Free Proposed Jury Instructions - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE LINEAR TECHNOLOGY CORPORATION, Plaintiff, v. MONOLITHIC POWER SYSTEMS, INC., Defendant. ) ) ) ) ) ) ) ) ) )

C.A. No. 06-476 (GMS)

FINAL JURY INSTRUCTIONS Plaintiff Linear Technology Corporation and Defendant Monolithic Power Systems, Inc., submit the following final jury instructions.

MORRIS, NICHOLS, ARSHT & TUNNELL LLP

POTTER ANDERSON & CORROON LLP

/s/ James W. Parrett, Jr.
___________________________________ Jack B. Blumenfeld (#1014) Karen Jacobs Louden (#2881) James W. Parrett, Jr. (#4292) 1201 N. Market Street P.O. Box 1347 Wilmington, DE 19899 (302) 658-9200 [email protected] [email protected] [email protected] Attorneys for Plaintiff Linear Technology Corporation June 18, 2008
2279670.20

/s/ Richard L. Horwitz
________________________________ Richard L. Horwitz (#2246) David E. Moore (#3983) Hercules Plaza, 6th Floor 1313 North Market Street Wilmington, DE 19889 (302) 984-6000 [email protected] Attorneys for Defendant Monolithic Power Systems, Inc.

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TABLE OF CONTENTS PAGE 1. GENERAL INSTRUCTIONS............................................................................................... 1 1.1 INTRODUCTION [AGREED] .....................................................................................1 1.2 JURORS' DUTIES [AGREED] ....................................................................................2 1.3 EVIDENCE DEFINED [AGREED]..............................................................................3 1.4 DIRECT AND CIRCUMSTANTIAL EVIDENCE [AGREED] ..................................4 1.5 CONSIDERATION OF EVIDENCE [AGREED] ........................................................5 1.6 STATEMENTS OF COUNSEL [AGREED] ................................................................6 1.7 CREDIBILITY OF WITNESSES [AGREED] .............................................................7 1.8 EXPERT TESTIMONY [AGREED] ............................................................................9 1.9 NUMBER OF WITNESSES [AGREED] ...................................................................10 1.10 BURDENS OF PROOF [DISPUTED]........................................................................11 2. THE PARTIES' CONTENTIONS ...................................................................................... 16 2.1 THE PARTIES [AGREED].........................................................................................16 2.2 LINEAR'S CONTENTIONS ......................................................................................17 2.3 MPS'S CONTENTIONS .............................................................................................20 2.4 SUMMARY OF BREACH OF CONTRACT ISSUES [DISPUTED]........................24 2.5 SUMMARY OF PATENT ISSUES [DISPUTED] .....................................................27 3. BREACH OF CONTRACT................................................................................................. 30 3.1 BREACH OF CONTRACT ­ FACTUAL ELEMENTS [AGREED] ........................30 3.2 INTERPRETATION ­ CRITICAL TERM [MPS; DISPUTED AS TO INCLUSION] ..............................................................................................................31 4. INFRINGEMENT ............................................................................................................... 36 4.1 CLAIM INFRINGEMENT [AGREED]......................................................................36 4.2 CONSTRUCTION OF CLAIMS [AGREED IN PART] ............................................37 -i-

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4.3 PATENT INFRINGEMENT ­ GENERALLY [AGREED] .......................................38 4.4 DIRECT INFRINGEMENT [DISPUTED] .................................................................39 4.5 INDIRECT INFRINGEMENT [DISPUTED].............................................................45 4.6 INDUCING PATENT INFRINGEMENT [DISPUTED] ...........................................49 4.7 CONTRIBUTORY INFRINGEMENT [DISPUTED] ................................................53 4.8 LITERAL INFRINGEMENT [DISPUTED]...............................................................57 4.9 DOCTRINE OF EQUIVALENTS [DISPUTED AS TO INCLUSION] ....................61 4.10 MEANS-PLUS-FUNCTION CLAIMS [AGREED]...................................................64 4.11 WILLFUL INFRINGEMENT [DISPUTED, DISPUTED AS TO INCLUSION] ..............................................................................................................66 4.12 SETTLEMENT AGREEMENT NOT EVIDENCE AS TO EITHER INFRINGEMENT OR VALIDITY [MPS; DISPUTED AS TO INCLUSION].........69 4.13 MPS DECISION TO STOP SALES OF MP1543 NOT EVIDENCE AS TO EITHER INFRINGEMENT OR VALIDITY [MPS; DISPUTED AS TO INCLUSION] ..............................................................................................................71 5. INVALIDITY DEFENSES ................................................................................................. 74 5.1 SUMMARY OF THE INVALIDITY DEFENSE [AGREED] ...................................74 5.2 ANTICIPATION [DISPUTED] ..................................................................................75 5.3 PRINTED PUBLICATIONS AS PRIOR ART [AGREED] .......................................80 5.4 OBVIOUSNESS [DISPUTED] ...................................................................................81 5.5 SCOPE AND CONTENT OF THE PRIOR ART [AGREED] ...................................87 5.6 DIFFERENCES BETWEEN THE CLAIMS AND THE PRIOR ART [DISPUTED] ...............................................................................................................88 5.7 LEVEL OF ORDINARY SKILL [AGREED] ............................................................92 5.8 FACTORS INDICATING OBVIOUSNESS: INDEPENDENT INVENTION BY OTHERS [AGREED] ...........................................................................................93 5.9 FACTORS INDICATING NON-OBVIOUSNESS [AGREED].................................94 6. DELIBERATION AND VERDICT .................................................................................... 95

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6.1 INTRODUCTION [AGREED] ...................................................................................95 6.2 DUTY TO DELIBERATE [AGREED].......................................................................97 6.3 COURT HAS NO OPINION [AGREED]...................................................................98 APPENDIX A..................................................................................................................................a

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1. 1.1

GENERAL INSTRUCTIONS INTRODUCTION [AGREED]

Members of the jury, now it is time for me to instruct you about the law that you must follow in deciding this case. Each of you has been provided a copy of these instructions. You may read along as I deliver them if you prefer, however, I would encourage you to focus your attention on me while the instructions are being read. You will be able to take your copies with you into your deliberations and refer to them at that time, if necessary. I will start by explaining your duties and the general rules that apply in every civil case. Then I will explain some rules that you must use in evaluating particular testimony and evidence. Then I will explain the positions of the parties and the law you will apply in this case. And last, I will explain the rules that you must follow during your deliberations in the jury room, and the possible verdicts that you may return. Please listen very carefully to everything I say.

