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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKAGERALD A. KELLOGG,)8:07CV70) Plaintiff,))v.)INITIAL)JURY INSTRUCTIONS NIKE, INC., an Oregon corporation, and)NIKE USA, INC., an Oregon corporation,)) Defendants.)INSTRUCTION NO. 1DUTYIt will be your duty to decide from the evidence whether the plaintiff is entitled to a verdict against the defendants. From the evidence, you will decide what the facts are. You are entitled to consider the evidence in the light of your own observations and experiences in life. You may use reason and common sense to draw deductions from facts established by the evidence. You will then apply those facts to the law which I give you in these and the other instructions. In that way, you will reach your verdict. You are the sole judges of the facts; but you must follow the law as stated in my instructions, whether you agree or disagree with the law stated in the instructions.Do not allow sympathy or prejudice to influence you. The law requires that your verdict be unaffected by anything except the evidence, your common sense, and the law stated in these and other instructions.Anything that I may say or do during the trial must not be taken by you as an indication of what I think of the evidence or what I think your verdict should be.EVIDENCEThe word "evidence" includes the testimony of witnesses; documents and other things received as exhibits; any facts that have been stipulated, that is, formally agreed to by the parties; and any facts that have been judicially noticed, that is, facts which I say you must accept as true.The following things are not evidence:1.Statements, arguments, questions and comments by lawyers are not evidence.2.Objections are not evidence.Lawyers have an obligation to their clients to object when they believe that the evidence being offered is improper under the rules of evidence. You should not be influenced by the lawyer’s objection or by my ruling on it. If I sustain an objection to a question, ignore the question. If I overrule the objection, treat the answer like any other answer. If so, do not attempt to draw any inference in favor of either side as the result of any ruling I make. Finally, if I instruct you that some item of evidence is received for a limited purpose only, you must follow that instruction. Pay particularly close attention to this sort of limiting instruction, because it may not be available to you in writing later in the jury room.3.Testimony that I strike from the record or tell you to disregard is not evidence and must not be considered.4.Anything you see or hear about this case outside this courtroom is not evidence and must be disregarded.Finally, some of you may have heard the phrases or terms "direct evidence" and "circumstantial evidence." Direct evidence is direct proof of a fact, such as testimony by an eye witness. Circumstantial evidence is proof of facts from which you may infer or conclude that other facts exist. The law makes no distinction between the weight to be given to either direct or circumstantial evidence. You should give the evidence the weight that you believe the evidence is entitled to receive.BENCH CONFERENCES AND RECESSESDuring the trial it may become necessary for me to talk with the lawyers outside your hearing, either by having a bench conference while you are present in the courtroom, or by calling a recess. Please understand that while you are waiting, the court and counsel are working. The purpose of these conferences is to decide how certain evidence is to be treated under the rules of evidence or to decide a particular procedure to be followed in the case. We will, of course, do what we can to minimize the number and length of these conferences.JURY QUESTIONSWhile evidence is being presented, you are not allowed to raise your hands to ask questions about that evidence. However, if you do have questions about something you hear during the examination of a witness, you may write your questions down on a piece of paper. When attorneys have finished examining that witness, you may submit your written question or questions. I will review each question with the attorneys. You may not receive an answer to your question because I may decide that the question is not proper under the rules of evidence. The attorneys may choose to answer your questions by asking more questions of the witness. But even if the question is proper, you may not get an immediate answer to your question. For instance, a witness or an exhibit that you will see later in the trial may answer your question.NOTE-TAKINGIf you wish, you may take notes to help you remember what witnesses said. Notes may be helpful to you because at the end of the trial, you must make your decision based on what you recall of the evidence. You will not have a written transcript to consult, and it may not be practical for the court reporter to read back lengthy testimony. Therefore, you should pay close attention to the testimony as it is given.If you do take notes, please keep them to yourself until you and the other jurors go to the jury room to decide this case. However, do not let note-taking distract you to the point that you miss hearing other testimony from the witness.During the trial, documents or other