Case 1:18-cv-00924-CFC-SRF Document 499 Filed 02/03/20 Page 1 of 149 PageID
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`GENENTECH, INC.,
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`AMGEN INC.,
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`v.
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`Plaintiff,
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`Defendant.
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`C.A. No. 18-924-CFC
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`PROPOSED JOINT FINAL JURY INSTRUCTIONS
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`TABLE OF CONTENTS
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`5.4 [GENENTECH’S PROPOSAL: INFRINGEMENT BY FILING A
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`1. GENERAL INSTRUCTIONS ......................................................................... 1
`1.1 INTRODUCTION ........................................................................................ 1
`1.2 JURORS’ DUTIES ....................................................................................... 3
`1.3 EVIDENCE DEFINED ................................................................................ 5
`1.4 CONSIDERATION OF EVIDENCE ........................................................... 7
`1.5 DIRECT AND CIRCUMSTANTIAL EVIDENCE ...................................... 8
`1.6 CREDIBILITY OF WITNESSES ................................................................10
`1.7 DEPOSITION TESTIMONY ......................................................................13
`1.8 EXPERT WITNESSES ...............................................................................15
`1.9 NUMBER OF WITNESSES .......................................................................17
`1.10 STIPULATION .........................................................................................18
`1.11 EXHIBITS AND DEMONSTRATIVE EXHIBITS...................................19
`1.12 CONFIDENTIAL LABELS & REDACTIONS.........................................20
`1.13 USE OF NOTES ........................................................................................22
`2. THE PARTIES AND THEIR CONTENTIONS .............................................24
`3. BURDENS OF PROOF ..................................................................................27
`4. PATENT CLAIMS .........................................................................................29
`4.1 THE ROLE OF CLAIMS IN THE PATENT...............................................29
`4.2 INDEPENDENT AND DEPENDENT CLAIMS ........................................30
`4.3 CLAIM CONSTRUCTION .........................................................................32
`5. INFRINGEMENT ..........................................................................................34
`5.1 INFRINGEMENT GENERALLY ...............................................................34
`5.2 DIRECT INFRINGEMENT ........................................................................36
`5.3 INDUCED INFRINGEMENT .....................................................................39
`BIOLOGICS LICENSE APPLICATION ..........................................................44
`HAD AN IMPLIED LICENSE TO PRACTICE THE DOSING PATENTS .....46
`6. INVALIDITY ................................................................................................49
`6.1 INVALIDITY GENERALLY .....................................................................49
`6.2 [GENENTECH’S PROPOSAL: PRESUMPTION OF VALIDITY ..........51
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`5.5 [AMGEN’S PROPOSAL: DETERMINING WHETHER THIRD PARTIES
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`7.7 LOST PROFITS—ACCEPTABLE NON-INFRINGING SUBSTITUTES
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`7.16 [GENENTECH’S PROPOSAL: REASONABLE ROYALTY–
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`6.3 PERSON OF ORDINARY SKILL IN THE ART ........................................52
`6.4 THE WRITTEN DESCRIPTION REQUIREMENT ...................................54
`6.5 THE ENABLEMENT REQUIREMENT.....................................................56
`6.6 INDEFINITENESS .....................................................................................59
`6.7 PRIOR ART AND PRIOR PUBLIC USE ...................................................61
`6.8 ANTICIPATION .........................................................................................64
`6.9 OBVIOUSNESS..........................................................................................68
`6.10 DERIVATION ..........................................................................................74
`6.11 INCORRECT INVENTORSHIP ...............................................................78
`6.12 [AMGEN’S PROPOSAL: INEQUITABLE CONDUCT .........................81
`7. DAMAGES ....................................................................................................82
`7.1 DAMAGES – GENERALLY ......................................................................82
`7.2 DAMAGES – KINDS OF DAMAGES THAT MAY BE RECOVERED....85
`7.3 [AMGEN’S PROPOSAL: ATTRIBUTION/APPORTIONMENT ............89
`7.4 LOST PROFITS – “BUT- FOR” TEST .......................................................93
`7.5 LOST PROFITS–FACTORS .......................................................................96
`7.6 LOST PROFITS– DEMAND ......................................................................99
` ........................................................................................................................ 101
`7.8 LOST PROFITS– MARKET SHARE ....................................................... 104
`7.9 LOST PROFITS– CAPACITY .................................................................. 108
`7.10 LOST PROFIT – AMOUNT OF PROFIT ............................................... 109
`7.11 PRICE EROSION.................................................................................... 113
`7.12 COST ESCALATION ............................................................................. 116
