`WIRTGEN AMERICA, INC.,
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`CATERPILLAR INC.,
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`Plaintiff/Counterclaim-Defendant,
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`v.
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`C.A. No. 17-770-JDW
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`JURY TRIAL DEMANDED
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`Defendant/Counterclaim-Plaintiff.
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`[PROPOSED] FINAL JURY INSTRUCTIONS
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`Case 1:17-cv-00770-JDW Document 296 Filed 01/26/24 Page 1 of 91 PageID #: 29750
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`Case 1:17-cv-00770-JDW Document 296 Filed 01/26/24 Page 2 of 91 PageID #: 29751
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`1.
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`General Instructions ............................................................................................................ 1
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`TABLE OF CONTENTS
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`1.1.
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`1.2.
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`1.3.
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`Introduction ............................................................................................................. 1
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`Juror’s Duties .......................................................................................................... 2
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`Evidence Defined .................................................................................................... 3
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`1.4. Direct and Circumstantial Evidence ....................................................................... 5
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`1.5. Consideration of Evidence ...................................................................................... 6
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`1.6. Credibility of Witnesses .......................................................................................... 7
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`1.7. Number of Witnesses .............................................................................................. 9
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`1.8.
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`1.9.
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`Expert Witnesses ................................................................................................... 10
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`Prior Sworn Testimony ......................................................................................... 11
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`1.10. Exhibits ................................................................................................................. 12
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`1.11. Admitted Facts ...................................................................................................... 13
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`1.12. Use of Notes .......................................................................................................... 14
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`1.13. Burdens of Proof ................................................................................................... 15
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`2.
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`The Parties and Summary of Patent Issues ....................................................................... 17
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`2.1.
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`2.2.
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`The Parties and their Contentions ......................................................................... 17
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`Summary of Patent Issues ..................................................................................... 20
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`3.
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`Patent Instructions ............................................................................................................. 23
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`3.1.
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`3.2.
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`Patent Claims Generally ....................................................................................... 23
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`Effective Filing Date ............................................................................................. 24
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`3.3. Dependent and Independent Claims ..................................................................... 25
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`3.4.
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`3.5.
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`Plaintiff’s proposal: Open Ended or “Comprising” Claims .................................. 28
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`Plaintiff’s proposal: Claim Construction .............................................................. 29
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`4.
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`Infringement ...................................................................................................................... 32
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`4.1.
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`Infringement Generally ......................................................................................... 32
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`4.2. Direct Infringement ............................................................................................... 34
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`4.3.
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`Indirect Infringement Through Inducement .......................................................... 38
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`4.4. Defendant’s Position: Intervening Rights ............................................................. 39
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`4.5. Willful Infringement ............................................................................................. 40
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`5.
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`Invalidity ........................................................................................................................... 42
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`5.1.
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`5.2.
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`5.3.
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`Patent Invalidity Generally ................................................................................... 42
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`Person of Ordinary Skill in the Art ....................................................................... 44
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`Prior Art ................................................................................................................ 45
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`ii
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`Case 1:17-cv-00770-JDW Document 296 Filed 01/26/24 Page 3 of 91 PageID #: 29752
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`6.
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`5.4. Anticipation........................................................................................................... 47
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`5.5. Obviousness .......................................................................................................... 49
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`5.6.
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`Enablement Requirement ...................................................................................... 53
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`5.7. Written Description Requirement ......................................................................... 56
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`Plaintiff’s Proposal: Intentionally Left Blank; Defendant’s proposal: Unenforceability . 58
`Prosecution Laches ............................................................................................... 58
`6.1.
`6.2. Collateral Estoppel ............................................................................................... 60
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`7.
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`Damages ............................................................................................................................ 61
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`7.1.
