ltd., 909 F.3d 398, 410 (Fed. Cir. 2018).
`
`2
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`
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