`7.13 REASONABLE ROYALTY – GENERALLY ........................................ 117
`7.14 REASONABLE ROYALTY—HYPOTHETICAL NEGOTIATION ...... 120
`7.15 REASONABLE ROYALTY – FACTORS .............................................. 122
`ATTRIBUTION/APPORTIONMENT ............................................................ 124
`7.17 REASONABLE ROYALTY – MULTIPLE PATENTS .......................... 126
`7.18 REASONABLE ROYALTY—TIMING ................................................. 127
`ALTERNATIVES ........................................................................................... 129
`AGREEMENTS .............................................................................................. 130
`AGAINST INFRINGER ................................................................................. 132
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`7.21 [GENENTECH’S PROPOSAL: DAMAGES– DOUBTS RESOLVED
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`7.19 REASONABLE ROYALTY—AVAILABILITY OF NON-INFRINGING
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`7.20 REASONABLE ROYALTY– USE OF COMPARABLE LICENSE
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`8. WILLFUL INFRINGEMENT ...................................................................... 133
`9. DELIBERATION AND VERDICT .............................................................. 137
`9.1 INTRODUCTION ..................................................................................... 137
`9.2 UNANIMOUS VERDICT ......................................................................... 139
`9.3 DUTY TO DELIBERATE ........................................................................ 141
`9.4 SOCIAL MEDIA....................................................................................... 143
`9.5 COURT HAS NO OPINION ..................................................................... 145
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`1. GENERAL INSTRUCTIONS1
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`1.1 INTRODUCTION
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`Members of the jury, now it is time for me to instruct you about the law that
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`you must follow in deciding this case.
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`I will start by explaining your duties and the general rules that apply in every
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`civil case. Then I will explain some rules that you must use in evaluating
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`particular testimony and evidence. Then I will explain the positions of the parties
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`and the law you will apply in this case. Finally, I will explain the rules that you
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`must follow during your deliberations in the jury room, and the possible verdicts
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`you may return.
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`Please listen very carefully to everything I say. In following my instructions
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`you must follow all of them and not single out some and ignore others. They are
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`all important.
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`You will have a written copy of these instructions with you in the jury room
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`for your reference during your deliberations. You will also have a verdict form,
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`which will list the questions that you must answer to decide this case.
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` The parties reserve their rights to propose further amendments to these proposed
`jury instructions consistent with legal issues that may arise after the filing of these
`proposed instructions.
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`Authority:
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`Orexo AB v. Actavis Elizabeth, LLC, C.A. No. 1:17-cv-00205-CFC, D.I. 240,
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`Proposed Joint Final Jury Instructions (D. Del. March 28, 2019) at 1-2; Amgen v.
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`Hospira, C.A. No. 1:15-cv-839-RGA, D.I. 323, Final Jury Instructions (D. Del.
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`Sept. 22, 2017) at 1; E.I. DuPont de Nemours & Co. v. Unifrax I LLC, C.A. No.
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`1:14-cv-01250-RGA, D.I. 325, Final Jury Instructions (D. Del. May 15, 2017) at 1;
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`AVM Tech., LLC v. Intel Corp., C.A. No. 15-33-RGA-MPT, D.I. 719, Final Jury
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`Instructions (D. Del. May 8, 2017) at 1; EMC Corp. v. Pure Storage, Inc., C.A.
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`No. 13-1985-RGA, D.I. 448, Final Jury Instructions (D. Del. March 15, 2016) at 1.
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`1.2 JURORS’ DUTIES
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`You have two main duties as jurors. The first one is to decide what the
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`facts are from the evidence that you saw and heard here in court. Deciding what
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`the facts are is your job, not mine, and nothing that I have said or done during this
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`trial was meant to influence your decision about the facts in any way. Your
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`second duty is to take the law that I give you, apply it to the facts, and decide,
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`under the appropriate burden of proof, which party should prevail on each of the
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`issues presented.