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`Patent Infringement Damages Generally .............................................................. 61
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`7.2. Defendant’s proposal: Lost Profits—“But For” Test............................................ 64
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`7.3. Defendant’s proposal: Lost Profits—Panduit Factors .......................................... 65
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`7.4. Defendant’s proposal: Lost Profits—Panduit Factors—Demand for the Patented
`Product/Method................................................................................................................. 66
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`7.5. Defendant’s proposal: Lost Profits—Panduit Factors—Acceptable Non-
`Infringing Substitutes ........................................................................................................ 67
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`7.6. Defendant’s proposal: Lost Profits—Panduit Factors—Market Share ................. 69
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`7.7. Defendant’s proposal: Lost Profits—Panduit Factors—Capacity ........................ 70
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`7.8. Reasonable Royalty Generally .............................................................................. 71
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`7.9. Reasonable Royalty – Factors ............................................................................... 74
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`7.10. Plaintiff’s Proposal: Reasonable Royalty – Apportionment ................................. 77
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`7.11. Reasonable Royalty – Availability of Non-infringing Alternatives ..................... 79
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`ITC Proceedings................................................................................................................ 81
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`Deliberation and Verdict ................................................................................................... 83
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`9.1.
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`Introduction ........................................................................................................... 83
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`9.2. Unanimous Verdict ............................................................................................... 84
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`9.3. Duty to Deliberate ................................................................................................. 85
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`9.4.
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`Social Media ......................................................................................................... 87
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`9.5. Court Has No Opinion .......................................................................................... 88
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`8.
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`9.
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`iii
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`Case 1:17-cv-00770-JDW Document 296 Filed 01/26/24 Page 4 of 91 PageID #: 29753
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`1.
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`GENERAL INSTRUCTIONS
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`1.1.
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`Introduction1
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`Members of the jury, now it is time for me to instruct you about the law that you must
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`follow in deciding this case. Please listen very carefully to everything I say. In following my
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`instructions, you must follow all of them, including the ones I gave you at the start of the case
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`and any I have given you during trial. You may not single out some and ignore others. They are
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`all important.
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`To help you follow along, each of you has been provided a copy of these instructions.
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`You may read along as I deliver them if you prefer. You will have a written copy of these
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`instructions with you in the jury room for your reference during deliberations. You will also have
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`a verdict form, which will list the questions that you must answer to decide this case. We will go
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`over that later.
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`I will start by explaining your duties and the general rules that apply in every civil case.
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`Then I will explain some rules that you must use in evaluating particular testimony and evidence.
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`Then I will explain the positions of the parties and the law you will apply in this case. And last, I
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`will explain the rules that you must follow during your deliberations in the jury room and the
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`possible verdicts that you may return.
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`1 See TwinStrand Bioscis., Inc. v. Guardant Health, Inc., No. 21-cv-01126, D.I. 494, Final Jury
`Instructions (Nov. 14, 2023) (Instruction No. 1.1, Introduction); 3G Licensing, S.A. v. HTC
`Corp., No. 17-cv-00083, D.I. 737, Final Jury Instructions (Oct. 16, 2023) (Instruction No. 1.1,
`Introduction); Third Circuit Model Jury Instructions (Aug. 2020) at 1.1, available at
`https://www.ca3.uscourts.gov/sites/ca3/files/chapters%201_2_3_%20for%20posting%20after%2
`0August%202020%20meeting.pdf.
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`Case 1:17-cv-00770-JDW Document 296 Filed 01/26/24 Page 5 of 91 PageID #: 29754
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`1.2.
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`Juror’s Duties2
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`You have two main duties as jurors. The first is to decide what the facts are from the
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`evidence that you saw and heard here in court. Deciding what the facts are is your job, not mine,
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`and nothing that I have said or done during this trial was meant to influence your decision about
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`the facts in any way. You are the sole judges of the facts.
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`Your second duty is to take the law that I give you, apply it to the facts, and decide under
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`the appropriate burden of proof which party should prevail on the issues presented. I will instruct
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`you about the burden of proof shortly. It is my job to instruct you about the law, and you are
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`bound by the oath that you took at the beginning of the trial to follow the instructions that I give
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`you, even if you personally disagree with them. This includes any instructions that I gave you
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`before and during the trial and these instructions. All of the instructions are important, and you
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`should consider them together as a whole.
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`Perform these duties fairly. Do not guess or speculate, and do not let any bias, sympathy,
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`or prejudice that you may feel toward one side or the other influence your decision in any way.