Sources: Adapted from Miscellaneous Jury Instructions (GMS) (1/18/06).

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1.2

JURORS' DUTIES [AGREED]

Members of the Jury, it is important that you bear in mind the distinction between your duties and my duties. You have two main duties as jurors. The first one is to decide what the facts are from the evidence that you saw and heard here in court. You are the sole judges of the facts. It is your judgment, and your judgment alone, to determine what the facts are, and nothing that I have said or done during this trial was meant to influence your decision about the facts in any way. Your second duty is to take the law that I give you, apply it to the facts, and decide if MPS is liable. Now, as far as my duty is concerned, I have the duty of advising you about the law you should apply to the facts as you find them. You are not to consider whether the principles I state to you are sound or whether they accord with your own views about policy. You are bound by the oath that you took at the beginning of the trial to follow the instructions that I give you, even if you personally disagree with them. You must accept them despite how you feel about their wisdom. This includes the instructions that I gave you before and during the trial, and these instructions. All the instructions are important, and you should consider them together as a whole. Perform these duties fairly. Do not let any bias, sympathy or prejudice that you may feel toward one side or the other influence your decision in any way.

Sources: Adapted from Miscellaneous Jury Instructions (GMS) (1/18/06).

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1.3

EVIDENCE DEFINED [AGREED]

You must make your decision based only on the evidence that you saw and heard here in court. Do not let rumors, suspicions, or anything else that you may have seen or heard outside of court influence your decision in any way. The evidence in this case includes only what the witnesses said while they were testifying under oath, deposition transcript testimony that was presented to you, the exhibits that I allowed into evidence, and the stipulations to which the lawyers agreed. Nothing else is evidence. The lawyers' statements and arguments are not evidence. The arguments of the lawyers are offered solely as an aid to help you in your determination of the facts. Their questions and objections are not evidence. My legal rulings are not evidence. My comments and questions are not evidence. During the trial I may have not let you hear the answers to some of the questions that the lawyers asked. I also may have ruled that you could not see some of the exhibits that the lawyers wanted you to see. You must completely ignore all of these things. Do not speculate about what a witness might have said, or what an exhibit might have shown. These things are not evidence, and you are bound by your oath not to let them influence your decision in any way. Make your decision based only on the evidence, as I have defined it here, and nothing else.

Sources: Adapted from Miscellaneous Jury Instructions (GMS) (1/18/06).

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1.4

DIRECT AND CIRCUMSTANTIAL EVIDENCE [AGREED] You have heard the terms direct and circumstantial evidence. Direct evidence is simply evidence like the testimony of an eyewitness which, if

you believe it, directly proves a fact. If a witness testified that she saw it raining outside, and you believed her, that would be direct evidence that it was raining. Circumstantial evidence is simply a chain of circumstances that indirectly proves a fact. 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. It is your job to decide how much weight to give the direct and circumstantial evidence. The law makes no distinction between the weight that you should give to either one, nor does it say that one is any better than the other. You should consider all the evidence, both direct and circumstantial, and give it whatever weight you believe it deserves.

Sources: Adapted from Miscellaneous Jury Instructions (GMS) (1/18/06).

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1.5

CONSIDERATION OF EVIDENCE [AGREED]

You should use your common sense in weighing the evidence. Consider it in light of your everyday experience with people and events, and give it whatever weight you believe it deserves. If your experience tells you that certain evidence reasonably leads to a conclusion, you are free to reach that conclusion.

Source: Adapted from Miscellaneous Jury Instructions (GMS) (1/18/06).

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1.6

STATEMENTS OF COUNSEL [AGREED]

A further word about statements and arguments of counsel. The attorneys' statements and arguments are not evidence. Instead their statements and arguments are intended to help you review the evidence presented. If you remember the evidence differently from the attorneys, you should rely on your own recollection. The role of attorneys is to zealously and effectively advance the claims of the parties they represent within the bounds of the law. An attorney may argue all reasonable conclusions from evidence in the record. It is not proper, however, for an attorney to state an opinion as to the truth or falsity of any testimony or evidence. What an attorney personally thinks or believes about the testimony or evidence in a case is not relevant, and you are instructed to disregard any personal opinion or evidence that an attorney has offered during opening or closing statements, or at any other time during the course of the trial.

Source: Adapted from Miscellaneous Jury Instructions (GMS) (1/18/06).

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1.7

CREDIBILITY OF WITNESSES [AGREED]

You are the sole judges of each witness's credibility. You should consider each witness's means of knowledge; strength of memory; opportunity to observe; how reasonable or unreasonable the testimony is; whether it is consistent or inconsistent; whether it has been contradicted; the witness's biases, prejudice, or interests; the witness's manner or demeanor on the witness stand; and all circumstances that, according to the evidence, could affect the credibility of the testimony. If you find the testimony to be contradictory, you must try to reconcile it, if reasonably possible, so as to make one harmonious story of it all. But if you can't do this, then it is your duty and privilege to believe the testimony that, in your judgment, is most believable and disregard any testimony that, in your judgment, is not believable. In determining the weight to give to the testimony of a witness, you should ask yourself whether there is evidence tending to prove that the witness testified falsely about some important fact, or, 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 he or she gave at trial. You have the right to distrust such witness's testimony in other particulars and you may reject all or some of the testimony of that witness or give it such credibility as you may think it deserves. You should remember that a simple mistake by a witness does not necessarily mean that the witness was not telling the truth. People may tend to forget some things or remember other things inaccurately. If a witness has made a misstatement, you must consider whether it was simply an innocent lapse of memory or an intentional falsehood, and that may depend upon whether it concerns an important fact or an unimportant detail. This instruction applies to all witnesses. -7-

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Sources: Adapted from Miscellaneous Jury Instructions (GMS) (1/18/06).

