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`Case 1:22-cv-00058-ADA Document 286 Filed 09/26/24 Page 1 of 23
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`AUSTIN DIVISION
`
`IDENTITY SECURITY LLC,
`Plaintiff
`
`v.
`
`APPLE, INC.,
`Defendant
`
`
`
` No. 1:22-CV-00058-ADA
`
`
`§
`
`§
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`§
`§
`§
`§
`§
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`
`
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`
`PRELIMINARY JURY INSTRUCTIONS
`
`TABLE OF CONTENTS
`INSTRUCTIONS TO JURY PANEL ............................................................................. 1
`1.1 :
`INTRODUCTION (BEFORE VOIR DIRE) .............................................. 2
`PRELIMINARY JURY INSTRUCTIONS TO JURY .................................................... 4
`1.2 :
`INTRODUCTION ..................................................................................... 4
`1.3 : THE NATURE OF THE ACTION AND THE PARTIES ........................ 6
`1.4 : UNITED STATES PATENTS .................................................................. 7
`1.5 : PATENT LITIGATION ............................................................................ 9
`1.6 : SUMMARY OF CONTENTIONS .......................................................... 10
`1.7 : PATENTS AT ISSUE ............................................................................. 11
`1.8 : STANDARDS OF PROOF AND BURDEN OF PROOF ....................... 12
`1.9 : BURDEN OF PROOF – PREPONDERANCE OF THE EVIDENCE ... 13
`1.10 : BURDEN OF PROOF – CLEAR AND CONVINCING EVIDENCE .... 14
`1.11 : OVERVIEW OF APPLICABLE LAW .................................................... 15
`1.12 : EVIDENCE ............................................................................................. 17
`1.13 : WITNESSES AND WITNESS CREDIBILITY ...................................... 19
`1.14 : DEPOSITION TESTIMONY .................................................................. 20
`1.15 : EXPERT TESTIMONY .......................................................................... 21
`1.16 : OUTLINE OF TRIAL ............................................................................. 22
`1.17 : NO INFERENCE FROM FILING SUIT ............................................... 23
`1.18 : JURY NOTEBOOKS .............................................................................. 24
`
`
`
`CLERK, U.S. DISTRICT COURT
`WESTERN DISTRICT OF TEXAS
`
`BY: ________________________________
`
`FILED
`
`DEPUTY
`
`September 26, 2024
`
`SL
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`Case 1:22-cv-00058-ADA Document 286 Filed 09/26/24 Page 2 of 23
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`(GIVEN BEFORE VOIR DIRE)
`
`INSTRUCTIONS TO JURY PANEL
`
`1.1
`
`INTRODUCTION (BEFORE VOIR DIRE)
`
`Members of the jury panel, if you have a cell phone or any other wireless
`communication device with you, please take it out and turn it off now. Do not turn it
`to vibrate or silent; power it down. During jury selection, you must leave it off.
`There are certain rules you must follow while participating in this trial.
`First, you may not communicate with anyone about the case, including your
`fellow jurors, until it is time to deliberate. I understand you may want to tell your
`family, close friends and other people that you have been called for jury service so that
`you can explain when you are required to be in court. You should warn them not to
`ask you about this case, tell you anything they know or think they know about it, or
`discuss this case in your presence, until after Judge Albright accepts your verdict or
`excuse you as a juror.
`Similarly, you must not give any information to anyone by any means about
`this case. For example, do not talk face-to-face or use any electronic device or media,
`such as the telephone, a cell or smart phone, camera, recording device, computer, the
`Internet, any Internet service, any text or instant messaging service, any Internet
`chat room, blog, or website such as Facebook, YouTube, Snapchat, Instagram,
`TikTok, or X (formerly known as Twitter), or any other way to communicate to anyone
`any information about this case until Judge Albright accepts your verdict or until you
`have been excused as a juror. This includes any information about the parties,
`witnesses, participants, claims, evidence, or anything else related to this case.