physical items may be received into evidence. At the present, however, you will not be supplied with a list of exhibits which are received in evidence. Therefore, you may wish to make notes about the exhibits, especially their description and number, so that you can refer to those exhibits while you are deliberating.When we take our recess each day for the lunchtime break and when we take our recess each night, please take your notes to the jury room and leave your notes there. The courtroom deputy will take custody of your notes and secure them.No one will read your notes but you. Your notes will be destroyed after the trial is over.ALL PERSONS ARE EQUAL BEFORE THE LAWThis case should be considered and decided by you as an action between persons of equal standing and worth in the community, persons holding the same or similar position in life. A company or agency is entitled to the same fair trial at your hands as a private individual. All persons stand equal before the law, and therefore must be treated as equals in a court of justice.BURDENS OF PROOFYour verdict depends on whether you find certain facts have been proven. There are two burdens of proof in this case, depending on the issue to be decided: “preponderance of the evidence” and “clear and convincing evidence.” The burden of proving a fact is upon the party whose claim or defense depends on that fact.The party who has the burden of proving a fact by a preponderance of the evidence must prove it by the greater weight of the evidence. By a "preponderance of the evidence," I mean the greater weight of credible evidence. This is not determined by which party has the greater number of witnesses testifying about the facts and circumstances or by the number of exhibits. Preponderance of the evidence is determined by the amount of evidence which on the whole, when fully, fairly and impartially considered, makes the stronger impression on your mind and is more convincing as to its truth when weighed against the evidence the other party has presented.To prove something by a preponderance of evidence is to prove that it is more likely true than not. Each party is entitled to the benefit of any evidence tending to establish a claim, even though the other party introduced that evidence. If the evidence is equally balanced, a preponderance is not established.Certain issues will need to be proved by clear and convincing evidence. This is a higher standard than by a preponderance of the evidence. Clear and convincing evidence is evidence that shows it is highly probable that the fact is true.You may have heard the term “proof beyond a reasonable doubt.” That is a stricter standard that applies in criminal cases. It does not apply in civil cases such as this one. You should, therefore, put the term out of your minds.WITNESSESIn deciding what the facts are, you may have to decide what testimony you believe and what testimony you do not believe. You may believe all of what a witness said, or only part of it, or none of it.In deciding what testimony to believe, consider the witness’s intelligence, the opportunity the witness had to have seen or heard the things testified about, the witness’s memory, any motives that witness may have for testifying a certain way, the manner of the witness while testifying, whether that witness said something different at an earlier time, the general reasonableness of the testimony, and the extent to which the testimony is consistent with any evidence that you believe.In deciding whether or not to believe a witness, keep in mind that people sometimes hear or see things differently and sometimes forget things. You need to consider therefore whether a contradiction is an innocent misrecollection or lapse of memory or an intentional falsehood, and that may depend on whether it has to do with an important fact or only a small detail.The fact that one side may use a greater number of witnesses or present a greater quantity of evidence should not affect your decision. Rather, determine which witness or witnesses and which evidence appears accurate and trustworthy. It is the weight of the evidence that counts -- not the number of witnesses.If the testimony of a single witness produces in your minds a belief in the likely truth of any fact and would justify a verdict in accordance with the witness’s testimony, even though a number of witnesses may have testified to the contrary, and you have consideredof this single witness.EXPERT WITNESSA witness who has special knowledge, skill, experience, training, or education in a particular area may testify as an expert in that area. An expert may state opinions in the witness’s area of expertise and may also state the reasons for those opinions.You determine what weight, if any, to give to an expert's testimony just as you do with the testimony of any other witness. You should consider the expert's credibility as a witness, the witness' qualifications as an expert, including the witness’s education and experience, the sources of the expert's information, the soundness of the reasons given for any opinions expressed by the expert, the acceptability of the methods used, and all the other evidence in the case.If you decide that the opinion of an expert is not based upon sufficient education or experience, or if you