Case 1:22-cv-00058-ADA Document 297 Filed 10/04/24 Page 1 of 43
`Case 1:22-cv-00058-ADA Document 297 Filed 10/04/24 Page 1 of 43
`FILED
`October 04, 2024
`CLERK, U.S. DISTRICT COURT
`IN THE UNITED STATES DISTRICT COURT_WESTERN DISTRICT OF TEXAS
`FOR THE WESTERN DISTRICT OF TEXAS py.
`Jennifer Clark
`AUSTIN DIVISION
`DEPUTY
`
`C.A. NO. 1:22-CV-00058-ADA
`Judge: Honorable Alan D. Albright
`
`) )
`
`);
`
`)
`
`))
`
`)
`
`IDENTITY SECURITY LLC,
`
`Plaintiff,
`
`v.
`
`APPLEINC.,
`
`Defendant.
`
`FINAL JURY INSTRUCTIONS
`
`
`
`

`

`Case 1:22-cv-00058-ADA Document 297 Filed 10/04/24 Page 2 of 43
`Case 1:22-cv-00058-ADA Document 297 Filed 10/04/24 Page 2 of 43
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`TABLE OF CONTENTS
`
`JURY INTRODUCTION....... cc ccscsssssesscssessecssecsscssssessecsesssssnessesteasonseesenssnesnearoaeses 1
`SUMMARYOF PATENTISSUES............sscsscsssssessessssssesrenscsseesessensesessensenensenees3
`EVIDENCE..........ccccesssssssccsssessssrcscssesssnresscsscesensensensensensessenseneseessensessensensassanensenees4
`WITNESSES AND WITNESSCREDIBILITY .......... cc ecssecssesseseeseeenessasesseeneeeees6
`NO INFERENCEFROM FILING SUIT...... se cccsssesseecescesseeseeesessesseseestserenesseees7
`EXPERT TESTIMONY.........sccsscsscssssssrsssscssensssesesesensssssseteaeessseatsstenssestessessrseteates 8
`DEPOSITION TESTIMONY .......ccssscsesscsscsscssesscssceresscnsensenesserseseenssassssseeeensseneass9
`INTERROGATORIES.........cscsscssssssssssssssssesseecsessessesseesesserseessssesseensencensseenesscsasens 10
`CHARTS AND SUMMARIES........ccccsssesessessessessessescescessesnensesseaeesenessesesenssneneees il
`DEMONSTRATIVEEXHIBITS.........ccssssessessecsessensenensssncesessecsenneensorsnceneenssnsonses 12
`BIAS — CORPORATEPARTY INVOLVED..........-sessessesssssssessesteersersensensessreonees 13
`BURDENOF PROOF............sscssssssscssssssseseessesressesnesesoresnsonsonsacensnsessssseseosssenseeres 14
`BURDEN OF PROOF - PREPONDERANCEOF THE EVIDENCE..............2+: 15
`BURDEN OF PROOF - CLEAR AND CONVINCING EVIDENCE...........000+4 16
`PATENTCLAIMS.......cccsscsssssssssccesessevscssenssatserseneresseneeseenscaesnesnesseseesevaesssersereseses 17
`INDEPENDENT AND DEPENDENTCLAIMS........cccsssssssessesstesenseesereserseneeeres21
`INFRINGEMENT GENERALLY............cccessssssesscsscsscessestecssseeseeseseeneessesseoseaneosees22
`DIRECT INFRINGEMENT- LITERAL INFRINGEMENT..........cccccssssseereeeees23
`INVALIDITY GENERALLY..........ccssessssssssssessessessessensennscnsaceasencescssasseseseonsensees24
`PRIOR ART.......cccscsssscssesovsscssecssecssssssscssssrarsonceseseseasescnsensensecssonenssgseasasesessaseaenaesos25
`PRIOR ART NOT CONSIDERED BY THEPTO.........ssssssssssssseesserencnssrscosesssanes26
`PERSPECTIVE OF ONE OF ORDINARYSKILL IN THE ART........cccesscsseesses27
`INVALIDITY — OBVIOUSNESS.........cccssessessessereescenceseesensenseneesnessesssseseenssnasennes28
`INVALIDITY — WRITTEN DESCRIPTION.........:scsssscssssserssssssncseessteneneeersersens30
`DAMAGES—INTRODUCTION...........ccssccsscsssssestscssntsnssnsscsnsssensssssscssnssesesensons32
`REASONABLE ROYALTY—DEFINITION.........cccsssscsssesserssseseeserseeseresesseresees33
`REASONABLE ROYALTY—LUMP SUMVS. RUNNING ROYALTY .........34
`REASONABLE ROYALTY — RELEVANT FACTORG.........cccscsssscssseseeseseeneneeee35
`DAMAGES—COMPARABLE AGREEMENT..........scssessssereecseenserseresseseneessenes 37
`DAMAGES —APPORTIONMENT ........c:cssssssssssesresresrecesnesseeeensensensensessesesssssenenes38
`DAMAGES—DAMAGESPERIOD.........cccscsscssensesseneeseseenesennsssaseessanseessssnsseneons39
`DUTY TO DELIBERATE;NOTES..........:sscsscsssssssesssscesersecnesssosesnecsssessesesseenres40
`SOCIAL MEDIA INSTRUCTION 00... ce essccsesssseesseseseneensersnenscsssseaseaseensonssenssoy41
`
`ii
`
`