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1.8

EXPERT TESTIMONY [AGREED]

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. 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's opinions, as well as the factors I have previously mentioned for weighing testimony of any other witness. Expert testimony should receive whatever weight and credit you think appropriate, given all the other evidence in the case.

Sources: Adapted from Miscellaneous Jury Instructions (GMS) (1/18/06).

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1.9

NUMBER OF WITNESSES [AGREED]

One more point about the witnesses. Sometimes jurors wonder if the number of witnesses who testified makes any difference. Do not make any decisions based only on the number of witnesses who testified. What is more important is how believable the witnesses were, and how much weight you think their testimony deserves. Concentrate on that, not the numbers.

Sources: Adapted from Miscellaneous Jury Instructions (GMS) (1/18/06).

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1.10

BURDENS OF PROOF [DISPUTED] Linear proposed Burdens of Proof

This is a civil case in which the plaintiff, Linear, is charging the defendant, MPS, with breach of contract and patent infringement. Linear has the burden of proving its claims by a preponderance of the evidence. Proof by a preponderance of the evidence means proof that something is more likely true than not. It means that certain evidence, when compared to the evidence opposed to it, has the more convincing force and makes you believe that something is more likely true than not. To put it differently, if you were to put Linear's and MPS's evidence on the opposite sides of a scale, the evidence supporting Linear's claims would have to make the scales tip somewhat on Linear's side. Preponderance of the evidence does not depend on the number of witnesses. If the evidence as to a particular element or issue is evenly balanced, the party has not proved the element by a preponderance of the evidence and you must find against that party. In determining whether any fact has been proven by a preponderance of the evidence, you may consider the testimony of all witnesses, regardless of who called them and all exhibits received into evidence regardless of who produced them. Linear further urges that MPS's patent infringement has been willful. Linear has the burden of proving willfulness of the infringement by clear and convincing evidence. Clear and convincing evidence is evidence that produces an abiding conviction that a factual contention is true. Proof by clear and convincing evidence is thus a higher burden than proof by a preponderance of the evidence. MPS asserts in this case that Linear's patents are invalid. However, if the Settlement Agreement has been breached, that Settlement Agreement provides that MPS cannot challenge validity in an action to establish that breach. In any event, a patent is presumed to be - 11 -

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valid. Accordingly, the party challenging the patent has the burden of proving by clear and convincing evidence that the patent is invalid. Those of you who are familiar with criminal cases will have heard the term proof beyond a reasonable doubt. That burden does not apply in a civil case and you should therefore put it out of your mind in considering whether or not the parties have met their burdens of proof.

Sources: Adapted from Uniform Jury Instructions For Patent Cases In The United States District Court For The District Of Delaware 1.3 (1993) and Miscellaneous Jury Instructions (GMS) (1/18/06).

MPS Objections To Linear's Proposed Burdens Of Proof MPS objects to that portion of Linear's proposed instruction that states: "However, if the Settlement Agreement has been breached, that Settlement Agreement provides that MPS cannot challenge validity in an action to establish that breach." This is a blatant attempt to ignore and contradict the Court's orders, which make it very clear that the jury will be asked to make findings with respect to validity and then the Court will determine how to treat those findings. The Court has expressly stated that: (1) "the court will determine whether this action is one to enforce the Settlement Agreement after the jury makes its findings with respect to the ZX circuitry issue," (2) "the court will not preclude MPS from presenting its invalidity issues to the jury," and (3) "[s]hould it come to pass that the jury concludes the MP1543 product contains the ZX circuitry, then the court will hold the jury's findings with respect to validity of the patents-in-suit moot." June 23, 2008 Memorandum and Order (D.I. 201), at 11 & n.6 (emphasis added). Furthermore, on June 30, 2008, the Court denied Linear's request that the

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issue of validity be bifurcated from the breach of contract and infringement issues. It is improper for Linear to circumvent the Court's orders by suggesting to the jury that it may not need to issue a verdict on invalidity if it finds that MPS has breached the Settlement Agreement. MPS objects to Linear's repetition of the explanation of the preponderance of the evidence burden of the proof as redundant and risking confusion. The Court's prior statement of the standard in the Telcordia case is more concise and should be used here. MPS objects to Linear's inclusion of allegations that MPS's infringement was willful. As an initial matter, Linear has no evidence to support an allegation of willful infringement. Linear brought this lawsuit without providing notice to MPS. At that time, no judicial officer had addressed the claim construction disputes between the parties. MPS voluntarily discontinued sales of the MP1543 pending the outcome of this lawsuit. Total net sales of the MP1543 in the United States totaled 110 parts and approximately $100. Furthermore, MPS consistently has maintained that the asserted patent claims are invalid. Given this factual record, Linear had no basis for alleging willful infringement in the first place. Furthermore, the issue of willfulness is not relevant to any issue in this case; it would only be relevant if there were a possibility that patent infringement damages could be enhanced. There is no such possibility in this case. The parties have stipulated to patent infringement damages of $10 should Linear establish infringement of a valid and enforceable patent claim. D.I. 88. Thus, Linear does not have an opportunity to claim enhanced damages. Accordingly, willfulness is not relevant to any issue in this case, and mentioning it in the jury instructions would be confusing to the jury and prejudicial to MPS.