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`2 See TwinStrand Bioscis., Inc. v. Guardant Health, Inc., No. 21-cv-01126, D.I. 494, Final Jury
`Instructions (Nov. 14, 2023) (Instruction No. 1.2, Jurors’ Duties); 3G Licensing, S.A. v. HTC
`Corp., No. 17-cv-00083, D.I. 737, Final Jury Instructions (Oct. 16, 2023) (Instruction No. 1.2,
`Jurors’ Duties); Third Circuit Model Jury Instructions (Aug. 2020) at 3.1, available at
`https://www.ca3.uscourts.gov/sites/ca3/files/chapters%201_2_3_%20for%20posting%20after%2
`0August%202020%20meeting.pdf.
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`2
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`1.3. Evidence Defined3
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`You must make your decision based only on the evidence that you saw and heard here in
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`the courtroom. Do not let rumors, suspicions, or anything else that you may have seen or heard
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`outside of the court influence your decision in any way.
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`The evidence in this case includes only what the witnesses said while they were testifying
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`under oath, including prior sworn testimony that has been played by video or read to you, the
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`exhibits that I allowed into evidence, the uncontested facts and interrogatory responses that have
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`been read to you, any facts that the parties agreed to by stipulation, and any facts that I have
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`instructed you to accept as true.
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`Nothing else is evidence. The lawyers’ statements and arguments are not evidence. Their
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`questions and objections are not evidence. My legal rulings are not evidence. And my comments
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`and questions are not evidence. You should not be influenced by a lawyer’s objection or by my
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`ruling on that objection. The notes taken by any juror are not evidence. Certain charts,
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`animations, videos, or other illustrations called demonstratives have been used to illustrate
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`testimony from witnesses or other underlying evidence. Unless I have specifically admitted
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`certain demonstrative exhibits into evidence, those charts, animations, videos, and other
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`illustrations are not themselves evidence even if they refer to, identify, or summarize evidence.
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`During the trial, I may have not let you hear the answers to some of the questions that the
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`lawyers asked. I also may have ruled that you could not see some of the exhibits that the lawyers
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`wanted you to see. Sometimes I may have ordered you to disregard things that you saw or heard
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`3 See TwinStrand Bioscis., Inc. v. Guardant Health, Inc., No. 21-cv-01126, D.I. 494, Final Jury
`Instructions (Nov. 14, 2023) (Instruction No. 1.3, Evidence Defined); 3G Licensing, S.A. v. HTC
`Corp., No. 17-cv-00083, D.I. 737, Final Jury Instructions (Oct. 16, 2023) (Instruction No. 1.3,
`Evidence Defined); Third Circuit Model Jury Instructions (Aug. 2020) at 1.5, available at
`https://www.ca3.uscourts.gov/sites/ca3/files/chapters%201_2_3_%20for%20posting%20after%2
`0August%202020%20meeting.pdf.
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`3
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`or that I struck from the record. You must completely ignore all of these things.
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`Do not speculate about what a witness might have said or what an exhibit might have
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`shown. Speculation is not evidence, and you are bound by your oath not to let speculation
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`influence your decision in any way. Make your decision based only on the evidence, as I have
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`defined it here, and nothing else.
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`4
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`1.4. Direct and Circumstantial Evidence4
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`During the preliminary instructions, I told you about “direct evidence” and
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`“circumstantial evidence.” I will now remind you what each means.
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`Direct evidence is evidence like the testimony of any eyewitness which, if you believe it,
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`directly proves a fact. If a witness testified that she saw it raining outside, and you believed her,
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`that would be direct evidence that it was raining.
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`Circumstantial evidence is a chain of circumstances that indirectly proves a fact. If
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`someone walked into a courtroom wearing a raincoat covered with drops of water and carrying a
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`wet umbrella, that would be circumstantial evidence from which you could conclude that it was
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`raining.
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`It is your job to decide how much weight to give the direct and circumstantial evidence.
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`The law makes no distinction between the weight that you should give to either one, nor does it
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`say that one is any better than the other. You should consider all the evidence, both direct and
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`circumstantial, and give it whatever weight you believe it deserves.