`

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`2.1:
`
`JURY INTRODUCTION
`
`MEMBERSOFTHE JURY:
`
`It is my duty and responsibility to instruct you on the law you are to apply in
`this case. The law containedin these instructionsis the only law you may follow.It
`is your duty to follow what I instruct you the law is, regardless of any opinion that
`you might have as to what the law oughtto be.
`
`Each of you is going to have your own printed copy of these final jury
`instructionsthat I am giving you now,sothere is no need for you to take notes unless
`you wantto.
`
`If I have given youthe impression during thetrial that I favor either party, you
`must disregard that impression. If I have given you the impression during thetrial
`that I have an opinion aboutthefacts ofthis case, you mustdisregard that impression.
`Youare the sole judges ofthe facts of this case. Other than my instructions to you
`on the law, you should disregard anything I may have said or done duringthetrial
`in arriving at your verdict.
`
`You should considerall ofmy instructions aboutthe law as a whole and regard
`each instruction in light of the others, without isolating a particular statement or
`paragraph.
`
`The testimony of the witnesses and other exhibits introduced bythe parties
`constitute the evidence. The statements of counsel are not evidence; they are only
`arguments.It is important for you to distinguish between the arguments of counsel
`and the evidence on which those arguments rest. What the lawyers say ordois not
`evidence. You may, however,consider their arguments in light of the evidencethat
`has been admitted and determine whether the evidence admittedin this trial supports
`the arguments. You must determinethe facts from all the testimony that you have
`heard and the other evidence submitted. You are thejudgesofthe facts, butin finding
`those facts, you must apply the lawasI instruct you.
`
`Youare required by law to decide the casein a fair, impartial, and unbiased
`manner, based entirely on the law and on the evidence presented to you in the
`courtroom. You maynotbeinfluencedby passion,prejudice, or sympathy you might
`have for Identity Security or Apple in arriving at yourverdict.
`
`After the remainder of these instructions, you will hear closing arguments
`from the attorneys. Statements and argumentsofthe attorneys, I remind you,are not
`
`

`

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`evidence, and they are notinstructions on the law. They are intended only to assist
`the jury in understanding the evidence andthe parties’ contentions.
`
`A verdict form has been prepared for you. You are to take this verdict form
`with you to the jury room; and when you have reached a unanimous decision or
`agreement as to the verdict, you are to have your forepersonfill in the blanksin the
`verdict form, date it, and sign it.
`
`Answereach question in the verdict form from the facts as you find them to
`
`be.
`
`Do not decide who you think should win the case and then answer the
`questions to reach that result. Again, your answers and your verdict must be
`unanimous.
`
`

