IN THE UNITED STATES DISTRICT COURT
`FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
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`1:17CV687
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`OPTOLUM, INC.,
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`Plaintiff,
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`v.
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`CREE, INC.,
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`Defendant.
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`COURT’S FINAL INSTRUCTIONS TO THE JURY
`Members of the Jury:
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`You have now heard all of the evidence in the case as well
`as the final arguments of the lawyers for the parties.
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`It becomes my duty, therefore, to instruct you on the rules
`of law that you must follow and apply in arriving at your
`decision in the case.
`
`It is my duty to preside over the trial and to determine
`what testimony and evidence are relevant under the law for your
`consideration. It is also my duty at the end of the trial to
`instruct you on the law applicable to the case.
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`Case 1:17-cv-00687-WO-JLW Document 335 Filed 11/07/21 Page 1 of 85
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`FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
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`
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`
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`1:17CV687
`
`
`OPTOLUM, INC.,
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`
`
`
`
`
`
`Plaintiff,
`
`
`
`
`
`v.
`
`
`
`
`
`
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`CREE, INC.,
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`
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`
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`Defendant.
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`)
`)
`)
`)
`)
`)
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`)
`)
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`COURT’S FINAL INSTRUCTIONS TO THE JURY
`Members of the Jury:
`
`You have now heard all of the evidence in the case as well
`as the final arguments of the lawyers for the parties.
`
`It becomes my duty, therefore, to instruct you on the rules
`of law that you must follow and apply in arriving at your
`decision in the case.
`
`It is my duty to preside over the trial and to determine
`what testimony and evidence are relevant under the law for your
`consideration. It is also my duty at the end of the trial to
`instruct you on the law applicable to the case.
`
`
`
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`Case 1:17-cv-00687-WO-JLW Document 335 Filed 11/07/21 Page 1 of 85
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`DUTY TO FOLLOW INSTRUCTIONS
`You, as jurors, are the judges of the facts. But in
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`determining what actually happened in this case - that is, in
`reaching your decision as to the facts - it is your sworn duty
`to follow the law I am now in the process of defining for you.
`
`You must follow all of my instructions as a whole. You
`have no right to disregard or give special attention to any one
`instruction, or to question the wisdom or correctness of any
`rule I may state to you. That is, you must not substitute or
`follow your own notion or opinion as to what the law is or ought
`to be. It is your duty to apply the law as I give it to you,
`regardless of the consequences.
`
`Furthermore, I remind you that objections are not evidence.
`The rules of evidence control what matters may be received into
`evidence. If I have overruled an objection, you may consider
`the testimony or evidence. If I have sustained an objection,
`you must ignore the question and not speculate as to what the
`answer may have been. Furthermore, if I have ordered that
`evidence be stricken from the record or told you to disregard
`certain evidence, you must not consider the evidence which I
`told you to disregard.
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`-2-
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`TAKING OF NOTES BY JURORS
`As you may recall, I permitted you to take notes during the
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`course of this trial. These notes are for your own personal
`use, and not for use by anyone else. When you begin your
`deliberations, you may use your notes to help refresh your
`memory as to what was said in court. I caution you, however,
`not to give your notes or the notes of any of the other jurors
`undue significance in your deliberations.
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`It is your duty to base your verdict solely upon the
`testimony and evidence in the case, without prejudice or
`sympathy. That was the promise you made and the oath you took
`before being accepted by the parties as jurors in this case, and
`they have the right to expect nothing less.
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`-3-
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`BURDEN OF PROOF
`In a civil lawsuit such as this, you will be required to
`apply two different burdens of proof. The party asserting a
`claim or defense bears the burden of proof.
`In this case, you will be called upon to answer up to 8
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`questions, referred to in these instructions as “issues.”