`Second, do not speak with anyone in or around the courthouse other than your
`fellow jurors or court personnel. Some of the people you encounter may have some
`connection to the case. If you were to speak with them, that could create an
`appearance or raise suspicion of impropriety.
`Third, do not do any research—on the Internet, in libraries, in books,
`newspapers, magazines, or using any other source or method. Do not make any
`investigation about this case on your own. Do not visit or view any place discussed in
`this case and do not use Internet programs or other devices to search for or view any
`place discussed in the testimony. Do not in any way research any information about
`this case, the law, or the people involved, including the parties, the witnesses, the
`lawyers, or the judge, until after you have been excused as jurors. If you happen to
`see or hear anything touching on this case in the media, turn away and report it to
`me as soon as possible.
`These rules protect the parties’ right to have this case decided only on evidence
`they know about, that has been presented here in court. If you do any research,
`investigation, or experiment that we do not know about, or gain any information
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`Case 1:22-cv-00058-ADA Document 286 Filed 09/26/24 Page 3 of 23
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`through improper communications, then your verdict may be influenced by
`inaccurate, incomplete, or misleading information that has not been tested by the
`trial process, which includes the oath to tell the truth and cross-examination. It could
`also be unfair to the parties’ right to know what information the jurors are relying on
`to decide the case. Each of the parties is entitled to a fair trial by an impartial jury, and
`you must conduct yourself so as to maintain the integrity of the trial process. If you
`decide the case based on information not presented in court, you will have denied the
`parties a fair trial in accordance with the rules of this country and you will have done
`an injustice. It is very important that you abide by these rules. Failure to follow these
`instructions could result in the case having to be retried.
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`Case 1:22-cv-00058-ADA Document 286 Filed 09/26/24 Page 4 of 23
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`PRELIMINARY JURY INSTRUCTIONS TO JURY
`
`INTRODUCTION
`
`1.2
`MEMBERS OF THE JURY:
`You have now been sworn as the jury to try this case. Judge Albright will decide
`all questions of law and procedure. As the jury, you are the judges of the facts. At the
`end of the trial, Judge Albright will instruct you on the rules of law that you must
`apply to the facts as you find them.
`You may take notes during the trial. Do not allow your note-taking to distract
`you from listening to the testimony. Your notes are an aid to your memory. If your
`memory should later be different from your notes, you should rely on your memory.
`Do not be unduly influenced by the notes of other jurors. A juror’s notes are not
`entitled to any greater weight than each juror’s recollection of the testimony and
`evidence.
`Until this trial is over, do not discuss this case with anyone and do not permit
`anyone to discuss this case in your presence. This includes everyone you know: your
`spouse, children, relatives, friends, coworkers, and anyone that you deal with during
`the day. During your jury service, you must not communicate any information about
`this case by any means. For example, do not talk face-to-face or use any electronic
`device or media, such as a telephone, cell or smart phone, camera, recording device, or
`computer, the Internet, any Internet service, any text or instant messaging service,
`any Internet chat room, blog, or website such as Facebook, YouTube, SnapChat,
`Instagram, Tiktok, or X (formerly known as Twitter), or any other way to communicate.
`You may not communicate to anyone any information about this case until Judge
`Albright accepts your verdict or excuses you as a juror.
`Do not discuss this case with other jurors until the end of the case when Judge
`Albright tells you that it is okay for you to begin to deliberate. It is unfair to discuss
`the case before then because you won’t have all the evidence and you must never
`become an advocate for one side or the other. The parties, the witnesses, the attorneys,
`and everyone associated with this case are not permitted to communicate with you.
`So do not think that they are being impolite. They are simply following Judge
`Albright’s instructions. Do not speak with anyone else in or around the courthouse
`other than your fellow jurors or court personnel.
`Do not conduct any independent investigation of this case. You must rely solely
`on what you see and hear within the courtroom. Do not try to obtain information
`about the case from any other source. In particular, you may not use any electronic
`device or media, such as a telephone, cell phone, smartphone, or computer, to research
`any issue that might be related to this case. Do not go online or read any newspaper
`account of this trial or listen to any newscast about it in any format. Do not visit or
`view any place that might be discussed in this case and do not use Internet programs
`or other devices to search for or to view any place that is discussed in the testimony.