conclude that the reasons given in support of the opinion are not sound, or if you conclude that the opinion is outweighed by other evidence including that of another expert witness, you may disregard the opinion in part or in its entirety.DEPOSITION TESTIMONYDuring the trial, certain testimony might be presented to you by way of deposition. A deposition consists of sworn recorded answers to questions asked of a witness in advance of the trial by one or more of the attorneys for the parties to the case. The testimony of a witness who, for some reason, cannot be present to testify from the witness stand may be presented in writing under oath. Such testimony is entitled to the same consideration, and is to be judged as to credibility, and weighed, and otherwise considered by the jury, insofar as possible, in the same way as if the witness had been present and had testified from the witness stand.CONDUCT OF THE JURYTo insure fairness, jurors are asked to obey the following rules:First, do not talk among yourselves about this case, or about anyone involved with this case, until the end of the case when you go to the jury room to decide on your verdict.Second, do not talk with anyone else about this case, or about anyone involved with it, until the trial has ended and you have been discharged as jurors.Third, during this trial when you are outside this courtroom, do not listen to or let anyone try to tell you anything about this case. Do not let anyone talk to you about anyone involved with this case until the trial has ended and I have accepted your verdict. If anyone tries to talk to you about this case during the trial, please promptly report the matter to me.Fourth, during the trial you should not talk with or speak to any of the parties, lawyers or witnesses involved in this case, which means that you should not even pass the time of day with any of them. If a person from one side of the lawsuit sees you talking to a person from the other side, even if it is on a matter unconnected with this trial or simply to pass the time of day, such contact might arouse an unwarranted suspicion about your fairness. If a lawyer, party or witness does not speak to you when you pass in the hall, ride the elevator, or encounter each other elsewhere while this trial is taking place, do not think he or she is being rude. Those persons are not supposed to talk or visit with you, either.Fifth, you must decide this case on the basis of evidence presented in the courtroom. Therefore, do not read any news stories or articles about the case, or about anyone involved with this case, or listen to any radio or television reports about the case or about anyone involved with it. In fact, until the trial is over you should probably avoid reading any newspapers or news journals, and avoid listening to any TV or radionewscasts. There might not be any news reports of this case, but, if there are, you might find yourself inadvertently reading or listening to something before you realize what you are doing.Sixth, do not do any research, on the Internet or otherwise, or make any investigation on your own concerning this case. Do not use or refer to a dictionary or any law books concerning any aspect of this case, including any evidence introduced. Do not visit the scene of any incident that may have been mentioned in this case.Seventh, do not form an opinion about any fact or issue in the case until you have received all of the evidence, have heard arguments of counsel, have been instructed as to the law of the case, and have retired to the jury room. Consequently, do not make up your mind during the trial about what the verdict should be. Keep an open mind until after you have gone to the jury room to decide the case and have discussed the evidence with the other jurors.Finally, do not be influenced by sympathy or prejudice. Do not indulge in any speculation, guess, or conjecture. And do not make any inferences which are not supported by the evidence.OUTLINE OF TRIALThe trial will proceed in the following manner:First, the attorney for the plaintiff may make an opening statement. Next, the attorney for the defendants may make an opening statement. An opening statement is not evidence or argument. It is an outline of what the party intends to prove, a summary of what the attorney expects the evidence to be.The plaintiff's attorney will then present evidence through a direct examination of a witness. The defendants’ attorney may then cross-examine that witness. After the cross- examination, the plaintiff’s attorney may ask additional questions on re-direct. The defendants’ attorney may also ask questions on re-cross. After the plaintiff has presented all his witnesses, the plaintiff will rest. The defendants will then present their case. The defendants may present evidence through direct examination of witnesses and plaintiff’s attorney may cross-examine those witnesses. Re-direct and re-cross examinations may also take place.After the evidence is completely presented, the attorneys will make their closing arguments to summarize and interpret the evidence for you. Just as with opening statements, these closing arguments are not evidence. I will then instruct you further on the law. After that you will retire to the jury room to deliberate on your