`Case 1:19-cv-01334-CJB Document 670 Filed 02/15/24 Page 1 of 21 PageID #: 17592
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`MIDWEST ENERGY EMISSIONS CORP.
`and MES Inc.,
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`Plaintiffs,
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`ARTHUR J. GALLAGHER & CO., et al.,
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`Defendants.
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`v.
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`Civil Action No. 19-1334-CJB
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`PRELIMINARY JURY INSTRUCTIONS
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`Case 1:19-cv-01334-CJB Document 670 Filed 02/15/24 Page 2 of 21 PageID #: 17593
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`I.
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`INTRODUCTION
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`Members of the jury: Now that you have been sworn in, I have the following preliminary
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`instructions for guidance on your role as jurors in this case.
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`These instructions will give you some general rules and guidance that might apply to any
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`civil case. Also, because this is a patent trial, I will also give you some additional preliminary
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`instructions regarding patents to assist you in discharging your duties as jurors.
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`Case 1:19-cv-01334-CJB Document 670 Filed 02/15/24 Page 3 of 21 PageID #: 17594
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`II.
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`THE PARTIES AND THEIR CONTENTIONS
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`This is a patent case. The Plaintiffs in this case are Midwest Energy Emissions Corp. and
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`MES Inc., which I may refer to as “ME2C” or “Plaintiff.” The Defendants and/or
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`Counterclaim-Plaintiffs, who I’ll refer to as “Defendants” for now, in this case are:
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`• CERT Operations II LLC
`• CERT Operations IV LLC
`• CERT Operations V LLC
`• CERT Operations RCB LLC
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`I may refer to these four Defendants as the “CERT Operations Defendants.” And:
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`• Senescence Energy Products LLC
`• Bascobert (A) Holdings LLC
`• Buffington Partners LLC
`• Larkwood Energy LLC
`• Rutledge Products LLC
`• Cottbus Associates LLC
`• Springhill Resources LLC
`• Marquis Industrial Company LLC
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` may refer to these eight Defendants as the “CERT RC Defendants.”
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` I
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`ME2C is the owner of the two patents being litigated in this case. These are United States
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`Patent Nos. 10,343,114 and 10,596,517. Collectively, these patents may be referred to as “the
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`patents-in-suit” or “the asserted patents.” Individually, patents are often referred to by their last
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`three digits. For example, U.S. Patent No. 10,343,114 may be referred to as the ’114 patent, and
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`U.S. Patent No. 10,596,517 may be referred to as the ’517 patent. A copy of each of the patents has been
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`given to you along with these preliminary instructions.
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`ME2C contends that each Defendant infringes certain claims of each of the patents-in-suit,
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`and that Defendants’ infringement of the patents-in-suit has been willful. The specific claims that
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`ME2C contends are infringed may be referred to collectively as “the asserted claims.” ME2C also
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`Case 1:19-cv-01334-CJB Document 670 Filed 02/15/24 Page 4 of 21 PageID #: 17595
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`seeks damages for the infringement. Defendants deny that they infringe the patents-in-suit, and
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`contend that the patents-in-suit are invalid.
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`Case 1:19-cv-01334-CJB Document 670 Filed 02/15/24 Page 5 of 21 PageID #: 17596
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`III. DUTIES OF THE JURY
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`Let me now turn to the general rules that will govern the discharge of your duties as jurors
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`in this case.
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`It will be your duty to find what the facts are from the evidence as presented at the trial.
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`You and you alone will be the judges of the facts. You will have to apply those facts to the law as
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`I will instruct you at the close of the evidence. You must follow that law whether you agree with
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`it or not.
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`In addition to instructing you about the law, at the close of the evidence, I will provide you
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`with instructions as to what the claims of the patents mean. Again, of course, you are bound by
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`your oath as jurors to follow these and all the instructions that I give you, even if you personally
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`disagree with them. All the instructions are important, and you should consider them together as
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`a whole.
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`Perform these duties fairly. Do not let any bias, sympathy, or prejudice that you may feel
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`toward one side or the other influence your decision in any way. Also, do not let anything I say or
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`do during the course of the trial influence you. Nothing I say or do is intended to indicate, or
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`should be taken by you as indicating, what your verdict should be.
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`Case 1:19-cv-01334-CJB Document 670 Filed 02/15/24 Page 6 of 21 PageID #: 17597
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`IV.
