Case 1:13-cv-00919-JLH Document 470 Filed 04/20/23 Page 1 of 19 PageID #: 49928
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`C.A. No. 13-919-JLH
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`))))))))))
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`ARENDI S.A.R.L.,
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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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`PRELIMINARY JURY INSTRUCTIONS
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`Case 1:13-cv-00919-JLH Document 470 Filed 04/20/23 Page 2 of 19 PageID #: 49929
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`TABLE OF CONTENTS
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`INTRODUCTION
`OVERVIEW OF THE CASE
`UNITED STATES PATENTS
`EVIDENCE
`CREDIBILITY OF WITNESSES; WEIGHING CONFLICTING TESTIMONY
`EXPERT TESTIMONY
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`DEMONSTRATIVES
`NOTE-TAKING
`SIDEBARS
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`I.
`II.
`III.
`IV.
`V.
`VI.
`VII. BURDENS OF PROOF
`VIII. DEPOSITION TESTIMONY
`IX.
`X.
`XI.
`XII. CONDUCT OF THE JURY
`XIII. COURSE OF THE TRIAL
`XIV. TRIAL SCHEDULE
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`Case 1:13-cv-00919-JLH Document 470 Filed 04/20/23 Page 3 of 19 PageID #: 49930
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`I.
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`INTRODUCTION
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`Members of the jury: Now that you have been sworn, I have the following preliminary
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`instructions for your guidance as jurors in this case.
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`These instructions are intended to introduce you to the case and the law that you will apply
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`to the evidence that you will hear. I will give you more detailed instructions on the law at the end
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`of the trial. Also, because this case involves patents, I will give you some preliminary instructions
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`regarding patents to assist you in discharging your duties as jurors.
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`You will hear the evidence, decide what the facts are, and then apply those facts to the law
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`that I will give to you. You and only you will be the judges of the facts. I play no part in judging
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`the facts. My role is to be the judge of the law. I make whatever legal decisions have to be made
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`during the course of the trial, and I will explain to you the legal principles that must guide you in
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`your decisions. You must follow that law whether you agree with it or not. Perform these duties
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`fairly. Do not let any bias, sympathy, or prejudice that you may feel toward one side or the other
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`influence your decision in any way. Nothing I say or do is intended to indicate, or should be taken
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`by you as indicating, what your verdict should be.
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`At the end of the evidence, I will give you instructions on the law to apply in deciding this
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`case, and I’ll give you a list of questions that you are then to answer.
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`This list of questions is called the verdict form. Your answers to these questions will need
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`to be unanimous, and your answers will constitute the verdict in this case.
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`Case 1:13-cv-00919-JLH Document 470 Filed 04/20/23 Page 4 of 19 PageID #: 49931
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`II.
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`OVERVIEW OF THE CASE
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`During the jury-selection process, I advised you that this is a civil action arising under the
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`patent laws of the United States. The parties in this case are the plaintiff, Arendi S.A.R.L., and the
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`defendant, Google LLC. We will often refer to those parties as Arendi and Google for short. The
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`case involves United States Patent No. 7,917,843. We will often refer to this patent as the ’843
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`Patent for short. We may also refer to it as “the Asserted Patent” or the “Patent-in-suit.”
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`Plaintiff Arendi is the owner of the ’843 Patent. Patents include numbered “claims” at their
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`end that define the legal scope of the patented invention. Plaintiff alleges that the Defendant infringes
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`Claims 1, 8, 23 and 30 of the ’843 Patent. These claims may be referred to as the “Asserted
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`Claims.” Generally, the products that Plaintiff accuses of infringement are, first, certain Google
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`smartphone apps and, second, certain Google smartphones on which those apps are installed.
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`Defendant denies that it has infringed the Asserted Claims and also argues that the Asserted Claims
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`are invalid.
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`Case 1:13-cv-00919-JLH Document 470 Filed 04/20/23 Page 5 of 19 PageID #: 49932
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`III. UNITED STATES PATENTS
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`As I just mentioned, this case is about patents. To help you understand what patents are, the
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`role of the Patent Office, and why disputes over patents arise you will now be shown a video. This
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`video was prepared by the Federal Judicial Center, not the parties in this case, to help introduce you
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`to the patent system. During the video, reference will be made to a sample patent. A copy of the
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`sample patent is contained in your juror notebooks for you to follow along. The video will run for
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`approximately 17 minutes. At the conclusion of the video, I will provide you with additional
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`instructions.