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`It is my job to instruct you about the law, and you are bound by the oath
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`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 the instructions
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`that I gave you before and during the trial, and these instructions. All of the
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`instructions are important, and you should consider them together as a whole.
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`Perform these duties fairly. Do not let any bias, sympathy or prejudice that
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`you may feel
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`toward one side or the other influence your decision in any way.
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`Authority:
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`Orexo AB v. Actavis Elizabeth, LLC, No. 1:17-cv-00205-CFC, D.I. 240, Proposed
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`Joint Final Jury Instructions (D. Del. March 28, 2019) at 1-2; Amgen v. Hospira,
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`C.A. No. 1:15-cv-839-RGA, D.I. 323, Final Jury Instructions (D. Del. Sept. 22,
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`2017) at 2; E.I. DuPont de Nemours & Co. v. Unifrax I LLC, C.A. No. 1:14-cv-
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`01250-RGA, D.I. 325, Final Jury Instructions (D. Del. May 15, 2017) at 2; AVM
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`Tech., LLC v. Intel Corp., C.A. No. 15-33-RGA-MPT, D.I. 719, Final Jury
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`Instructions (D. Del. May 8, 2017) at 2; EMC Corp. v. Pure Storage, Inc., C.A.
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`No. 13-1985-RGA, D.I. 448, Final Jury Instructions (D. Del. March 15, 2016) at 2.
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`1.3 EVIDENCE DEFINED
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`You must make your decision based only on the evidence that you saw and
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`heard here in court. Do not let rumors, suspicions, or anything else that you may
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`have seen or heard outside of court influence your decision in any way. You
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`should consider all of the evidence, no matter what form it takes, and no matter
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`which party introduced it.
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`The evidence in this case includes only what the witnesses said while they
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`were testifying under oath, deposition testimony that was presented to you, the
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`exhibits that I allowed into evidence, the stipulations that the lawyers agreed to,
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`and any other evidence that I have judicially noticed.
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`Nothing else is evidence. The lawyers’ statements and arguments are not
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`evidence. The arguments of the lawyers are offered solely as an aid to help you in
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`your determination of the facts. Their questions and objections are not evidence.
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`My legal rulings are not evidence. My comments and questions are not evidence.
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`During the trial I may have not let you hear the answers to some of the
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`questions that the lawyers asked. I also may have ruled that you could not see
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`some of the exhibits that the lawyers wanted you to see. And sometimes I may
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`have ordered you to disregard things that you saw or heard, or I struck things from
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`the record. You must completely ignore all of these things. Do not even think
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`about them. Do not speculate about what a witness might have said or what an
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`exhibit might have shown. These things are not evidence, and you are bound by
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`your oath not to let them influence your decision in any way. Sometimes
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`testimony and exhibits are received only for a limited purpose. When I give
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`instructions regarding that limited purpose, you must follow it.
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`Make your decision based only on the evidence, as I have defined it here,
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`and nothing else.
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`Authority:
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`Orexo AB v. Actavis Elizabeth, LLC, C.A. No. 1:17-cv-00205-CFC, D.I. 240,
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`Proposed Joint Final Jury Instructions (D. Del. March 28, 2019) at 3; Amgen v.
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`Hospira, C.A. No. 1:15-cv-839-RGA, D.I. 323, Final Jury Instructions (D. Del.
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`Sept. 22, 2017) at 3; E.I. DuPont de Nemours & Co. v. Unifrax I LLC, C.A. No.
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`1:14-cv-01250-RGA, D.I. 325, Final Jury Instructions (D. Del. May 15, 2017) at 4;
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`AVM Tech., LLC v. Intel Corp., C.A. No. 15-33-RGA-MPT, D.I. 719, Final Jury
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`Instructions (D. Del. May 8, 2017) at 4; EMC Corp. v. Pure Storage, Inc., C.A.
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`No. 13-1985-RGA, D.I. 448, Final Jury Instructions (D. Del. March 15, 2016) at 4.
