Miller v. Facebook, Inc. et al

Filing 37

AMENDED COMPLAINT (First) against Facebook, Inc., Yao Wei Yeo. Filed byDaniel M. Miller. (Sperlein, D.) (Filed on 3/17/2010)

Miller v. Facebook, Inc. et al

Doc. 37 Att. 2

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E XHIBIT C

Dockets.Justia.com

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BRADFORD J. BADKE (pro hac vice) [e-mail] JEANNE CURTIS (pro hac vice) [e-mail] SONA DE (CSB # 193896) [e-mail] ROPES & GRAY LLP 1211 Avenue of the Americas New York, New York 10036 Telephone: [phone] Facsimile: [phone] Attorneys for Defendants NOVA BIOMEDICAL CORPORATION and BECTON, DICKINSON AND COMPANY

MARK D. ROWLAND (CSB # 157862) [e-mail] GABRIELLE E. HIGGINS (CSB # 163179) [e-mail] ROPES & GRAY LLP 525 University Place Palo Alto, CA 94301 Telephone: [phone] Facsimile: [phone]

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

THERASENSE, INC. AND ABBOTT LABORATORIES, Plaintiffs, v.

Case No.: C04-2123 WHA Case No.: C04-3732 WHA Case No.: C04-3327 WHA BD AND NOVA'S PROPOSED SPECIAL VERDICT FORM ­ `890 PATENT

18 19 20 21 22 23 24 25 26 27 28 NOVA BIOMEDICAL CORPORATION AND BECTON, DICKINSON AND COMPANY, Defendants. AND CONSOLIDATED CASES

BD and Nova's Proposed Special Verdict Form ­ `890 Patent

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BD and Nova respectfully submit this Proposed Special Verdict Form for the issues to be tried on the `890 patent, which is only asserted against BD and Nova. BD and Nova direct the Court to Bayer And BD/Nova's Proposed Joint Special Verdict Form On `551 Issues ­ Phases I III, submitted herewith, regarding their proposed jury instructions for the issues to be tried on the `551 patent. BD and Nova reserve the right to propose additional and modified verdict forms as the issues to be tried are further framed by the parties and this Court.

BD and Nova's Proposed Special Verdict Form ­ `890 Patent

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1 2 3 1. 4 test strips literally have "an elongated electrode support defining a sample transfer path for 5 directional flow of the sample from an application point along said electrode support"? 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
BD and Nova's Proposed Special Verdict Form ­ `890 Patent

I.

INFRINGEMENT

Did Abbott prove that it is more likely than not that BD and Nova's blood glucose

BDTM Test Strips: 2.

Yes____ (for Abbott) No____ (for BD and Nova)

Did Abbott prove that it is more likely than not that BD and Nova's blood glucose

test strips have the substantial equivalent of "an elongated electrode support defining a sample transfer path"? BDTM Test Strips: 3. Yes____ (for Abbott) No____ (for BD and Nova)

Did Abbott prove that it is more likely than not that BD and Nova's blood glucose

test strips literally have a "covering layer having an aperture for receiving sample into said enclosed space"? BDTM Test Strips: 4. Yes____ (for Abbott) No____ (for BD and Nova)

Did Abbott prove that it is more likely than not that BD and Nova's blood glucose

test strips have the substantial equivalent of a "covering layer having an aperture for receiving sample"? BDTM Test Strips: 5. Yes____ (for Abbott) No____ (for BD and Nova)

Did Abbott prove that it is more likely than not that every element of the asserted

claims of the `890 patent is included in BD and Nova's blood glucose test strips? BDTM Test Strips: Yes____ (for Abbott) No____ (for BD and Nova)

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II.

ANTICIPATION

Did BD and Nova prove that it is highly probable that the asserted claims of the `890 patent are anticipated by the prior art? Yes _______ (for BD and Nova) III. No _______ (for Abbott)

OBVIOUSNESS

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Did BD and Nova prove that it is highly probable that the asserted claims of the `890 patent are obvious in light of the prior art? Yes _______ (for BD and Nova) IV. No _______ (for Abbott)

WRITTEN DESCRIPTION

Did BD and Nova prove that it is highly probable that the specification of the `890 patent does not contain an adequate written description of the "an elongated electrode support defining a sample transfer path for directional flow of the sample from an application point along said electrode support" claim element? Yes _______ (for BD and Nova) V. No _______ (for Abbott)

PRIOR PUBLIC USE

Did BD and Nova prove that it is highly probable that the asserted claims of the `890 patent are invalid because products covered by the claims were in public use more than one year prior to the filing date of the patent? Yes _______ (for BD and Nova) No _______ (for Abbott)

BD and Nova's Proposed Special Verdict Form ­ `890 Patent

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BD and Nova's Proposed Special Verdict Form ­ `890 Patent

VI. 1.

MARKING

Did Abbott prove that Abbott and its licensees marked substantially all Abbott

Precision Xtra, Precision QID, Precision PCx, Relion, ExacTech, ExacTech RSG, and LifeScan FastTake products containing test strips with the number of the `890 patent prior to the filing of this lawsuit? Yes _______ (for Abbott) No _______ (for BD and Nova)

2.

If your answer to Question 1 is Yes, identify the date on which Abbott and its

licensees started marking substantially all of Abbott Precision Xtra, Precision QID, Precision PCx, Relion, ExacTech, ExacTech RSG, and LifeScan FastTake products containing test strips with the number of the `890 patent: ________________________.

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VII.

DAMAGES

What amount of lost profits damage, if any, has Abbott proven by a preponderance

of evidence to a reasonable certainty, resulting from sales of BDTM Test Strips starting on the earlier of (1) the date, if any, that you wrote in response to Question 2 of the Marking section, or (2) March 4, 2005, and ending on September 30, 2006? ___________________________ What is the reasonable royalty (in dollars) that Abbott proved BD and Nova should

pay on sales of BDTM Test Strips starting on the earlier of (1) the date, if any, that you wrote in response to Question 2 of the Marking section, or (2) March 4, 2005, and ending September 30, 2006 for which you did not award lost profits? ______________________________________

BD and Nova's Proposed Special Verdict Form ­ `890 Patent

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1 2 VIII. WILLFULNESS 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
BD and Nova's Proposed Special Verdict Form ­ `890 Patent

1.

Did Abbott prove that it is highly probable from an objective point of view that the

defenses put forth by BD failed to raise a substantial question with regard to validity, infringement, or enforceability of the `890 patent? Yes _______ (for Abbott) 2. No _______ (for BD)

If you answered Yes to question 1, then did Abbott prove that it is highly probable

that BD actually knew, or it was so obvious that BD should have known, that its actions constituted infringement of a valid and enforceable patent? Yes _______ (for Abbott) 3. No _______ (for BD)

Did Abbott prove that it is highly probable from an objective point of view that the

defenses put forth by Nova failed to raise a substantial question with regard to validity, infringement, or enforceability of the `890 patent? Yes _______ (for Abbott) 4. No _______ (for Nova)

If you answered Yes to question 3, then did Abbott prove that it is highly probable

that Nova actually knew, or it was so obvious that Nova should have known, that its actions constituted infringement of a valid and enforceable patent? Yes _______ (for Abbott) No _______ (for Nova)

WHEN YOU HAVE COMPLETED THIS VERDICT FORM, PLEASE HAVE THE FOREPERSON SIGN AND DATE IN THE SPACES INDICATED BELOW.

Dated: _____________________

______________________________ FOREPERSON

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