Polaris IP, LLC v. Google Inc. et al

Filing 433

NOTICE by AOL, LLC., America Online, Inc., Google Inc., Yahoo!, Inc. of Compliance (Attachments: # 1 Exhibit Proposed Post-Trial Jury Instructions, # 2 Exhibit Proposed Pre-Trial Jury Instructions, # 3 Exhibit Proposed Verdict Form)(Perlson, David)

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Polaris IP, LLC v. Google Inc. et al Doc. 433 Att. 3 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION BRIGHT RESPONSE, LLC F/K/A POLARIS IP, LLC v. GOOGLE INC., et al. NO. 2:07-CV-371-TJW-CE JURY TRIAL DEMANDED DEFENDANTS' PROPOSED VERDICT FORM This is the verdict form. It contains all of the questions set forth in the Jury Instructions. Once you have reached unanimous agreement on a verdict, the foreperson must fill in this verdict form, sign and date it, and advise the court that you have reached a verdict. 01980.51452/3580789.1 1 Dockets.Justia.com QUESTION NO. 1. Has Bright Response proven, by a preponderance of the evidence, that Google's AdWords has directly infringed claims 28, 30, 31, 33 and 38 of U.S. Patent No. 6,411,947 ("the `947 patent")? "Yes" means the claim is infringed. "No" means the claim is not infringed. Answer "Yes" or "No" for each claim. Claim 28: ____________ Claim 30: ____________ Claim 31: ____________ Claim 33: ____________ Claim 38: ____________ 01980.51452/3580789.1 2 QUESTION NO. 2. Has Bright Response proven, by a preponderance of the evidence, that AOL's Search Marketplace has directly infringed claims 28, 30, 31, 33 and 38 of U.S. Patent No. 6,411,947 ("the `947 patent")? "Yes" means the claim is infringed. "No" means the claim is not infringed. Answer "Yes" or "No" for each claim. Claim 28: ____________ Claim 30: ____________ Claim 31: ____________ Claim 33: ____________ Claim 38: ____________ 01980.51452/3580789.1 3 QUESTION NO. 3. Has Bright Response proven, by a preponderance of the evidence, that Yahoo!'s Sponsored Search has directly infringed claims 28, 30, 31, 33 and 38 of U.S. Patent No. 6,411,947 ("the `947 patent")? "Yes" means the claim is infringed. "No" means the claim is not infringed. Answer "Yes" or "No" for each claim. Claim 28: ____________ Claim 30: ____________ Claim 31: ____________ Claim 33: ____________ Claim 38: ____________ 01980.51452/3580789.1 4 QUESTION NO. 4.1 Do you find that Google, AOL or Yahoo! has proven, by a preponderance of the evidence, that any of the following claims of the `947 patent are invalid for any of the following reasons? "Yes" means the claim is invalid. "No" means the claim is not invalid. A. Because it is anticipated by the prior art? Answer "Yes" or "No" for each claim. Claim 28: ____________________ Claim 30: ____________________ Claim 31: ____________________ Claim 33: ____________________ Claim 38: ____________________ B. Because it is rendered obvious by the prior art? Answer "Yes" or "No" for each claim. Claim 28: ____________________ Claim 30: ____________________ Claim 31: ____________________ Claim 33: ____________________ Claim 38: ____________________ C. Because it is has inadequate written description? Answer "Yes" or "No" for each claim. Claim 28: ____________________ Claim 30: ____________________ Consistent with Microsoft Corporation's Petition for a Writ of Certiorari in Microsoft Corp. v. Z4 Technologies, Inc. and the Supreme Court decision in KSR Int'l Co. v. Teleflex Inc., 127 S. Ct. 1727, 1745 (2007), Defendants submit that, when a defense of invalidity rests on documentary evidence that was not considered by the U.S. Patent and Trademark Office, the factual predicates of the defense should not need to be proven by clear and convincing evidence. To the extent that the Court rejects Defendants' position on this issue, Defendants have provided alternative language below. 