`

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`2.2:
`
`SUMMARYOF PATENTISSUES
`
`I will now summarize the issues that you must decide and for which I will
`provideinstructions to guide your deliberations. For these patents you must decide
`the following issues:
`
`1. Whether Identity Security has proven by a preponderance of the evidence
`that Apple infringes claims 1, 3, 4 and/or 12 of the ’497 Patent; claims 1,
`2, 3, 6, and/or 7 of the ’008 Patent; claim 5 of the ’895 Patent; and/or claim
`1 of the ’948 Patent.
`
`2. Whether Apple has proven by clear and convincing evidence that claims
`1, 3, 4 and/or 12 of the ’497 Patent; claims 1, 2, 3, 6, and/or 7 of the 008
`Patent; claim 5 of the ’895 Patent; and/or claim 1 of the 948 Patent are
`invalid.
`
`If you find that one or moreclaims of Identity Security’s patentis infringed
`by Apple, and that claim is notinvalid, you will also need to determine what amount
`of damages Identity Security has proven will compensate it
`for Apple’s
`infringement.
`
`

`

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`Case 1:22-cv-00058-ADA Document 297 Filed 10/04/24 Page 6 of 43
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`2.3: EVIDENCE
`
`The evidence you are to consider consists of the testimony of the witnesses
`here at trial or at a deposition that has been presented to you, the documents and
`exhibits that I admitted into evidence, the stipulations to which the parties agreed,
`and any fair inferences and reasonable conclusions you draw from the facts and
`circumstancesthat you believe have been proven. Nothingelse is evidence.
`
`Generally speaking, there are two types of evidence. Oneis direct evidence,
`such as testimony of an eyewitness. The otheris indirect or circumstantial evidence.
`Circumstantial evidence is evidence that proves a fact from which you can logically
`conclude anotherfact exists. As a generalrule, the law makesnodistinction 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.
`
`As I instructed you before the trial began, in judging the facts, you must
`consider all the evidence, both direct and circumstantial. That does not mean you
`haveto 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 muchofany witness’s testimony
`you chooseto accept orreject.
`The statements, arguments, and questions by the attorneys are not evidence.
`Objections to questions are not evidence. The attorneysthat are seated in front of
`you may haveobjectedif they thoughtthat documents or testimony that was offered
`into evidence was improper underthe rules of evidence. My legalrulings as to those
`objections are not evidence. My comments and questionsare not evidence. The notes
`taken by anyjuror are not evidence.
`During the trial I may not have let you hear the answers to some of the
`questions the lawyers asked. I may also have ruled that you could not see some of
`the exhibits that the lawyers wanted you to see. Further, sometimes I may have
`ordered you to disregard things that you saw or heard, or struck things from the
`record. You must follow my rulings and completely ignore all of these things. Do
`not speculate about what a witness might have said or what an exhibit might have
`shown. These things are not evidence, and you are bound by youroath notto let
`them influence yourdecision in any way.
`
`

`

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`You should neverbe influenced by myruling on any objection.If I sustained
`an objection, then just pretend the question was neverasked. If there was an answer
`given to a question that was objected to and I sustained that objection, you must
`ignore it. If I overruled the objection, you must act like the objection was never
`made. If I gave you instructions that some item of evidence was received for a
`limited purpose, you must follow myinstruction. If I gave any limiting instruction
`duringtrial, you must follow it. Any testimony I tell you to exclude ordisregard is
`not evidence and maynotbe considered.
`
`You must not conduct any independent research or investigation. You must
`make yourdecision based only on the evidence as I have defined it here, and nothing
`else.
`
`

`

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`2.4: WITNESSES AND WITNESS CREDIBILITY
`
`You alone are to determine the questions of credibility or truthfulness of the
`witnesses. In weighing the testimony of the witnesses, you may consider the
`witness’s manner and demeanoronthe witnessstand, any feelings or interest in the
`case, or any prejudice or bias about the case that he or she may have, and the
`consistency or inconsistency of his or her testimony considered in the light of the
`circumstances. For instance, has the witness been contradicted by other credible
`evidence? Hashe or she madestatementsat other times and places contrary to those
`madehere 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
`its outcome, the testimony may be accepted 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 wasdifferent from the testimony
`given by that witnessattrial.
`
`A simple mistake by a witness does not necessarily mean that the witness did
`not tell the truth as he or she remembers it. We are people. People may forget some
`things or rememberother things inaccurately. If a witness made a misstatement,
`consider whether that misstatement was an intentional falsehood or just a mistake.
`The significance of that may depend on whetherit has to do with an important fact
`or with only a minordetail. This instruction applies to the testimony ofall witnesses.
`
`