`In sum, you may not research any information about this case, the law, or the people
`involved, including the parties, the witnesses, the lawyers, or Judge Albright, until
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`Case 1:22-cv-00058-ADA Document 286 Filed 09/26/24 Page 5 of 23
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`after you have been excused as jurors.
`There are some issues of law or procedure that the attorneys and Judge Albright
`must discuss and that Judge Albright must decide. These issues are not part of what
`you must decide, and they are not properly discussed in your presence. To avoid having
`you leave the courtroom and to save time, Judge Albright may discuss these issues with
`the attorneys at the bench, out of your hearing. When Judge Albright confers with the
`attorneys at the bench, please do not listen to what they are discussing. If the
`discussions require more time, Judge Albright may have you leave the courtroom until
`the lawyers and he resolve the issues. Judge Albright will try to keep these interruptions
`as few and as brief as possible.
`Do not let the fact that either Judge Albright has or does not have a discussion
`with the attorneys influence you in any way about how Judge Albright might feel about
`this case. In fact, do not let anything Judge Albright does or says from now through the
`end of the trial give you any indication about how Judge Albright feels about the case.
`You are the judges of the facts. Judge Albright’s opinion does not matter.
`Finally, keep an open mind during the entire trial. Do not decide the case until you
`have heard all of the evidence, Judge Albright’s instructions, and the closing arguments.
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`Case 1:22-cv-00058-ADA Document 286 Filed 09/26/24 Page 6 of 23
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`1.3
`
`THE NATURE OF THE ACTION AND THE PARTIES
`
`This is a patent case.
`The plaintiff is seated most closely to you. That is Identity Security LLC. You
`may hear them referred to throughout the course of the trial as Identity Security for
`short. Identity Security is the owner of the Asserted Patents in this case, which are
`identified as U.S. Patent Numbers 7,493,497; 8,020,008; 8,489,895; and 9,507,948. For
`your convenience, the parties and Judge Albright will often refer to these patents by
`the last three numbers of the patent number, namely, as the ’497, ’008, ’895, and ’948
`patents. You may also hear the patents referred to as the “Asserted Patents,” or the
`“Patents-in-Suit.”
`The Asserted Patents generally relate to using a microprocessor identifier that
`uniquely identifies the microprocessor in an encryption algorithm for encrypting
`digital identity data that identifies an owner of the device.
`The Asserted Patents are now expired. The Asserted Patents expired:
`
`• On February 8, 2023 for the ’497 Patent
`• On September 8, 2020 for the ’008 Patent
`• On September 8, 2020 for the ’895 Patent
`• On September 8, 2020 for the ’948 Patent
`The patents will be explained in much greater detail by the witnesses, and the
`opening statements and closing arguments that you will hear.
`The defendant who is seated a little bit further over to my left is Apple Inc.,
`or Apple for short.
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`Case 1:22-cv-00058-ADA Document 286 Filed 09/26/24 Page 7 of 23
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`1.4
`
`UNITED STATES PATENTS
`
`As I mentioned, this is a patent case. Before summarizing the positions of the
`parties and the issues involved in the dispute, let me take a moment to explain what
`a patent is and how one is obtained.
`Patents are granted by the United States Patent and Trademark Office
`(sometimes called the “PTO” or “USPTO”). A valid United States patent gives the
`owner the right to exclude others from making, using, offering to sell, or selling the
`patented invention within the United States or importing it into the United States. A
`violation of the patent holder’s rights is called infringement. The patent holder may
`try to enforce a patent against persons it believes to be infringers by a lawsuit in
`federal court. During the trial, the parties may offer testimony to familiarize you with
`how one obtains a patent from the PTO, but I will give you a general background
`here.
