Case 6:22-cv-00031-ADA Document 290 Filed 02/26/24 Page 1 of 61
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`CLERK, U.S. DISTRICT COURT
`WESTERN DISTRICT OF TEXAS
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`BY: ________________________________
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`FILED
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`DEPUTY
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`February 26, 2024
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`Jennifer Clark
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`CLERK, U.S. DISTRICT COURT
`WESTERN DISTRICT OF TEXAS
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`BY: ________________________________
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`FILED
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`DEPUTY
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`February 26, 2024
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`Jennifer Clark
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`Case 6:22-cv-00031-ADA Document 290 Filed 02/26/24 Page 2 of 61
`Case 6:22-cv-00031-ADA Document 290 Filed 02/26/24 Page 2 of 61
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`TABLE OF CONTENTS
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`JURY INSTRUCTION NO. 1: JURY CHARGE uuu.ccs eectseteceeeenseees 1
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`JURY INSTRUCTION NO. 2: EVIDENCEuu... ecsscsscetestceeeeesssssstscsesseseees 4
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`JURY INSTRUCTION NO.3: WITNESSES..00...... cs cecssessessessecsecesecscensseeseseees 7
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`JURY INSTRUCTIONNO.4: DEPOSITION TESTIMONY......0.....eesseseeeees 9
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`JURY INSTRUCTION NO.5: EXPERT TESTIMONY...000. ee eeeesseeeeeeene 10
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`JURY INSTRUCTION NO. 6: INTERROGATORIES... ccc ceseeeeeeeeeee 1]
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`JURY INSTRUCTIONNO.7: STIPULATIONS OF FACT 1.0... ce eeseereees 12
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`JURY INSTRUCTION NO.8: LIMITING INSTRUCTION 00. 13
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`JURY INSTRUCTION NO. 9: CHARTS AND SUMMARIES.......ee 14
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`JURY INSTRUCTION NO. 10: DEMONSTRATIVE EXHIBITS................. 15
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`JURY INSTRUCTIONNO. 11: BIAS—CORPORATE PARTY INVOLVED|
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`JURY INSTRUCTION NO.12: STANDARD OF PROOF... ceseesseees 17
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`JURY INSTRUCTION NO. 13: PREPONDERANCE OF THE EVIDENCE]18
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`JURY INSTRUCTIONNO. 14: CLEAR AND CONVINCING EVIDENCE19
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`JURY INSTRUCTION NO.15: SUMMARY OF CONTENTIONG................ 20
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`JURY INSTRUCTION NO. 16: PATENT CLAIMS...00. ce eeecscsseeeseeseeseeees 22
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`JURY INSTRUCTION NO. 17: LEVEL OF ORDINARYSKILL................. 25
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`JURY INSTRUCTION NO. 18: INDEPENDENT AND DEPENDENT
`CLAIMSue eccseesecssssscsnscsscssssssesscsesseseseeasssseescsssessessessnsecsecseescensacsneseesceneetentees 26
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`JURY INSTRUCTION NO. 19: INFRINGEMENT GENERALLY............... 28
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`JURY INSTRUCTIONNO.20: LITERAL INFRINGEMENT...................06 29
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`Case 6:22-cv-00031-ADA Document 290 Filed 02/26/24 Page 3 of 61
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`JURY INSTRUCTIONNO.21:
`INFRINGEMENT UNDER THE
`DOCTRINE OF EQUIVALENTS... cc ecesesceeeceececeesceneeecenseeeesseeseesenseeeeees 31
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`JURY INSTRUCTION NO.22: PRIOR USE DEFENSE TO
`INFRINGEMENT...............000
`sessdeneessessnenscesseesesssesssessesossesssessasessouscnesesseesaseens 33
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`JURY INSTRUCTION NO.23:
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`INVALIDITY GENERALLY... cee 34
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`JURY INSTRUCTION NO.24:
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`PRIOR ART ou... ccecscssesserseeeeessesnesneeneens 35
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`JURY INSTRUCTION NO. 25:
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`ANTICIPATION... cccestcssesseseesseseeseeeneees 37
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`JURY INSTRUCTION NO. 26:
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`OBVIOUSNESS .....ce eesceeeceeeeeteeneeesens 39
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`JURY INSTRUCTIONNO. 27:
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`WRITTEN DESCRIPTION...............scsseee 42
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`JURY INSTRUCTIONNO. 28:
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`DAMAGES GENERALLY... ee 44
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`REASONABLE ROYALTY(DEFINITION)
`JURY INSTRUCTIONNO.29:
`sessseesseessesesesevssoescesseseuscndeeeasesnsonsossoossonssssesscessscssoascnsssnsceeescutonscussesesonsscssseseusessoussed 46
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`JURY INSTRUCTIONNO. 30: REASONABLE ROYALTY—RELEVANT
`FACTORS... cccescsseessscsscsescnscssscssssesseesnscesscsssenscscnsessesssssssssnesesssesseseessessoneees 48
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`JURY INSTRUCTIONNO.31: DAMAGES—COMPARABLE
`AGREEMENTS... ccecsccsssssssssscssssssssssesscnssssseseesseenesescnesssesssnesneeesnesseesesnensenss 52