`Several issues have subparts, in which you are called upon to
`answer a specific question. As to each issue or question, you
`will be asked whether the party with the burden of proof has
`proved, by the applicable burden of proof, the existence of
`essential facts for a particular claim or defense. If you are
`persuaded that the party with the burden of proof has proved, by
`the applicable burden of proof, the essential facts for a
`particular claim or defense, it would be your duty to answer the
`corresponding issue “Yes” in favor of the party with the burden
`of proof. If you are not so persuaded, it would be your duty to
`answer the issue “No.” Throughout these instructions, I will
`instruct you as to which party bears the burden of proof as to
`each claim or defense and the standard of proof required to
`prove that particular claim or defense.
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`-4-
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`EVIDENCE --- EXCLUDING ARGUMENT OF COUNSEL,
`COMMENT OF COURT, AND IRRELEVANT MATTERS
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`As stated earlier, it is your duty to determine the facts,
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`and in so doing, you must consider only the evidence I have
`admitted in the case. The term “evidence” includes the sworn
`testimony of the witnesses, the stipulations, and the exhibits
`admitted in the record.
`
`Remember that any statements, objections, or arguments made
`by the lawyers are not evidence in the case. The function of
`the lawyers is to point out those things that are most
`significant or most helpful to their side of the case, and in so
`doing, to call your attention to certain facts or inferences
`that might otherwise escape your notice. In the final
`deliberations, however, it is your own recollection and
`interpretation of the evidence that controls in the case. What
`the lawyers say is not binding upon you.
`Also, during this trial, I occasionally made comments to
`the lawyers, or asked questions of a witness, or admonished a
`witness concerning the manner in which he or she should respond
`to the questions of counsel. Do not assume from anything I may
`have said that I have any opinion concerning any of the issues
`in this case. Except for my instructions to you on the law, you
`should disregard anything I may have said during the trial in
`arriving at your own findings as to the facts.
`-5-
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`From time to time during the trial, it became necessary for
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`me to talk with the attorneys out of the hearing of the jury,
`either by having a conference at the bench or by calling a
`recess. The purpose of the conferences is to permit me to
`determine how we should proceed, and to avoid confusion and
`error. You should not consider my granting or denying a request
`for a bench conference as any indication of my opinion of the
`case or any issue or what your verdict should be.
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`-6-
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`EVIDENCE
`While you should consider only the evidence in the case,
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`you may make deductions and reach conclusions based on reason
`and common sense from the facts that have been established by
`the testimony and evidence in the case. You are also the judges
`of the weight to be given to any evidence. If you decide that
`certain evidence is believable, you must determine the
`importance of that evidence in the light of all other believable
`evidence in the case.
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`You may also consider either direct or circumstantial
`evidence. “Direct evidence” is the testimony of one who asserts
`actual knowledge of a fact, such as an eyewitness.
`“Circumstantial evidence” is proof of a chain of facts and
`circumstances which tends to prove a disputed fact. You may
`infer from one established fact the existence or non-existence
`of some other fact based on your reason, experience, and common
`sense.
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`The law makes no distinction between the weight to be given
`to either direct or circumstantial evidence. It requires only
`that you weigh all of the evidence before determining what the
`facts are.
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`Now, in saying that you must consider all of the evidence,
`I do not mean that you must accept all of the evidence as true
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`-7-
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`or accurate. You should decide whether you believe what each
`witness had to say, and the weight you give to that testimony.
`In making that decision, you may believe or disbelieve any
`witness, in whole or in part. Also, the number of witnesses
`testifying about any particular issue is not controlling.
`
`In determining the weight to be given any testimony, you
`may ask yourself whether there was evidence during the trial
`tending to prove that one or more witnesses may have testified
`falsely concerning some important fact; or, whether there was
`evidence that at some other time a witness said or did
`something, or failed to say or do something, which was different
`from the testimony he or she gave before you during the trial.
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`You should keep in mind that a simple mistake by a witness
`does not necessarily mean that the witness was not telling the
`truth as he or she remembers it because people naturally tend to
`forget some things or remember some things inaccurately. So, if
`a witness has made a misstatement, you need to consider whether
`that misstatement was simply an innocent lapse of memory or an
`intentional falsehood; and that may depend on whether it has to
`do with an important fact or with only an unimportant detail.