`

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`2.5: NOINFERENCE FROM FILING SUIT
`
`The fact that a person brought a lawsuit and is in court seeking damages
`creates no inference that the personis entitled to a judgment. Anyone may make a
`claim and file a lawsuit. The act of making a claim in a lawsuit, by itself, does not
`in any waytend to establish that claim and is not evidence.
`
`

`

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`2.6: EXPERT TESTIMONY
`
`Expert testimony is testimony from a person who has a special skill or
`knowledge in somescience, profession, or business. This skill or knowledge is not
`commonto the average person but has been acquired by the expert through special
`study or experience.
`
`In weighing expert testimony, you may consider the expert’s qualifications,
`the reasonsfor the expert’s opinions, and the source andreliability ofthe information
`supporting the expert’s opinions, as well as the factors I have previously mentioned
`for weighing testimony of any other witness.
`
`testimony should receive whatever weight and credit you think
`Expert
`appropriate, given all the other evidence in the case. You are not required to accept
`the opinion of any expert, rather, you are free to accept or reject the testimony of
`experts, just as with any other witness.
`
`

`

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`2.7; DEPOSITION TESTIMONY
`
`Certain testimony has been presented to you through a deposition. A
`deposition is the sworn, recorded answers to questions a witness was asked in
`advance ofthe trial. Under some circumstances, if a witness cannot be present to
`testify from the witness stand, that witness’s testimony may be presented, under
`oath, in the form of a deposition. Sometime beforethis trial, attorneys representing
`the parties in this case questioned this witness under oath. A court reporter was
`presentand recorded the testimony. The questions and answers have been shownto
`you. This deposition testimonyis entitled to the same consideration and weighed and
`otherwise considered by you in the same wayasif the witness had been present and
`had testified from the witness stand in court.
`
`

`

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`2.8:
`
`INTERROGATORIES
`
`Evidence has been presented to you in the form of answers of one of the
`parties to written interrogatories submitted by the other side. These answers were
`given in writing and underoath before thetrial in response to questions that were
`submitted under established court procedures. You should consider the answers,
`insofar as possible, in the same wayas if they were made from the witnessstand.
`
`

`

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`2.9: CHARTS AND SUMMARIES
`
`Certain charts and summaries have been shownto yousolely to help explain
`or summarizethe facts disclosed by the books, records, and other documentsthat are
`in evidence. These charts and summaries are not evidence or proof of any facts
`unless I specifically admitted a chart or summary into evidence. You should
`determinethe facts from the evidence.
`
`

`

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`2.10: DEMONSTRATIVE EXHIBITS
`
`Certain exhibits shown to you, such as PowerPoint presentations, posters, or
`models,are illustrations of the evidence, but are not themselves evidence. We call
`these types of exhibits “demonstrative exhibits.” Demonstrative exhibits are a
`party’s description, picture, or model used to describe something involved in this
`trial. If your recollection of the evidencediffers from the demonstrative exhibit, rely
`on yourrecollection.
`
`

`

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`2.11: BIAS - CORPORATE PARTY INVOLVED
`
`Do notlet bias, prejudice, or sympathy play any part in your deliberations.
`Whetheryouare familiar with one party or the other should notplay anypart in your
`deliberations. A corporation andall other persons are equal before the law and must
`be treated as equals in a court ofjustice.
`
`

`

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`2.12; BURDEN OF PROOF
`
`In any legal action, facts must be proved by a required amountof evidence
`knownas the “burden of proof.” This case involves two different burdensofproof,
`“preponderance of the evidence” and “clear and convincing evidence.” The burden
`of proofin this case is on Identity Security for some issues and on Apple for other
`
`issues.
`
`14
`
`

`

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`2.13: BURDEN OF PROOF - PREPONDERANCEOF THE EVIDENCE
`
`The burden of proof for infringement and damages applicable to Identity
`Security in this case is knownas the preponderance of evidence. The patentholder,
`Identity Security, has the burden ofproving patent infringement and damages for
`any alleged patent infringement by a preponderance ofthe evidence.
`
`A preponderanceof the evidence meansto prove somethingis morelikely so
`than not-i.e., evidence that persuades you that a claim is more probablytrue than not
`true. Sometimes this is talked about as being the greater weight and degree of
`credible testimony.
`
`Apple does not have any burdenofproofon the issues of patent infringement
`or damages.
`
`15
`
`

