Case 1:23-cv-00324-ADA Documen t 351-7 Filed 12/18/24 Page 1 of 25
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`Joint Pretrial Order
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`Proposed Preliminary Jury
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`Case 1:23-cv-00324-ADA Document 351-7 Filed 12/18/24 Page 2 of 25
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`AUSTIN DIVISION
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`CARBYNE BIOMETRICS, LLC,
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`Plaintiff,
`C.A. No. 1:23-cv-00324-ADA
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`V.
`JURY TRIAL DEMANDED
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`APPLE INC,
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`Defendant.
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`N N N N N N N N N N
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`PRELIMINARY JURY INSTRUCTIONS
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`Case 1:23-cv-00324-ADA Document 351-7 Filed 12/18/24 Page 3 of 25
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`1.1.
`1.2.
`1.3.
`1.4.
`1.5.
`1.6.
`1.7.
`1.8.
`1.9
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`1.10.
`1.11.
`1.12.
`1.13.
`1.14.
`1.15.
`1.16.
`1.17.
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`TABLE OF CONTENTS
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`INTRODUCTION (BEFORE VOIR DIRE) ......ccoovviieiieiieiieieiieiieieeeeeeeeeen 1
`INTRODUCTION ..ottt 3
`THE NATURE OF THE ACTION AND THE PARTIES.........ccccoeoiiiinnnnnn. 5
`UNITED STATES PATENTS ....cooiiiiiiiiitceiec e 6
`PATENT LITIGATION ...coiiiiiiiiiiiiiiitteeeieee ettt e 8
`SUMMARY OF CONTENTIONS ..ottt 9
`CLAIM LANGUAGE ...t 10
`STANDARDS OF PROOF AND BURDEN OF PROOF .......cccccccceevviiiiennnns 11
`BURDEN OF PROOF — PREPONDERANCE OF THE EVIDENCE .......... 12
`BURDEN OF PROOF — CLEAR AND CONVINCING EVIDENCE ........... 13
`OVERVIEW OF APPLICABLE LAW.......ccooiiiiiiiiiiiiic e 14
`EVIDENC CE......ooiiiiii ettt 15
`WITNESSES AND WITNESS CREDIBILITY .....coooviiiiiiiiiiiiiiiiiieceeee 17
`DEPOSITION TESTIMONY ...oooiiiiiiiiiiiiiiiiceeeecceeee e 18
`EXPERT TESTIMONY ....ootiiiiiiiiiiiiiie ettt 19
`OUTLINE OF TRIAL....cooiiiiiiiiiiiieei ettt 20
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`NO INFERENCE FROM FILING SUIT ......cccccciimiiiiiiiiiieciiiecceeeeeee. 21
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`Case 1:23-cv-00324-ADA Document 351-7 Filed 12/18/24 Page 4 of 25
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`(GIVEN BEFORE VOIR DIRE)
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`INSTRUCTIONS TO JURY PANEL
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`Case 1:23-cv-00324-ADA Document 351-7 Filed 12/18/24 Page 5 of 25
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`1.1. INTRODUCTION (BEFORE VOIR DIRE)
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`Members of the jury panel, if you have a cell phone or any other wireless communication
`device with you, please take it out and turn it off now. Do not turn it to vibrate or silent; power it
`down. During jury selection, you must leave it off.
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`There are certain rules you must follow while participating in this trial.
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`First, you may not communicate with anyone about the case, including your fellow
`jurors, until it is time to deliberate. I understand you may want to tell your family, close friends
`and other people that you have been called for jury service so that you can explain when you are
`required to be in court. You should warn them not to ask you about this case, tell you anything
`they know or think they know about it, or discuss this case in your presence, until after Judge
`Albright accepts your verdict or excuse you as a juror.
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`Similarly, you must not give any information to anyone by any means about this case.
`For example, do not talk face-to-face or use any electronic device or media, such as the
`telephone, a cell or smart phone, camera, recording device, computer, the Internet, any Internet
`service, any text or instant messaging service, any Internet chat room, blog, or website such as
`Facebook, YouTube, Snapchat, Instagram, TikTok, or X (formerly known as Twitter), or any
`other way to communicate to anyone any information about this case until Judge Albright
`accepts your verdict or until you have been excused as a juror. This includes any information
`about the parties, witnesses, participants, claims, evidence, or anything else related to this case.
