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. 3

Case 3:05-cv-03117-WHA

Document 1001-5

Filed 05/14/2008

Page 1 of 8

E XHIBIT D

Dockets.Justia.com

Case 3:05-cv-03117-WHA

Document 1001-5

Filed 05/14/2008

Page 2 of 8

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19

Attorneys for Defendants, ROCHE DIAGNOSTICS CORPORATION and ROCHE DIAGNOSTICS OPERATIONS, INC. KEKER & VAN NEST ASHOK RAMANI (CA SBN 200020) [e-mail] 710 Sansome Street San Francisco, CA 94111 Telephone: [phone] Facsimile: [phone] BARNES & THORNBURG LLP DANIEL P. ALBERS (pro hac vice) JONATHAN P. FROEMEL (pro hac vice) [e-mail] [e-mail] One North Wacker Drive Suite 4400 Chicago, IL 60606 Telephone: [phone] Facsimile: [phone] ROCHE DIAGNOSTICS OPERATIONS, INC. Nancy G. Tinsley [e-mail] 9115 Hague Road Indianapolis, IN 46250 Telephone: [phone] Facsimile: [phone]

BARNES & THORNBURG LLP DONALD E. KNEBEL (pro hac vice) LYNN C. TYLER (pro hac vice) [e-mail] [e-mail] 11 South Meridian Street Indianapolis, IN 46204 Telephone: [phone] Facsimile: [phone]

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION ABBOTT DIABETES CARE INC. and ABBOTT LABORATORIES, Plaintiffs, CASE NO. 05-CV 3117 WHA

20 v. 21 22 23 24 25 26 27 28 ROCHE DIAGNOSTICS CORPORATION, ROCHE DIAGNOSTICS OPERATIONS, INC., and BAYER HEALTHCARE LLC, Defendants.

ROCHE DIAGNOSTICS OPERATIONS, INC. AND ROCHE DIAGNOSTICS CORPORATION'S PROPOSED VERDICT FORM FOR PROPOSED PHASE II ­ INFRINGEMENT OF THE `551 PATENT AND FOR ALL ISSUES CONCERNING THE `745 PATENT Judge: The Honorable William Alsup

-1-

ROCHE DIAGNOSTICS OPERATIONS, INC. AND ROCHE DIAGNOSTIC CORPORATION'S PROPOSED VERDICT FORM

Case 3:05-cv-03117-WHA

Document 1001-5

Filed 05/14/2008

Page 3 of 8

1 2 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

Roche incorporates by reference Bayer and BD/Nova's Proposed Special Verdict Form applicable to this Court's proposed Phase I trial (invalidity and inequitable conduct re: the `551 patent) and Phase III trial (damages and willfulness re: the `551 patent). Roche proposes the following language with respect to the first portion of this Court's proposed Phase II trial (infringement re: `551 patent), and with respect to the `745 patent. Phase II A. Direct Infringement of the `551 patent 1. Has Abbott proven that is more likely than not: a. That every requirement of claim 1 of the '551 patent is included in Roche's ACCU-CHEKŪ Aviva Test Strip? Yes _____ b. No _____

That every requirement of claim 2 of the '551 patent is included in Roche's ACCU-CHEKŪ Aviva Test Strip? Yes _____ No _____

c.

That every requirement of claim 3 of the '551 patent is included in Roche's ACCU-CHEKŪ Aviva Test Strip? Yes _____ No _____

d.

That every requirement of claim 4 of the '551 patent is included in Roche's ACCU-CHEKŪ Aviva Test Strip? Yes _____ No _____

e.

That every requirement of claim 6 of the '551 patent is included in Roche's ACCU-CHEKŪ Aviva Test Strip? Yes _____ No _____

f.

That every requirement of claim 1 of the '551 patent is included in Roche's ACCU-CHEKŪ Comfort Curve Test Strip? Yes _____ No _____

g.

That every requirement of claim 2 of the '551 patent is included in Roche's ACCU-CHEKŪ Comfort Curve Test Strip? -2ROCHE DIAGNOSTICS OPERATIONS, INC. AND ROCHE DIAGNOSTIC CORPORATION'S PROPOSED VERDICT FORM

Case 3:05-cv-03117-WHA

Document 1001-5

Filed 05/14/2008

Page 4 of 8

1 2 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 b. b. j. i. h.

Yes _____

No _____

That every requirement of claim 3 of the '551 patent is included in Roche's ACCU-CHEKŪ Comfort Curve Test Strip? Yes _____ No _____

That every requirement of claim 4 of the '551 patent is included in Roche's ACCU-CHEKŪ Comfort Curve Test Strip? Yes _____ No _____

That every requirement of claim 6 of the '551 patent is included in Roche's ACCU-CHEKŪ Comfort Curve Test Strip? Yes _____ No _____

If your answer to any part of question 1 is "yes," please go to [Defendants' Proposed Special Verdict Form re: Estoppel]. If your answer to question 1 is "no," go to question 2.