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`EVIDENCE
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`The evidence from which you will find the facts will consist of the testimony of witnesses
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`and the documents and other things admitted into evidence. The evidence may also include certain
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`facts agreed to by the parties or that I may instruct you to find. Certain things are not evidence and
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`must not be considered by you. I will list them for you now:
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`1.
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`2.
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`Statements, arguments, and questions by lawyers are not evidence.
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`Objections to questions are not evidence. Lawyers have an obligation to their
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`clients to make an objection when they believe testimony or exhibits being offered are not
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`admissible under the rules of evidence. You should not be influenced by a lawyer’s objection or
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`by my ruling on the objection. If I sustain or uphold the objection and find the matter is not
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`admissible, you should ignore the question or document. If I overrule an objection and allow the
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`matter in evidence, you should treat the testimony or document like any evidence. If I instruct you
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`during the trial that some item of evidence is admitted for a limited purpose, you must follow that
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`instruction and consider that evidence for that purpose only. If this occurs during the trial, I will
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`try to clarify this for you at that time.
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`3.
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`Testimony that the Court has excluded or told you to disregard is not evidence and
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`must not be considered.
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`4.
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`During trial you will be shown charts and animations to help illustrate the testimony
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`of the witnesses. These illustrative exhibits, called “demonstrative exhibits,” are not admitted into
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`evidence and should not be considered as evidence.
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`5.
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`Anything you see or hear outside the Courtroom is not evidence and must be
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`disregarded. You are to decide this case solely on the evidence presented here in the Courtroom.
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`Case 1:19-cv-01334-CJB Document 670 Filed 02/15/24 Page 7 of 21 PageID #: 17598
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`V.
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`DIRECT AND CIRCUMSTANTIAL EVIDENCE
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`You may have heard the terms “direct evidence” and “circumstantial evidence.” Direct
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`evidence is simply evidence like the testimony of an eyewitness, which, if you believe it, directly
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`proves a fact. If a witness testified that he saw it raining outside, and you believed him, that would
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`be direct evidence that it was raining.
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`Circumstantial evidence is simply a chain of circumstances that indirectly proves a fact. If
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`someone walked into the Courtroom wearing a raincoat covered with drops of water, and carrying
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`a wet umbrella, that would be circumstantial evidence from which you could conclude that it was
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`raining outside.
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`It is your job to decide how much weight to give the direct and circumstantial evidence.
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`The law makes no distinction between the weight that you should give to either one, nor does it
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`say that one is any better than the other. You should consider all the evidence, both direct and
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`circumstantial, and give it whatever weight you believe it deserves.
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`Case 1:19-cv-01334-CJB Document 670 Filed 02/15/24 Page 8 of 21 PageID #: 17599
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`VI. CREDIBILITY OF WITNESSES
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`You are the sole judges of each witness’s credibility. You may believe everything a witness
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`says, or part of it, or none of it. 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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`Case 1:19-cv-01334-CJB Document 670 Filed 02/15/24 Page 9 of 21 PageID #: 17600
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`VII. 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. When knowledge of technical
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`subject matter may be helpful to the jury, an expert is permitted to state an opinion on those
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`technical matters.
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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 free to accept or reject the testimony of experts, just as with
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`any other witness.
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`Case 1:19-cv-01334-CJB Document 670 Filed 02/15/24 Page 10 of 21 PageID #: 17601
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`VIII. BURDEN 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 patent case such as this, there are two different burdens of proof that are
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`used. The first is called “preponderance of the evidence.” The second is called “clear and
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`convincing evidence.”
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`As I noted earlier, ME2C contends that the Defendants infringe certain claims of their two
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`patents. A party asserting patent infringement has the burden of proving infringement by a
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`preponderance of the evidence. A preponderance of the evidence is evidence that, when considered
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`in light of all the facts, leads you to believe that what that party claims is more likely true than not.
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`To put it differently, if you were to put the parties’ evidence on opposite sides of a scale, the
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`evidence supporting ME2C’s claims must make the scale tip somewhat toward its side. If the scale
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`should remain equal or tip in favor of the Defendants, you must find for the Defendants.
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`ME2C also has the burden of proving that any infringement was willful by a preponderance
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`of the evidence.
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`As I noted earlier, in addition to denying that they have infringed, the Defendants contend
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`that the asserted patents are invalid.
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`A party challenging the validity of a patent has the burden of proving by clear and
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`convincing evidence that the patent is invalid. Clear and convincing evidence is evidence that
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`produces an abiding conviction that the truth of a factual contention is highly probable. Proof by
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`clear and convincing evidence is, thus, a higher burden than proof by a preponderance of the
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`evidence.