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`[The video will be played.]
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`Case 1:13-cv-00919-JLH Document 470 Filed 04/20/23 Page 6 of 19 PageID #: 49933
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`IV.
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`EVIDENCE
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`The evidence from which you are to find the facts consists of the following:
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`1.
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`4.
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`The testimony of the witnesses;
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`Documents and other things received in evidence as exhibits;
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`Any facts that are stipulated--that is, formally agreed to by the parties; and
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`Facts that the Court takes judicial notice of and that I instruct you to take as true.
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`The following things are not evidence:
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`1.
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`2.
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`3.
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`4.
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`Statements, arguments, and questions of the lawyers for the parties in this case;
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`Objections by the lawyers;
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`Any testimony I tell you to disregard; and
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`Anything you may see or hear about this case outside the courtroom.
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`You must make your decision based only on the evidence that you see and hear in court.
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`Do not let rumors, suspicions, or anything else that you may see or hear outside of Court influence
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`your decision in any way.
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`You should use your common sense in weighing the evidence. Consider it in light of your
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`everyday experience with people and events, and give it whatever weight you believe it deserves.
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`If your experience tells you that certain evidence reasonably leads to a conclusion, you are free to
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`reach that conclusion.
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`There are rules that control what can be received into evidence. When a lawyer asks a
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`question or offers an exhibit into evidence, and a lawyer on the other side thinks that it is not
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`permitted by the rules of evidence, that lawyer may object. This simply means that the lawyer is
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`requesting that I make a decision on a particular rule of evidence. You should not be influenced
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`by the fact that an objection is made. Objections to questions are not evidence. Lawyers have an
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`obligation to their clients to make objections when they believe that evidence being offered is
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`Case 1:13-cv-00919-JLH Document 470 Filed 04/20/23 Page 7 of 19 PageID #: 49934
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`improper under the rules of evidence. You should not be influenced by the objection or by the
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`court’s ruling on it. If the objection is sustained, ignore the question. If it is overruled, treat the
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`answer like any other. By allowing testimony or other evidence to be introduced over the objection
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`of an attorney, the Court does not indicate any opinion as to the weight or effect of such evidence.
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`If you are instructed that some item of evidence is received for a limited purpose only, you must
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`follow that instruction.
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`Also, certain testimony or other evidence may be ordered struck from the record and you
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`will be instructed to disregard this evidence. Do not consider any testimony or other evidence that
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`gets struck or excluded. Do not speculate about what a witness might have said or what an exhibit
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`might have shown.
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`There are two types of evidence: direct and circumstantial. Direct evidence is direct proof
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`of a fact, such as testimony of an eyewitness. Circumstantial evidence is proof of a fact or facts
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`from which you may infer or conclude that other facts do or do not exist. If someone walked into
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`the courtroom wearing a raincoat covered with drops of water and carrying a wet umbrella, that
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`would be circumstantial evidence from which you could conclude that it was raining. You should
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`consider both kinds of evidence that are presented to you. The law makes no distinction in the
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`weight to be given to either direct or circumstantial evidence. You are to decide how much weight
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`to give any evidence.
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`Case 1:13-cv-00919-JLH Document 470 Filed 04/20/23 Page 8 of 19 PageID #: 49935
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`V.
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`CREDIBILITY OF WITNESSES; WEIGHING CONFLICTING TESTIMONY
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`You are the sole judges of each witness’s credibility. That is, it will be up to you to decide
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`which witnesses to believe, which witnesses not to believe, and how much of any witness’s
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`testimony to accept or reject. You should consider each witness’s means of knowledge; strength
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`of memory; opportunity to observe; how reasonable or unreasonable the testimony is; whether it
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`is consistent or inconsistent; whether it has been contradicted; the witness’s biases, prejudices or
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`interests; the witness’s manner or demeanor on the witness stand; and all circumstances that,
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`according to the evidence, could affect the credibility of the testimony.
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`VI.