verdict.BACKGROUND OR OVERVIEWThis case involves a United States design patent. Before outlining the positions of the parties and the legal issues involved in the dispute, let me take a moment to explain what a design patent is and how one is obtained.Design patents are granted by the United States Patent and Trademark Office (sometimes called the "PTO"). A design must be new, original and ornamental in order to be patentable. A design patent gives the owner the right to exclude others from making, using, offering to sell, or selling the patented design within the United States or from importing it into the United States.To obtain a design patent, an application for a design patent must be filed with the PTO. The application includes a specification, which must include a preamble stating name of the applicant, title of the design, and a brief description of the nature and intended use of the article in which the design is embodied; a cross-reference to related applications; a description of the figure or figures of the drawing; a feature description and a single claim. The patent claim is the ornamental design for the article, specifying its name, as shown or as shown and described. The purpose of the claim is to particularly point out what the applicant regards as the design and to define the scope of the design patent owner's exclusive rights. Only one claim is permitted in a design patent. In the application, the design must be represented by a drawing that contains a sufficient number of views to constitute a complete disclosure of the appearance of the design. Also, the title of the design must designate the particular article.An application for a design patent is reviewed by a trained PTO examiner. The examiner reviews (or examines) the patent application to determine whether the claim is patentable and whether the drawing and specification adequately describe the invention claimed. In examining a patent application, the patent examiner searches records available to the PTO for what is referred to as "prior art," and he or she also reviews prior art submitted by the applicant. Generally, prior art is technical information and knowledge that was known to the public either before the design by the applicant or more than a year before the filing date of the patent application. The patent examiner considers, among other things, whether the design is new and not obvious in view of this prior art.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 the 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 claim. The applicant then responds to the office action and sometimes changes the claim or submits a new claim. This process may go back and forth between the patent examiner and the applicant several times until the patent examiner is satisfied that the application and claims are patentable.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.”A patent is infringed when a person or company, without permission from the patent owner, imports, makes, uses, offers to sell, or sells the patented design, as defined by the claim, within the United States before the term of the patent expires, which in the case of a design patent is fourteen years. A patent owner who believes that the exclusive rightsof the patent are being infringed may bring a lawsuit like this to stop the alleged infringing acts and to recover damages, which generally will be 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 claim of the design patent and the need for damages by a preponderance of the evidence.A person sued for allegedly infringing a patent can deny infringement and can also defend against the action by proving that the design patent is invalid. A patent, once granted, is presumed to be valid, but that presumption of validity can be overcome if an alleged infringer challenges the patent and presents clear and convincing evidence that it is invalid. I will now briefly describe the parties' basic contentions in more detail.STATEMENT OF THE CASEThe plaintiff in this case is named Gerald Kellogg, whom I shall refer to as “Kellogg” throughout these instructions. The defendants in this case are Nike, Inc. and Nike USA, Inc., whom I shall refer to collectively as “Nike” throughout these instructions. Kellogg is the owner of the design patent, which is identified by United States Patent Office No.384,190 and may be referred to as "the ‘190 patent" or “the Kellogg patent.”The design patent relates to the ornamental design for a vented cap.Kellogg contends that Nike makes, uses, offers to sell, or sells a product or products that infringe the ‘190 patent. These products are sometimes referred to as the “the accused products.”Nike denies infringing the design patent. Nike does not challenge the validity of the plaintiff’s patent.UNCONTROVERTED FACTSThe parties have agreed that the following may be accepted as established facts for the purposes of this case only:Plaintiff, Gerald Kellogg, is an individual who lives and works in Omaha Nebraska. Defendants Nike Inc. and Nike USA, Inc. are Oregon corporations with their headquarters in Beaverton, Oregon. Nike sells its products in the state of Nebraska.On December 14, 1995, Kellogg filed a design patent application with the United States Patent and Trademark Office. On September 30, 1997, the PTO issued