`
`The process of obtaining a patent is called patent prosecution. To obtain a
`patent, an application for a patent must be filed with the PTO by an applicant. The
`application includes a specification, which should have a written description of the
`invention, how it works, and how to make and use it so as to enable others skilled in
`the art to do so. The specification concludes with one or more numbered sentences or
`paragraphs. These are called the “claims” of the patent. The purpose of the claims is
`to define the boundaries of the patent’s protections and give notice to the public of
`those boundaries.
`After an application for a patent is filed with the PTO, the application is
`reviewed by a PTO Patent Examiner. The Patent Examiner reviews (or examines)
`the patent application to determine whether the claims are patentable and whether
`the specification adequately describes the claimed invention. In examining a patent
`application, the Patent Examiner reviews certain information about the state of the
`technology at the time the application was filed. The PTO searches for and reviews
`information that is publicly available or that is submitted by the applicant. This
`information is called “prior art.”
`When the parties are done presenting evidence, Judge Albright will give you
`more specific instructions as to what constitutes prior art in this case. Generally, prior
`art is previously existing technical information and knowledge against which the
`Patent Examiners determine whether or not the claims in the application are
`patentable. The Patent Examiner considers, among other things, whether each claim
`defines an invention that is new, useful, and not obvious in view of this prior art. In
`addition, the Patent Examiner may consider whether the claims are directed to subject
`matter that is not eligible for patenting, such as natural phenomena, laws of nature,
`and abstract ideas. The Patent Examiner also may consider whether the claims are
`not indefinite and are adequately enabled and described by the application’s
`specification.
`Following the prior art search and examination of the application, the Patent
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`Case 1:22-cv-00058-ADA Document 286 Filed 09/26/24 Page 8 of 23
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`Examiner advises the applicant in writing what the Patent Examiner has found and
`whether any claim is patentable (in other words, “allowed”). This writing from the
`Patent Examiner is called an “Office Action.” More often than not, the initial Office
`Action by the Patent Examiner rejects the claims. The applicant then responds to the
`Office Action and sometimes cancels or changes the claims or submits new claims or
`makes arguments against a rejection. This process may go back and forth between
`the Patent Examiner and the applicant for several months or even years until the
`Patent Examiner is satisfied that the application and claims are patentable. Upon
`payment of an issue fee by the applicant, the PTO then “issues” or “grants” a patent
`with the allowed claims.
`The collection of papers generated by the Patent Examiner and the applicant
`during this time of corresponding back and forth is called the “prosecution history.”
`You may also hear the “prosecution history” referred to as the “file history” or the “file
`wrapper.”
`In this case, it is ultimately for you to decide, based on Judge Albright’s
`instructions to you, whether Apple has shown that the patent claims are invalid.
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`Case 1:22-cv-00058-ADA Document 286 Filed 09/26/24 Page 9 of 23
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`1.5
`
`PATENT LITIGATION
`
`Someone is said to be infringing a claim of a patent when they, without
`permission from the patent owner, import, make, use, offer to sell, or sell the claimed
`invention, as defined by the claims, within the United States, before the term of the
`patent expires. A patent owner who believes someone is infringing the exclusive rights
`of a patent may bring a lawsuit, like this one, to attempt to stop the alleged infringing
`acts or to recover damages, which generally means money paid by the infringer to the
`patent owner to compensate for the harm caused by the infringement. The patent
`owner must prove infringement of the claims of the patent. The patent owner must
`also prove the amount of damages the patent owner is entitled to receive from the
`infringer as compensation for the infringing acts.
`A party accused of infringing a patent may deny infringement and/or prove that
`the asserted claims of the patent are invalid. A patent is presumed to be valid. In other
`words, it is presumed to have been properly granted by the PTO. But that
`presumption of validity can be overcome if clear and convincing evidence is presented
`in court that proves the patent is invalid.
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`Case 1:22-cv-00058-ADA Document 286 Filed 09/26/24 Page 10 of 23
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`1.6
`
`SUMMARY OF CONTENTIONS
`
`To help you follow the evidence, I will now give you a summary of the positions
`of the parties.