`

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`2.14: BURDEN OF PROOF - CLEAR AND CONVINCING EVIDENCE
`
`Apple has the burden ofproving patent invalidity by clear and convincing
`evidence. Clear and convincing evidence means evidence showingthatit 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 ofthe evidence.
`
`These standards are different from what you have heard about in criminal
`proceedings, wherea fact must be proven “beyond a reasonable doubt.” Ona scale
`of the various standards of proof, as you move from the preponderance of the
`evidence, where the proof need only besufficient to tip the scales in favor of the
`party provingthe fact, to at the other end beyond a reasonable doubt, where the fact
`must be provento a very high degree of certainty, you may think of the “clear and
`convincing” standard as being between these two standards.
`
`16
`
`

`

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`2.15: PATENT CLAIMS
`
`Before you can decide many ofthe issues in this case, you will need to
`understand the role of patent “claims.” The patent claims are the numbered
`sentencesat the end of each patent. The claims are important becauseit is the words
`of the claims that define whata patent covers. The figures andtext in the rest of the
`patent provide a description and/or examples ofthe invention and provide a context
`for the claims, but it is the claims that define the breadth of the patent’s coverage.
`Therefore, what a patent covers depends, in turn, on whateachofits claims covers.
`
`in words, a set of
`To know what a claim covers, a claim sets forth,
`requirements. Each claim sets forth its requirements in a single sentence. The
`requirements of a claim are often referred to as “claim elements” or “claim
`limitations.” The coverage of a patent is assessed claim-by-claim. When a thing
`(such as a product or a process) meets all of the requirements ofa claim,the claim
`is said to “cover” that thing, and that thing is said to “fall” within the scopeof that
`claim. In other words, a claim covers a product where each ofthe claim elements or
`limitations is present in that product.
`
`You will first need to understand what each claim covers in order to decide
`whetherornot there is infringement of the claim and to decide whether or not the
`claim is invalid.
`
`The first step is to understand the meaning of the words used in the patent
`
`claim.
`
`The law saysthatit is my role to define the termsof the claims andit is your
`role to apply mydefinitions of the terms I have construed to the issues that you are
`asked to decide in this case. Therefore, as I explained to you at the start ofthe case,
`I have determined the meaningofcertain claim terms andI have provided to you my
`definitions of certain claim terms. You must accept my definitions of these words in
`the claimsas being correct. It is your job to take these definitions and apply them to
`the issues that you are deciding, includingthe issues ofinfringementandinvalidity.
`
`The beginningportion, also knownas the preamble, of a claim often uses the
`word “comprising.” The word “comprising,” when used in the preamble, means
`“including but not limited to” or “containing but not limited to.” When “comprising”
`is used in the preamble, if you decide that an accused productincludesall of the
`requirementsofthat claim, the claim is infringed. This is true even if the accused
`product contains additional elements.
`
`

`

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`Case 1:22-cv-00058-ADA Document 297 Filed 10/04/24 Page 20 of 43
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`If a product is missing even onelimitation or elementofa patent claim,then
`that product is not covered by the claim and does not infringe. Likewise, if a prior
`art reference is missing one limitation or element of a patent claim, then that prior
`art reference alone does not invalidate the claim. For example, a claim wherein “a
`table comprises a tabletop, legs, and glue” would not covera table that includes a
`tabletop and legs, but no glue.
`
`The use ofthe terms“a”or “an”in a claim is a term ofart, which hasa special
`meaning in the context of a patent claim. When used in a claim, the terms “a” or
`“an” mean “one or more.” Likewise, the word “the” has a special meaning in the
`context ofa patent such that whena patentclaim term uses“the”to introduce a claim
`element the term “the [element]” means “the sameparticular [element] that the claim
`previously introducedas ‘a’ or ‘an’ [element].”
`
`For any wordsin the claim for which I have not provided you with a definition,
`you should apply the ordinary meaning ofthose termsin the field of the patent. You
`should not take my definition of the language of the claims as an indication that I
`have a view regarding how you should decide the issues that you are being asked to
`decide, such as infringement andinvalidity.
`
`
`
`Theseissues are yours to decide.
`Plain and ordinary meaning.
`
`
`"the digital identity data is bound to
`microprocessoridentity by encrypting
`
`the digital identity data using an
`algorithm that uses the
`
`microprocessoridentity"
`
`
`
`
`Plain and ordinary meaning.
`"the digital identity data is bound to
`the microprocessoridentity device by
`encoding, using the microprocessor,
`
`the digital identity data using an
`
`algorithm that uses the
`
`microprocessoridentity information"
`
`
`
`