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`Second, do not speak with anyone in or around the courthouse other than your fellow
`jurors or court personnel. Some of the people you encounter may have some connection to the
`case. If you were to speak with them, that could create an appearance or raise suspicion of
`impropriety.
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`Third, do not do any research—on the Internet, in libraries, in books, newspapers,
`magazines, or using any other source or method. Do not make any investigation about this case
`on your own. Do not visit or view any place discussed in this case and do not use Internet
`programs or other devices to search for or view any place discussed in the testimony. Do not in
`any way research any information about this case, the law, or the people involved, including the
`parties, the witnesses, the lawyers, or the judge, until after you have been excused as jurors. If
`you happen to see or hear anything touching on this case in the media, turn away and report it to
`me as soon as possible.
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`These rules protect the parties’ right to have this case decided only on evidence they know
`about, that has been presented here in court. If you do any research, investigation, or experiment
`that we do not know about, or gain any information through improper communications, then
`your verdict may be influenced by inaccurate, incomplete, or misleading information that has not
`been tested by the trial process, which includes the oath to tell the truth and cross-examination. It
`could also be unfair to the parties’ right to know what information the jurors are relying on to
`decide the case. Each of the parties is entitled to a fair trial by an impartial jury, and you must
`conduct yourself so as to maintain the integrity of the trial process. If you decide the case based
`on information not presented in court, you will have denied the parties a fair trial in accordance
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`Case 1:23-cv-00324-ADA Document 351-7 Filed 12/18/24 Page 6 of 25
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`with the rules of this country and you will have done an injustice. It is very important that you
`abide by these rules. Failure to follow these instructions could result in the case having to be
`retried.
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`Case 1:23-cv-00324-ADA Document 351-7 Filed 12/18/24 Page 7 of 25
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`1.2. INTRODUCTION
`MEMBERS OF THE JURY:
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`You have now been sworn as the jury to try this case. Judge Albright will decide all
`questions of law and procedure. As the jury, you are the judges of the facts. At the end of the
`trial, Judge Albright will instruct you on the rules of law that you must apply to the facts as you
`find them.
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`You may take notes during the trial. Do not allow your note-taking to distract you from
`listening to the testimony. Your notes are an aid to your memory. If your memory should later be
`different from your notes, you should rely on your memory. Do not be unduly influenced by the
`notes of other jurors. A juror’s notes are not entitled to any greater weight than each juror’s
`recollection of the testimony and evidence.
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`Until this trial is over, do not discuss this case with anyone and do not permit anyone to
`discuss this case in your presence. This includes everyone you know: your spouse, children,
`relatives, friends, coworkers, and anyone that you deal with during the day. During your jury
`service, you must not communicate any information about this case by any means. For example,
`do not talk face-to-face or use any electronic device or media, such as a telephone, cell or smart
`phone, camera, recording device, or computer, the Internet, any Internet service, any text or
`instant messaging service, any Internet chat room, blog, or website such as Facebook, YouTube,
`SnapChat, Instagram, Tiktok, or X (formerly known as Twitter), or any other way to
`communicate. You may not communicate to anyone any information about this case until Judge
`Albright accepts your verdict or excuses you as a juror.
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`Do not discuss this case with other jurors until the end of the case when Judge Albright
`tells you that it is okay for you to begin to deliberate. It is unfair to discuss the case before then
`because you won’t have all the evidence and you must never become an advocate for one side or
`the other. The parties, the witnesses, the attorneys, and everyone associated with this case are not
`permitted to communicate with you. So do not think that they are being impolite. They are
`simply following Judge Albright’s instructions. Do not speak with anyone else in or around the
`courthouse other than your fellow jurors or court personnel.
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`Do not conduct any independent investigation of this case. You must rely solely on what
`you see and hear within the courtroom. Do not try to obtain information about the case from any
`other source. In particular, you may not use any electronic device or media, such as a telephone,
`cell phone, smartphone, or computer, to research any issue that might be related to this case. Do
`not go online or read any newspaper account of this trial or listen to any newscast about it in any
`format. Do not visit or view any place that might be discussed in this case and do not use Internet
`programs or other devices to search for or to view any place that is discussed in the testimony. In
`sum, you may not research any information about this case, the law, or the people involved,
`including the parties, the witnesses, the lawyers, or Judge Albright, until after you have been
`excused as jurors.