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`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. In weighing expert testimony,
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`you may consider the expert’s qualifications, the reasons for the expert’s opinions, and the
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`reliability of the information supporting the expert’s opinions, as well as the factors I have
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`previously mentioned for weighing testimony of any other witness. Expert testimony should
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`receive whatever weight and credit you think appropriate, given all the other evidence in the case.
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`You are free to accept or reject the testimony of experts, just as with any other witness.
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`Case 1:13-cv-00919-JLH Document 470 Filed 04/20/23 Page 9 of 19 PageID #: 49936
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`VII. BURDENS OF PROOF
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`In any legal action, facts must be proven by a required standard of evidence, known as the
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`“burden of proof.” In a case involving patents, two different burdens of proof are used. The first is
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`called “preponderance of the evidence.” The second is called “clear and convincing evidence.”
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`Plaintiff Arendi asserts that Defendant Google infringes the ’843 Patent. Plaintiff Arendi
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`alleges that Defendant Google infringes the ’843 Patent directly. Plaintiff Arendi also alleges that
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`Defendant Google induced others to infringe the ’843 Patent and contributed to others’
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`infringement of the ’843 Patent. Plaintiff Arendi alleges that the Defendant’s infringement of
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`the’843 Patent was willful. Plaintiff Arendi bears the burden of proof on each of these issues by a
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`preponderance of the evidence.
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`That means, for Plaintiff Arendi to prevail on each of its claims, it must prove to you, in
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`light of all the evidence, that what it claims is more likely so than not so. To say it differently: if
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`you were to put the evidence favorable to Plaintiff Arendi and the evidence favorable to Google
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`on opposite sides of the scales, Arendi would have to make the scales tip somewhat on Arendi’s
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`side.
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`Defendant Google contends that the claims of the ’843 patent are invalid. On this issue,
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`Defendant Google has the burden of proof and must prove by clear and convincing evidence that
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`the patent is invalid.
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`Clear and convincing evidence is evidence that produces in your mind a firm belief or
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`conviction that the allegations sought to be proved by the evidence are true. Clear and convincing
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`evidence involves a higher degree of persuasion than is necessary to meet the preponderance of
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`the evidence standard.
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`You should base your decisions on all of the evidence, regardless of which party presented
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`it.
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`Case 1:13-cv-00919-JLH Document 470 Filed 04/20/23 Page 10 of 19 PageID #: 49937
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`You may have heard of the term “proof beyond a reasonable doubt.” That is a stricter
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`standard of proof and it applies only to criminal cases. It does not apply in civil cases such as this.
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`You should therefore not consider that burden of proof in this case.
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`Case 1:13-cv-00919-JLH Document 470 Filed 04/20/23 Page 11 of 19 PageID #: 49938
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`VIII. DEPOSITION TESTIMONY
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`I will now talk about the form of some of the evidence you will hear during trial. You may
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`hear witnesses testify through deposition testimony.
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`A deposition is the sworn testimony of a witness taken before trial. The witness is placed
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`under oath and swears to tell the truth, and lawyers for each party may ask questions. A court
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`reporter is present and records the questions and answers. The deposition may also be recorded on
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`videotape.
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`Deposition testimony is entitled to the same consideration and is to be judged, insofar as
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`possible, in the same way as if the witness had been present to testify.
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`Case 1:13-cv-00919-JLH Document 470 Filed 04/20/23 Page 12 of 19 PageID #: 49939
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`IX. DEMONSTRATIVES
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`Certain models, reproductions, charts, summaries, or the like may be shown to you in order
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`to help explain or illustrate the facts disclosed by the books, records, documents, testimony or other
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`evidence in the case. Those models, reproductions, charts, summaries, or the like, referred to as
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`“demonstratives,” are used by a party to describe something involved in the case. If they do not
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`correctly reflect the facts shown by the evidence in the case, you should disregard those models,
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`reproductions, charts, summaries, or the like and determine the facts from the evidence.
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`Demonstratives are not themselves evidence or proof of any facts. However, a witness’s
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`testimony that references a demonstrative is evidence.
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`Case 1:13-cv-00919-JLH Document 470 Filed 04/20/23 Page 13 of 19 PageID #: 49940
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`X.