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`1.4 CONSIDERATION OF EVIDENCE
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`You should use your common sense in weighing the evidence. Consider the
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`evidence in light of your everyday experience with people and events and give it
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`whatever weight you believe it deserves. If your experience tells you that certain
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`evidence reasonably leads to a conclusion, you are free to reach that conclusion.
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`Authority:
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`Amgen v. Hospira, C.A. No. 1:15-cv-839-RGA, D.I. 323, Final Jury Instructions
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`(D. Del. Sept. 22, 2017) at 4; E.I. DuPont de Nemours & Co. v. Unifrax I LLC,
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`C.A. No. 1:14-cv-01250-RGA, D.I. 325, Final Jury Instructions (D. Del. May 15,
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`2017) at 5; AVM Tech., LLC v. Intel Corp., C.A. No. 15-33-RGA-MPT, D.I. 719,
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`Final Jury Instructions (D. Del. May 8, 2017) at 7; EMC Corp. v. Pure Storage,
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`Inc., C.A. No. 13-1985-RGA, D.I. 448, Final Jury Instructions (D. Del. March 15,
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`2016) at 5.
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`1.5 DIRECT AND CIRCUMSTANTIAL EVIDENCE
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`There are two kinds of evidence: direct evidence and circumstantial
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`evidence.
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`Direct evidence is direct proof of a fact, such as the testimony of an
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`eyewitness. For example, if a witness testified that she saw it raining outside, and
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`you believed her, that would be direct evidence that it was raining.
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`Circumstantial evidence is indirect proof of a fact, that is, proof of facts
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`from which you may infer or conclude that other facts exist. For example, if
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`someone walked into the courtroom wearing a raincoat covered with drops of
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`water and carrying a wet umbrella, that would be circumstantial evidence from
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`which you could conclude that it was raining.
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`The law makes no distinction between the weight that you should give to
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`either direct or circumstantial evidence, nor does it say that one type of evidence
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`is any better evidence than the other. You should consider all of the evidence,
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`both direct and circumstantial, and give it whatever weight you believe it
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`deserves.
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`Authority:
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`Orexo AB v. Actavis Elizabeth, LLC, C.A. No. 1:17-cv-00205-CFC, D.I. 240,
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`Proposed Joint Final Jury Instructions (D. Del. March 28, 2019) at 4; Amgen v.
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`Hospira, C.A. No. 1:15-cv-839-RGA, D.I. 323, Final Jury Instructions (D. Del.
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`Sept. 22, 2017) at 5; E.I. DuPont de Nemours & Co. v. Unifrax I LLC, C.A. No.
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`1:14-cv-01250-RGA, D.I. 325, Final Jury Instructions (D. Del. May 15, 2017) at 6;
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`EMC Corp. v. Pure Storage, Inc., C.A. No. 13-1985-RGA, D.I. 448, Final Jury
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`Instructions (D. Del. March 15, 2016) at 6.
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`1.6 CREDIBILITY OF WITNESSES
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`You are the sole judges of each witness’s credibility. You should consider
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`each witness’s means of knowledge; strength of memory; and opportunity to
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`observe; how reasonable or unreasonable the testimony is; whether it is consistent
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`or inconsistent; and whether it has been contradicted; the witness’s biases,
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`prejudices, or interests; the witness’s manner or demeanor on the witness stand;
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`and all circumstances that, according to the evidence, could affect the credibility of
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`the testimony.
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`If you find the testimony to be contradictory, you must try to reconcile it, if
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`reasonably possible, so as to make one harmonious story of it all. But if you
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`cannot do this, then it is your duty and privilege to believe the portions of
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`testimony that, in your judgment, are most believable and disregard any testimony
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`that, in your judgment, is not believable.
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`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
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`falsely about some important fact, or, whether there was evidence that at some
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`other time the witness said or did something, or failed to say or do something, that
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`was different from the testimony he or she gave at the trial. You have the right to
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`distrust such witness’s testimony in other particulars and you may reject all or
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`some of the testimony of that witness or give it such credibility as you may think it
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`deserves.
