Bedrock Computer Technologies, LLC v. Softlayer Technologies, Inc. et al

Filing 599

Proposed Jury Instructions by Bedrock Computer Technologies, LLC. (Attachments: #1 Exhibit A, #2 Exhibit B, #3 Appendix A to Exhibit B, #4 Appendix B to Exhibit B, #5 Exhibit C, #6 Exhibit D, #7 Exhibit E, #8 Exhibit F)(Cawley, Douglas)

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Bedrock Computer Technologies, LLC v. Softlayer Technologies, Inc. et al Doc. 599 Att. 1 EXHIBIT A Dockets.Justia.com IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS TYLER DIVISION BEDROCK COMPUTER TECHNOLOGIES LLC, Plaintiff, v. SOFTLAYER TECHNOLOGIES, INC., CITIWARE TECHNOLOGY SOLUTIONS, LLC, GOOGLE INC., YAHOO! INC., MYSPACE INC., AMAZON.COM INC., PAYPAL INC., MATCH.COM, LLC, AOL LLC, AND CME GROUP INC., Defendants. CASE NO. 6:09-CV-269-LED JURY TRIAL DEMANDED JOINT PROPOSED PRELIMINARY JURY INSTRUCTIONS FOR SECOND TRIAL Ladies and Gentlemen of the Jury:1 You have now been sworn as the jury to hear this case. As the jury, you will decide the disputed questions of fact. As the Judge, I will decide all questions of law and procedure. From time-to-time during the trial and at the end of the trial, I will instruct you on the rules of law that you must follow in making your decision. Very soon, the lawyers for each side will make what is called an opening statement. Opening statements are intended to assist you in understanding the evidence. However, what the Adapted from instructions as given in Mirror Worlds, LLC v. Apple, Inc., No. 6:08-CV-88; i4i LP v. Microsoft Corp., No. 6:07cv113 (E.D. Tex. May 2009). 1 Dallas 320153v1 lawyers say during their opening statements is not evidence. It's only what they expect the evidence will show. You should base your decision on the evidence that you will hear and that comes into evidence from the witness box and from the exhibits that I admit into evidence. You will rely on this evidence in making your decision as to the verdict in this case. To help you follow the evidence, I will now give you a summary of the positions of the parties. The parties in this case are Bedrock Computer Technologies LLC, which I will refer to as "Bedrock," and Softlayer Technologies, Inc., Yahoo! Inc., MySpace, Inc., Amazon.com Inc., and AOL LLC, which I will together refer to as "Defendants." As I will explain in further detail, Bedrock contends that Defendants infringe United States Patent 5,893,120, known as the '120 Patent. Defendants assert that they do not infringe the '120 Patent. Defendants also assert that the '120 Patent is invalid . To fulfill your duties as jurors, you must separately decide whether each defendant has infringed the '120 Patent, and whether the '120 Patent is invalid. If you decide that the '120 Patent has been infringed, is valid, you will need to decide any money damages to be awarded to compensate for that infringement. You will learn more about these causes of action and defenses later. After all of the evidence is in, I will instruct you on the applicable law, and you will hear closing arguments of counsel, and you will then retire to deliberate and consider your verdict. Dallas 320153v1 2 During this case, I want you to keep an open mind. Do not decide any fact until you have heard all of the evidence, then closing arguments and my instructions. Pay close attention to the testimony and the evidence. If you would like to take notes during the trial, you may do so. We have some notebooks that I'm going to ask the court security officer to pass out to you at this time, as well as a pen. The notebooks each have a cover page under the plastic cover. Slide the cover page out so you can write your name at the top of that, so you will know whose notebook that is, then slide it back in. If you will open your notebook, you should find a blank tablet on the inside for taking notes. Please write your name on the front page of that tablet. And then you can flip to the second page to begin taking any notes, if you desire to. And that is so you can identify your tablet and your notebook. You can also make notes in your notebook, if you'd like to. What you are going to find in your notebook is a copy of the patent in this case, a copy of the Court's claim construction chart, and a glossary of terms. I'll go over all of that with you in detail as I go through these instructions. So please just listen to my instructions now. If you decide to take notes in this case, be careful not to get so involved in your note taking that you become distracted and miss part of the testimony. You don't need to write down everything that happens, but take such notes as you feel are appropriate or would be helpful to you. Your notes are to be used as an aid to your memory. And if your memory should later be different from your notes, then you should rely on your memory and not on your notes. Just because something gets written down on the notepad doesn't make it any more important than your recollection or another juror's recollection. So do not be unduly influenced by the notes Dallas 320153v1 3 that others may take. A juror's notes are not entitled to any greater weight