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`4 See TwinStrand Bioscis., Inc. v. Guardant Health, Inc., No. 21-cv-01126, D.I. 494, Final Jury
`Instructions (Nov. 14, 2023) (Instruction No. 1.4, Direct and Circumstantial Evidence); 3G
`Licensing, S.A. v. HTC Corp., No. 17-cv-00083, D.I. 737, Final Jury Instructions (Oct. 16, 2023)
`(Instruction No. 1.4, Direct and Circumstantial Evidence); Third Circuit Model Jury Instructions
`(Aug. 2020) at 1.6, available at
`https://www.ca3.uscourts.gov/sites/ca3/files/chapters%201_2_3_%20for%20posting%20after%2
`0August%202020%20meeting.pdf.
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`5
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`1.5. Consideration of Evidence5
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`You should use your common sense in weighing the evidence. Consider it in light of your
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`everyday experience with people and events and give it whatever weight you believe it deserves.
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`If your experience tells you that certain evidence reasonably leads to a conclusion, you are free
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`to reach that conclusion.
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`5 See TwinStrand Bioscis., Inc. v. Guardant Health, Inc., No. 21-cv-01126, D.I. 494, Final Jury
`Instructions (Nov. 14, 2023) (Instruction No. 1.5, Consideration of Evidence); 3G Licensing, S.A.
`v. HTC Corp., No. 17-cv-00083, D.I. 737, Final Jury Instructions (Oct. 16, 2023) (Instruction
`No. 1.5, Consideration of Evidence); Third Circuit Model Jury Instructions (Aug. 2020) at 1.5,
`available at
`https://www.ca3.uscourts.gov/sites/ca3/files/chapters%201_2_3_%20for%20posting%20after%2
`0August%202020%20meeting.pdf.
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`6
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`Case 1:17-cv-00770-JDW Document 296 Filed 01/26/24 Page 10 of 91 PageID #: 29759
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`1.6. Credibility of Witnesses6
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`In deciding what the facts are, you may have to decide what testimony you believe and
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`what testimony you do not believe. You are the sole judges of the credibility, or the believability,
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`of the witnesses you have seen during the trial and the weight their testimony deserves.
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`You should carefully scrutinize all of the testimony each witness has given and every
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`matter of evidence that tends to show whether he or she is worthy of belief. Consider each
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`witness’s intelligence, motive, and state of mind, as well as his or her demeanor while on the
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`stand. You may believe everything a witness says or only part of it or none of it. In deciding
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`what to believe, you should consider a number of factors, including the following:
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`1.
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`the opportunity and ability of the witness to see or hear or know the things the
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`witness testified to;
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`2.
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`3.
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`4.
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`the quality of the witness’s understanding and memory;
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`the witness’s manner or demeanor while testifying;
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`whether the witness has an interest in the outcome of the case or any other motive,
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`bias, or prejudice;
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`5.
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`whether the witness’s testimony was contradicted by anything the witness said or
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`wrote before trial or by other evidence;
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`6.
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`how reasonable the witness’s testimony was when considered in the light of other
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`evidence that you believe; and
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`6 See TwinStrand Bioscis., Inc. v. Guardant Health, Inc., No. 21-cv-01126, D.I. 494, Final Jury
`Instructions (Nov. 14, 2023) (Instruction No. 1.7, Credibility of Witnesses); 3G Licensing, S.A. v.
`HTC Corp., No. 17-cv-00083, D.I. 737, Final Jury Instructions (Oct. 16, 2023) (Instruction No.
`1.8, Credibility of Witnesses); Third Circuit Model Jury Instructions (August 2020) at 1.7,
`available at
`https://www.ca3.uscourts.gov/sites/ca3/files/chapters%201_2_3_%20for%20posting%20after%2
`0August%202020%20meeting.pdf.
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`7
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`7.
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`any other factors that bear on believability of the testimony.