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MPS Proposed Burdens of Proof This is a civil case in which the plaintiff, Linear, is charging the defendant, MPS, with breach of contract and patent infringement. MPS denies these charges. Linear has the burden of proving its claims by a preponderance of the evidence. Proof by a preponderance of the evidence means proof that something is more likely true than not. It means that certain evidence, when compared to the evidence opposed to it, has the more convincing force and makes you believe that something is more likely true than not. To put it differently, if you were to put Linear's and MPS's evidence on the opposite sides of a scale, the evidence supporting Linear's claims would have to make the scales tip somewhat on Linear's side. In this case, MPS also asserts that the claims in Linear's patents which are being asserted against MPS are invalid. A party challenging the patent has the burden of proving by clear and convincing evidence that the patent is invalid. Clear and convincing evidence is evidence that produces an abiding conviction that the truth of a factual contention is highly probable. Proof by clear and convincing evidence is thus a higher burden than proof by a preponderance of the evidence. Those of you who are familiar with criminal cases will have heard the term proof beyond a reasonable doubt. That burden does not apply in a civil case and you should therefore put it out of your mind in considering whether or not the parties have met their burdens of proof.

Sources: Adapted from Instruction 1.10 given in Telcordia Technologies, Inc. v. Cisco Systems, Inc., No. 04-876-GMS

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Linear's Objections To MPS's Proposed Burdens of Proof Linear objects to MPS's proposed instruction on Burdens of Proof to the extent that it omits language from the Court's standard Miscellaneous Jury Instructions (GMS, Rev. 1/18/06) explaining what is meant by "a preponderance of the evidence." Linear submits that this language is necessary and helpful to the jury to understand this burden. In particular, Linear objects to the omission of the Court's standard language on the testimony of witnesses in relation to the preponderance of the evidence standard. Linear objects to MPS's proposed instruction on Burdens of Proof to the extent MPS omits Linear's claim of willful infringement. That MPS may disagree with such a claim provides no basis not to advise the jury of Linear's properly pleaded claim. It is also relevant to Linear's claim that this an exceptional case, entitling Linear to its attorneys' fees.

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2. 2.1

THE PARTIES' CONTENTIONS THE PARTIES [AGREED]

The plaintiff in this case is Linear Technology Corporation. Linear owns United States Patent Nos. 5,481,178 and 6,580,258 B2. The defendant in this case is Monolithic Power Systems, Inc. For convenience, I will refer to the plaintiff as Linear and the defendant as MPS. As I noted at the start of the trial, I will refer to the asserted patents by their last three numbers: the '178 patent and the '258 patent.

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2.2

LINEAR'S CONTENTIONS

Linear alleges that MPS has breached its prior agreement with Linear which the parties entered into in settlement of earlier patent litigation over voltage regulator circuits which are used in laptop or notebook computers, cell phones and other battery-operated electronic devices to save power. I shall refer to this agreement as the "Settlement Agreement." Linear alleges that MPS violated the Settlement Agreement through the unauthorized making, using, selling, or offering for sale of MP1543 products with the ZX circuitry identified by counsel for Linear in the ITC proceeding connected such that it allows the product to enter into "sleep mode," allows the product to enter into "reverse polarity protection," or allows the product to otherwise practice the Asserted Claims. Whether or not MPS breached the Settlement Agreement, Linear seeks a determination that that MPS has infringed the '178 and '258 patents as a result of unauthorized manufacture and sale of voltage regulator circuits following the Settlement Agreement. Linear also seeks a determination that MPS's infringement of the '178 and '258 patents has been willful.

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MPS Objections To Linear's Contentions MPS objects to Linear's purported summary of the Settlement Agreement. Linear directly contradicts both the plain language of the Settlement Agreement and the Court's May 23, 2008 Order (D.I. 201). Linear's attempt to circumvent the Court's order by submitting a misleading jury instruction is improper. Contrary to Linear's proposed instruction, Section 3.3 of the Settlement Agreement says nothing about "unauthorized making," "using," or "offering for sale." The only conduct specified in that section is making sales. The Court's order states this expressly. (D.I. 201 at 9.) Linear's statement (in its objections to MPS's proposed instruction) that MPS could breach the Settlement Agreement by "making, using, selling or offering for sale" is simply wrong and reflects another fundamental misunderstanding of the agreement. MPS's instruction, which follows, accurately reflects the language of the Settlement Agreement and the Court's order. In its objections to MPS's instruction, Linear states that "the Court did not establish two separate requirements." The Court's order states (D.I. 201 at 8-9) (emphasis added): [T]he court agrees with MPS that the purpose and intent of the Settlement Agreement was to address "the accused ZX circuitry" and MPS products containing such circuitry, not each and every one of Linear's potential infringement allegations regarding the patents-in-suit. The language of section 3.3 is specific and narrowly drawn, so as to preclude MPS from making any sales of products "in which the ZX circuitry identified by counsel for Linear in the ITC Proceeding is connected so as to allow such products to enter into . . . [(1)] `sleep mode,' [(2)] `reverse polarity protection,' or [(3)] otherwise practice the Asserted Claims anywhere in the world." Accordingly, in order for MPS to be in breach of the Settlement Agreement, its MP1543 product must contain the ZX circuitry identified by counsel for Linear in the ITC proceeding connected such that it (1) allows the product to