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`You should remember that a simple mistake by a witness does not
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`necessarily mean that the witness was not telling the truth. People may tend to
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`forget some things or remember other things inaccurately. If a witness has made a
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`misstatement, you must consider whether it was simply an innocent lapse of
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`memory or an intentional falsehood, and that may depend on whether it concerns
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`an important fact or an unimportant detail.
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`This instruction applies to all witnesses, including expert witnesses and
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`witnesses who
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`provided testimony by deposition.
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`Authority:
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`Orexo AB v. Actavis Elizabeth, LLC, C.A. No. 1:17-cv-00205-CFC, D.I. 240,
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`Proposed Joint Final Jury Instructions (D. Del. March 28, 2019) at 8; Amgen v.
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`Hospira, C.A. No. 1:15-cv-839-RGA, D.I. 323, Final Jury Instructions (D. Del.
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`Sept. 22, 2017) at 6; E.I. DuPont de Nemours & Co. v. Unifrax I LLC, C.A. No.
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`1:14-cv-01250-RGA, D.I. 325, Final Jury Instructions (D. Del. May 15, 2017) at 7-
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`8; EMC Corp. v. Pure Storage, Inc., C.A. No. 13-1985-RGA, D.I. 448, Final Jury
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`Instructions (D. Del. March 15, 2016) at 7-8.
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`1.7 DEPOSITION TESTIMONY
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`A deposition is the sworn testimony of a witness taken before trial. The
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`witness is placed under oath and swears to tell the truth, and lawyers for each party
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`may ask questions. A court reporter is present and records the questions and
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`answers. The deposition may also be recorded on videotape.
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`During the trial, certain testimony was presented to you through depositions
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`that were electronically played or read into the record. You should not attribute
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`any significance to the fact that the deposition is played by video or read by other
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`people. This testimony may have been edited or cut to exclude irrelevant
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`testimony. You should not attribute any significance to the fact that the videos or
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`the read excerpts may appear to have been edited. This testimony must be given
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`the same consideration you would give it had the witness personally appeared in
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`court. Like the testimony of a live witness, the statements made in a deposition
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`are made under oath and are considered evidence that may be used to prove
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`particular facts.
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`Authority:
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`Orexo AB v. Actavis Elizabeth, LLC, C.A. No. 1:17-cv-00205-CFC, D.I. 240,
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`Proposed Joint Final Jury Instructions (D. Del. March 28, 2019) at 11; Amgen v.
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`Hospira, C.A. No. 1:15-cv-839-RGA, D.I. 300, Proposed Jury Instructions (D.
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`Del. Sept. 7, 2017) at 9.
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`1.8 EXPERT WITNESSES
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`During the trial, you heard testimony from expert witnesses. When
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`knowledge of technical subject matter may be helpful to the jury, a person who
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`has special training or experience in that technical field—called an expert
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`witness—is permitted to state his or her opinion on those technical matters. This
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`skill or knowledge is not common to the average person but has been acquired by
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`the expert through special study or experience.
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`In weighing expert testimony, you may consider the expert’s qualifications,
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`the reasons for the expert’s opinions, and the reliability of the information
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`supporting the expert’s opinions, as well as the factors I have previously mentioned
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`for weighing testimony of any other witness. Expert testimony should receive
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`whatever weight and credit you think appropriate, given all the other evidence in
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`the case. You are free to accept or reject the testimony of experts, just as with any
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`other witness.
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`Authority:
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`Orexo AB v. Actavis Elizabeth, LLC, C.A. No. 1:17-cv-00205-CFC, D.I. 240,
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`Proposed Joint Final Jury Instructions (D. Del. March 28, 2019) at 9; Amgen v.
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`Hospira, C.A. No. 1:15-cv-839-RGA, D.I. 323, Final Jury Instructions (D. Del.
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`Sept. 22, 2017) at 7; E.I. DuPont de Nemours & Co. v. Unifrax I LLC, C.A. No.
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`1:14-cv-01250-RGA, D.I. 325, Final Jury Instructions (D. Del. May 15, 2017) at
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`10; EMC Corp. v. Pure Storage, Inc., C.A. No. 13-1985-RGA, D.I. 448, Final Jury
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`Instructions (D. Del. March 15, 2016) at 10.