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`Discrepancies in the testimony of different witnesses may or may not cause you to
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`discredit such testimony. Two or more persons witnessing an incident or transaction may see or
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`hear it differently. In determining the weight to give to the testimony of a witness, you should
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`ask yourself whether there was evidence tending to prove that the witness testified falsely about
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`some important fact, or whether there was evidence that at some other time the witness said or
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`did something, or failed to say or do something, that was different from or inconsistent with the
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`testimony that he or she gave during the trial. It is the province of the jury to determine whether a
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`false statement or prior inconsistent statement discredits the witness’s testimony.
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`You should remember that a simple mistake by a witness does not mean that the witness
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`was not telling the truth. People may tend to forget some things or remember other things
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`inaccurately. If a witness has made a misstatement, you must consider whether it was simply an
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`innocent lapse of memory or an intentional falsehood, and that may depend upon whether it
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`concerns an important fact or an unimportant detail.
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`This instruction applies to all witnesses, including expert witnesses.
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`8
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`1.7. Number of Witnesses
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`Sometimes jurors wonder if the number of witnesses who testified makes any difference.
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`Do not make any decisions based only on the number of witnesses who testified. What is more
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`important is how believable the witnesses were and how much weight you think their testimony
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`deserves. Concentrate on that, not the number of witnesses.7
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`7 See TwinStrand Bioscis., Inc. v. Guardant Health, Inc., No. 21-cv-01126, D.I. 494, Final Jury
`Instructions (Nov. 14, 2023) (Instruction No. 1.8, Number of Witnesses); Third Circuit Model
`Jury Instructions (Aug. 2020) at 1.7, available at
`https://www.ca3.uscourts.gov/sites/ca3/files/chapters%201_2_3_%20for%20posting%20after%2
`0August%202020%20meeting.pdf.
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`9
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`Case 1:17-cv-00770-JDW Document 296 Filed 01/26/24 Page 13 of 91 PageID #: 29762
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`1.8. Expert Witnesses8
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`During the trial, you heard testimony from expert witnesses. When knowledge or special
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`skill in a technical or business subject matter might be helpful to the jury, a person who has that
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`special training or experience in that technical or business field—called an expert witness—is
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`permitted to state his or her opinion on those technical or business matters. However, you are not
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`required to accept that opinion. As with any other witness, it is up to you to judge the credentials
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`and credibility of the expert witness and decide whether to rely upon their testimony.
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`In weighing expert testimony, you may consider the expert’s qualifications, the reasons
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`for the expert’s opinions, and the reliability of the information supporting the expert’s opinions,
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`as well as the factors I have previously mentioned for weighing testimony of any other witness.
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`You should consider each expert opinion received in evidence in this case and give it such
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`weight as you think it deserves. If you decide that the opinion of an expert witness is not based
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`upon sufficient education and experience, or if you conclude that the reasons given in support of
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`the opinions are not sound, or if you feel that the opinion is outweighed by other evidence, you
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`may disregard the opinion in whole or in part.
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`8 See TwinStrand Bioscis., Inc. v. Guardant Health, Inc., No. 21-cv-01126, D.I. 494, Final Jury
`Instructions (Nov. 14, 2023) (Instruction No. 1.9, Expert Witnesses); 3G Licensing, S.A. v. HTC
`Corp., No. 17-cv-00083, D.I. 737, Final Jury Instructions (Oct. 16, 2023) (Instruction No. 1.9,
`Expert Witnesses); Third Circuit Model Jury Instructions (Aug. 2020) at 2.11, available at
`https://www.ca3.uscourts.gov/sites/ca3/files/chapters%201_2_3_%20for%20posting%20after%2
`0August%202020%20meeting.pdf.
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`Case 1:17-cv-00770-JDW Document 296 Filed 01/26/24 Page 14 of 91 PageID #: 29763
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`1.9.
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`Prior Sworn Testimony9
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`During the trial, certain testimony was presented to you through excerpts of depositions
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`or a hearing. This testimony must be given the same consideration you would give it had the
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`witness personally appeared in court. Like the testimony of a live witness, the statements made
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`in a deposition or hearing are made under oath and are considered evidence that may be used to
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`prove particular facts. The prior sworn testimony may have been edited or cut to exclude
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`irrelevant testimony, as the parties have only a limited amount of time to present you with the
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`evidence. You should not attribute any significance to the fact that the videos may appear to have
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`been edited.