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enter into "sleep mode;" (2) allows the product to enter into "reverse polarity protection;" or (3) allows the product to otherwise practice the Asserted Claims. Thus, "the ZX circuitry identified by counsel for Linear in the ITC Proceeding" must be present in the part and the circuitry must be connected in the specified manner. The Court should also be aware that Linear is taking a completely contradictory position as to the meaning of "circuitry" than it is advocating in the Federal Circuit in its lawsuit against AATI. In that case, the same attorneys who are representing Linear in this case have asserted that "a single difference will suffice to distinguish two circuits." April 9, 2008 NonConfidential Brief of Appellant-Intervenor Linear Technology Corporation, at 27 n.10. Similarly, during the claim construction briefing in this case, Linear successfully argued that the "third circuit certainly is distinct from the first and second circuits in that not every electronic component of the three circuits is the same." Linear Technology Corporation's June 26, 2007 Answering Claim Construction Brief (D.I. 57), at 14. The Court adopted Linear's construction, construing the term "third circuit" to mean "a circuit that is distinct from each of the first and second circuits in that not every electronic component of the circuits is the same." Claim Construction Order (D.I. 107), at 7. The circuitry in the MP1543 that Linear has identified as a reverse current comparator is vastly different than "the ZX circuitry identified by counsel for Linear in the ITC Proceeding." For example, the former is made up of 5 MOSFET transistors and two bipolar transistors. The latter contained 23 MOSFETs, 7 bipolar transistors, 4 inverters and 6 resistors. As set forth above in its objections to Linear's Proposed "Burdens of Proof" instruction, MPS objects to Linear's inclusion of allegations that MPS's infringement was willful.

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2.3

MPS'S CONTENTIONS

MPS contends that it has not breached the Settlement Agreement. Specifically, MPS contends that the accused MPS part in this case ­ the MP1543 ­ did not possess "the ZX circuitry identified by counsel for Linear in the ITC Proceeding," and that it has not sold an MP1543 in which that specific circuitry was connected so as to either (1) allow the product to enter into "sleep mode," (2) allow the product to enter into "reverse polarity protection," or (3) allow the product to otherwise practice the claims asserted in the ITC Proceeding. MPS further contends that the accused MP1543 part did not infringe any of the asserted claims of the '178 or '258 patents because Linear has not proven that the accused MPS product met every limitation of the asserted claims. MPS further contends that the two Linear patents are invalid. Specifically, MPS contends that the asserted claims of the '178 and '258 patents are not new and/or are obvious in view of the prior art. [If Linear is permitted to argue willful infringement to the jury]: MPS further contends that it did not willfully infringe any claim of either the '178 or the '258 patent.

Linear's Objections To MPS's Contentions Linear objects to MPS's contentions to the extent MPS omits Linear's claim of willful infringement. That MPS may disagree with such a claim provides no basis not to advise the jury of Linear's properly pleaded claim. It is also relevant to Linear's claim that this is an exceptional case, entitling Linear to its attorneys' fees. Linear's proposed instruction accurately describes the facts established by the Court. In contrast, MPS's instruction inaccurately recites the Court's rulings. The Court did not

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establish two separate requirements. Nor did it hold that the "specific circuitry" must be connected. What the Court instead held is that: Accordingly, in order for MPS to be in breach of the Settlement Agreement, its MP1543 product must contain the ZX circuitry identified by counsel for Linear in the ITC proceeding connected such that it (1) allows the product to [e]nter into "sleep mode" (2) allows the product to enter into "reverse polarity protection," or (3) allows the product to otherwise practice the Asserted Claims. (D.I. 201 at 9). For the first time on June 17, 2008, MPS included what it purports to be an "objection" to Linear's contentions (which in fact does not respond to Linear's instruction at all), but is really an effort to reargue its motion for summary judgment as to the meaning of "ZX Circuitry." In its May 23, 2008 Opinion, the Court rejected MPS's request to enter summary judgment on the basis that the MP1543 purportedly does not contain the "ZX Circuitry identified by counsel for Linear in the ITC proceeding." Instead, it acknowledged that Linear's position that "although the circuitry in the MP1543 is not labeled as `ZX circuitry,' it performs the same function as the ZX circuitry in the MP1556 and, therefore, contains the same circuitry at issue in the ITC proceeding" created a genuine issue of fact that was supported by experts. (D.I. 201 at 10-11). MPS's attempt to argue its position that circuitry in the MP1543 instead "is vastly different" from the ZX circuitry identified by counsel for Linear is a plainly improper attempt to argue the merits of its position in the guise of an "objection" to a jury instruction that does not address that issue. Furthermore, MPS purports to rely on two briefs that addressed different issues ­ Linear's June 26, 2007 claim construction brief (filed nearly a year ago) and on an appeal brief that Linear filed on April 9, 2008, nearly two months before the pretrial conference. Those briefs had nothing to do with "ZX circuitry" and out of context snippets cannot change that fact.

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In any event, MPS's attempt to belatedly raise these arguments now for the first time in an "objection" to a jury instruction that does not address the issue, and raised after the Court has already decided MPS's summary judgment motion, is plainly improper.

MPS's Response to Linear's Objections Linear's objection to this simple, accurate instruction reveals its improper strategy ­ to ignore the Court's Order by now arguing that the ZX circuitry is not specific circuitry identified by counsel in the ITC proceeding, but instead can be any circuitry that Linear might argue is functionally similar and infringes the patents. The Court expressly rejected this position, stating that the phrase "the ZX circuitry identified by counsel in the ITC Proceeding" is clear and unambiguous. For example, in Footnote 4, the Court stated (emphasis added): Linear now appears to argue that the phrase "the ZX circuitry identified by counsel for Linear in the ITC Proceeding," is unclear, because its counsel did not know what the ZX circuitry was since it had not seen the schematics. The court finds this argument without merit. If Linear thought that the phrase was unclear, Linear should have made that known during the negotiations, and negotiated for different language to be used in the Settlement Agreement, or defined the term in section 1 of the agreement. It is very easy and often tempting for the court to play Monday morning quarterback and adopt an interpretation based on hindsight, or what it believes the parties knew at the time the contract was signed. This court, however, is not willing to adopt such an approach in interpreting an arms length agreement that is clear on its face and unambiguous. The Court did state that Linear had created an issue of fact ­ but not as to what constitutes "the ZX circuitry identified by counsel for Linear in the ITC Proceeding." Rather, the Court found that Linear had created an issue of fact as to whether the identified ZX circuitry is physically present in the MP1543. D.I. 201, at 10-11 ("Thus, there appears to be a classic