than the recollection of each juror concerning the testimony. Even though we have a court reporter present who will be making stenographic notes of what is said in court, a typewritten copy of the testimony will not be available for your use during deliberations. However, any exhibits that are introduced into evidence that would be documents, physical evidence will be available for you during your deliberations. Also during your deliberations, you will receive a copy of what is called the Court's Charge, which I will give you at the end of the case, which has all of the law in it and your verdict form. So you'll have that to take to the jury room with you as well. Now, my next instruction is a very important instruction. Until this trial is over, do not discuss this case with anyone, and do not permit anyone to discuss this case in your presence. Do not discuss the case even with the other jurors until all of the jurors are in the jury room actually deliberating at the end of the case. And the reason for that is simple: That until all of the evidence is in, you have received the law, and I tell you it is time for you to begin your deliberations, there should be no discussion among you about, well, did you hear this, or what did you think about that, during the trial of the case. So do not visit with each other about anything regarding this case until it is time to deliberate. The same thing goes with family members or friends. Do not discuss this case with anyone. Each juror should hold themselves completely apart from any discussion about this case Dallas 320153v1 4 with anyone until we get to the end of the case and then only with your fellow jurors when you go back to deliberate. If anyone should attempt to discuss this case or to approach you concerning this case, you should inform me immediately or through my court staff, and you should not visit with them. Hold yourself completely apart from all of the people involved in the case, the parties, the witnesses, the attorneys and the persons associated. It is important not only that you be fair and impartial but also that you appear to be fair and impartial. And that is why you should not have any contact with any of them. You have a juror badge on. All of the lawyers here and spectators, they're all friendly people and would love to chat with you, but they're going to see that juror badge, so they're not going to be communicating with you in the elevator or chitchatting with you, and you should not communicate or chitchat with them. Hold yourself completely apart from them. Also, as far as discussing this case with others, if you have any type of social networking internet site or tool like FaceBook, MySpace, or Twitter, you should not discuss or even mention the case at all on any of those sites. Do not post updates about what is going on in the case to any of those sites. Do not make any independent investigation of any fact or matter in this case. Do not learn anything about the case from any other outside source. And that is very important, because what you decide this case on is only the testimony that's taken under oath and the exhibits that are legally admitted into evidence. So you should not go to any other source or receive information from any other source. I don't know if there will be anything on television or in the newspaper about this Dallas 320153v1 5 case, probably not, but do not watch TV or read the newspaper about this case. If there should be something, just turn the TV to another channel, and don't read the article. Also, do not use the internet to find out more information about the case, the parties, or the attorneys in the case. In other words, do not go home and get on your computer and start doing any kind of independent investigation. That would be extremely improper. It would violate your oath as a juror, because you would be considering something other than the evidence in the case, and it could result in a mistrial of the case and all of the time and expense involved in this going for nothing. So be sure to follow that instruction. You are to be guided only by the evidence in the case, only by what you see and hear in this in this courtroom and nothing else. During the trial, it may be necessary for me to confer with the lawyers out of your hearing or to conduct a part of the trial out of your presence. I will handle these matters as briefly and as conveniently for you as I can, but you should remember that they are a necessary part of any trial. Let me visit with you about the patents and the U.S. patent system generally. You saw some of this on the video that you saw with the jury panel before voir dire. The United States Constitution grants Congress the powers to enact laws "to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." Using this power, Congress enacted the patent laws. Patents are granted by the United States Patent and Trademark Office (sometimes called "the PTO"). A valid United States patent gives the patent holder certain rights for up to 20 years from the date the patent application was filed or for 17 years from the date the patent issued. The patent holder