`Identity Security filed suit in this court seeking money damages from Apple for
`allegedly infringing the Asserted Patents by making, using, selling, offering for sale,
`and/or importing within the United States certain models of the iPhone (iPhone 5s
`through iPhone 14 series). For your convenience, the parties and Judge Albright will
`often refer to all those together as the “Accused Products” or “Accused iPhones.” The
`claims you will be considering are claims 1, 3, 4 and 12 of the ’497 Patent; claims 1, 2, 3,
`6, and 7 of the ’008 Patent; claim 5 of the ’895 Patent; and claim 1 of the ’948 Patent (the
`parties and Judge Albright will sometimes refer to those together as the “Asserted
`Claims” of the “Asserted Patent”). Identity Security alleges that the Accused iPhones
`are covered by these claims.
`Apple denies that it has infringed the Asserted Claims. Apple also contends
`that the Asserted Claims are invalid. Judge Albright will instruct you later as to the
`ways in which a patent claim may be invalid. In general, however, a patent claim is
`invalid if it is not new or novel, or is obvious in view of the state of the art, before the
`patent was filed.
`Your job will be to decide whether or not the Asserted Claims have been
`infringed and whether or not those claims are invalid. If you decide that any Asserted
`Claim of the Asserted Patent has been infringed and is not invalid, you will then need
`to decide how much to award Identity Security in money damages to compensate it
`for the infringement. If you decide that the Asserted Claims are not infringed or are
`invalid, you need not make any finding on damages.
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`Case 1:22-cv-00058-ADA Document 286 Filed 09/26/24 Page 11 of 23
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`1.7
`
`PATENTS AT ISSUE
`
`Judge Albright has already determined the meaning of the Asserted Claims.
`You will be given a document reflecting those meanings. For a claim term for which
`Judge Albright has not provided you with a definition, you should apply the ordinary
`meaning of that term in the field of the patent. You are to apply Judge Albright’s
`definitions of the terms he has construed throughout this case. However, Judge
`Albright’s interpretation of the language of the claims should not be taken as an
`indication that he has a view regarding issues such as infringement and invalidity.
`Those issues are yours to decide. Judge Albright will provide you with more detailed
`instructions on the meaning of the claims before you retire to deliberate your verdict.
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`Case 1:22-cv-00058-ADA Document 286 Filed 09/26/24 Page 12 of 23
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`1.8
`
`STANDARDS OF PROOF AND BURDEN OF PROOF
`
`In any legal action, facts must be proven by a required amount of evidence
`known as the “burden of proof.” The burden of proof in this case is on Identity Security
`for some issues and on Apple for other issues. There are two burdens of proof that you
`will apply in this case. One is preponderance of the evidence, and the other is clear
`and convincing evidence.
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`Case 1:22-cv-00058-ADA Document 286 Filed 09/26/24 Page 13 of 23
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`1.9
`
`BURDEN OF PROOF – PREPONDERANCE OF THE EVIDENCE
`
`The burden of proof for infringement and damages applicable to Identity
`Security in this case is known as the preponderance of evidence. The patent holder,
`Identity Security, has the burden of proving patent infringement and damages for
`any alleged patent infringement by a preponderance of the evidence.
` A preponderance of the evidence means to prove something is more likely so
`than not-i.e., evidence that persuades you that a claim is more probably true than not
`true. Sometimes this is talked about as being the greater weight and degree of
`credible testimony.
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`Case 1:22-cv-00058-ADA Document 286 Filed 09/26/24 Page 14 of 23
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`1.10
`
`BURDEN OF PROOF – CLEAR AND CONVINCING EVIDENCE
`
`Apple has the burden of proving patent invalidity by clear and convincing
`evidence. Clear and convincing evidence means evidence showing that it is highly
`probable that what is argued is true, that is, that you have been left with a clear
`conviction that the fact has been proven. The clear and convincing burden of proof is
`a higher burden than preponderance of the evidence.
`This is different from the criminal law standard of “beyond a reasonable doubt.”
`On a scale of the various standards of proof, as you move from the preponderance of
`the evidence, where the proof need only be sufficient to tip the scales in favor of the
`party proving the fact, to at the other end beyond a reasonable doubt, where the fact
`must be proven to a very high degree of certainty, you may think of the “clear and
`convincing” standard as being between these two standards.