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`There are some issues of law or procedure that the attorneys and Judge Albright must
`discuss and that Judge Albright must decide. These issues are not part of what you must decide,
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`Case 1:23-cv-00324-ADA Document 351-7 Filed 12/18/24 Page 8 of 25
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`and they are not properly discussed in your presence. To avoid having you leave the courtroom
`and to save time, Judge Albright may discuss these issues with the attorneys at the bench, out of
`your hearing. When Judge Albright confers with the attorneys at the bench, please do not listen
`to what they are discussing. If the discussions require more time, Judge Albright may have you
`leave the courtroom until the lawyers and he resolve the issues. Judge Albright will try to keep
`these interruptions as few and as brief as possible.
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`Do not let the fact that either Judge Albright has or does not have a discussion with the
`attorneys influence you in any way about how Judge Albright might feel about this case. In fact,
`do not let anything Judge Albright does or says from now through the end of the trial give you
`any indication about how Judge Albright feels about the case.
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`You are the judges of the facts. Judge Albright’s opinion does not matter.
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`Finally, keep an open mind during the entire trial. Do not decide the case until you have
`heard all of the evidence, Judge Albright’s instructions, and the closing arguments.
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`Case 1:23-cv-00324-ADA Document 351-7 Filed 12/18/24 Page 9 of 25
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`1.3. THE NATURE OF THE ACTION AND THE PARTIES
`This is a patent case.
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`The plaintiff is seated most closely to you. That is Carbyne Biometrics, LLC. You may
`hear them referred to throughout the course of the trial as Carbyne for short. Carbyne [claims to
`be | is] the owner of the Asserted Patents in this case, which are identified as U.S. Patent
`Numbers 11,475,105; 11,514,138; 9,972,010; 10,713,656; and 11,526,886. For your
`convenience, the parties and Judge Albright will often refer to these patents by the last three
`numbers of the patent number, namely, as the *105, *138, 010, 656, and *886 patents. You may
`also hear the patents referred to as the “Asserted Patents,” or the “Patents-in-Suit.” The Asserted
`Patents fall into two categories: the “Fraud Reduction Patents” (referring to the 010, *656, and
`’886 patents) and the “Authentication Patents” referring to the *105 and *138 patents. [These
`names are solely for ease of reference, and should not be used to interpret the meaning of the
`Asserted Patents or the claims of the patents. ]
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`The Authentication Patents generally relate to authenticating a user through
`cryptographic keys generated through biometrics, rather than through passwords and/or
`usernames.
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`The Fraud Reduction Patents generally relate to reducing fraud through the use of a user
`interface and collection and analysis of a user’s biometric information and, sometimes, the
`collection of location data.
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`The patents will be explained in much greater detail by the witnesses, and the opening
`statements and closing arguments that you will hear.
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`The defendant who is seated a little bit further over to my left is Apple Inc., or Apple for
`short.
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`Case 1:23-cv-00324-ADA Document 351-7 Filed 12/18/24 Page 10 of 25
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`1.4. UNITED STATES PATENTS
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`As I mentioned, this is a patent case. Before summarizing the positions of the parties and
`the issues involved in the dispute, let me take a moment to explain what a patent is and how one
`is obtained.
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`Patents are granted by the United States Patent and Trademark Office (sometimes called
`the “PTO” or “USPTO”). A valid United States patent gives the owner the right to exclude
`others from making, using, offering to sell, or selling the patented invention within the United
`States or importing it into the United States. A violation of the patent holder’s rights is called
`infringement. The patent holder may try to enforce a patent against persons it believes to be
`infringers by a lawsuit in federal court. During the trial, the parties may offer testimony to
`familiarize you with how one obtains a patent from the PTO, but I will give you a general
`background here.
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`The process of obtaining a patent is called patent prosecution. To obtain a patent, an
`application for a patent must be filed with the PTO by an applicant. The application includes a
`specification, which should have a written description of the invention, how it works, and how to
`make and use it so as to enable others skilled in the art to do so. The specification concludes with
`one or more numbered sentences or paragraphs. These are called the “claims” of the patent. The
`purpose of the claims is to define the boundaries of the patent’s protections and give notice to the
`public of those boundaries.