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`JURY INSTRUCTION NO.32: DAMAGES—APPORTIONMENT.............. 53
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`JURY INSTRUCTION NO. 33: DAMAGES—AVAILABILITY OF NON-
`INFRINGING SUBSTITUTES... cscsessssnscsssessrscnseesessesssssrscseaseseneees 54
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`JURY INSTRUCTION NO. 34: DATE OF COMMENCEMENT OF
`DAMAGES— PRODUCT SS. ........ ccc cesssssestecseseeseosecsscnessesssssssssssseseseaseeseaseases 55
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`JURY INSTRUCTIONNO.35: DUTY TO DELIBERATE; NOTES............. 56
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`JURY INSTRUCTION NO.36: SOCIAL MEDIA ..00...ccc ceeeeeneenee teens 58
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`JURY INSTRUCTIONNO. 1: JURY CHARGE
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`MEMBERSOF THE JURY:
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`It is my duty and responsibility to instruct you on the law you are to apply in this
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`case. The law contained in these instructions is the only law you may follow.It is
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`yourduty to follow whatI instruct you the law is, regardless of any opinion that you
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`might have as to what the law oughtto be.
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`Each of you is going to have your own printed copy ofthese final jury instructions
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`that I am giving you now,so there is no need for you to take notes unless you want
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`to.
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`If I have given you the impression duringthetrial that I favor either party, you must
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`disregard that impression. If I have given you the impression duringthetrial that I
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`have an opinion aboutthe facts of this case, you must disregard that impression. You
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`are the sole judges of the facts of this case. Other than myinstructions to you on the
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`law, you should disregard anything I may have said or done during thetrial in
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`arriving at yourverdict.
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`You should considerall of the instructions about the law as a whole and regard each
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`instruction in light of the others, without
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`isolating a particular statement or
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`paragraph.
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`The testimony ofthe witnesses and other exhibits introduced bythe parties constitute
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`the evidence. The statements of counsel are not evidence; they are only arguments.
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`It is important for you to distinguish between the arguments of counsel and the
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`evidence on which those arguments rest. What the lawyers say ordois not evidence.
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`You may, however, consider their arguments in light of the evidence that has been
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`admitted and determine whether the evidence admitted in this trial supports the
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`arguments. You must determinethe facts from all the testimony that you have heard
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`and the other evidence submitted. You are the judgesofthe facts, but in finding those
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`facts, you must apply the law asI instruct you.
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`You are required by law to decide thecaseinafair, impartial, and unbiased manner,
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`based entirely on the law and on the evidence presented to you in the courtroom.
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`You may not be influenced by passion, prejudice, or sympathy you might have for
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`Flyp or Googlein arriving at your verdict.
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`After the remainderofthese instructions, you will hear closing arguments from the
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`attorneys. Statements and argumentsofthe attorneys, I remind you,are not evidence,
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`and they are not instructions on the law. They are intended only to assist the jury in
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`understanding the evidence andthe parties’ contentions.
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`A verdict form has been prepared for you. Youare to take this verdict form with you
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`to the jury room; and when you havereached a unanimousdecision or agreementas
`to the verdict, you are to have yourforepersonfill in the blanks in the verdict form,
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`date it, and sign it. Answer each question in the verdict form from the facts as you
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`find them to be. Do not decide who you think should win the case and then answer
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`the questions to reach that result. Again, your answers and your verdict must be
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`unanimous.