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`NOTE-TAKING
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`You will each be provided with a notebook that contains the following:
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`A copy of the ’843 Patent;
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`A listing of the Court’s claim constructions, which represent the Court’s
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`instructions as to the meaning you should give to certain words and phrases
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`in the patent;
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`A copy of the sample patent discussed in the video we watched earlier.
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`You will also be given a notepad and a pen. If you wish, you may, but are not required to,
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`take notes during the presentation of evidence, the summations of attorneys at the conclusion of
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`the evidence, and during my instructions to you on the law. Notes may be helpful to you because
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`at the end of the trial, you must make your decision based on what you recall of the evidence. You
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`may not have a written transcript to consult, and it may not be practical for the court reporter to
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`read back lengthy testimony. But do not let note-taking distract you to the point that you miss
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`hearing other testimony from the witness. Your notes are only to be used as aids to your memory,
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`and if your memory should later be different from your notes, you should rely on your memory
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`and not your notes.
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`Don’t be influenced by any notes that you take or that others take. A juror’s notes are not
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`entitled to any greater weight than the recollection of each juror concerning the testimony. Notes
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`are not to be used in place of the evidence.
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`Do not take your notes away from court. I repeat, during lunchtime breaks and at the end
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`of each day, please leave your notes in the jury room. At the conclusion of the case, after you have
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`used your notes in deliberations, a court officer will collect and destroy them.
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`During the trial, documents or other physical items may be received into evidence. You
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`will not be supplied with a list of exhibits that are received in evidence. Therefore, you may wish
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`Case 1:13-cv-00919-JLH Document 470 Filed 04/20/23 Page 14 of 19 PageID #: 49941
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`to make notes about the exhibits, especially their description and number, so that you can refer to
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`those exhibits while you are deliberating. You will be given a hardcopy of every admitted exhibit
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`to take to the jury room to use during deliberations.
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`At the end of the trial, you must make your decision based on what you recall of the
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`evidence. You will not have a written transcript of the testimony to review. So, above all, your
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`memory will be your greatest asset when it comes time to deliberate and render a decision in this
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`case.
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`Case 1:13-cv-00919-JLH Document 470 Filed 04/20/23 Page 15 of 19 PageID #: 49942
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`XI.
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`SIDEBARS
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`During the trial it may be necessary for me to talk with the lawyers out of your hearing by
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`having a bench conference, which is also called a sidebar, or by calling a recess and talking to
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`them while you are out of the courtroom. If that happens, please be patient.
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`We are not trying to keep important information from you. These conferences are necessary
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`for me to fulfill my responsibility to be sure that evidence is presented to you correctly under the
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`law. You should not speculate on what was said during these discussions.
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`I may not always grant an attorney’s request for a sidebar. Do not consider my granting or
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`denying a request for a conference as an indication of my opinion of the case or of what your
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`verdict should be.
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`Case 1:13-cv-00919-JLH Document 470 Filed 04/20/23 Page 16 of 19 PageID #: 49943
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`XII. CONDUCT OF THE JURY
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`Now a few words about your conduct as jurors.
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`First, I instruct you that during the trial you are not to discuss the case with anyone or
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`permit anyone to discuss it in your presence. Until you retire to the jury room at the end of the case
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`to deliberate on your verdict, you simply are not to talk about this case. This includes family and
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`friends. Don’t discuss the case even with the other jurors until all of the jurors are in the jury room
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`actually deliberating at the end of the case. Whenever you go to lunch or take a break, talk about
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`anything you want to, but don’t talk about the case. Each of you should hold yourself completely
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`apart from any discussion about this case with anyone until we get to the end of the case and then
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`only with your fellow jurors when you go back to the jury room to deliberate.
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`If any lawyer, party, or witness does not speak to you when you pass in the hall, ride the
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`elevator, or the like, remember it is because they are not supposed to talk with you, nor you with
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`them—they are not trying to be rude and will not interpret your silence as rudeness either. In this
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`way, any unwarranted and unnecessary suspicion about your fairness can be avoided. If anyone
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`should try to talk to you about the case, bring it to the Court’s attention promptly.
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`Second, do not read or listen to anything touching on this case in any way. By that I mean
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`that if there is a newspaper or internet article or television or radio report relating to this case, do
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`not read the article or watch or listen to the report.