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`You may find that a witness is interested in the outcome of
`this trial. In deciding whether to believe such a witness, you
`may take the interest of the witness into account. If, after
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`-8-
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`doing so, you believe the testimony of the witness, in whole or
`in part, you will treat what you believe the same as any other
`believable evidence.
`In deciding whether you believe or do not believe any
`witness, I suggest that you ask yourself a few questions: Did
`the person impress you as one who was telling the truth? Did he
`or she have any reason not to tell the truth? Did he or she
`have a personal interest in the outcome of the case? Did the
`witness seem to have a good memory? Did the witness have the
`opportunity and ability to observe accurately the things he or
`she testified about? Did he or she appear to understand the
`questions clearly and answer them directly? Did the witness'
`testimony differ from the testimony of other witnesses? In
`summary, you are the sole judge of the credibility of the
`testimony of any witness, and you may choose to believe all,
`part, or none of a witness’ testimony.
`
`As I have mentioned throughout the course of this trial, I
`will now give you instructions on specific types of evidence,
`and how you should consider that evidence during your
`deliberations.
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`-9-
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`ABSENCE OF EVIDENCE
`To start, the law does not require any party to call as a
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`witness every person who might have been present at any time or
`place involved in this case, or who may appear to have some
`knowledge of the facts related to this trial. Similarly, the
`law does not require any party to present as exhibits all papers
`and things mentioned during this trial.
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`-10-
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`LIMITED PURPOSE OF EVIDENCE
`You will recall that during this trial I instructed you
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`that I admitted certain evidence for a limited purpose. You
`must consider that evidence only for the limited purpose for
`which it was admitted and no other purpose.
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`During the trial, you heard evidence from Charles McCreary
`as to the Generation 2.5 bulbs. The Gen 2.5 bulbs are not
`alleged to infringe. I allowed that testimony solely to provide
`context as to the mathematical calculations upon which Mr.
`McCreary relied, in part, to determine infringement. That is, an
`opportunity to observe a calculation as to a product not alleged
`to infringe may be helpful to understanding any calculations or
`testimony as to alleged infringing products. You may not
`consider this evidence for any other purpose.
`Also, as I instructed you during the testimony of Julio
`Garceran, you may not consider or speculate as to whether or not
`the patents that were the subject of the LEDVANCE License relate
`to the accused products in this case.
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`-11-
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`DEMONSTRATIVE EXHIBITS
`Certain exhibits were shown to you during the trial that I
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`identified as either demonstrative or illustrative exhibits.
`These exhibits are used for convenience and to help explain, or
`illustrate, a witness’ testimony or the facts of the case.
`These demonstrative exhibits were presented in the form of Power
`Point presentations and have not been admitted in the case. They
`are not themselves evidence or proof of any facts, which comes
`only from the testimony, the exhibits admitted into evidence,
`and any facts the parties to which the parties have agreed or
`stipulated.
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`-12-
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`DEPOSITION TESTIMONY
`A deposition is a procedure by which the sworn testimony of
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`a witness is taken before trial. The witness is placed under
`oath to tell the truth and the lawyers for each party may then
`examine the witness. You may consider the testimony of a
`witness given at a deposition as if the witness had been present
`and testified during this trial.
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`-13-
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`STIPULATIONS
`During the trial, the parties have introduced certain facts
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`by way of a stipulation. A stipulation is an agreement by the
`parties that a fact or matter is true. As to any fact or matter
`introduced by way of a stipulation, you should consider it as
`true even though no further evidence was presented on the fact
`or matter.
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`-14-
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`EXPERT WITNESS
`The rules of evidence ordinarily do not permit witnesses to
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`testify about their opinions or conclusions. An exception to
`this rule applies to those we call "expert witnesses."