B. Infringement of the `551 patent Under the Doctrine of Equivalents 2a. If you have found that the following requirements are not literally found in Roche's ACCU-CHEKŪ Comfort Curve Test Strip, has Abbott proven that it is more likely than not that the ACCU-CHEKŪ Comfort Curve Test Strip has an equivalent part to that requirement? a. a reference counterelectrode Yes _____ a mediator Yes _____ No _____ No _____

2b. If you have found that the following requirements are not literally found in Roche's ACCU-CHEKŪ Aviva Test Strip, has Abbott proven that it is more likely than not that the ACCU-CHEKŪ Aviva Test Strip has an equivalent part to that requirement? a. a reference counterelectrode Yes _____ a mediator Yes _____ No _____ -3ROCHE DIAGNOSTICS OPERATIONS, INC. AND ROCHE DIAGNOSTIC CORPORATION'S PROPOSED VERDICT FORM

No _____

Case 3:05-cv-03117-WHA

Document 1001-5

Filed 05/14/2008

Page 5 of 8

1 2 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

`745 PATENT ­ FINDINGS ON INFRINGEMENT A. Contributory Infringement of claim 11 of the `745 patent 1. Has Abbott proven that is more likely than not each and every one of the following is true: (i) that someone other than Roche performs every step of the method disclosed in claim 11 of the `745 patent; (ii) that Roche supplied an important component of performing the method; (iii) that the component was not a common component suitable for non-infringing use; and (iv) that Roche supplied the component with knowledge of the '745 patent and knowledge that the component was especially made or adapted for use in an infringing manner? Yes _____ No _____

B. Inducing Infringement of claim 11 of the `745 patent 2. Has Abbott proven that is more likely than not each and every one of the following is true: (i) that someone other than Roche performs every step of the method disclosed in claim 11 of the `745 patent; (ii) that Roche took action that actually induced that person to perform every step of the method; (iii) that Roche was aware of the '745 patent; and (iv) that Roche knew or should have known that taking such action would induce direct infringement? Yes _____ No _____

`745 PATENT - FINDINGS ON INVALIDITY (The questions regarding invalidity should be answered regardless of your findings with respect to infringement.) A. 3. Anticipation Has Roche proven that it is highly probable that claim 11 of the `745 patent is

anticipated by a prior art reference? Yes _____ B. 4. No _____

Obviousness Has Roche proven that it is highly probable that claim 11 of the '745 patent is

obvious in light of the prior art? Yes _______ No _______ C. Written Description Requirement -4ROCHE DIAGNOSTICS OPERATIONS, INC. AND ROCHE DIAGNOSTIC CORPORATION'S PROPOSED VERDICT FORM

Case 3:05-cv-03117-WHA

Document 1001-5

Filed 05/14/2008

Page 6 of 8

1 2 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

5.

Has Roche proven that it is highly probable that the specification of the '745

patent does not contain an adequate written description of the claimed invention? Yes _____ No _____

D. Enablement 6. Has Roche proven that it is highly probable that the specification of the '745 patent does not contain a description of the claimed invention that is sufficiently full and clear to enable persons of ordinary skill in the field to make and use the invention to the full extent of claim 11? Yes _____ No _____

E. Statutory Bar 7. Has Roche proven that it is highly probable that claim 11 of the '745 patent was not filed within the time required by law? Yes _____ No _____

F. Inventorship 8. Has Roche proven that it is highly probable that Nigel Surridge should have been named as an inventor of the '745 patent? Yes _____ No _____

`745 FINDINGS ON UNENFORCEABILITY 9. Did Roche prove that it is highly probable that Mr. Feldman, Mr. Heller or Mr.

Colman withheld material information with the intent to deceive the U.S Patent Office during the prosecution of the `745 patent? Yes _____ 10. No _____

Did Roche prove that it is highly probable that Mr. Heller, Ms. Liepa, or Mr. Black

withheld material information with the intent to deceive the U.S Patent Office during the prosecution of the `745 patent? Yes _____ No _____

`745 FINDINGS ON DAMAGES AND WILLFULNESS (IF APPLICABLE)

-5-

ROCHE DIAGNOSTICS OPERATIONS, INC. AND ROCHE DIAGNOSTIC CORPORATION'S PROPOSED VERDICT FORM

Case 3:05-cv-03117-WHA

Document 1001-5

Filed 05/14/2008

Page 7 of 8

1 2 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

11. What amount of lost profits damage, if any, has Abbott proven to a reasonable certainty, resulting from Roche's sale of ACCU-CHEKŪ Aviva system between August 1, 2005, and September 17, 2007? ___________________________________ 12. What is the reasonable royalty (in dollars) that Abbott proved Roche should pay on

Roche's sale of ACCU-CHEKŪ Aviva system between August 1, 2005, and September 17, 2007 for which you did not award lost profits? ___________________________________ 13. Did Abbott prove that it is highly probable from an objective point of view that the

defenses put forth by Roche failed to raise a substantial question with regard to validity, infringement, or enforceability of the '745 patent? Yes _______ (for Abbott) 14. No _______ (for Roche)

If you answered Yes to question 13, then did Abbott prove that it is highly

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

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

DATED:__________________, 2008

By:_________________________________ Presiding Juror

-6-

ROCHE DIAGNOSTICS OPERATIONS, INC. AND ROCHE DIAGNOSTIC CORPORATION'S PROPOSED VERDICT FORM

Case 3:05-cv-03117-WHA

Document 1001-5

Filed 05/14/2008

Page 8 of 8

1 2 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 -7ROCHE DIAGNOSTICS OPERATIONS, INC. AND ROCHE DIAGNOSTIC CORPORATION'S PROPOSED VERDICT FORM
CHDS01 464754v1

Roche Diagnostics Corporation Roche Diagnostics Operations, Inc.

By: __________________________________ One of their Attorneys BARNES & THORNBURG LLP Donald E. Knebel Daniel P. Albers Lynn C. Tyler Paul B. Hunt Jonathan P. Froemel

KEKER & VAN NEST, LLP Ashok Ramani

ROCHE DIAGNOSTICS OPERATIONS, INC. Nancy G. Tinsley Attorneys for Defendants/Counterplaintiffs