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`After an application for a patent is filed with the PTO, the application is reviewed by a
`PTO Patent Examiner. The Patent Examiner reviews (or examines) the patent application to
`determine whether the claims are patentable and whether the specification adequately describes
`the claimed invention. In examining a patent application, the Patent Examiner reviews certain
`information about the state of the technology at the time the application was filed. The PTO
`searches for and reviews information that is publicly available or that is submitted by the
`applicant. This information is called “prior art.”
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`When the parties are done presenting evidence, Judge Albright will give you more
`specific instructions as to what constitutes prior art in this case. Generally, prior art is previously
`existing technical information and knowledge against which the Patent Examiners determine
`whether or not the claims in the application are patentable. The Patent Examiner considers,
`among other things, whether each claim defines an invention that is new, useful, and not obvious
`in view of this prior art. In addition, the Patent Examiner may consider whether the claims are
`directed to subject matter that is not eligible for patenting, such as natural phenomena, laws of
`nature, and abstract ideas. The Patent Examiner also may consider whether the claims are not
`indefinite and are adequately enabled and described by the application’s specification.
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`Following the prior art search and examination of the application, the Patent Examiner
`advises the applicant in writing what the Patent Examiner has found and whether any claim is
`patentable (in other words, “allowed”). This writing from the Patent Examiner is called an
`“Office Action.” More often than not, the initial Office Action by the Patent Examiner rejects the
`claims. The applicant then responds to the Office Action and sometimes cancels or changes the
`claims or submits new claims or makes arguments against a rejection. This process may go back
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`Case 1:23-cv-00324-ADA Document 351-7 Filed 12/18/24 Page 11 of 25
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`and forth between the Patent Examiner and the applicant for several months or even years until
`the Patent Examiner is satisfied that the application and claims are patentable. Upon payment of
`an issue fee by the applicant, the PTO then “issues” or “grants” a patent with the allowed claims.
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`The collection of papers generated by the Patent Examiner and the applicant during this
`time of corresponding back and forth is called the “prosecution history.” You may also hear the
`“prosecution history” referred to as the “file history” or the “file wrapper.”
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`In this case, it is ultimately for you to decide, based on Judge Albright’s instructions to
`you, whether Apple has shown that the patent claims are invalid.
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`Case 1:23-cv-00324-ADA Document 351-7 Filed 12/18/24 Page 12 of 25
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`1.5. PATENT LITIGATION
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`Someone is said to be infringing a claim of a patent when they, without permission from
`the patent owner, import, make, use, offer to sell, or sell the claimed invention, as defined by the
`claims, within the United States, before the term of the patent expires. A patent owner who
`believes someone is infringing the exclusive rights of a patent may bring a lawsuit, like this one,
`to attempt to stop the alleged infringing acts or to recover damages, which generally means
`money paid by the infringer to the patent owner to compensate for the harm caused by the
`infringement. The patent owner must prove infringement of the claims of the patent. The patent
`owner must also prove the amount of damages the patent owner is entitled to receive from the
`infringer as compensation for the infringing acts.
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`A party accused of infringing a patent may deny infringement and/or prove that the
`asserted claims of the patent are invalid. A patent is presumed to be valid. In other words, it is
`presumed to have been properly granted by the PTO. But that presumption of validity can be
`overcome if clear and convincing evidence is presented in court that proves the patent is invalid.
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`Case 1:23-cv-00324-ADA Document 351-7 Filed 12/18/24 Page 13 of 25
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`1.6. SUMMARY OF CONTENTIONS
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`To help you follow the evidence, I will now give you a summary of the positions of the
`parties.
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`Carbyne filed suit in this court seeking money damages from Apple for allegedly
`infringing one or more of the Asserted Patents by making, using, selling, offering for sale, and/or
`importing within the United States certain models of the iPhone, the iPad, MacBook, Apple
`Vision Pro, and certain combinations of Mac computers with Apple’s Magic Keyboard. For your
`convenience, the parties and Judge Albright will often refer to all those together as the “Accused
`Products.” The claims you will be considering are:
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`claims 1, 9, 14, and 35 of the 105 Patent;
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`claims 1, 7, 8, and 25 of the *138 Patent;
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`claims 1, 6, and 9 of the *010 Patent;
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`claims 1 and 8 of the 656 Patent; and
`e claims 1, 12, and 14 of the 886 Patent.