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`Case 1:19-cv-01334-CJB Document 670 Filed 02/15/24 Page 11 of 21 PageID #: 17602
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`Some of you may have heard the phrase “proof beyond a reasonable doubt.” That burden
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`of proof applies only in criminal cases and has nothing to do with a civil case like this one. You
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`should therefore not consider it in this case.
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`Case 1:19-cv-01334-CJB Document 670 Filed 02/15/24 Page 12 of 21 PageID #: 17603
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`IX.
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`PATENT VIDEO
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`At this time, we are going to show a short video as an introduction to the patent system. It
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`contains background information to help you understand what patents are, why they are needed,
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`the role of the Patent Office, and why disputes over patents arise.
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`* * VIDEO WILL BE PLAYED * *
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`Case 1:19-cv-01334-CJB Document 670 Filed 02/15/24 Page 13 of 21 PageID #: 17604
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`X.
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`THE ROLE OF CLAIMS
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`The claims of a patent define the patent owners’ rights under the law; that is, the claims
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`define what the patent owners may exclude others from doing during the term of that patent. The
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`claims may be divided into a number of parts or steps, referred to as “claim limitations.”
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`The claims of a patent serve two purposes. First, they set the boundaries of the patented
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`invention – what the patent covers. Second, they provide notice to the public of what those
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`boundaries are. It is the claims of the patent that are infringed when patent infringement occurs.
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`The claims are at issue as well when the validity of a patent is challenged.
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`In this case, we will be concerned with claims 25 and 26 of the ’114 patent and claims
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`1 and 2 of the ’517 patent.
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`Case 1:19-cv-01334-CJB Document 670 Filed 02/15/24 Page 14 of 21 PageID #: 17605
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`XI. CLAIM CONSTRUCTION
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`While the claims define the invention, sometimes the words or phrases of the claims need
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`to be further defined or interpreted. This has been done already in this case, and a copy of those
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`definitions is included in your juror notebooks. You must accept the definition of these words or
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`phrases in the claims as correct. For any words or phrases in the claim for which you have not
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`been provided with a definition, you should apply their ordinary and customary meaning.
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`You should not take the definition of the language of the claims as an indication that I have
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`a view regarding how you should decide the issues that you are being asked to decide, such as
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`infringement and invalidity. These issues are yours to decide.
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`Case 1:19-cv-01334-CJB Document 670 Filed 02/15/24 Page 15 of 21 PageID #: 17606
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`XII. SUMMARY OF THE PATENT ISSUES
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`In this case, you must decide things according to the instructions I will give you at the end
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`of the trial. Those instructions will repeat this summary and will provide more detail. You must
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`decide:
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`• Whether ME2C has proven by a preponderance of the evidence that each Defendant
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`induced infringement by a power plant of one or more of the asserted claims of the
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`’114 and ’517 patents.
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`• Whether ME2C has proven by a preponderance of the evidence that each of the
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`CERT RC Defendants contributed to the infringement by a power plant of one or
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`more of the asserted claims of the ’114 and ’517 patents.
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`•
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`If you decide that ME2C has proven that a Defendant infringed one or more of the
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`asserted claims of the patents, whether ME2C has proven by a preponderance of the
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`evidence that Defendant willfully infringed that claim.
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`• Whether Defendants have proven by clear and convincing evidence that one or more
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`of the asserted claims of the ’114 and ’517 patents is invalid.
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`•
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`If you decide that ME2C has proven that a Defendant infringed a claim not shown to
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`be invalid, what monetary damages ME2C has proven by a preponderance of the
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`evidence that it is entitled to.
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`Case 1:19-cv-01334-CJB Document 670 Filed 02/15/24 Page 16 of 21 PageID #: 17607
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`XIII. 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 with you. Until you retire to the jury room at the end of the case to
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`deliberate on your verdict, you simply are not to talk about this case. If any lawyer, party, or
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`witness does not speak to you when you pass in the hall, ride the elevator, or the like, remember it
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`is because they are not supposed to talk with you, nor you with them. In this way, any unwarranted
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`and unnecessary suspicion about your fairness can be avoided. If anyone should try to talk to you
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`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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`if there may be a newspaper or Internet article relating to this case, do not read the article or watch
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`or listen to the report.
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`Third, do not try to do any research or make any investigation about the case on your own.