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`Case 1:22-cv-00058-ADA Document 286 Filed 09/26/24 Page 15 of 23
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`1.11
`
`OVERVIEW OF APPLICABLE LAW
`
`In deciding the issues I discussed so far, you will be asked to consider specific
`legal standards. I will give you an overview of those standards now and Judge Albright
`will review them again in more detail before the case is submitted to you for your
`verdict.
`The first issue you will be asked to decide is whether Apple has infringed any
`of the Asserted Claims of the Asserted Patents. Infringement is assessed on a claim-
`by-claim basis. Therefore, there may be infringement as to one claim but not
`infringement as to another. There are a few different ways that a patent may be
`infringed. In general, to prove infringement, Identity Security must prove by a
`preponderance of the evidence that Apple made, used, sold, or offered for sale in the
`United States or imported into the United States, a product meeting all the
`requirements of any of the Asserted Claims. Judge Albright will provide you with
`more detailed instructions on the requirements for infringement at the conclusion of
`the case.
`Another issue you will be asked to decide is whether any of the Asserted Claims
`is invalid.
`A claim of a patent may be invalid for a number of reasons. One way for a claim
`to be invalid is because it may have been obvious. Even if every element of a claim is
`not shown or sufficiently described in a single piece of “prior art” (e.g., a single
`previous device or method or a single printed publication or patent in this or a foreign
`country), the claim is still invalid if it is shown by clear and convincing evidence that
`it would have been obvious to a person of ordinary skill in the field of technology of
`the patent at the relevant time.
`Judge Albright will provide you with more detailed instructions on invalidity
`at the conclusion of the trial.
`If you decide that any of the Asserted Claims has been infringed and is not
`invalid, you will then need to decide money damages to be awarded to Identity
`Security to compensate it adequately for the infringement. A damages award should
`put Identity Security in approximately the same financial position that it would have
`been in had the infringement not occurred, but in no event may the damages award
`be less than what Identity Security would have received had it been paid a reasonable
`royalty. Judge Albright will instruct you later on the meaning of a reasonable royalty.
`The damages you award are meant to compensate Identity Security and not to punish
`Apple. You may not include in your award any additional amount as a fine or penalty
`in order to punish Apple. Judge Albright will give you more detailed instructions on
`the calculation of damages at the conclusion of the case.
`
`[Source: IGT v. Zynga Inc., No. 1:23-cv-00885-ADA, Oct. 13, 2023 Tr. (Dkt. 307)
`at 145:17-48:6; see also Federal Circuit Bar Association Model Patent Jury
`Instructions, 2020 Ed. (Last Edited May 2020), § Preliminary Instructions,
`A.4; Ravgen, Inc. v. Natera, Inc., No. 1:20-cv-000692-ADA, Dkt. 469 (Jan. 5,
`2024).]
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`Case 1:22-cv-00058-ADA Document 286 Filed 09/26/24 Page 17 of 23
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`1.12
`
`EVIDENCE
`
`The evidence you are to consider consists of the testimony of the witnesses at
`trial or at a deposition that will be presented to you, the documents and other exhibits
`that Judge Albright will admit into evidence, any facts the lawyers agreed or
`stipulated to, and any fair inferences and reasonable conclusions you draw from the
`facts and circumstances that you believe have been proven. Nothing else is evidence.
`Generally speaking, there are two types of evidence. One is direct evidence,
`such as testimony of an eyewitness. The other is indirect or circumstantial evidence.
`For example, if a witness testified that she saw it raining outside, that would be direct
`evidence that it was raining.
`Circumstantial evidence is evidence that proves a fact from which you can
`logically conclude another fact exists. For example, if someone walked into the
`courtroom wearing a raincoat covered with drops of water and carrying a wet
`umbrella, that would be circumstantial evidence from which you could conclude that
`it was raining. As a general rule, the law makes no distinction between direct and
`circumstantial evidence. It simply requires that you determine the facts from all of
`the evidence that you hear in this case, whether direct, circumstantial, or any
`combination.