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battle of the experts on the issue of whether the MP1543 product contains the ZX circuitry identified by counsel for Linear in the ITC proceeding."). While Linear's purported evidence was sufficient to prevent the Court from finding as a matter of law, on the then-existing record, that "the ZX circuitry identified by counsel for Linear in the ITC Proceeding" is not in the MP1543, the truth is ­ and Linear is well aware of this truth ­ that the circuitry is different, plain and simple. Linear has no evidence to the contrary. Knowing this, Linear now is forced to argue that the phrase "the ZX circuitry identified by counsel for Linear in the ITC Proceeding" means any circuitry that is functionally similar and in its view infringing. The Court, however, has already rejected that argument. Linear should not be allowed to argue ­ through an improperly broad definition of "the ZX circuitry . . ." ­ the exact same thing that it previously argued unsuccessfully ­ i.e., that any infringing circuitry violates Section 3.3 of the Settlement Agreement. The Court has ruled. The phrase "the ZX circuitry identified by counsel for Linear in the ITC Proceeding" is clear and unambiguous. It means the specific ZX circuitry identified by counsel for Linear in the ITC proceeding ­ circuitry that was present and connected in the MP1556 that was at issue in that proceeding. Lastly, Linear's comment concerning the timing of MPS's objection is a smokescreen. Linear has extensively revised its proposed final jury instructions and objections to MPS's proposed final jury instructions in the past week, including on June 17, 2008. Those revisions reflect a clear intention to ignore the Court's May 23, 2008 order. MPS has every right to raise these objections.

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2.4

SUMMARY OF BREACH OF CONTRACT ISSUES [DISPUTED] Linear proposed Summary of Breach of Contract Issues The following is a summary of the breach of contract issues that you are asked to

decide: Whether Linear has proven by a preponderance of the evidence that MPS has violated Section 3.3 of the Settlement Agreement by unauthorized making, using, selling, or offering for sale the MP1543 with the ZX circuitry identified by counsel for Linear in the ITC proceeding connected such that it allows the product to enter into "sleep mode," allows the product to enter into "reverse polarity protection," or allows the product to otherwise practice the Asserted Claims. Reservation of Rights Supplementing its prior submissions and statements, Linear objects to the contract interpretations herein to the extent they differ from the interpretations Linear proposed in its summary judgment briefs. The bases for Linear's objections are of record. Linear reserves the right to challenge these interpretations on appeal.

MPS Objections To Linear's proposed Summary of Breach of Contract Issues For the same reasons that MPS has objected to Linear's proposed "Contentions" Instruction, MPS objects to Linear's proposed Summary of Breach of Contract Issues instruction. As set forth earlier: Contrary to Linear's proposed instruction, Section 3.3 of the Settlement Agreement says nothing about "unauthorized making," "using," or "offering for sale." The only conduct specified in that section is making sales. The Court's order states this expressly. (D.I. 201 at 9.) Linear's statement (in its objections to MPS's proposed instruction) that MPS could breach the Settlement Agreement by "making, using, selling or offering for sale" is simply wrong and reflects another fundamental misunderstanding of the agreement.

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MPS's instruction, which follows, accurately reflects the language of the Settlement Agreement and the Court's order. In its objections to MPS's instruction, Linear states that "the Court did not establish two separate requirements." The Court's order states (D.I. 201 at 8-9) (emphasis added): [T]he court agrees with MPS that the purpose and intent of the Settlement Agreement was to address "the accused ZX circuitry" and MPS products containing such circuitry, not each and every one of Linear's potential infringement allegations regarding the patents-in-suit. The language of section 3.3 is specific and narrowly drawn, so as to preclude MPS from making any sales of products "in which the ZX circuitry identified by counsel for Linear in the ITC Proceeding is connected so as to allow such products to enter into . . . [(1)] `sleep mode,' [(2)] `reverse polarity protection,' or [(3)] otherwise practice the Asserted Claims anywhere in the world." Accordingly, in order for MPS to be in breach of the Settlement Agreement, its MP1543 product must contain the ZX circuitry identified by counsel for Linear in the ITC proceeding connected such that it (1) allows the product to enter into "sleep mode;" (2) allows the product to enter into "reverse polarity protection;" or (3) allows the product to otherwise practice the Asserted Claims. Thus, "the ZX circuitry identified by counsel for Linear in the ITC Proceeding" must be present in the part and the circuitry must be connected in the specified manner.

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MPS proposed Summary Of Breach Of Contract Issues The following is a summary of the breach of contract issues that you are asked to decide: Whether Linear has proven by a preponderance of the evidence that MPS has violated Section 3.3 of the Settlement Agreement by selling the MP1543 part. In order to prevail on this issue, Linear would have to prove that the MP1543 part contained "the ZX circuitry identified by counsel for Linear in the ITC Proceeding" and further that such circuitry is connected such that it (1) allows the product to enter into "sleep mode;" (2) allows the product to enter into "reverse polarity protection;" or (3) allows the product to otherwise practice the Asserted Claims.

Linear's Objections To MPS's Proposed Summary of Breach of Contract Issues Linear objects to MPS's proposed instruction to the extent it presents a one-sided case presentation through a partial quote from section 3.3. Linear also objects to MPS's instruction to the extent it inaccurately recites the Court's ruling. The Court did not establish two separate requirements ­ "Linear would have to prove that the MP1543 part contained the `ZX circuitry'... and further that such circuitry is connected...."