may prevent others from making, using, offering to sell, or selling the patented invention within the United States, and from importing it into the United States without the patent Dallas 320153v1 6 holder's permission. A violation of the patent holder's rights is called infringement. The patent holder may try to enforce a patent against persons believed to be infringers by a lawsuit filed in federal court. The process of obtaining a patent is called patent prosecution. To obtain a patent, one must file an application with the PTO. The PTO is an agency of the federal government and employs trained examiners who review applications for patents. The application includes a section called the "specification," which must contain a written description of the claimed invention telling what the invention is, how it works, and how to make and use it, in such full, clear, concise, and exact terms so that others skilled in the field will know how to make and use it. The specification concludes with one or more numbered sentences. These are the patent "claims." If the patent is eventually granted by the PTO, the claims define the boundaries of its protection and give notice to the public of those boundaries. Claims can be independent or dependent. An independent claim is selfcontained. A dependent claim refers back to an earlier claim and includes the requirements of the earlier claim. After the applicant files a patent application, a PTO patent examiner reviews it to determine whether the claims are patentable and whether the specification adequately describes the invention claimed. In examining a patent application, the patent examiner may review "prior art." Prior art is defined by law, and, at a later time, I will give you specific instructions on what constitutes prior Dallas 320153v1 7 art. In general, though, prior art includes things that existed before the claimed invention, that were publicly known or used in this country, or that were patented or described in a publication in any country. The examiner considers, among other things, whether each claim defines an invention that is new, useful, and not obvious when compared with the prior art . A patent lists prior art the examiner considered; this list is called the "cited references." The cited references include the prior art found by the examiner as well as any prior art submitted to the PTO by the applicant. After the prior art search and examination of the application, the patent examiner then informs the applicant in writing what the examiner has found and whether any claim is patentable, and thus will be "allowed." This writing from the patent examiner is called an "office action." If the examiner rejects any of the claims, the applicant then responds with arguments and sometimes changes the claims or submits new claims. This process, which takes place only between the examiner and the patent applicant, may go back and forth for some time until the examiner believes that the application and claims meet the requirements for a patent . The papers generated during this time of communicating back and forth between the patent examiner and the applicant make up what is called the "prosecution history." All of this material becomes available to the public no later than the date when the PTO grants the patent. Just because the PTO grants a patent does not necessarily mean that any invention claimed in the patent is, in fact, legally entitled to the protection of a patent. One or more claims may, in fact, not be patentable under the law. A person accused of infringement has the right to argue here in federal court that a claimed invention in the patent is not entitled to patent protection because it Dallas 320153v1 8 does not meet the requirements for a patent. In other words, an accused infringer may defend a suit for patent infringement on the grounds that the patent is invalid. The granting of a patent by the Patent and Trademark Office, however, carries with it the presumption that the patent is valid. From the issuance of a patent, it is presumed that the subject matter is new, useful, and constitutes an advance that was not, at the time the invention was made, obvious to one of ordinary skill in the art. However, that presumption may be rebutted at trial and you, the finder of fact, may find the patent to be invalid. Now, let me visit with you about the parts of a patent. A patent includes two basic parts: A written description of the invention and the patent claims. The written description, which may include drawings, is often referred to as the "specification" of the patent. Please refer to the '120 patent on the screen as I identify the different sections. The cover page of the '120 patent provides identifying information, including the date the patent issued and the patent number along the top, as well as the inventors' names and filing date, and a list of certain prior art references considered in the patent office when deciding to issue the patent. The specification of the '120 patent begins with an abstract, found on the cover page. The abstract is a brief statement about the subject matter of the