`Witnesses who, by education, training, and experience, have
`become experts in some art, science, profession, or calling, may
`state their opinions as to relevant and material matters, in
`which they profess to be experts, and may also state their
`reasons for their opinions.
`
`You should consider the expert opinions received in
`evidence in this case, and give it such weight as you may think
`it deserves. If you conclude that the reasons given in support
`of the opinion are not sound, or if you feel that it is
`outweighed by other evidence, you may disregard the opinion
`entirely.
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`-15-
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`TREATISES AND PUBLICATIONS
`During the testimony of Mr. Scally, certain statements
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`contained in periodicals or pamphlets were admitted into
`evidence. The fact that the statement or information is admitted
`does not mean you are required to accept that evidence as true.
`You should consider the evidence and give it such weight as you
`find it deserves. If you conclude that the reasoning is not
`sound or the statements are outweighed by the other evidence,
`you may disregard this evidence entirely.
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`-16-
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`AGENTS AND EMPLOYEES
`The parties in this case are corporations – OptoLum, Inc.
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`and Cree, Inc – and both are also referred to as “companies” in
`these instructions. A corporation may act only through natural
`persons as its agents or employees. In general, agents or
`employees of a corporation may bind the company by their acts
`and declarations as long as they are made while acting within
`the scope of the authority delegated by the company or within
`the scope of their duties as employees of the company.
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`-17-
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`PRIOR STATEMENT OF A PARTY TO THIS ACTION
`Under some circumstances, a prior statement made by a party
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`to this action, whether consistent or inconsistent with that
`party’s testimony, may be considered by you for the truth of the
`matter asserted in that statement. This type of statement is
`often referred to as an “admission of a party opponent.”
`
`To consider an out-of-court, unsworn statement by a party
`to this action for the truth of the matter asserted you must
`find that the statement was in fact made, that the statement is
`offered against that party, and that the statement is the
`party’s own statement, either in an individual or a
`representative capacity.
`Whether to believe any such statements, in whole or in
`part, and the weight assigned to those statements is always a
`matter solely for the jury’s consideration and determination.
`Also, whether a party made an out-of-court statement and what
`may or may not have been said is always a matter solely for the
`jury to determine.
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`In this case, OptoLum and Cree are corporations rather than
`individuals. For you to consider a corporate party’s alleged
`out-of-court statement for the truth of the matter asserted, you
`must first find that any such statement is either (1) made by a
`person authorized to make a statement concerning the subject; or
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`-18-
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`(2) the statement is made by the party’s agent or employee
`concerning a matter within the scope of the employment made
`during the existence of the employment relationship. Further,
`the contents of any such statement may be considered but are not
`alone sufficient to establish the individual declarant’s
`authority under (1) or the agency or employment relationship and
`scope thereof under (2).
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`-19-
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`IMPEACHMENT BY INCONSISTENT STATEMENTS
`A witness may be discredited or impeached by contradictory
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`evidence; or by evidence that at some other time the witness has
`said or done something, or has failed to say or do something,
`which is inconsistent with the witness’ present testimony.
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`If you believe any witness has been impeached and thus
`discredited, you may give the testimony of that witness such
`credibility, if any, as you think it deserves.
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`If a witness is shown knowingly to have testified falsely
`concerning any material matter, you may distrust such witness’
`testimony in other matters and you may reject all of the
`testimony of that witness, or give it such credibility as you
`think it deserves.
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`-20-
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`INTRODUCTION TO CLAIMS AND DEFENSES INSTRUCTIONS
`To reach your verdict in this case, you will address and
`determine the answer to a serious of up to 8 issues, or
`questions. These issues have subparts, or what I will refer to
`as questions. Depending upon how you answer each of these
`issues and questions, I will instruct you as to whether you may
`be required to proceed and answer other questions.
`You should not interpret the fact that I will give
`instructions or submit issues about damages, defenses, or
`alternate claims as any indication that I believe or have any
`opinion as to what your verdict should be. It will be up to you
`to answer the issues submitted in accordance with these
`instructions.