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`JURY INSTRUCTION NO.2: EVIDENCE
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`The evidence you are to consider consists of the testimony of the witnesses, the
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`documents, and other exhibits admitted into evidence, the stipulations to which the
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`lawyers agreed, and any fair inferences and reasonable conclusions you can draw
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`from the facts and circumstances that have been proven. Nothing else is evidence.
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`Generally speaking, there are two types of evidence. Oneis direct evidence, such as
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`testimony of an eyewitness. The other is indirect or circumstantial evidence.
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`Circumstantial evidence is evidence that proves a fact from which you canlogically
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`conclude anotherfact exists. As a generalrule, the law makesnodistinction between
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`direct and circumstantial evidence, but simply requires that you determine the facts
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`from all the evidence that you hear in this case, whether direct, circumstantial, or
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`any combination.
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`As I instructed you before the trial began, in judging the facts, you must considerall
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`the evidence, both direct and circumstantial. That does not mean you haveto believe
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`all of the evidence. It is entirely up to you to give the evidence youreceivein this
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`case whatever weight you individually believe it deserves. It will be up to you to
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`decide which witnesses to believe, which witnesses not to believe, the weight you
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`give any testimony you hear, and how muchof any witness’s testimony you choose
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`to accept orreject.
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`The statements, arguments, and questions by the attorneys are not evidence.
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`Objections to questions are not evidence. The attorneys in this case may have
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`objected ifthey thought that documentsor testimonythat were offered into evidence
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`were improper underthe rules of evidence. My legal rulings as to those objections
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`are not evidence. My comments and questions are not evidence. If I sustained an
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`objection, then just pretend the question was never asked. If there was an answer
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`given, ignoreit. If I overruled the objection, act like the objection was never made.
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`If I gave you instructions that some item of evidence was received for a limited
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`purpose, you must follow myinstruction. If I gave any limiting instruction during
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`trial, you must follow it. Any testimony I tell you to exclude or disregard is not
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`evidence and may not be considered. Do not speculate about what a witness might
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`have said or what an exhibit might have shown.
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`The fact that Flyp filed a lawsuit is not evidence that it is entitled to a judgment. The
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`act of making a claim in a lawsuit, by itself, does not in any waytend to establish
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`that claim and is not evidence. Likewise, the fact that Google has raised arguments
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`against the claims asserted is not evidence that Google is entitled to a judgment. The
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`act of making defensive arguments,by itself, does not in any way tend to establish
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`that such arguments have merit and is not evidence.
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`You must not conduct any independentresearch or investigation. You must make
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`your decision based only on the evidence here and nothing else. The notes taken by
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`any juror are not evidence.
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`JURY INSTRUCTIONNO.3: WITNESSES
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`You alone are to determine the questions of credibility or truthfulness of the
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`witnesses. In weighing the testimony of the witnesses, you may consider the
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`witness’s manner and demeanoron the witness stand, any feelings or interest in the
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`case, or any prejudice or bias about the case, that he or she may have, and the
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`consistency or inconsistency of his or her testimony considered in the light of the
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`circumstances. For instance, has the witness been contradicted by other credible
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`evidence? Hashe or she madestatementsat other times and places contrary to those
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`made here on the witness stand? You must give the testimony of each witness the
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`credibility that you think it deserves.
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`Even though a witness maybe a party to the action and therefore interested in its
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`outcome,the testimony may beacceptedif it is not contradicted by direct evidence
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`or by any inference that may be drawn from the evidence, if you believe the
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`testimony.
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`You are not to decide this case by counting the number of witnesses who have
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`testified on the opposing sides. Witness testimony is weighed; witnesses are not
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`counted. Thetest is not the relative numberof witnesses, but the relative convincing
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`force of the evidence. The testimony ofa single witness is sufficient to prove any
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`fact, even if a greater number of witnesses testified to the contrary,
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`if after
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`considering all of the other evidence, you believe that witness.
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`In determining the weight to give to the testimony of a witness, consider whether
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`there was evidence that at some other time the witness said or did something, or
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`failed to say or do something, that contradicted the testimony given by that witness
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`at trial.
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`A simple mistake by a witness does not necessarily mean that the witness did not
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`tell the truth as he or she remembersit. People may forget some things or remember
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`other things inaccurately. If a witness made a misstatement, consider whetherthat
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`misstatement was an intentional falsehood or simply an innocent mistake. The
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`significance of that misstatement may depend on whether it has to do with an
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`important fact or with only an unimportant detail. This instruction applies to the
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`testimony ofall witnesses.