invention. Next are the drawings which appear as Figures 1-7 on the next 6 pages. The drawings illustrate the various aspects or features of the invention. Dallas 320153v1 9 The written description of the invention appears next. In this portion of the patent, each page is divided into two columns, which are numbered at the top. The lines on each page are also numbered going down the middle column, as you will see. The written description of the '120 patent begins at column 1, line 1 and continues to column 13, line 22. So when you see a reference during the trial to a column and a line number, you can go to that part of the patent to locate it. The written description includes a background section, a summary of the invention and a detailed description of the invention including some specific examples. The specification ends with numbered paragraphs called claims. The claims may be divided into a number of parts, referred to as claim limitations. In the '120 patent, the claims begin at column13, line 23 and continue to the end of the patent, at column 14, line 59. Patent claims may exist in two forms, referred to as independent claims and dependent claims. An independent claim does not refer to any other claim of the patent. It is not necessary to look at any other claim to determine what an independent claim covers. Claims 1 and 6 of the '120 Patent are independent claims. Claims 2 and 5 are dependent claims. A dependent claim refers to at least one other claim in the patent. A dependent claim includes each of the limitations of the other claim or claims to which it refers, as well as the additional limitations recited in the dependent claim itself. Therefore, to determine what a dependent claim covers, it is necessary to look at both the dependent claim and other claim or claims to which it refers. To determine what a dependent claim covers, the words of that claim and the words of the independent claim must be read together. 2 Dallas 320153v1 10 Now let me instruct you about the significance of the patent claims. The claims of a patent are a main focus of a patent case, because the claims are what define the patent owner's rights under the law. That is, the claims define what the patent owner may exclude others from doing during the term of the patent. The claims of a patent serve two purposes. First, they set the boundaries of the invention covered by the patent. Second they provide notice to the public of what those boundaries are. Thus, when a product or a method is accused of infringing a patent, the patent claims are compared to the accused product or method to determine whether there is infringement. In reaching your determinations with respect to infringement and validity, you must consider each claim separately. You will also find behind the patent in your notebook a claim construction chart . It is my job as Judge to determine what the patent Dallas 320153v1 11 claims mean and to instruct you about that meaning. The claim construction chart included in your notebook contains the meanings for terms in the claims I have determined. You must use these meanings I give you when you decide the issues of infringement and invalidity.3 This will all become clearer as the trial progresses, but this is a good starting place for you to help you understand some of the basic elements of a patent and some of the basic language and nomenclature. By submitting jury instructions with respect to the Court's claim constructions, the parties do not intend to waive and hereby expressly preserve their contentions in their Markman briefing and arguments and reserve their rights to appeal. 4 3 Dallas 320153v1 12 Dallas 320153v1 13 5 6 Dallas 320153v1 14 I will now give you some information about the issues that will be presented to you at this trial, as well as a short overview of the applicable law. At the close of the trial you will be given more specific instructions that you must follow in reaching your verdict. You will also be given a verdict form and questions that you must answer in providing your verdict. First, let me explain the burden of proof required in this case. In any legal action, facts must be proved by a required standard of evidence, known as the burden of proof. The burden of proof used for the claims and defenses in this case is known as preponderance of the evidence. When a party has the burden of proving any claim or defense by a preponderance of the evidence, it means the evidence must persuade you that the claim or defense is more likely true than not. Put another way, if you were to put the evidence for and against the party who must prove the fact on the opposite sides of a scale, a preponderance of the evidence requires that the scale tip at least somewhat toward the party who has the burden of proof. Again, you should base your decision on all the evidence, regardless of which party presented it. Dallas 320153v1 15 You may have heard that is used in criminal cases called beyond a reasonable doubt. That requirement is the highest burden of proof and is used only in criminal cases. It does not apply in this case and you should, therefore, put it out of