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`The parties and Judge Albright will sometimes refer to those together as the “Asserted Claims”
`of the “Asserted Patents.” Carbyne alleges that the Accused Products are covered by these
`claims.
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`Apple denies that it has infringed the Asserted Claims. Apple also contends that the
`Asserted Claims are invalid. Judge Albright will instruct you later as to the ways in which a
`patent claim may be invalid. In general, however, a patent claim is invalid if it is not new or
`novel, or is obvious to a person of ordinary skill in the art in view of the state of the art, before
`the patent was filed.
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`Your job will be to decide whether or not the Asserted Claims have been infringed and
`whether or not those claims are invalid. If you decide that any Asserted Claim of the Asserted
`Patent has been infringed and is not invalid, you will then need to decide how much to award
`Carbyne in money damages to compensate it for the infringement. If you decide that the Asserted
`Claims are not infringed or are invalid, you need not make any finding on damages.
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`Case 1:23-cv-00324-ADA Document 351-7 Filed 12/18/24 Page 14 of 25
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`1.7. CLAIM LANGUAGE
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`Judge Albright has already determined the meaning of the Asserted Claims. You will be
`given a document reflecting those meanings. For a claim term for which Judge Albright has not
`provided you with a definition, you should apply the ordinary meaning of that term in the field of
`the patent. You are to apply Judge Albright’s definitions of the terms he has construed
`throughout this case. However, Judge Albright’s interpretation of the language of the claims
`should not be taken as an indication that he has a view regarding issues such as infringement and
`invalidity. Those issues are yours to decide. Judge Albright will provide you with more detailed
`instructions on the meaning of the claims before you retire to deliberate your verdict.
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`Case 1:23-cv-00324-ADA Document 351-7 Filed 12/18/24 Page 15 of 25
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`1.8. STANDARDS OF PROOF AND BURDEN OF PROOF
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`In any legal action, facts must be proven by a required amount of evidence known as the
`“burden of proof.” The burden of proof in this case is on Carbyne for some issues and on Apple
`for other issues. There are two burdens of proof that you will apply in this case. One is
`preponderance of the evidence, and the other is clear and convincing evidence.
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`Case 1:23-cv-00324-ADA Document 351-7 Filed 12/18/24 Page 16 of 25
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`1.9. BURDEN OF PROOF - PREPONDERANCE OF THE EVIDENCE
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`The burden of proof for infringement and damages applicable to Carbyne in this case is
`known as the preponderance of evidence. The patent holder, Carbyne, has the burden of proving
`patent infringement and damages for any alleged patent infringement by a preponderance of the
`evidence.
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`A preponderance of the evidence means to prove something is more likely so than not-
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`i.e., evidence that persuades you that a claim is more probably true than not true. Sometimes this
`is talked about as being the greater weight and degree of credible testimony.
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`Case 1:23-cv-00324-ADA Document 351-7 Filed 12/18/24 Page 17 of 25
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`1.10. BURDEN OF PROOF — CLEAR AND CONVINCING EVIDENCE
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`Apple has the burden of proving patent invalidity by clear and convincing evidence.
`Clear and convincing evidence means evidence showing that it is highly probable that what is
`argued is true, that is, that you have been left with a clear conviction that the fact has been
`proven. The clear and convincing burden of proof is a higher burden than preponderance of the
`evidence.
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`This is different from the criminal law standard of “beyond a reasonable doubt.” On a
`scale of the various standards of proof, as you move from the preponderance of the evidence,
`where the proof need only be sufficient to tip the scales in favor of the party proving the fact, to
`at the other end beyond a reasonable doubt, where the fact must be proven to a very high degree
`of certainty, you may think of the “clear and convincing” standard as being between these two
`standards.