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`1.9 NUMBER OF WITNESSES
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`One more point about the witnesses. Sometimes jurors wonder if the
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`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
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`testified. What is more important is how believable the witnesses were, and how
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`much weight you think their testimony deserves. Concentrate on that, not the
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`numbers.
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`Authority:
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`Orexo AB v. Actavis Elizabeth, LLC, C.A. No. 1:17-cv-00205-CFC, D.I. 240,
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`Proposed Joint Final Jury Instructions (D. Del. March 28, 2019) at 10; Amgen v.
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`Hospira, C.A. No. 1:15-cv-839-RGA, D.I. 300, Proposed Jury Instructions (D.
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`Del. Sept. 7, 2017) at 8; E.I. DuPont de Nemours & Co. v. Unifrax I LLC, C.A. No.
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`1:14-cv-01250-RGA, D.I. 325, Final Jury Instructions (D. Del. May 15, 2017) at 9;
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`EMC Corp. v. Pure Storage, Inc., C.A. No. 13-1985-RGA, D.I. 448, Final Jury
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`Instructions (D. Del. March 15, 2016) at 9.
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`1.10 STIPULATION
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`A stipulation is a fact that the parties have agreed on, and the parties’
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`stipulated facts have been read to you during this trial. You must therefore treat
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`these stipulated facts as having been proved for the purposes of this case.
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`Authority:
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`Amgen v. Hospira, C.A. No. 1:15-cv-839-RGA, D. I. 300, Proposed Jury
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`Instructions (D. Del. Sept. 7, 2017) at 11; Third Circuit Model Jury § 2.4 (Oct.
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`2017) at 26.
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`1.11 EXHIBITS AND DEMONSTRATIVE EXHIBITS
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`During the course of the trial, you have seen many exhibits. Many of these
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`exhibits were admitted as evidence. Some of these admitted exhibits or portions of
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`them have been displayed for you on a screen and you will have these admitted
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`exhibits, whether displayed on a screen or not, in the jury room for your
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`deliberations.
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`There are other exhibits (including charts and animations presented by
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`attorneys and witnesses) that were offered to help illustrate the testimony of the
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`various witnesses. These illustrations, called “demonstrative exhibits,” have not
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`been admitted as evidence, are not evidence, and should not be considered as
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`evidence. Rather, it is the underlying testimony of the witness that you heard when
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`you saw the demonstrative exhibits that is the evidence in this case.
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`You also may have noticed the exhibits have been numbered. The numbers
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`assigned to the exhibits are for convenience and in order to ensure an orderly
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`procedure. You should draw no inference from the fact that a particular exhibit
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`was assigned a particular number, or that there may be gaps in the numbers
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`sequence.
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`Authority:
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`Orexo AB v. Actavis Elizabeth, LLC, C.A. No. 1:17-cv-00205-CFC, D.I. 240,
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`Proposed Joint Final Jury Instructions (D. Del. March 28, 2019) at 12; Amgen v.
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`Hospira, C.A. No. 1:15-cv-839-RGA, D.I. 323, Final Jury Instructions (D. Del.
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`Sept. 22, 2017) at 8; E.I. DuPont de Nemours & Co. v. Unifrax I LLC, C.A. No.
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`1:14-cv-01250-RGA, D.I. 325, Final Jury Instructions (D. Del. May 15, 2017) at
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`11; EMC Corp. v. Pure Storage, Inc., C.A. No. 13-1985-RGA, D.I. 448, Final Jury
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`Instructions (D. Del. March 15, 2016) at 11.
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`1.12 CONFIDENTIAL LABELS & REDACTIONS
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`The parties have entered into an agreement that would protect each
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`respective party’s confidential and sensitive business information from disclosure
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`to the public or third parties. Under that agreement, the parties have added
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`confidentiality labels to their documents, and have redacted, which means that they
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`have obscured or removed information, from documents to protect the confidential
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`nature of the information.
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`You may have seen documents with confidentiality labels or redactions
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`during trial. The use of confidentiality labels and redactions has no bearing on the
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`evidence, and should not be construed in any way against any party.