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2.5

SUMMARY OF PATENT ISSUES [DISPUTED] Linear proposed Summary of Patent Issues

The following is a summary of the patent infringement issues that you are asked to decide independently of the breach of contract issues: 1. Whether Linear has proven by a preponderance of the evidence that MPS's manufacture, use, sale, offer for sale or importation into the United States of the MP 1543, or the methods practiced by that product, infringe, either literally or under the doctrine of equivalents, any of the asserted claims of Linear's '178 of '258 patents. Whether Linear has proven by a preponderance of the evidence that MPS has either induced or contributed to the infringement by others of the asserted claims of the '178 of '258 patents. Whether Linear has proven by clear and convincing evidence that MPS's infringement has been willful.

2.

3.

You are also asked to decide: 4. Whether MPS has proven by clear and convincing evidence that the asserted claims of the '178 or '258 patents are invalid.

MPS Objections to Linear Proposed Summary of Patent Issues MPS objects to Linear's first patent issue on the grounds that there is no evidence that the MP1543, by itself, directly infringed any asserted claim. MPS also objects to that portion of Linear's first patent issue which refers to infringement under the doctrine of equivalents. The doctrine of equivalents is not at issue in this case. Linear did not offer any evidence or argument, either in response to MPS's interrogatories or in any of its expert's three reports, that MPS has infringed any claim under the doctrine of equivalents. Thus, there is no basis for instructing the jury on the doctrine of equivalents. MPS objects to Linear's second patent issue. As discussed during the May 23, 2008 hearing, Linear has not presented any evidence, either through its interrogatory responses,

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or through its expert reports, of any alleged direct infringement of any asserted claim by any MPS customer. The Court stated that it would handle this issue through JMOL motion. May 23, 2008 Hearing Transcript, at 23-24. As set forth above in its objections to Linear's Proposed "Burdens of Proof" instruction, MPS objects to Linear's inclusion of allegations that MPS's infringement was willful.

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MPS proposed Summary of Patent Issues The following is a summary of the patent infringement issues that you are asked to decide independently of the breach of contract issues: 1. Whether Linear has proven by a preponderance of the evidence that MPS's manufacture, use, sale, offer for sale or importation into the United States of the MP1543 constituted direct infringement of any of the asserted claims of Linear's '178 or '258 patents. 2. Whether MPS has proven by clear and convincing evidence that the asserted claims of Linear's '178 or '258 patents are invalid.

Linear's Objections To MPS's Proposed Summary Of Patent Issues Linear objects to MPS's first patent issue to the extent it omits Linear's claims for indirect infringement and infringement under the doctrine of equivalents. Further, the Court denied MPS's motion in limine No. 4, which sought to exclude such evidence. That MPS may disagree with such claims provides no basis not to advise the jury of Linear's properly pleaded claims. MPS cannot obtain judgment in its favor on substantive issues by arguing what the evidence shows in the jury instructions. Linear also objects to MPS's proposed instruction on Summary of Patent Issues to the extent MPS omits Linear's claim of willful infringement. That MPS may disagree with such a claim provides no basis not to advise the jury of Linear's properly pleaded claim. It is also relevant to Linear's claim that this is an exceptional case, entitling Linear to its attorneys' fees.

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3. 3.1

BREACH OF CONTRACT

BREACH OF CONTRACT ­ FACTUAL ELEMENTS [AGREED] To recover for MPS's breach of contract, Linear must prove the following: 1. 2. 3. 4. That Linear and MPS entered into a contract; That Linear did all, or substantially all, of the significant things that the contract required it to do; That MPS did something that the contract prohibited it from doing; and That Linear was harmed by that.

Sources: Adapted from Judicial Council of California Civil Jury Instructions (CACI) Instruction 300; New September 2003; Revised December 2007.

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3.2 INTERPRETATION ­ CRITICAL TERM [MPS; DISPUTED AS TO INCLUSION] The following term contained in the Settlement Agreement is central to the parties' dispute: "the ZX circuitry identified by counsel for Linear in the ITC Proceeding" I have found that this term is clear and unambiguous. For avoidance of doubt, the term means: The specificZX circuitry that was identified by Linear's counsel in the ITC Proceeding. It was present and connected in the MP1556 part at issue in the ITC Proceeding.

Sources: May 23, 2008 Memorandum and Order (D.I. 201) at 8-9 & n.4, 14.

Linear's objections to MPS's proposed instruction on Interpretation- Critical Term MPS's proposed instruction directing the jury on one portion of one provision of the Settlement Agreement is an improper attempt by MPS to have the ultimate issue in the case ­ as to which the Court ruled there are disputed facts ­ decided in its favor in the jury instructions. The Court in its Memorandum Opinion and Order (D.I. 201) did not, as MPS alleges, define "the ZX circuitry identified by counsel for Linear in the ITC Proceeding" as "[t]he specific circuitry that was identified by Linear's counsel in the ITC Proceeding" or rule that it is a "critical term." Nor did it hold that "it was present and connected in the MP1556 part at issue in the ITC proceeding." In fact, the language of the instruction "the specific circuitry that was identified by Linear's counsel" and "[i]t was present and connected in the MP1556 part at issue" appears nowhere in the Court's opinion or the Settlement Agreement. MPS improperly attempts to use