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`Case 1:23-cv-00324-ADA Document 351-7 Filed 12/18/24 Page 18 of 25
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`1.11. OVERVIEW OF APPLICABLE LAW
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`In deciding the issues I discussed so far, you will be asked to consider specific legal
`standards. I will give you an overview of those standards now and Judge Albright will review
`them again in more detail before the case is submitted to you for your verdict.
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`The first issue you will be asked to decide is whether Apple has infringed any of the
`Asserted Claims of the Asserted Patents. Infringement is assessed on a claim-by-claim basis.
`Therefore, there may be infringement as to one claim but not infringement as to another. There
`are a few different ways that a patent may be infringed. In general, to prove infringement,
`Carbyne must prove by a preponderance of the evidence that Apple made, used, sold, or offered
`for sale in the United States or imported into the United States, a product meeting all the
`requirements of any of the Asserted Claims. Judge Albright will provide you with more detailed
`instructions on the requirements for infringement at the conclusion of the case.
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`Another issue you will be asked to decide is whether any of the Asserted Claims is
`invalid.
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`A claim of a patent may be invalid for a number of reasons. One way for a claim to be
`invalid is because it may have been obvious. Even if every element of a claim is not shown or
`sufficiently described in a single piece of “prior art” (e.g., a single previous device or method or
`a single printed publication or patent in this or a foreign country), the claim is still invalid if it is
`shown by clear and convincing evidence that it would have been obvious to a person of ordinary
`skill in the field of technology of the patent at the relevant time.
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`Judge Albright will provide you with more detailed instructions on invalidity at the
`conclusion of the trial.
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`If you decide that any of the Asserted Claims has been infringed and is not invalid, you
`will then need to decide money damages to be awarded to Carbyne to compensate it adequately
`for the infringement. A damages award should put Carbyne in approximately the same financial
`position that it would have been in had the infringement not occurred, but in no event may the
`damages award be less than what Carbyne would have received had it been paid a reasonable
`royalty. Judge Albright will instruct you later on the meaning of a reasonable royalty. The
`damages you award are meant to compensate Carbyne and not to punish Apple. You may not
`include in your award any additional amount as a fine or penalty in order to punish Apple. Judge
`Albright will give you more detailed instructions on the calculation of damages at the conclusion
`of the case.
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`Case 1:23-cv-00324-ADA Document 351-7 Filed 12/18/24 Page 19 of 25
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`1.12. EVIDENCE
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`The evidence you are to consider consists of the testimony of the witnesses at trial or at a
`deposition that will be presented to you, the documents and other exhibits that Judge Albright
`will admit into evidence, any facts the lawyers agreed or stipulated to, and any fair inferences
`and reasonable conclusions you draw from the facts and circumstances that you believe have
`been proven. Nothing else is evidence.
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`Generally speaking, there are two types of evidence. One is direct evidence, such as
`testimony of an eyewitness. The other is indirect or circumstantial evidence. For example, if a
`witness testified that she saw it raining outside, that would be direct evidence that it was raining.
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`Circumstantial evidence is evidence that proves a fact from which you can logically
`conclude another fact exists. For example, if someone walked into the courtroom wearing a
`raincoat covered with drops of water and carrying a wet umbrella, that would be circumstantial
`evidence from which you could conclude that it was raining. As a general rule, the law makes no
`distinction between direct and circumstantial evidence. It simply requires that you determine the
`facts from all of the evidence that you hear in this case, whether direct, circumstantial, or any
`combination.
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`In judging the facts, you must consider all the evidence, both direct and circumstantial.
`That does not mean you have to believe all of the evidence. It is entirely up to you to give the
`evidence you receive in this case whatever weight you individually believe it deserves. It will be
`up to you to decide which witnesses to believe, which witnesses not to believe, the weight you
`give any testimony you hear, and how much of any witness’s testimony you choose to accept or
`reject.
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`Here are some examples of what is not evidence:
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`o The statements, arguments, and questions by the attorneys are not evidence.
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`e Objections to questions are not evidence. The attorneys that are seated in front of you
`may object if they believe that documents or testimony that is attempted to be offered
`into evidence are improper under the rules of evidence.
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`e Judge Albright’s legal rulings are not evidence. Judge Albright’s comments and questions
`are not evidence.
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`e The notes taken by any juror are not evidence.