01980.51452/3580789.1 1 5 Claim 31: ____________________ Claim 33: ____________________ Claim 38: ____________________ 01980.51452/3580789.1 6 QUESTION NO. 4. Alternate Version Do you find that Google, AOL or Yahoo! has proven, by clear and convincing evidence, that any of the following claims of the `947 patent are invalid for the following reasons? "Yes" means the claim is invalid. "No" means the claim is not invalid. A. Because it is anticipated by the prior art? Answer "Yes" or "No" for each claim. Claim 28: ____________________ Claim 30: ____________________ Claim 31: ____________________ Claim 33: ____________________ Claim 38: ____________________ B. Because it is rendered obvious by the prior art? Answer "Yes" or "No" for each claim. Claim 28: ____________________ Claim 30: ____________________ Claim 31: ____________________ Claim 33: ____________________ Claim 38: ____________________ C. Because it has inadequate written description? Answer "Yes" or "No" for each claim. Claim 28: ____________________ Claim 30: ____________________ Claim 31: ____________________ Claim 33: ____________________ Claim 38: ____________________ 01980.51452/3580789.1 7 If you have found any claim both infringed by Google and valid (i.e., you have answered "yes" to any of the claims in Question 1 and "no" to all sections of Question 4 for the corresponding claim), then answer Question No. 5. Otherwise, do not answer the following question. QUESTION NO. 5. If you find any claim of the '947 patent to be both infringed by Google and valid, state the amount of damages, if any, either in the form of a lump sum amount or a running royalty that would fairly and reasonably compensate Bright Response for what it has proven by a preponderance of evidence against Google. Lump sum amount, if any, against Google OR, IN THE ALTERNATIVE Running royalty, if any, against Google $ x (times) = % $ _______________ _______________ _______________ Royalty Base Royalty Rate Damages against Google $ _______________ 01980.51452/3580789.1 8 If you have found any claim both infringed by AOL and valid (i.e., you have answered "yes" to any of the claims in Question 2 and "no" to all sections of Question 4 for the corresponding claim), then answer Question No. 6. Otherwise, do not answer the following question. QUESTION NO. 6. If you find any claim of the '947 patent to be both infringed by AOL and valid, state the amount of damages, if any, either in the form of a lump sum amount or a running royalty that would fairly and reasonably compensate Bright Response for what it has proven by a preponderance of evidence against AOL. Lump sum amount, if any, against AOL OR, IN THE ALTERNATIVE Running royalty, if any, against AOL $ x (times) = % $ _______________ _______________ _______________ Royalty Base Royalty Rate Damages against AOL $ _______________ 01980.51452/3580789.1 9 If you have found any claim both infringed by Yahoo! and valid (i.e., you have answered "yes" to any of the claims in Question 3 and "no" to all sections of Question 4 for the corresponding claim), then answer Question No. 7. Otherwise, do not answer the following question. QUESTION NO. 7. If you find any claim of the '947 patent to be both infringed by Yahoo! and valid, state the amount of damages, if any, either in the form of a lump sum amount or a running royalty that would fairly and reasonably compensate Bright Response for what it has proven by a preponderance of evidence against Yahoo!. Lump sum amount, if any, against Yahoo! OR, IN THE ALTERNATIVE Running royalty, if any, against Yahoo! $ x (times) = % $ _______________ _______________ _______________ Royalty Base Royalty Rate Damages against Yahoo! $ _______________ 01980.51452/3580789.1 10 QUESTION NO. 8. Did Bright Response delay filing suit for an unreasonable and inexcusable length of time from the time Bright Response knew or reasonably should have known of its claims against Google, AOL, and Yahoo!? Yes: No: ____________________ ____________________ 01980.51452/3580789.1 11 QUESTION NO. 9. Did Bright Response's delay in filing suit prejudice or injure Google, AOL, and Yahoo!? Yes: No: ____________________ ____________________ Signed this _____ day of August, 2010. ___________________________________ JURY FOREPERSON 01980.51452/3580789.1 12

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