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`Case 6:22-cv-00031-ADA Document 290 Filed 02/26/24 Page 12 of 61
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`JURY INSTRUCTIONNO. 4: DEPOSITION TESTIMONY
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`Certain testimony has been presented to you through a deposition. A deposition
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`provides the sworn, recorded answers to questions a witness was asked in advance
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`of the trial. Under somecircumstances,if a witness cannotbe presentto testify from
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`the witness stand, that witness’s testimony may be presented, underoath, in the form
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`of a deposition. Sometimebefore thistrial, attorneys representing the parties in this
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`case questioned this witness under oath. A court reporter was present and recorded
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`the testimony. The questions and answers have been shownto you. This deposition
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`testimony is entitled to the same consideration and is to be weighed and otherwise
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`considered by you in the same wayas if the witness had been present and had
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`testified from the witness stand in court.
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`JURY INSTRUCTIONNO. 5: EXPERT TESTIMONY
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`Expert testimony is testimony from a person whohasa special skill or knowledge in
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`some science, profession, or business. This skill or knowledge is not commonto the
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`average person but has been acquired by the expert through special study or
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`experience.
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`In weighing expert testimony, you may consider the expert’s qualifications, the
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`reasons for the expert’s opinions, and the reliability of the information supporting
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`the expert’s opinions, as well as the factors I have previously mentioned for
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`weighing testimony of any other witness.
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`Expert testimony should receive whatever weight and credit you think appropriate,
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`given all the other evidence in the case. You are not required to accept the opinion
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`of any expert, rather, you are free to accept or reject the testimony of experts,just as
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`with any other witness.
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`JURY INSTRUCTION NO. 6: INTERROGATORIES
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`Evidence has been presented to you in the form of answers of one ofthe parties to
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`written interrogatories submitted by the other side. These answers were given in
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`writing and underoath before the trial in response to questions that were submitted
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`under established court procedures. You should consider the answers, insofar as
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`possible, in the same wayas if they were made from the witness stand.
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`JURY INSTRUCTIONNO. 7: STIPULATIONS OF FACT
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`A “stipulation” is an agreement. When there is no dispute about certain facts, the
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`parties may agree or “stipulate” to those facts. You must accept a stipulated fact as
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`evidence andtreat that fact as having been proven here in court.
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`JURY INSTRUCTIONNO.8: LIMITING INSTRUCTION
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`Whentestimonyor an exhibit is admitted for a limited purpose, you may consider
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`that testimony or exhibit only for the specific limited purpose for which it was
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`admitted.
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`JURY INSTRUCTION NO.9: CHARTS AND SUMMARIES
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`Certain charts and summaries have been shown to you solely to help explain or
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`summarize the facts disclosed by the books, records, and other documentsthat are
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`in evidence. These charts and summaries are not evidenceor proofof any facts. You
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`should determine the facts from the evidence.
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`JURY INSTRUCTION NO. 10: DEMONSTRATIVE EXHIBITS
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`Certain exhibits shown to you, such as graphical depictions, charts, posters, or
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`models, are illustrations of the evidence, but are not themselves evidence. Such
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`exhibits are demonstrative exhibits. A demonstrative exhibit is a party’s description,
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`picture, or model used to describe something involved in this trial. If your
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`recollection of the evidence differs from a demonstrative exhibit, rely on your
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`recollection.
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`JURY INSTRUCTION NO. 11: BIAS—CORPORATE PARTY INVOLVED
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`Do not let bias, prejudice, or sympathy play any part in your deliberations. A
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`corporation and all other persons are equal before the law and must be treated as
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`equals in a court ofjustice.
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`JURY INSTRUCTIONNO. 12: STANDARD OF PROOF
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`In any legal action, facts must be proved by a required amount of evidence known
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`as the “standard of proof.” This case involves two different standards of proof,
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`“preponderanceofthe evidence” and “clear and convincing evidence.” The standard
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`of proofin this case is on Flyp for some issues and on Google for other issues.
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`JURY INSTRUCTIONNO. 13: PREPONDERANCEOF THE EVIDENCE
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`The standard of proof applicable to Flyp in this case is knownas the preponderance
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`of evidence. Flyp has the burden of proving patent infringement and damages by a
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`preponderanceofthe evidence.