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`You should never be influenced by Judge Albright’s ruling on any objection. If Judge
`Albright sustains an objection, then just pretend the question was never asked. If there was an
`answer given, ignore it. If Judge Albright overrules the objection, act like the objection was
`never made. If he gives you instructions that some item of evidence is received for a limited
`purpose, you must follow his instruction. If he gives any limiting instruction during trial, you
`must follow it. Any testimony he strikes, or tells you to exclude or disregard, is not evidence and
`may not be considered.
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`Case 1:23-cv-00324-ADA Document 351-7 Filed 12/18/24 Page 20 of 25
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`During the trial you may be shown charts and animations that will help to illustrate the
`testimony of witnesses. These are called demonstrative exhibits. They are not evidence unless
`Judge Albright specifically admits them into evidence. They are just aids to assist you to
`understand the evidence. What does that mean? If you hear a lawyer say: I’m using this for
`demonstrative purposes only, that’s absolutely fine. But it means you’re not going to have it
`when you’re deliberating.
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`Y ou must make your decision based only on the evidence presented here in the
`courtroom and nothing else. While you should consider only the evidence in this case, you
`should understand that you are permitted to draw such reasonable inferences from the testimony
`and the exhibits as you feel are justified in the light of common experience. In other words, you
`may make deductions and reach conclusions that reason and common sense lead you to draw
`from the facts that have been established by the testimony and evidence in this case.
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`Anything you have heard outside of this courtroom, for example, anything you might
`know about Carbyne or Apple that you brought in here with you, needs to be ignored. You must
`not conduct any independent research or investigation.
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`Case 1:23-cv-00324-ADA Document 351-7 Filed 12/18/24 Page 21 of 25
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`1.13. WITNESSES AND WITNESS CREDIBILITY
`You alone determine the questions of credibility or truthfulness of the witnesses.
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`In weighing the testimony of witnesses, you may consider the witness’s manner and
`demeanor on the witness stand, any feelings about or interest in the case, any prejudice or bias
`about the case, and the consistency or inconsistency of the witness’s testimony considered in
`light of the circumstances. Has the witness been contradicted by other credible evidence? Has the
`witness made statements at other times that are contrary to those made here on the witness stand?
`You must give the testimony of each witness the credibility that you think it deserves.
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`Even though a witness may be a party to the action and therefore interested in the
`outcome, you may accept the testimony if it is not contradicted by direct evidence or by any
`inference that may be drawn from the evidence, if you believe the testimony.
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`In determining the weight to give to the testimony of a witness, consider whether there
`was evidence that at some other time the witness said or did something, or failed to say or do
`something, that was different from the testimony given at the trial.
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`A simple mistake by a witness does not necessarily mean that the witness did not tell the
`truth as he or she remembers it. People may forget some things or remember other things
`inaccurately. If a witness makes a misstatement, consider whether that misstatement was an
`intentional falsehood or simply an innocent mistake. The significance of that may depend on
`whether it has to do with an important fact or with only an unimportant detail. This instruction
`applies to the testimony of all witnesses.
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`Case 1:23-cv-00324-ADA Document 351-7 Filed 12/18/24 Page 22 of 25
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`1.14. DEPOSITION TESTIMONY
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`Certain testimony may be presented to you through a deposition. A deposition is the
`sworn, recorded answers to questions a witness was asked in advance of the trial. Attorneys
`representing the parties in this case questioned the witnesses under oath. A court reporter was
`present and recorded the testimony. The questions and answers may be shown to you on a
`transcript or by video.
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`Deposition testimony is entitled to the same consideration and is to be weighed and
`otherwise considered by you in the same way as if the witness had been present and had testified
`from the witness stand in court.
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`Case 1:23-cv-00324-ADA Document 351-7 Filed 12/18/24 Page 23 of 25
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`1.15. EXPERT TESTIMONY
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`You are going to hear from what are known as expert witnesses. Expert testimony is
`testimony from a person who has a special skill or knowledge in some science, profession, or
`business. This skill or knowledge is not common to the average person but has been acquired by
`the expert through special study or experience.
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`You will get to weigh the expert’s testimony just like you will consider any witness’s
`testimony. In weighing expert testimony, you may consider the expert’s qualifications, the
`reasons for the expert’s opinions, and the reliability of the information supporting the expert