Case 1:19-cv-11586-IT Document 78-3 Filed 07/08/20 Page 1 of 4
`Case 1:19-cv-11586—IT Document 78-3 Filed 07/08/20 Page 1 of 4
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`EXHIBIT B
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`EXHIBIT B
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`Case 1:19-cv-11586-IT Document 78-3 Filed 07/08/20 Page 2 of 4
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`THE FEDERAL CIRCUIT BAR ASSOCIATION
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`MODEL PATENT JURY INSTRUCTIONS
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`Last Edited: May 2020
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` ©
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` Federal Circuit Bar Association 2020
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`Case 1:19-cv-11586-IT Document 78-3 Filed 07/08/20 Page 3 of 4
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`B.3
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`Infringement
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`3.1b DIRECT INFRINGEMENT BY “LITERAL INFRINGEMENT” OF SECTION
`112, PARAGRAPH 6/f CLAIM REQUIREMENTS
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`[This instruction should only be given where the asserted claims include means-plus-function or
`step-plus-function requirements.]
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`Where claims include means/step-plus-function requirements:
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`As I have previously explained, claims [ ] include requirements that are in [means/step-plus-
`function] form.
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` A
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` product or a process meets a means/step-plus-function requirement of a claim if: (1) it includes
`[a structure or a set of structures/an action or a set of actions] that perform(s) the identical function
`recited in the claim, and (2) that [structure or set of structures/action or set of actions] is either
`identical or “equivalent” to [one or more of] the described [set(s) of] [structure(s)/ action(s)] in
`the [ ] patent that I defined earlier as performing the function of [functional limitation]. If the
`[product] does not perform the specific function recited in the claim, the “means-plus-function”
`requirement is not met, and the [product] does not literally infringe the claim. Alternatively, even
`if the [product] has [a structure or a set of structures] that performs the function recited in the claim
`but the [structure or set of structures] is neither identical nor “equivalent” to [one or more of] the
`[set(s) of] [structure(s)/action(s)] that I defined to you as being described in the [ ] patent and
`performing this function, the [product] does not literally infringe the asserted claim.
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`[A structure or a set of structures/An action or a set of actions] may be found to be “equivalent”
`to [one of] [the/a] [set(s) of] [structure(s)/action(s)] I have defined as being described in the [ ]
`patent if a person having ordinary skill in the field of technology of the [ ] patent either would
`have considered the differences between them to be insubstantial at the time the [ ] patent issued
`or if that person would have found the [structure(s)/actions(s)] performed the function in
`substantially the same way to accomplish substantially the same result. In deciding whether the
`differences would be “insubstantial,” you may consider whether a person having an ordinary level
`of skill in the field of technology of the patent would have known of the interchangeability of the
`two structures or sets of structures at the time the patent issued. The fact that [a structure or a set
`of structures/an act or a set of acts] is known to be “equivalent” today is not enough. The [structure
`or set of structures/act or set of acts] must also have been available at the time the [ ] patent issued.
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`[In this case, the parties have agreed that the relevant field of technology is [field of technology]
`and that a person having an ordinary level of skill would [qualifications].] [In this case, you will
`have to decide [issues regarding field of technology and level of ordinary skill in the art]. I will
`instruct you later how to decide this.]
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`In order to prove direct infringement by literal infringement of a means-plus/step-plus-function
`limitation, [patent holder] must prove the above requirements are met by a preponderance of the
`evidence.
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`Case 1:19-cv-11586-IT Document 78-3 Filed 07/08/20 Page 4 of 4
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`Authorities
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`35 U.S.C. § 112(f); Pre-AIA 35 U.S.C. § 112, ¶ 6; Allvoice Computing PLC v. Nuance Commc’ns,
`Inc., 504 F.3d 1236, 1240- 41 (Fed. Cir. 2007); Cross Med. Prods., Inc. v. Medtronic Sofamor
`Danek, Inc., 424 F.3d 1293, 1315-17 (Fed. Cir. 2005); Applied Med. Res. Corp. v. U.S. Surgical
`Corp., 448 F.3d 1324, 1333-3(Fed. Cir. 2006); Omega Eng’g, Inc. v. Raytek Corp., 334 F.3d 1314,
`1328 (Fed. Cir. 2003) (holding that the structure in an accused device meets a § 112, ¶ 6, limitation
`if the structure performs the identical function recited in the claim and is identical or equivalent to
`the structure in the specification corresponding to that limitation); Al-Site Corp. v. VSI Int’l Inc.,
`174 F.3d 1308, 1320 (Fed. Cir. 1999) (holding that an equivalent structure or act under § 112
`cannot embrace technology developed after the patent issued because the literal meaning of a
`claim is fixed upon issuance); WMS Gaming, Inc. v. Int’l Game Tech., 184 F.3d 1339, 1350 (Fed.
`Cir. 1999); Odetics, Inc. v. Storage Tech. Corp., 185 F.3d 1259, 1266-68 (Fed. Cir. 1999);
`Chiuminatta Concrete Concepts, Inc. v. Cardinal Indus., Inc., 145 F.3d 1303, 1307-11 (Fed. Cir.
`1998); Micro Chem., Inc. v. Great Plains Chem. Co., 103 F.3d 1538, 1547 (Fed. Cir. 1997);
`Valmont Indus., Inc. v. Reinke Mfg. Co., 983 F.2d 1039, 1042 (Fed. Cir. 1993).
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