`In judging the facts, you must consider all the evidence, both direct and
`circumstantial. That does not mean you have to believe all of the evidence. It is
`entirely up to you to give the evidence you receive in this case whatever weight you
`individually believe it deserves. It will be up to you to decide which witnesses to
`believe, which witnesses not to believe, the weight you give any testimony you hear,
`and how much of any witness’s testimony you choose to accept or reject.
`Here are some examples of what is not evidence.
`The statements, arguments, and questions by the attorneys are not evidence.
`Objections to questions are not evidence. The attorneys that are seated in front
`of you may object if they believe that documents or testimony that is attempted to be
`offered into evidence are improper under the rules of evidence. Judge Albright’s legal
`rulings are not evidence. Judge Albright’s comments and questions are not evidence.
`The notes taken by any juror are not evidence.
`You should never be influenced by Judge Albright’s ruling on any objection. If
`Judge Albright sustains an objection, then just pretend the question was never asked.
`If there was an answer given, ignore it. If Judge Albright overrules the objection, act
`like the objection was never made. If he gives you instructions that some item of
`evidence is received for a limited purpose, you must follow his instruction. If he gives
`any limiting instruction during trial, you must follow it. Any testimony he strikes, or
`tells you to exclude or disregard, is not evidence and may not be considered.
`During the trial you may be shown charts and animations that will help to
`illustrate the testimony of witnesses. These are called demonstrative exhibits. They
`are not evidence unless Judge Albright specifically admits them into evidence. They
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`are just aids to assist you to understand the evidence. What does that mean? If you
`hear a lawyer say: I’m using this for demonstrative purposes only, that’s absolutely
`fine. But it means you’re not going to have it when you’re deliberating.
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`Anything you have heard outside of this courtroom, for example, anything you
`might know about Identity Security or Apple that you brought in here with you, needs
`to be ignored. You must not conduct any independent research or investigation. You
`must make your decision based only on the evidence presented here in the courtroom
`and nothing else.
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`Case 1:22-cv-00058-ADA Document 286 Filed 09/26/24 Page 19 of 23
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`1.13
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`WITNESSES AND WITNESS CREDIBILITY
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`You alone determine the questions of credibility or truthfulness of the
`witnesses.
`In weighing the testimony of witnesses, you may consider the witness’s manner
`and demeanor on the witness stand, any feelings about or interest in the case, any
`prejudice or bias about the case, and the consistency or inconsistency of the witness’s
`testimony considered in light of the circumstances. Has the witness been contradicted
`by other credible evidence? Has the witness made statements at other times that are
`contrary to those made here on the witness stand? You must give the testimony of
`each witness the credibility that you think it deserves.
`Even though a witness may be a party to the action and therefore interested in
`the outcome, you may accept the testimony if it is not contradicted by direct evidence
`or by any inference that may be drawn from the evidence, if you believe the testimony.
`In determining the weight to give to the testimony of a witness, consider
`whether there was evidence that at some other time the witness said or did something,
`or failed to say or do something, that was different from the testimony given at the
`trial.
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`A simple mistake by a witness does not necessarily mean that the witness did
`not tell the truth as he or she remembers it. People may forget some things or
`remember other things inaccurately. If a witness makes a misstatement, consider
`whether that misstatement was an intentional falsehood or simply an innocent
`mistake. The significance of that may depend on whether it has to do with an
`important fact or with only an unimportant detail. This instruction applies to the
`testimony of all witnesses.
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`Case 1:22-cv-00058-ADA Document 286 Filed 09/26/24 Page 20 of 23
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`1.14
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`DEPOSITION TESTIMONY
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`Certain testimony may be presented to you through a deposition. A deposition
`is the sworn, recorded answers to questions a witness was asked in advance of the
`trial. Attorneys representing the parties in this case questioned the witnesses under
`oath. A court reporter was present and recorded the testimony. The questions and
`answers may be shown to you on