`In this case, as I previously told you, OptoLum seeks money
`damages from Cree for allegedly infringing the claims of two
`patents: U.S. Patent Nos. 6,831,303 and 7,242,028, which we have
`and will refer to as the “‘303” and “‘028” patents (also called
`the “patents-in-suit”). OptoLum alleges Cree has infringed
`those two patents by selling and offering for sale products that
`are covered by claims of the patents. The Cree products that
`are alleged to infringe are single ring light bulbs and multiple
`ring light bulbs. (See Doc. 198-4 for product numbers.) Cree
`denies that it has infringed the asserted claims of the patents.
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`-21-
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`Cree also argues that the patent claims are invalid on various
`grounds.
`Your job is to decide whether the asserted claims of the
`‘303 and ‘028 patents have been infringed and whether any of the
`asserted claims of the patents are invalid. The claims at issue
`in this case are claims 2-4 and 6-9 of the ‘303 Patent and
`claims 1-3, 5-8, 14, and 16 of the ‘028 Patent.
`If you decide that any claim of the patents has been
`infringed and is not invalid, you will need to decide damages to
`be awarded to OptoLum to compensate it for any infringement.
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`-22-
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`PATENT INFRINGEMENT GENERALLY
`I will instruct you as to the rules you must follow when
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`deciding whether OptoLum has proven that Cree has infringed the
`patents-in-suit. United States patent law gives the owner of a
`valid patent the right to exclude others from importing, making,
`using, offering to sell, or selling the patented product in the
`United States during the term of the patent. Any person or
`company that has engaged in any of those acts without the patent
`owner’s permission infringes the patent.
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`-23-
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`INTERPRETATION OF CLAIMS
`Before you decide whether Cree has infringed the claims of
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`the ‘303 or ‘028 patents or whether any claims are invalid, you
`will need to understand the patent claims. As I mentioned at
`the beginning of the case, patent claims are numbered sentences
`at the end of the patent that describes the extent of the
`patent’s protection. There are figures and text in the rest of
`the patent that provide a description and/or examples of the
`invention and provide a context for the claims, but it is the
`words of the claims specifically that define the breadth of the
`patent’s coverage. As an example, a patent claim marks the
`boundaries of the patent in the same way that a legal
`description in a deed specifies the boundaries of land, i.e.
`similar to a land owner who can prevent others from trespassing
`on the bounded property, the inventor can prevent others from
`using what is claimed.
`To establish what a claim covers, a claim sets forth a set
`of requirements in words. Each claim sets forth its requirements
`in a single sentence. The requirements of a claim are often
`referred to as “claim elements” or “claim limitations.” The
`coverage of a patent is assessed claim-by-claim. When a product
`or process meets all of the requirements of a claim, the claim
`is said to “cover” that thing, and that thing is said to “fall”
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`-24-
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`within the scope of that claim. In other words, a claim covers a
`product or process where each of the claim’s requirements —
`otherwise known as its elements or limitations — is present in
`that product or process.
`You will first need to understand what each claim covers in
`order to decide whether there is infringement of the claim and
`to decide whether the claim is invalid. The first step is to
`understand the meaning of the words used in the patent claim.
`The law says that it is my role to construe and define the
`terms of the claims, and that it is your role to apply my
`definitions of the terms of the claims to the issues that you
`are asked to decide in this case. Therefore, as I explained to
`you at the start of the case, I have determined the meaning of
`certain claim terms and I will provide to you my definitions of
`certain claim terms. You must accept my definitions of these
`words in the claims as being correct. It is your job to take
`these definitions and apply them to the issues that you are
`deciding, including the issues of infringement and validity.
`
`In this case, OptoLum alleges Cree’s products infringe
`claims 2-4 and 6-9 of the ‘303 Patent and claims 1-3, 5-8, 14,
`and 16 of the ‘028 Patent. I have interpreted the meaning of
`some of the language in the patent claims involved in this case.