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`9 See TwinStrand Bioscis., Inc. v. Guardant Health, Inc., No. 21-cv-01126, D.I. 494, Final Jury
`Instructions (Nov. 14, 2023) (Instruction No. 1.10, Deposition Testimony); 3G Licensing, S.A. v.
`HTC Corp., No. 17-cv-00083, D.I. 737, Final Jury Instructions (Oct. 16, 2023) (Instruction No.
`1.10, Deposition Testimony); Third Circuit Model Jury Instructions (Aug. 2020) at 2.5, available
`at
`https://www.ca3.uscourts.gov/sites/ca3/files/chapters%201_2_3_%20for%20posting%20after%2
`0August%202020%20meeting.pdf.
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`11
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`Case 1:17-cv-00770-JDW Document 296 Filed 01/26/24 Page 15 of 91 PageID #: 29764
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`1.10. Exhibits10
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`During the course of the trial, you have seen many exhibits. Many of these exhibits were
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`admitted as evidence. You will have these admitted exhibits in the jury room for your
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`deliberations. The other exhibits (including charts, animations, videos, or other illustrations
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`presented by attorneys and witnesses), called “demonstrative exhibits,” were offered to help
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`illustrate the testimony of the various witnesses. These demonstrative exhibits have not been
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`admitted as evidence, are not evidence, and should not be considered as evidence. Rather, it is
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`the underlying testimony of the witness that you heard when you saw the demonstrative exhibits
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`that is the evidence in this case.
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`10 See 3G Licensing, S.A. v. HTC Corp., No. 17-cv-00083, D.I. 737, Final Jury Instructions (Oct.
`16, 2023) (Instruction No. 1.11, Demonstrative Exhibits); Pact XPP Schweiz AG v. Intel Corp.,
`No. 1:19-cv-1006-JDW, D.I. 553, Joint Proposed Final Jury Instructions (Nov. 3, 2023)
`(Instruction No. 2.6, Exhibits).
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`12
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`Case 1:17-cv-00770-JDW Document 296 Filed 01/26/24 Page 16 of 91 PageID #: 29765
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`1.11. Admitted Facts11
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`The parties have stipulated or agreed that certain facts are true, and those admitted facts
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`have been read to you during this trial. You must treat these admitted facts as having been
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`proven for purposes of this case.
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`11 See 3G Licensing, S.A. v. HTC Corp., No. 17-cv-00083, D.I. 737, Final Jury Instructions (Oct.
`16, 2023) (Instruction No. 1.7, Facts Admitted); Third Circuit Model Jury Instructions (Aug.
`2020) at 2.4, available at
`https://www.ca3.uscourts.gov/sites/ca3/files/chapters%201_2_3_%20for%20posting%20after%2
`0August%202020%20meeting.pdf.
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`13
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`Case 1:17-cv-00770-JDW Document 296 Filed 01/26/24 Page 17 of 91 PageID #: 29766
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`1.12. Use of Notes12
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`You may use notes taken during the trial to assist your memory. Remember that your
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`notes are for your personal use. They may not be given or read to anyone else. Do not use your
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`notes or any other juror’s notes as authority to persuade fellow jurors. Your notes are not
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`evidence, and they are by no means a complete outline of the proceedings or a list of the
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`highlights of the trial. Some testimony that is considered unimportant at the time presented, and
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`thus not written down, may take on greater importance later on in the trial in light of all the
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`evidence presented. Your notes are valuable only as a way to refresh your memory. Your
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`memory is what you should be relying on when it comes time to deliberate and render your
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`verdict in this case.
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`12 See TwinStrand Bioscis., Inc. v. Guardant Health, Inc., No. 21-cv-01126, D.I. 494, Final Jury
`Instructions (Nov. 14, 2023) (Instruction No. 1.6, Use of Notes); 3G Licensing, S.A. v. HTC
`Corp., No. 17-cv-00083, D.I. 737, Final Jury Instructions (Oct. 16, 2023) (Instruction No. 1.12,
`Use of Notes).