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`A preponderance of the evidence meansto prove something is morelikely than not
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`— that is, evidence that persuades you that a claim is morelikely true than nottrue.
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`Sometimes this is talked about as being the greater weight and degree of credible
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`testimony. You maythink of this preponderanceof the evidence standardasslightly
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`greater than 50%. If you find that Flyp has failed to prove any elementof its claim
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`of patent infringement or damagesby a preponderanceofthe evidence, then it may
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`not recover onthat claim.
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`Google does not have any burden of proof on the issues of patent infringement or
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`damages.
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`JURY INSTRUCTIONNO. 14: CLEAR AND CONVINCING EVIDENCE
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`Google has the burden of proving patent invalidity and the Prior Use defense by
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`clear and convincing evidence.
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`Clear and convincing evidence is evidence that produces in your minda firm belief
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`or conviction as to the truth of the matter sought to be established. It is evidence so
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`clear, direct, weighty and convincing as to enable you to cometo a clear conviction
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`without hesitancy.
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`The “clear and convincing evidence”standardis different from what you have heard
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`about in criminal proceedings, where a fact must be proven beyond a reasonable
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`doubt. On a scale of the various standards of proof, as you move from preponderance
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`of the evidence, where proof need be only sufficient to tip the scales in favor of the
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`party proving the fact, to at the other end, beyond a reasonable doubt, wherethe fact
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`must be proven to a very high degree of certainty, you can think of clear and
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`convincing evidence as being between these two standards.
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`JURY INSTRUCTION NO. 15: SUMMARY OF CONTENTIONS
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`As I did at the start of the case, I will first give you a summary of each side’s
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`contentions in this case. I will then provide you with detailed instructions on what
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`each side mustprove to win on eachofits contentions.
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`Flyp seeks money damages from Google for allegedly infringing the ’770, °105,
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`094, °554, and °585 patents by making, using, importing, selling, or offering for
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`sale Google Voice in the United States. Flyp contends that Google Voice as it was
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`available starting January 2019 infringes claims | and 2 of the ’770 patent; claim 1
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`of the ’105 patent; claim 1 of the ’094 patent; claim | of the ’554 patent; and claim
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`1 of the ’585 patent.
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`Google denies that it has infringed any of the Asserted Claims of the ’770, °105,
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`°094, °554, and °585 patents. Google also denies infringement based on the Prior
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`Use defense because Google launched and commercially used the claimed invention
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`in Google Voice more than oneyear before July 17, 2013.
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`Google also asserts that the Asserted Claimsare invalid because theyare anticipated,
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`obvious, and/or lack written description. Flyp denies that the Asserted Claims are
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`invalid.
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`Yourjob will be to decide whether or not any Asserted Claims of the ’770, °105,
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`094, °554, and °585 patents have been infringed, whether Google’s Prior Use
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`defense precludes infringement, and whetheror not those claimsare invalid. If you
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`decide that any Asserted Claims have beeninfringed and are not invalid, and Google
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`Voice is not precluded from infringement underthe Prior Use defense, you will then
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`need to decide any money damages to be awarded to Flyp to compensateit for the
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`infringement.
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`Case 6:22-cv-00031-ADA Document 290 Filed 02/26/24 Page 25 of 61
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`JURY INSTRUCTIONNO. 16: PATENT CLAIMS
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`Before you can decide manyofthe issues in this case, you will need to understand
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`the role of patent “claims.” The patent claims are the numbered sentencesat the end
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`of each patent. The claims are important becauseit is the words of the claimsthat
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`define what a patent covers. The figures and text in the rest of the patent provide a
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`description and/or examples of the invention and provide a context for the claims,
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`butit is the claims that define the breadth of the patent’s coverage. Therefore, what
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`a patent covers depends,in turn, on whateach ofits claims covers.In this case, Flyp
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`alleges that Google has infringed claims 1 and 2 of the 770 patent; claim 1 of the
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`’105 patent; claim 1 of the 094 patent; claim 1 of the °554 patent; and claim 1 of the
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`’585 patent.
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`To know whata claim covers, a claim sets forth, in words, a set of requirements.
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`Each claim sets forth its requirements in a single sentence. The requirements ofa
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`claim are often referred to as “claim elements”or “claim limitations.” The coverage
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`of a patent is assessed claim-by-claim. Whena thing (such as a productora process)
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`meets all of the requirements of a claim, the claim is said to “cover” that thing, and
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`that thing is said to “fall” within the scope of that claim. In other words, a claim
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`covers a productor process where each ofthe claim elements or limitations is present
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`in that product or process.