`You must accept those interpretations as correct. My
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`-25-
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`interpretation of the language should not be taken as an
`indication that I have a view regarding the issues of
`infringement and invalidity. The decisions regarding
`infringement and invalidity are yours to make.
`It is my job as judge to provide to you the meaning of any
`claim language that must be interpreted. You must accept the
`meanings I give you and use them when you decide whether any
`claim has been infringed and whether any claim is invalid. To
`the extent I do not instruct you about a particular claim term,
`you should apply the ordinary meaning of those terms in the
`field of the patent. The ordinary meaning is based on the
`understanding of a person of ordinary skill in the relevant art
`at the time of the invention.
`The beginning portion of a claim, also known as the
`preamble, often uses the word “comprising.” The word
`“comprising,” when used in the preamble, means “including but
`not limited to” or “containing but not limited to.” When
`“comprising” is used in a claim’s preamble, if you decide that
`an accused product includes all of a claim’s requirements, the
`claim is infringed. This is true even if the accused product
`contains additional elements.
` I will now tell you the meanings of the following words
`and groups of words from the patent claims.
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`
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`-26-
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`Case 1:17-cv-00687-WO-JLW Document 335 Filed 11/07/21 Page 26 of 85
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`The following terms of the asserted claims of the ‘303 and
`‘028 Patents have the following meaning:
`1. “elongate thermally conductive member” means “structural
`unit that functions as a thermal conductor and that has more
`length than width.”
`2. “a plurality of light emitting diodes” means “two or
`more packages, each of which comprise a thermally conductive
`back and a diode that emits light.”
`
`3. “configured to” means “specifically designed to.”
`
`4. “plurality” means “two or more.”
`
`5. “carried by” means “supported by.”
`
`6. “carried on” means “supported on.”
`
`7. “a plurality of solid state light sources” means “two or
`more packages, each of which comprise a solid state light
`source.”
`
`8. “disposed in a second plane not coextensive with said
`first plane” means “disposed in a second plane that is not
`the same as the first plane wherein the plurality of LEDs are
`not disposed in a single plane perpendicular to the axis of
`the elongate thermally conductive member.”
`
`9. “plane” means “a spatial relationship concerning certain
`identified locations on the elongate heat sink and having the
`specific mathematical description of a plane.”
`
`
`
`-27-
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`Case 1:17-cv-00687-WO-JLW Document 335 Filed 11/07/21 Page 27 of 85
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`10. “heat dissipation protrusion” means “projection from a
`
`surface designed to convect heat.”
`
`11. “contained” means “found within.”
`
`12. “channel” means “the space defined by a pair of heat
`dissipation protrusions.”
`
`13. “some” means “one or more.”
`
`14. “others” means “one or more different.”
`[OptoLum has a section on configured and specifically designed
`to eliminate subjective intent. Need to address this issue.]
`
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`-28-
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`Case 1:17-cv-00687-WO-JLW Document 335 Filed 11/07/21 Page 28 of 85
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`INFRINGEMENT --- BURDEN OF PROOF
`The first two issues for your determination are as follows:
`1. Has OptoLum proved by a preponderance of the evidence
`that Cree directly, either literally or under the doctrine of
`equivalents, infringed any of the following claims of the ‘303
`Patent?
`For each asserted claim please check “Yes” or “No” below.
`
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`
`Claim 2
`Claim 3
`Claim 4
`Claim 6
`Claim 7
`Claim 8
`Claim 9
`
`NO
`YES
`
`
`
`
` (for Cree)
` (for OptoLum)
`
` ______
` ______
` ______
` ______
` ______
` ______
` ______
` ______
` ______
` ______
` ______
` ______
` ______
` ______
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`2. Has OptoLum proved by a preponderance of the evidence
`
`that Cree, directly, either literally or under the doctrine of
`equivalents, infringed any of the following claims of the ‘028
`Patent?
`For each asserted claim please check “Yes” or “No” below.