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`14
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`Case 1:17-cv-00770-JDW Document 296 Filed 01/26/24 Page 18 of 91 PageID #: 29767
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`1.13. Burdens of Proof13
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`In any legal action, facts must be proven to a required standard of evidence known as the
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`“burden of proof.” In a patent case such as this, there are two different burdens of proof that are
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`used. The first is called “preponderance of the evidence.” The second is called “clear and
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`convincing evidence.” I told you about these standards of proof during my preliminary
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`instructions to you, and I will now remind you what they mean.
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`In this case, Wirtgen America contends that Caterpillar infringes Wirtgen America’s
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`patents. Wirtgen America also contends that it is entitled to damages for that infringement.
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`Wirtgen America further contends that Caterpillar’s infringement was willful.
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`Wirtgen America has the burden of proving infringement by a preponderance of the
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`evidence. A preponderance of the evidence is evidence that, when considered in light of all the
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`facts, leads you to believe that what that party claims is more likely true than not true. To put it
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`differently, if you were to put the parties’ evidence on opposite sides of a scale, the evidence
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`supporting Wirtgen America’s infringement claims must make the scales tip slightly toward its
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`side.
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`If Wirtgen America persuades you that Caterpillar has infringed Wirtgen America’s
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`Asserted Patents, and Caterpillar does not persuade you that the patent claims are invalid, then
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`Wirtgen America may be entitled to damages in an amount to compensate Wirtgen America for
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`that infringement. Wirtgen America must prove its damages, if any, by a preponderance of the
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`evidence. As with infringement, this evidentiary standard requires Wirtgen America to prove that
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`13 See TwinStrand Bioscis., Inc. v. Guardant Health, Inc., No. 21-cv-01126, D.I. 494, Final Jury
`Instructions (Nov. 14, 2023) (Instruction No. 1.11, Burdens of Proof); 3G Licensing, S.A. v. HTC
`Corp., No. 17-cv-00083, D.I. 737, Final Jury Instructions (Oct. 16, 2023) (Instruction No. 1.13,
`Burdens of Proof); Cirba Inc. v. VMWare, Inc., No. 19-cv-00742, D.I. 1767, Final Jury
`Instructions (Apr. 28, 2023) (Instruction No. 1.13, Burdens of Proof).
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`15
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`Case 1:17-cv-00770-JDW Document 296 Filed 01/26/24 Page 19 of 91 PageID #: 29768
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`its damages arguments are more likely true than not true.
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`Wirtgen America bears the burden to prove willful infringement by a preponderance of
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`the evidence if Wirtgen America persuades you that Caterpillar infringed Wirtgen America’s
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`Asserted Patents. As with infringement and damages, this evidentiary standard requires Wirtgen
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`America to prove that it is more likely than not that Caterpillar’s infringement was willful.
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`In addition to denying infringement, Caterpillar contends that Wirtgen America’s
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`Asserted Patents are invalid. [Plaintiff’s proposal: Wirtgen America’s Asserted Patents were
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`issued by the United States Patent and Trademark Office and are entitled to a presumption of
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`validity. Accordingly,]14 Caterpillar has the burden of proving invalidity by clear and convincing
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`evidence. Clear and convincing evidence is evidence that makes it highly probable that a fact is
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`true. Thus, Caterpillar has the burden of proving that it is highly probable that Wirtgen
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`America’s Asserted Patents are invalid. Proof by clear and convincing evidence is a higher
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`burden than proof by a preponderance of the evidence.
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`You may have heard of the term “proof beyond a reasonable doubt.” That is a stricter
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`burden of proof, and it applies only to criminal cases. It does not apply in civil cases such as this.
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`You should therefore not consider that burden of proof in this case.
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`14 Plaintiff’s position: See 35 U.S.C. § 282; Microsoft Corp. v. i4i Ltd. P’ship, 564 U.S. 91, 100–
`02 (2011). An explanation why the clear-and-convincing standard applies will help the jury
`understand the difference in the applicable burdens of proof and lend concreteness to an
`otherwise abstract concept.
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`Defendant’s position: Neither the AIPLA model instructions