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`Authority:
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`F’Real Foods, LLC v. Hamilton Beach Brands, Inc., C.A. No. 1:16-cv-00041-CFC,
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`D.I. 255, Proposed Final Jury Instructions (D. Del. Apr. 28, 2019) at 10-11.
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`1.13 USE OF NOTES
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`You may use notes taken during trial to assist your memory. However, you
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`should use caution in consulting your notes. There is always a tendency to attach
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`undue importance to matters that you have written down. Some testimony that is
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`considered unimportant at the time presented, and thus not written down, takes on
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`greater importance later on in the trial in light of all of the evidence presented.
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`Therefore, you are instructed that your notes are only a tool to aid your own
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`individual memory, and you should not compare notes with other jurors in
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`determining the content of any testimony or in evaluating the importance of any
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`evidence. Your notes are not evidence and are by no means a complete outline of
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`the proceedings or a list of the highlights of the trial. Above all, your memory
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`should be the greatest asset when it comes time to deliberate and render a decision
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`in this case.
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`
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`Authority:
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`Amgen v. Hospira, C.A. No. 1:15-cv-839-RGA, D.I. 323, Final Jury Instructions
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`(D. Del. Sept. 22, 2017) at 9; E.I. DuPont de Nemours & Co. v. Unifrax I LLC,
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`C.A. No. 1:14-cv-01250-RGA, D.I. 325, Final Jury Instructions (D. Del. May 15,
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`2017) at 12; AVM Tech., LLC v. Intel Corp., C.A. No. 15-33-RGA-MPT, D.I. 719,
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`Final Jury Instructions (D. Del. May 8, 2017) at 5; EMC Corp. v. Pure Storage,
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`Inc., C.A. No. 13-1985-RGA, D.I. 448, Final Jury Instructions (D. Del. March 15,
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`2016) at 12.
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`2. THE PARTIES AND THEIR CONTENTIONS
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`I will now review for you the parties to this action, and the positions that you
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`will have to consider in reaching your verdict. I will then provide you with
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`detailed instructions on what each side must prove to win on each of its
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`contentions.
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`To refresh your recollection, the parties are Genentech, Inc., the Plaintiff,
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`and Amgen Inc., the Defendant. Genentech is asserting four U.S. patents in this
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`case: (1) U.S. Patent No. 6,627,196 (“the ’196 Patent”); (2) U.S. Patent No.
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`7,371,379 (“the ’379 Patent”); (3) U.S. Patent No. 10,160,811 (“the ’811 Patent”)
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`and (4) U.S. Patent No. 8,574,869 (“the ’869 Patent”). I will refer to the ’196,
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`’379, and ’811 patents collectively as the “Dosing Patents.” I will refer to the ’869
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`Patent as the Kao Manufacturing Patent. I will refer to all four patents collectively
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`as the Patents-in-Suit.
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`Amgen filed a Biologics License Application (“BLA”) for a biosimilar of
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`Herceptin, a drug used to treat cancer. Herceptin was first marketed by Genentech
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`in 1998, and its active ingredient is trastuzumab. Amgen began selling its FDA-
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`approved trastuzumab biosimilar product, called Kanjinti, in the U.S by July 18,
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`2019. ABP 980 is the active ingredient found in Kanjinti.
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`I will now overview the positions each side has taken. Genentech alleges that
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`Amgen infringed, is currently infringing, and will continue to infringe:
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`1. claims 11 and 22 of the ’196 Dosing Patent;
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`2. claims 11 and 21 of the ’379 Dosing Patent;
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`3. claims 6 and 7 of the ’811 Dosing Patent; and
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`4. claims 5 and 8 of the Kao Manufacturing Patent.
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`I will refer to these claims collectively as the Asserted Patent Claims.
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`Additionally, Genentech contends Amgen’s infringement of the Asserted Claims
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`is willful. Genentech seeks damages adequate to compensate for Amgen’s
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`infringement.
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`[GENENTECH’S PROPOSAL: Amgen denies that it infringes any of the
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`Asserted Patent Claims. Amgen further asserts that each of the Asserted Patent
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`Claims is invalid. Amgen also denies that it has willfully infringed the Asserted
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`Claims.] [AMGEN’S PROPOSAL: Amgen denies Genentech’s infringement
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`all