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`Let me elaborate. During the course of the trial, you must not conduct any independent research
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`about the case, the matters in the case, and the individuals or entities involved in the case. In other
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`words, you should not consult dictionaries or reference materials, search the Internet, websites,
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`blogs, or any other electronic means. Again, should there happen to be a newspaper article or radio
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`or television report relating to this case, do not read the article or watch or listen to the report. It
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`is important that you decide this case based solely on the evidence presented in the Courtroom.
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`Please do not try to find out information from any other sources.
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`I know that many of you use smartphones, tablets, the Internet, and other tools of
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`technology. You also must not talk to anyone about this case or use these tools to communicate
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`electronically with anyone about the case. This includes your family and friends. You may not
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`Case 1:19-cv-01334-CJB Document 670 Filed 02/15/24 Page 17 of 21 PageID #: 17608
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`communicate with anyone about the case on your cell phone or smartphone, through e-mail, your
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`tablet, text messaging, on Twitter, Snapchat, or WhatsApp, through any blog or website, through
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`any Internet chat room, or by way of any other social networking websites, including Facebook,
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`Instagram, LinkedIn, 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.
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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. But
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`do not let note-taking distract you to the point that you miss hearing other testimony from the
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`witness. Your notes are only to be used as aids to your memory, and if your memory should later
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`be different from your notes, you should rely on your memory and not your notes. Also, keep in
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`mind that you will not have a transcript of the testimony to review. So, above all, your memory
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`will be your greatest asset when it comes time to deliberate and render a decision in this case.
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`If you do take notes, you must leave them in the jury deliberation room, which is secured
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`at the end of each day. And remember that your notes are for your own personal use. At the
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`conclusion of this trial, your notes will be collected and destroyed without review.
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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.
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`Case 1:19-cv-01334-CJB Document 670 Filed 02/15/24 Page 18 of 21 PageID #: 17609
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`XIV. JUROR NOTEBOOK
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`As I mentioned, to assist in your deliberations, you have been provided with a notebook
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`that contains the following:
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`• Glossary of patent terms
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`• Sample patent mentioned in the video
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`• The Court’s claim constructions
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`• Copies of the patents-in-suit
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`These materials have been jointly submitted by the parties. Please refer to these materials
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`to assist you during the trial.
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`Case 1:19-cv-01334-CJB Document 670 Filed 02/15/24 Page 19 of 21 PageID #: 17610
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`XV. 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. 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.
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`If you would like to stand or stretch or walk around the jury box while we are at sidebar,
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`you should feel free to do so.
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`Case 1:19-cv-01334-CJB Document 670 Filed 02/15/24 Page 20 of 21 PageID #: 17611
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`XVI. COURSE OF THE TRIAL
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`The case will now begin.
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`First, ME2C may make an opening statement outlining its case. Then Defendants may
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`make an opening statement outlining their case. Opening statements are not evidence; their only
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`purpose is to help you understand what the evidence will be.
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`Next, the parties will present their evidence. ME2C will first introduce its evidence that it
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`believes supports its contention that Defendants infringe the asserted claims. When ME2C is
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`finished, Defendants will introduce evidence to defend against ME2C’s allegations of
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`infringement, and will introduce evidence that they believe supports their contention that the
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`asserted claims are invalid. When Defendants are finished, ME2C will have the opportunity to
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`introduce evidence to defend against Defendants’ allegations of invalidity.
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`After all of the evidence is in, I will give you instructions on the law and describe for you
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`the matters you must resolve. The lawyers will then offer closing arguments. The closing
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`arguments are not evidence. Their purpose is to summarize and interpret the evidence for you, and
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`to tie the evidence to their story. You will then retire to the jury room to deliberate on your verdict.
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`Case 1:19-cv-01334-CJB Document 670 Filed 02/15/24 Page 21 of 21 PageID #: 17612
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`XVII. 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. As I mentioned previously, the
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`presentation of evidence in this case is expected to be completed either on Friday of this week or
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`Monday of next week, with jury deliberations to follow.
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`We will normally begin the day at 9:00 a.m and continue until 5:00 p.m. There will be at
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`least one break every morning and at least one break every afternoon. There will also be a lunch
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`break each day.
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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 tell you
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`that we expect to be completed with this case by Monday, March 4, or Tuesday, March 5.
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`Of course, you can help me keep 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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`One final word. I told you when I intend to take breaks and how often I aim to take breaks,
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`but if any of you need an additional break at any time, that is fine. You just need to get my attention
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`or my assistant’s attention. That can be done usually by waving or raising a hand or, if need be,
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`standing. And so, if you need a break for any reason at any other times, please just get our attention.
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