your mind. Now let me visit with you about infringement. Bedrock contends that Defendants Softlayer, Yahoo, MySpace, and Amazon, infringe claims 1, 2, 5 and 6 of the '120 Patent. Bedrock alleges that Defendant AOL has infringed claims 1 and 2 of the '120 Patent. You may mark those claims on the patents in your notebooks by circling those claim numbers. Bedrock contends that Defendants literally infringe the asserted claims of the '120 Patent. Defendants deny that they literally infringe any of these claims. To prove literal infringement of a particular claim, a party must prove by a preponderance of the evidence that the opposing party makes, uses, sells, or offers to sell an accused product or instrumentality that includes each and every limitation of a particular claim. 7 8 9 Dallas 320153v1 16 Now let me explain the defense of invalidity. Defendants contend that the asserted claims of the '120 Patent are invalid. Bedrock denies that the asserted patent claims are invalid. A person accused of infringement has the right to assert that the claimed invention in a patent did not meet the requirements for patentability and, therefore, that the issued patent claim is invalid. However, the granting of a patent by the Patent and Trademark Office carries with it the presumption that the patent is valid. I will now explain to you briefly the legal requirements for each of the grounds on which the parties rely to contend that the asserted patent claims are invalid. I will provide more details for each ground in my final instructions at the end of the case. The first ground is what is called anticipation. Defendants contend that the inventions covered by the asserted claims of the '120 Patent are not new. An invention that is not new is said to be anticipated by the prior art. To prove that a claim is anticipated by prior art, a party must prove by a preponderance of the evidence that each and every limitation of the claim was present in a single item of prior art. Defendants also contend that the asserted claims of the other's patents-in-suit are invalid for obviousness. To prove invalidity of a patent based on obviousness, a party must prove by a preponderance of the evidence that the invention defined by the claim would have been obvious to a hypothetical person of ordinary skill in the art at the time the invention was made. 10 Dallas 320153v1 17 It will be up to you to decide the level of ordinary skill in the art of the patents based on all the evidence introduced at trial, including the level of education and experience of persons working in the field, the types of problems encountered in the field and the sophistication of the technology. Now with regard to damages, Bedrock claims that it has suffered damages as a result of Defendants' infringement and is entitled to a reasonable royalty. Damages cannot be speculative. 11 Dallas 320153v1 18 A party must prove the damages it has suffered as a result of alleged infringement by a preponderance of the evidence. The fact that I am instructing you about damages now does not mean that Bedrock is or is not entitled to recover damages. . Dallas 320153v1 19 At the end of the trial, you will get a written charge that will have all of these instructions in it in much more detail than I am giving to you now, and you will also be given a verdict form that will ask you some very simple questions such as: And at the end of the trial, you will get a written charge that will have all of these instructions in it in much more detail than I am giving to you now. You will also have a verdict Dallas 320153v1 20 form that will ask you If you find that Defendants infringe the '120 Patent and that the '120 Patent is valid, you will be asked the amount of damages that you find. So there will be questions that you will have to answer in the case basically dealing with infringement, invalidity, and damages. I know this is all very complex. Do not feel like you have to be an expert on patent law. We have plenty of experts in the room. You are going to hear a lot of testimony about it. This is just to give you an overview so that, as you hear a lot of these terms and you hear the evidence, hopefully, this will give you a little context to filter it through. Let me finally visit with you regarding your duties as jurors. You have two duties as jurors. Your first duty is to decide the facts from the evidence in this case. That is your job and yours alone. Your second duty is to apply the law that I give you to the facts. You must follow these instructions, even if you disagree with them. Each of the instructions is important, and you must follow them all. Perform these duties fairly and impartially. Do not allow your sympathy, prejudice, fear or public opinion to influence you. Nothing I say now and nothing I say or do during the trial is meant Dallas 320153v1 21 to indicate any opinion on my part about what the facts are or about what your verdict should be. Again, you, the jury, will be the sole judges of the facts in this case. That concludes my opening instructions for you. Dallas 320153v1 22

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