[The patent holder] contends that [the alleged infringer] makes, uses, offers to sell, sells or imports a [product] [method] that infringes claims [ ] of the [XXX] patent.
[The alleged infringer] denies that it is infringing the claims of the [XXX] patent. [The alleged infringer] also contends that claims [ ] of the [XXX] patent are invalid [or unenforceable]. [INSERT BRIEF DESCRIPTION OF THE PARTICULAR INVALIDITY DEFENSES BEING ASSERTED].
Invalidity is a defense to infringement. Therefore, even though the PTO examiner has allowed the claims of the [XXX] patent, you, the jury, must decide whether the claims of the [XXX] patent are invalid.
Your job is to decide whether the asserted claims of the [XXX] patent have been infringed and whether any of the asserted claims of the [XXX] patent are invalid. If you decide that any claim of the patent has been infringed and is not invalid, you will then need to decide any money damages to be awarded to [the patent holder] as compensation for the infringement. [You will also need to decide whether the infringement was willful. If you decide that any infringement was willful, that decision should not affect any damage award you make. I will take willfulness into account later.]
Infringement Not In Issue:
Where infringement is not an issue at trial, but validity is, the Committee recommends that the court give the jury the following instruction:
[The alleged infringer] does not dispute that it infringes claims [ ] of [the patent holder]’s [XXX] patent, if those claims are valid, by making, using, offering to sell, selling or importing into the United States a [product] [method] that has each of the requirements of claims [ ] of [the patent holder]’s patent. [The alleged infringer], however, contends that claims [ ] are invalid.
The Committee has not included instructions on indefiniteness because the Federal Circuit has ruled that this is a matter for the court to decide.
The Committee has not included instructions on inequitable conduct as it sees this as normally a matter for the Court rather than the jury.
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Mike Ervin - Cost Effective Small Business Patent Protection.
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