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`22
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`Case 6:22-cv-00031-ADA Document 290 Filed 02/26/24 Page 26 of 61
`Case 6:22-cv-00031-ADA Document 290 Filed 02/26/24 Page 26 of 61
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`Youwill first need to understand what each claim covers in order to decide whether
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`or not there is infringement of the claim and to decide whether or not the claim is
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`invalid. The first step is to understand the meaning of the words used in the patent
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`claim.
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`The law saysthatit is myrole to define the terms of the claimsand it is yourrole to
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`apply my definitions of those termsto the issues that you are asked to decidein this
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`case. Therefore, as I explained to you at the start of the case, I have determined that
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`the plain and ordinary meaningsofthe claim terms apply.It is your job to take the
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`plain and ordinary meaning ofthe claim termsin the field of the patent and apply
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`them to the issues that you are deciding, including the issues of infringement and
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`validity.
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`The beginning portion of a claim, also known as the preamble, often uses the word
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`“comprising.” The word “comprising,” when used in the preamble, means
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`“imeluding but not limited to” or “containing but not limited to.” When “comprising”
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`is used in the preamble ofa claim, if you decide that an accused productincludesall
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`of the requirements of that claim, the claim is infringed. This is true even if the
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`accused product contains additional elements. For example, a claim to “a table
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`23
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`Case 6:22-cv-00031-ADA Document 290 Filed 02/26/24 Page 27 of 61
`Case 6:22-cv-00031-ADA Document 290 Filed 02/26/24 Page 27 of 61
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`comprising a tabletop, legs, and glue” would covera table that includes a tabletop,
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`legs, and glue, even if the table also includes wheels on the table’s legs.
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`The use of the terms “a” or “an” in a claim is a term of art, which has a special
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`meaning in the context of a patent claim. When used in a claim, the terms “a” or
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`“an” mean “one or more.”
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`24
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`Case 6:22-cv-00031-ADA Document 290 Filed 02/26/24 Page 28 of 61
`Case 6:22-cv-00031-ADA Document 290 Filed 02/26/24 Page 28 of 61
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`JURY INSTRUCTIONNO. 17: LEVEL OF ORDINARY SKILL
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`In this case, the parties have agreed upon the qualifications of a person having an
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`ordinary level of skill of art for each of the patents.
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`For the Asserted Patents, a person of ordinary skill in the art would haveat least a
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`bachelor’s degree
`
`in
`
`electrical
`
`engineering,
`
`computer
`
`science,
`
`computer
`
`engineering, or a closely related field, with at least two years of work or research in
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`telecommunications,
`
`telephone networks, and/or the development of mobile
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`applications related to the same. More work experience could compensate for less
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`education, and vice versa.
`
`25
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`
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`Case 6:22-cv-00031-ADA Document 290 Filed 02/26/24 Page 29 of 61
`Case 6:22-cv-00031-ADA Document 290 Filed 02/26/24 Page 29 of 61
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`JURY INSTRUCTIONNO. 18: INDEPENDENT AND DEPENDENT
`CLAIMS
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`This case involves two types of patent claims: independent claims and dependent
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`claims.
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`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 independentclaim covers.
`
`e Claim 1 of the ’770 patent is an independentclaim;
`
`e Claim 1 of the ’105 patent is an independent claims;
`
`e Claim 1 of the ’094 patent is an independentclaim;
`
`Claim 1 of the ’554 patent is an independentclaim;
`
`Claim | of the ’585 patent is an independent claim.
`
`Claim 2 ofthe ’770 patent is a “dependent claim.” A dependent claim doesnotitself
`
`recite all of the requirements of the claim but refers to another claim for someofits
`
`requirements. In this way, the claim “depends” on another claim. A dependent claim
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`incorporatesall of the requirements of the claim(s) to whichit refers. The dependent
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`claim then adds its own additional requirements. To determine what a dependent
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`claim covers, it is necessary to look at both the dependent claim and any other
`
`26
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`
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`Case 6:22-cv-00031-ADA Document 290 Filed 02/26/24 Page 30 of 61
`Case 6:22-cv-00031-ADA Document 290 Filed 02/26/24 Page 30 of 61
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`claim(s) to whichit refers. A product that meetsall of the requirements of both the
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`dependent claim and the claim(s) to which the dependent claim refers is covered by
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`that dependent claim.