United State Patent No. 384,190 entitled “vented cap” (“the ‘190 patent”) to Kellogg. Kellogg is the owner of all rights to the ‘190 patent.On March 12, 1997, Kellogg wrote Nike a letter stating, “My name is Gerald Kellogg II, and I am the inventor of the enclosed vented designed cap that has been fully patented for commercial use and distribution. I would like to solicit your company’s interest in utilizing my invention for commercial use. I am therefore requesting that you evaluate my product and design for potential commercial use. Enclosed is a diagram of my invention showing how your company can incorporate my design into your product line(s). The vents in the design can also be used to put collegiate or professional logos (See Diagram on Page Two). If you are interested in pursuing my design please contact me at the following address/number.” On May 28, 1997, Nike Vice-President Andy Mooney wrote to Kellogg, stating, in part, “Thank you for your recent letter regarding your invention of vented caps. Although we appreciate your idea it is not an opportunity we are interested in pursuing at this time.”In 2004, Kellogg became aware that Nike was manufacturing caps with a design that he believed to be substantially similar to that depicted in the ‘190 patent.Kellogg brought this lawsuit against Nike alleging patent infringement. Nike denies that it infringes the ‘190 patent. Jurisdiction and venue are proper with this court.ESTABLISHED FACTSThe court has already ruled on certain legal issues and deemed certain facts as established. You are not to concern yourselves with the reasons for these rulings. You are instructed that the patent at issue is valid and enforceable.CLAIM CONSTRUCTIONBefore you decide whether the defendants have infringed the plaintiff's design patent, you will have to understand the design patent claim. The claim of a design patent is shown in drawings. The claim defines the boundaries of what is covered in the design patent. It is my job to provide to you a description, in words, of the design that is claimed in the patent and in the illustrations of the plaintiff’s design patent. This is known as a claim construction. You must accept the description I give you and use it when you decide whether the patent has been infringed. I will now describe the design patent:An ornamental design for a vented baseball-styled cap as defined by the overall visual impressions as shown in figures1 through 4. The cap has a hemispherical cap portion with a brim extending generally from one side of the cap portion. The hemispherical cap portion has four oblong-shaped vents that have sharply narrowing v-shaped ends. The vents are symmetrically shaped and extend along the seams of the panels of the cap in a generally “X”-shaped fashion with the center of the “X” being located at the top center of the cap.A copy of the design patent is attached to this instruction.DESIGN PATENT INFRINGEMENT - ESSENTIAL ELEMENTTo determineinfringement, you must compare the accused products with the illustrated design in the plaintiff’s design patent.In order to prevail on his claim of design patent infringement, the plaintiff must prove, by a preponderance of evidence, the following essential element:1.That in the eye of the ordinary observer, giving such attention as a purchaser usually gives, the two designs are substantially the same and the resemblance is such as to deceive such an observer and sufficient to him to purchase the alleged infringing product supposing it to be a device covered by the patent.If you find, by a preponderance of the evidence, that the plaintiff has proved this essential element, your verdict will be for the plaintiff on his design patent infringement claim. If you find that the plaintiff has not proved, by a preponderance of the evidence, this essential element, then your verdict will be for the defendants.WILLFUL INFRINGEMENTIf you find by a preponderance of the evidence that the defendants infringed the plaintiff's patent, then you must further determine if this infringement was willful. To prove willful infringement, the plaintiff must prove, by clear and convincing evidence, that the defendants acted in reckless disregard of the plaintiff’s patent. This is a higher standard than a preponderance of the evidence, but it does not require proof beyond a reasonable doubt. Clear and convincing evidence is evidence that shows it is highly probable that the infringement was willful.To demonstrate reckless disregard, the plaintiff must show:1.That the defendants acted despite an objectively high likelihood that their actions infringed a valid and enforceable patent.2.This objectively high likelihood of infringement was either known or so obvious that it should have been known to the defendants.In making the determination as to willfulness, you must consider the totality of the circumstances. The totality of the circumstances comprises a number of factors, which include, but are not limited to whether the defendants intentionally copied the claimed invention or a product covered by the plaintiff's patent, whether the defendants relied on competent legal advice, and whether the defendants presented a substantial defense to infringement, including the defense that the patent is invalid or unenforceable.DAMAGES - GENERALLYIf you find that the defendants’ product infringes the ‘190 patent, then you must determine the amount of damages to be awarded the plaintiff for the infringement. On the other hand, if you find that the accused product does not infringe the ‘190 patent, then you need not address damages in your deliberations. The fact that I am instructing you as to the proper measure of damages should not be construed as intimating any view of the court as to which party is entitled to prevail in this case.If you award damages, the amount of those damages must be adequate to compensate the plaintiff for the infringement. The damages you award are meant to compensate the plaintiff and not to punish the defendants. The patent owner should receive full compensation for any damages he has suffered as a result of the infringement; but, in no event may the damage award be less than a reasonable royalty. You may not add anything to the amount of damages to punish the accused infringer or to set an example.The plaintiff has the burden to prove the amount of his damages by a preponderance of the evidence. The plaintiff is not entitled to damages that are remote or speculative. Although the plaintiff is not required to prove its damages with mathematical precision, damages must be established with reasonable certainty. To the extent the defendants contend that the amount of damages should be reduced or offset, the defendants must prove the amount of such reduction or offset by a preponderance of the evidence. When the amount of damages cannot be ascertained with precision, any doubts regarding the amount must be resolved against the defendants. Any adverseto the infringer's own failure to keep accurate records.DAMAGES - REASONABLE ROYALTY - DEFINITIONA royalty is a payment made to a patent holder in exchange for the right to make, use, or sell the claimed invention. A reasonable royalty is the amount of royalty payment that a patent holder and the infringer would have agreed to in a hypothetical negotiation taking place at the time when the infringing sales first began. In considering this hypothetical negotiation, you should focus on what the expectations of the patent holder and the infringer would have been had they entered into an agreement at that time, and had they acted reasonably in their negotiations. You must also assume that both parties believed the patent was valid and that the accused product or products infringed the patent. In addition, you must assume that patent holder and infringer were willing to enter into an agreement. Your role is to determine what that agreement would have been. The measure of damages is what royalty would have resulted from the hypothetical negotiation, and not simply what royalty either party would have preferred.Although evidence of the actual profits that the defendants made may aid you in determining the anticipated profits at the time of the hypothetical negotiation, you may not limit or increase the royalty based on the defendants’ actual profits.In determining the reasonable royalty, you should consider all the facts known and available to the parties at the time the infringement began. Some of the factors that you may consider in making your determination are:1. Whether the patent holder had an established royalty for the invention; whether, in the absence of an established royalty, there is evidence that tends to prove an established royalty; whether, in the absence of such a licensing history, there are anyroyalty arrangements that were generally used and recognized in the particular industry at that time;2. The nature of the commercial relationship between the patent holder and the licensee such as whether they were competitors or whether their relationship was that of an inventor and a promoter;3. The established profitability of the patented product, its commercial success and its popularity at the time;4. Whether the patent holder had an established policy of granting licenses or retaining the patented invention as its exclusive right, or whether the patent holder had a policy of granting licenses under special conditions designed to preserve his monopoly;5. The size of the anticipated market for the invention at the time the infringement began;6. The duration of the patent and of the license, as well as the terms and scope of the license, such as whether it is exclusive or nonexclusive or subject to territorial restrictions;7. The rates paid by the licensee for the use of other patents comparable to the plaintiff's patent;8. Whether the licensee's sales of the patented invention promote sales of its other products and whether the invention generates sales to the inventor of his nonpatented items;9. The extent to which the infringer used the invention and any evidence probative of the value of such use;10. The portion of the profits in the particular business that is customarily attributable to the use of the invention or analogous inventions;11. The portion of the profits that should be credited to the invention as distinguished from nonpatented elements, the manufacturing process, business risks or significant features or improvements added by the infringer;12. The opinion and testimony of qualified experts and of the patent holder; and13. Any other factors which in your mind would