`

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`Case 1:22-cv-00058-ADA Document 297 Filed 10/04/24 Page 21 of 43
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`
`Plain and ordinary meaning.
`"the digital identity data is bound to
`the microprocessoridentity device
`using an encryption algorithm and the
`
`microprocessoridentity information"
`
`
`
`
`Plain and ordinary meaning.
`"the digital identity data is boundto
`the microprocessor by encrypting,
`using the microprocessor,the digital
`
`identity data using an algorithm that
`
`uses the microprocessoridentity
`information"
`
`
`
`
`'948 Patent, Claim 1
` Plain and ordinary meaning.
`
`"microprocessoridentity that
`
`
`uniquely identifies the
`microprocessor"
`
`
`
`'497 Patent, Claim 1
` Plain and ordinary meaning.
`
`"microprocessoridentity information
`
`
`uniquely identifies the
`microprocessor"
`
`
`
`'948 Patent, Claim 1
` Plain and ordinary meaning.
`
`"microprocessoridentity information
`
`
`that uniquely identifies the
`
`microprocessoridentity device"
`
`
`
`
`the
`Plain and ordinary meaning, but
`“an interface configured to enable the
`“external device” cannot be a component
`microprocessor
`identity device to
`
`
`within the digital/microprocessoridentity
`communicate with an external device”
`
`
`device.
`
`
`
`(497 patent, claim 3;
`’008 patent,
`
`claim 2)
`
`(008 Patent, Claim 1; '895 Patent,
`
`19
`
`

`

`Case 1:22-cv-00058-ADA Document 297 Filed 10/04/24 Page 22 of 43
`Case 1:22-cv-00058-ADA Document 297 Filed 10/04/24 Page 22 of 43
`
`“input/output port”
`
`digital/microprocessoridentity device.”
`
`“A physical port that enables input/output
`communications with a device that is not
`a
`component
`within
`the
`
`(497 patent, claim 4;
`claim 3)
`
`’008 patent,
`
`20
`
`

`

`Case 1:22-cv-00058-ADA Document 297 Filed 10/04/24 Page 23 of 43
`Case 1:22-cv-00058-ADA Document 297 Filed 10/04/24 Page 23 of 43
`
`2.16:
`
`INDEPENDENT AND DEPENDENT CLAIMS
`
`This case involves two types of patent claims: independent and dependent
`claims.
`
`An independentclaim sets forth all of the requirements that must be met in
`order to be coveredby that claim. Thus,it is not necessary to look at any other claim
`to determine what an independent claim covers. In this case, claim 1 of the °497
`Patent, claim 1 ofthe 008 Patent, claim 5 ofthe 895 Patent, and claim | of the 948
`Patent are independentclaims.
`
`Claims 3, 4, and 12 of the 497 Patent and claims 2, 3, 6, and 7 of the ’008
`Patent are dependent claims. A dependent claim does not itself recite all of the
`requirementsof the claim but refers to another claim for some ofits requirements.
`In this way, the claim “depends” on another claim. A dependent claim incorporates
`all of the requirements of the claim(s) to which it refers. The dependent claim then
`addsits own additional requirements. To determine what a dependentclaim covers,
`it is necessary to look at both the dependentclaim and any other claim(s) to which
`it refers. A product that meetsall of the requirements of both the dependent claim
`and the claim(s) to which it refers is covered by that dependent claim.
`
`21
`
`