`
`
`
`
`
`
`
`-29-
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`Case 1:17-cv-00687-WO-JLW Document 335 Filed 11/07/21 Page 29 of 85
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`I will now instruct you on the rules you must follow in
`
`deciding whether OptoLum has proven that Cree has infringed one
`or more of the asserted claims of the ‘303 or ‘028 patents.
`Infringement is assessed on a claim-by-claim basis. In
`order to prove infringement of any claim, OptoLum must prove by
`a preponderance of the evidence that Cree has infringed that
`claim. This means that the OptoLum is required to prove, by a
`preponderance of the evidence, the existence of those facts
`necessary to establish his claim. That means that it is more
`likely than not that all of the requirements of direct
`infringement, either literally or through the doctrine of
`equivalents, have been proved.
`
` NO
`YES
`
`
`
`
`
` (for OptoLum) (for Cree)
`
`
` ______
` ______
`Claim 1
` ______
` ______
`Claim 2
` ______
` ______
`Claim 3
` ______
` ______
`Claim 5
` ______
` ______
`Claim 6
` ______
` ______
`Claim 7
` ______
` ______
`Claim 8
`Claim 14 ______
` ______
`Claim 16 ______
` ______
`
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`
`
`-30-
`
`Case 1:17-cv-00687-WO-JLW Document 335 Filed 11/07/21 Page 30 of 85
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`A preponderance of the evidence means the greater weight of
`
`the evidence, and those terms may be used interchangeably during
`these instructions. A preponderance of the evidence means to
`prove that the fact at issue is more likely true than not true.
`A “preponderance of the evidence” or the “greater weight of the
`evidence” refers to the quality and persuasiveness of the
`evidence, not to the number or quantity of witnesses and
`documents. In determining whether an issue has been proved by a
`preponderance of the evidence, you may consider the relevant
`testimony of all witnesses, regardless of who may have called
`them, and all the relevant exhibits received in evidence,
`regardless of who may have produced them.
`
`If you find that the credible evidence on a given issue is
`evenly divided between the parties - that it is equally probable
`that one side is right as it is that the other side is right -
`then you must decide that issue against the party having the
`burden of proof. That is because the party bearing the burden
`of proof must prove more than a simple equality of evidence - he
`must prove the element at issue by a preponderance of the
`evidence. On the other hand, the party with this burden of
`proof need prove no more than a preponderance. So long as you
`find that the scales tip, however slightly, in favor of the
`party with this burden of proof - that what the party claims is
`
`
`
`-31-
`
`Case 1:17-cv-00687-WO-JLW Document 335 Filed 11/07/21 Page 31 of 85
`
`
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`more likely true than not true - then that element will have
`been proved by a preponderance of evidence.
`
`
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`
`
`-32-
`
`Case 1:17-cv-00687-WO-JLW Document 335 Filed 11/07/21 Page 32 of 85
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`INDEPENDENT AND DEPENDENT CLAIMS
`There are two different types of claims in the ‘303 and
`‘028 patents. One type of claim is called an independent claim,
`and the other type of claim is called a dependent claim.
`An “independent claim” sets forth all of the requirements
`that must be met in order to be covered by that claim. Thus, it
`is not necessary to look at any other claim to determine what an
`independent claim covers. In other words, the scope of an
`independent claim does not “depend” on any other claim. In this
`case, claim 1 of the ‘303 Patent and claim 1 of the ‘028 Patent
`are independent claims.
`The remainder of the claims in the patents are “dependent
`claims.” Unlike an independent claim, a dependent claim does not
`itself set forth all of the requirements that must be met to be
`covered by that claim. Instead, the dependent claim also refers
`to another claim for some of its requirements. In this way, the
`claim “depends” on another claim.
`A dependent claim incorporates all of the requirements of
`the claim(s) to which it refers in addition to its own
`requirements. A dependent claim includes all of the requirements
`stated in the dependent claim and all of the requirements of the
`claim to which it refers. As a result, if a claim to which a
`
`
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`-33-
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`Case 1:17-cv-00687-WO-JLW Documen
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