have increased or decreased the royalty the infringer would have been willing to pay and the patent holder would have been willing to accept, acting as normally prudent business people.No one factor is dispositive and you can and should consider the evidence that has been presented to you in this case on each of these factors. The final factor establishes the framework which you should use in determining a reasonable royalty, i.e., the payment that would have resulted from a negotiation between a patent holder and the infringer taking place at the time when the infringing sales first began.DAMAGES - PROFITSIn the case of the infringement of a design patent, you may award the plaintiff additional damages adequate to compensate for the infringement. In addition to reasonable royalty damages, the law provides that an infringer of a design patent who, without license of the owner, (1) applies the patented design, or any colorable imitation thereof, to any article of manufacture for the purpose of sale, or (2) sells or exposes for sale any article of manufacture to which such design or colorable imitation has been applied, is liable to the patent holder to the extent of the infringer’s total profit from the infringing products.PROFITS - MEASURE OF DAMAGESThe infringer's “total profit” means the entire profit on the sale of the article to which the patented design is applied, and not just the portion of profit attributable to the design or ornamental aspects of the patent. “Total profits” do not include profits attributable to other products that may be sold in association with an infringing article embodying the patented design. A design patent owner can recover the profits not only of the manufacturer or producer of an infringing article, but also of other sellers in the chain of distribution.The plaintiff is entitled to any profits earned by the defendants that are attributable to the infringement. Profit is determined by deducting all expenses from gross revenue. Gross revenue is all of defendants’ receipts from using the design in the sale of the infringing products. The plaintiff has the burden of proving a defendants’ gross revenue by a preponderance of the evidence.Expenses are all operating, overhead, and production costs incurred in producing the gross revenue. The defendants have the burden of proving the expenses and the portion of the profit attributable to factors other than use of the infringed design by a preponderance of the evidence.Unless you find that a portion of the profit from the sale of the infringing product is attributable to factors other than use of the design, you shall find that the total profit is attributable to the infringement.GLOSSARY OF TERMSTo aid you during the trial and in your deliberations, a glossary of some common terms has been prepared. The definitions in the glossary must be followed and must control your deliberations.Applicants: The named inventors who are applying for the patent.Application: The initial papers filed by the applicant in the United States Patent andTrademark Office (also called the Patent Office or PTO).Claims: The claim defines the scope of the patent owner's exclusive rights during the life of the patent.File wrapper – See "prosecution history" below.License – Permission to use the patented invention(s), which may be granted by a patent owner (or a prior licensee) in exchange for a fee called a "royalty" or other compensation.Office action – Communication from the patent examiner regarding the specification (see definition below) and/or the claims in the patent application.Ordinary skill in the art – The level of experience, education, and/or training generally possessed by those individuals who work in the area of the invention at the time of the invention.Patent Examiners – Personnel employed by the PTO in a specific technical area who review (examine) the patent application to determine (1) whether the claims of a patent application are patentable over the prior art considered by the examiner, and (2) whether the specification/application describes the invention with the required specificity.Prior art – Knowledge that is available to the public either prior to the invention by the applicant or more than one year prior to the filing date of the application.Prosecution history – The written record of proceedings between the applicant and the PTO, including the original patent application and later communications between the PTO and applicant. The prosecution history may also be referred to as the "file history" or "file wrapper" of the patent during the course of this trial.References – Any item of prior art used to determine patentability.Specification – The information that appears in the patent and concludes with the claim. In a design patent, the specification includes a preamble, stating the name of the applicant, title of the design, and a brief description of the nature and intended use of the article in which the design is embodied; cross-reference to related applications (unless included in the application data sheet); a statement regarding federally sponsored research or development; a description of the figure or figures of the drawing; feature description; and a single claim. ................
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