`

`Case 1:22-cv-00058-ADA Document 297 Filed 10/04/24 Page 24 of 43
`Case 1:22-cv-00058-ADA Document 297 Filed 10/04/24 Page 24 of 43
`
`2.17;
`
`INFRINGEMENT GENERALLY
`
`I will now instruct you on how to decide whetherIdentity Security has proven
`by a preponderance of the evidence that Apple has infringed any of the Asserted
`Claims of the Patents-in-Suit. Infringement is assessed on a claim-by-claim basis.
`Therefore, there may be infringement as to one claim but no infringement as to
`another.
`
`A patent owner has the right to prevent others from using the invention
`covered by his or her patent claims in the United States during thelife of the patent.
`If any person makes,uses,sells or offers to sell within the United States or imports
`into the Unites States whatis covered by the patent claims without the patent owner’s
`permission, that personis said to infringe the patent.
`
`In reaching your decision on infringement, keep in mindthat only the claims
`ofa patent can be infringed. You must comparethe asserted patent claims, as I have
`defined each of them, to the accused system or process, and determine whether or
`not there is infringement.
`
`22
`
`

`

`Case 1:22-cv-00058-ADA Document 297 Filed 10/04/24 Page 25 of 43
`Case 1:22-cv-00058-ADA Document 297 Filed 10/04/24 Page 25 of 43
`
`2.18; DIRECT INFRINGEMENT - LITERAL INFRINGEMENT
`
`In order to prove direct infringement, Identity Security must prove by a
`preponderanceofthe evidence,i.e., that it is more likely than not, that Apple made,
`used, sold, offered to sell within, or imported into the United States a product that
`meets all ofthe requirements of an Asserted Claim and did so without the permission
`of Identity Security during the time the Asserted Patents were in force. For each
`Asserted Claim, you must compare the accused product or process with each and
`every one of the requirements of that claim to determine whether all of the
`requirements of that claim are met.
`
`You must determine, separately for each Asserted Claim, whether ornot there
`is infringement. There may beinfringementas to oneclaim but no infringementas
`to another claim. A dependent claim includes all the requirements of any of the
`claims to which it refers plus additional requirement(s) of its own. For dependent
`claims, if you find that a claim to which a dependent claim refers is not infringed,
`there cannot be infringement of that dependent claim. On the other hand, if you find
`that an independent claim has been infringed, you muststill decide, separately,
`whetherthe product meets the additional requirement(s) of any claims that depend
`from the independent claim to determine whether those dependentclaims havealso
`been infringed.
`
`Infringement doesnot require proof that Apple copied its product from the
`asserted claims.
`
`23
`
`

`

`Case 1:22-cv-00058-ADA Document 297 Filed 10/04/24 Page 26 of 43
`Case 1:22-cv-00058-ADA Document 297 Filed 10/04/24 Page 26 of 43
`
`2.19:
`
`INVALIDITY GENERALLY
`
`I will now instruct you on the rules you must follow in deciding whether or
`not Apple has proventhe affirmative defense of patent invalidity.
`
`A patent is presumedto be valid. In other words, it is presumed the United
`States Patent and Trademark Office properly granted the patent. But
`that
`presumption of validity can be overcome if clear and convincing evidence is
`presented in court that proves any claim ofa patent is invalid. As with infringement,
`invalidity is assessed on a claim-by-claim basis.
`
`However,the fact that the PTO grants a patent does not necessarily mean that
`any invention claimed inthe patent, in fact, deserves the protection of a patent. For
`example, the PTO maynothavehadavailabletoitall the prior art that was presented
`to you. In addition,there is a possibility that mistakes were madeorthat information
`was overlooked. Examiners have a lot of work and no processis perfect. Also,
`unlike court proceedings, patent prosecution takes place without input from those
`whoarelater alleged to infringe the patent. Apple hasthe right to argue in front of
`youthat a claimed invention in any ofthe Asserted Patentsis invalid becauseit fails
`to meet the requirementsfor a patent.
`
`Claims are construed in the same way for determining infringement as for
`determininginvalidity. You must apply the claim language consistently and in the
`same mannerforissues of infringementand for issues of invalidity.
`
`It is your job as jurors to consider the evidence presented by the parties and
`determine independently whether or not Apple has proven that the patentis invalid
`by clear and convincing evidence.
`
`I will now instruct you on the invalidity issues you should consider.
`
`24
`
`

`

`Case 1:22-cv-00058-ADA Document 297 Filed 10/04/24 Page 27 of 43
`Case 1:22-cv-00058-ADA Document 297 Filed 10/04/24 Page 27