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`Third, do not do any research or investigate the case on your own. Let me elaborate. During
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`the course of the trial, you must not conduct any independent research about the case, the matters
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`in the case, and the individuals or entities involved in the case. In other words, you should not
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`consult dictionaries or reference materials (in print, electronic, or other format) or search websites
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`or blogs on the internet. This trial concerns certain smartphones and smartphone apps similar to
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`those that you may own. You may even have the products that this case is about. But you should
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`Case 1:13-cv-00919-JLH Document 470 Filed 04/20/23 Page 17 of 19 PageID #: 49944
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`not conduct your own experiments using your devices to test evidence presented by either party.
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`And, to reiterate, should there happen to be a newspaper article or television or radio report relating
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`to this case, do not read the article or watch or listen to the report. It is important that you decide
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`this case based solely on the evidence presented in the Courtroom. Do not try to find out
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`information from any other sources.
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`I know that many of you use cell phones, tablets, the internet, and other tools of technology.
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`You must not use these tools to communicate electronically with anyone about the case or
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`otherwise talk to anyone about this case. This includes your family and friends. You may not
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`communicate with anyone about the case on your cell phone, through e-mail, your tablet, text
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`messaging, through any blog or website, through any internet chat room, or by way of any other
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`social networking or media platforms, including but not limited to Facebook, Twitter, LinkedIn,
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`Instagram, TikTok, WeChat, WhatsApp, Snapchat, or YouTube.
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`Finally, do not form any opinion until all the evidence is in. Keep an open mind until you
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`start your deliberations at the end of the case. I will give you detailed instructions on the law at the
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`end of the case, and those instructions will control your deliberations and decision.
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`Case 1:13-cv-00919-JLH Document 470 Filed 04/20/23 Page 18 of 19 PageID #: 49945
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`XIII. COURSE OF THE TRIAL
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`The case will begin on Monday, April 24 at 9:00 a.m.
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`First, each side may make an opening statement outlining their case. Opening statements
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`are not evidence but simply an outline to help you understand what each party expects the evidence
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`to show.
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`Next, the parties will present their evidence. Plaintiff Arendi will present its witnesses and
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`evidence in support of its claims, and Defendant Google may cross-examine those witnesses.
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`When Plaintiff Arendi is finished, Defendant Google may present its witnesses and evidence, and
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`Plaintiff Arendi may cross-examine those witnesses. Finally, Plaintiff Arendi may offer rebuttal
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`witnesses to Google’s claims and defenses.
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`After all the evidence is presented, the attorneys will offer closing arguments. The closing
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`arguments are not evidence. Their purpose is to summarize and interpret the evidence for you.
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`Both before and after closing arguments, I will give you instructions on the law and describe for
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`you the matters you must resolve.
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`You will then retire to the jury room to deliberate on your verdict.
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`Case 1:13-cv-00919-JLH Document 470 Filed 04/20/23 Page 19 of 19 PageID #: 49946
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`XIV. TRIAL SCHEDULE
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`Though you have heard me say this during the jury selection process, I want to again outline
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`the schedule I expect to maintain during the course of this trial.
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`As I mentioned previously, once trial begins, this case is expected to take up to five (5)
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`business days to try. We will hold trial from Monday, April 24 through Thursday, April 27. You
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`do not need to appear for service on Friday, April 28. Trial will resume the following Monday,
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`May 1.
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`We will normally begin the day at 9:00 A.M. We will go until around 12:30 P.M. and,
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`after about a 1 hour break for lunch, continue until 4:30 P.M. There will be a fifteen-minute break
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`in the morning and another fifteen-minute break in the afternoon.
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`What I have just outlined is the general schedule. It is possible there will be some
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`interruptions as I have to attend to other matters.
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`The only significant exception to this schedule may occur when the case is submitted to
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`you for your deliberations. At that point, you will be permitted to deliberate as late as you wish.
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`Please keep in mind that this is a timed trial. That means I have allocated each party a
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`maximum number of hours in which to present all portions of its case. This allows me to assure
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`you that we expect to be completed with this case by Monday, May 1.
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`Of course, you can help me keep us on schedule by being here promptly each morning and
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`being ready to proceed at the end of each break.
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