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`If any requirement of a dependent claim is not met, or if any requirement of the
`
`independent claim from which the dependent claim depends is not met, then the
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`product is not covered by that dependentclaim.
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`Onthe other hand,ifthe requirements of an independentclaim are met by a product,
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`but a requirement of a dependent claim is not met, the independentclaim isstill
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`infringed.
`
`27
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`
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`Case 6:22-cv-00031-ADA Document 290 Filed 02/26/24 Page 31 of 61
`Case 6:22-cv-00031-ADA Document 290 Filed 02/26/24 Page 31 of 61
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`JURY INSTRUCTION NO.19: INFRINGEMENT GENERALLY
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`I will now instruct you as to the rules you must follow when deciding whether Flyp
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`has proven that Google infringed any of the Asserted Claims. Infringement is
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`assessed on a claim-by-claim basis. Therefore, there may be infringementas to one
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`claim but no infringementas to another.If, as here, a patent ownerasserts multiple
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`patent claims against the same product or method, then you must compare each claim
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`separately against the product or method to determine whether the product or method
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`infringes that individual patent claim. You mayalso find that none of the claimsare
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`infringed.
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`To prove infringement of a claim, Flyp must prove that the requirements for
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`infringementare met by a preponderanceofthe evidence,thatis, that it is more likely
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`than notthat all of the requirements of infringement have been proven.
`
`28
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`Case 6:22-cv-00031-ADA Document 290 Filed 02/26/24 Page 32 of 61
`Case 6:22-cv-00031-ADA Document 290 Filed 02/26/24 Page 32 of 61
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`JURY INSTRUCTIONNO.20: LITERAL INFRINGEMENT
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`A person or business entity that makes, uses, sells, or offers to sell in the United
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`States a product claimedin a patent infringes that patent or performsthe steps of a
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`patented method in the United States. Infringementis assessed on a claim-by-claim
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`basis by comparing Google’s accused product to the elements of each claim. There
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`may be infringementas to one claim but no infringementas to another claim.
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`Flyp mustproveliteral infringement by a preponderanceofthe evidence,thatis, that
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`it is more likely than not, that Google made, used, sold, or offered for sale within the
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`United States a product that meets all of the requirements of a patent claim. You
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`must compare the accused product with each and every oneof the requirements of a
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`patent claim to determine whetherall of the requirementsof that claim are met.
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`A claim elementis literally present if it was performed by an Accused Productasit
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`is described in the claim language. For a methodclaim to be infringed, Flyp must
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`prove by a preponderance of the evidence that Google performed each and every
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`step of the claimed methodin the United States.
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`If an Accused Product omits any requirement recited in one of the Asserted Claims,
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`then that product doesnotinfringe that claim.
`
`29
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`
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`Case 6:22-cv-00031-ADA Document 290 Filed 02/26/24 Page 33 of 61
`Case 6:22-cv-00031-ADA Document 290 Filed 02/26/24 Page 33 of 61
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`You must determine, separately for each asserted claim, whether or not there is
`
`infringement.
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`30
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`
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`Case 6:22-cv-00031-ADA Document 290 Filed 02/26/24 Page 34 of 61
`Case 6:22-cv-00031-ADA Document 290 Filed 02/26/24 Page 34 of 61
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`JURY INSTRUCTIONNO. 21: INFRINGEMENT UNDER THE
`DOCTRINE OF EQUIVALENTS
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`If a company makes,uses,sells, or offers to sell a product within the United States,
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`and that product that does not meetall of the requirements of a claim and thus, does
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`notliterally infringe that claim, there canstill be direct infringementif that product
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`satisfies that claim “under the doctrine of equivalents.”
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`Underthe doctrine ofequivalents, an accused product infringes a claim ifthe product
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`contains features that are equivalent to each and every requirementofthe claim, even
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`though the claim is notliterally met by the accused product. You may find that a
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`feature is equivalent to a requirementof a claim that is not metliterally if a person
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`having ordinary skill in the field of technology of the patent would have considered
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`the differences between them to be “insubstantial” or would have found that the
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`feature (1) performs substantially the same function and (2) works in substantially
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`the same way(3) to achieve substantially the same result as the requirementfor the
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`claim that
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`is not
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`literally present.
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`In orde
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