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this instruction to advance its contract interpretation that the Court rejected. In its Opinion and Order, the Court instead construed Section 3.3 of the Settlement Agreement to mean (D.I. 201 at ¶ 6): Section 3.3 of the Settlement Agreement requires the MP1543 product to contain the ZX circuitry identified by counsel for Linear in the ITC proceeding connected such that it allows the product to [e]nter into "sleep mode;" allows the product to enter into "reverse polarity protection;" or allows the product to otherwise practice the Asserted Claims. The Court did not hold that the ZX Circuitry was limited to "the specific circuitry" present and connected in the MP1556 part at issue as MPS contends. The Court further acknowledged that Linear's position that "although the circuitry in the MP1543 is not labeled as `ZX circuitry,' it performs the same function as the ZX circuitry in the MP1556 and, therefore, contains the same circuitry at issue in the ITC proceeding" created a genuine issue of fact that was supported by experts. (Id. at 10-11). MPS attempts to have that factual dispute resolved in its favor by adopting a narrow interpretation of the provision that the Court did not accept in its decision. MPS's attempt to draw attention to only one phrase of Section 3.3 of the Settlement Agreement also is misleading and confusing to the jury and unfairly prejudicial, especially divorced from the entirety of the section as the Court interpreted it. This instruction is also unnecessary as the jury already will be instructed on Section 3.3 in the parties' contentions and the Summary of the Contract Issues (Instructions 2.2, 2.3 and 2.4). MPS's instruction also inaccurately recites the Court's rulings and is misleading to the extent it seeks to parse the language of Section 3.3 into individual requirements. The Court did not establish two separate requirements for breach. Nor did it hold that the "specific circuitry" must be connected. What the Court instead held is that: Accordingly, in order for MPS to be in breach of the Settlement Agreement, its MP1543 product must contain the ZX circuitry - 32 -

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identified by counsel for Linear in the ITC proceeding connected such that it (1) allows the product to [e]nter into "sleep mode;" (2) allows the product to enter into "reverse polarity protection;" or (3) allows the product to otherwise practice the Asserted Claims. (D.I. 201 at 9). Linear further objects to the language that the Court found "this term is clear and unambiguous" and "[f]or avoidance of doubt, the term means" as the Court has not construed the particular phrase at issue separate from Section 3.3 and that it calls undue attention to one phrase in Section 3.3 to the exclusion of the rest of the provision that the jury must consider. For the reasons stated in Linear's objections to MPS's proposed instruction no. 2.3, MPS's attempt to use this jury instruction to inject an argument that was rejected in the Court's summary judgment decision (D.I. 201) is improper and should be rejected.

MPS's Response to Linear's Objections Linear's objection to this simple, accurate instruction reveals its improper strategy ­ to ignore the Court's Order by now arguing that the ZX circuitry is not specific circuitry identified by counsel in the ITC proceeding, but instead can be any circuitry that Linear might argue is functionally similar and infringes the patents. The Court expressly rejected this position, stating that the phrase "the ZX circuitry identified by counsel in the ITC Proceeding" is clear and unambiguous. For example, in Footnote 4, the Court stated (emphasis added): Linear now appears to argue that the phrase "the ZX circuitry identified by counsel for Linear in the ITC Proceeding," is unclear, because its counsel did not know what the ZX circuitry was since it had not seen the schematics. The court finds this argument without merit. If Linear thought that the phrase was unclear, Linear should have made that known during the negotiations, and negotiated for different language to be used in the Settlement Agreement, or defined the term in section 1 of the agreement. It is very easy and often tempting for the court to play Monday morning quarterback and adopt an interpretation based on - 33 -

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hindsight, or what it believes the parties knew at the time the contract was signed. This court, however, is not willing to adopt such an approach in interpreting an arms length agreement that is clear on its face and unambiguous. The Court did state that Linear had created an issue of fact ­ but not as to what constitutes "the ZX circuitry identified by counsel for Linear in the ITC Proceeding." Rather, the Court found that Linear had created an issue of fact as to whether the identified ZX circuitry is physically present in the MP1543. D.I. 201, at 10-11 ("Thus, there appears to be a classic battle of the experts on the issue of whether the MP1543 product contains the ZX circuitry identified by counsel for Linear in the ITC proceeding."). While Linear's purported evidence was sufficient to prevent the Court from finding as a matter of law, on the then-existing record, that "the ZX circuitry identified by counsel for Linear in the ITC Proceeding" is not in the MP1543, the truth is ­ and Linear is well aware of this truth ­ that the circuitry is different, plain and simple. Linear has no evidence to the contrary. Knowing this, Linear now is forced to argue that the phrase "the ZX circuitry identified by counsel for Linear in the ITC Proceeding" means any circuitry that is functionally similar and in its view infringing. The Court, however, has already rejected that argument. Linear should not be allowed to argue ­ through an improperly broad definition of "the ZX circuitry . . ." ­ the exact same thing that it previously argued unsuccessfully ­ i.e., that any infringing circuitry violates Section 3.3 of the Settlement Agreement. The Court has ruled. The phrase "the ZX circuitry identified by counsel for Linear in the ITC Proceeding" is clear and unambiguous. It means the specific ZX circuitry identified by counsel for Linear in the ITC proceeding ­ circuitry that was present and connected in the MP1556 that was at issue in that proceeding. The Court should also be aware that Linear is taking a completely contradictory

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position as to the meaning of "circuitry" than it is advocating in the Federal Circuit in its lawsuit against AATI. In that case, the same attorneys who are representing Linear in this case have asserted that "a single difference will suffice to distinguish two circuits." April 9, 2008 NonConfidential Brief of Appellant-Intervenor Linear Technology Corporation, at 27 n.10. Similarly, during the claim construction briefing in this case, Linear successfully argued that the "third circuit certainly is distinct from the first and second circuits in that not every electronic component of the three circuits is the same." Linear Technology Corporation's June 26, 2007 Answering Claim Construction Brief (D.I. 57), at 14. The Court adopted Linear's construction, construing the term "third circuit" to mean "a circuit that is distinct from each of the first and second circuits in that not every electronic component of the circuits is the same." Claim Construction Order (D.I. 107), at 7. The circuitry in the MP1543 that Linear has identified as a reverse current comparator is vastly different than "the ZX circuitry identified by counsel for Linear in the ITC Proceeding." For example, the former is made up of 5 MOSFET transistors and two bipolar transistors. The latter contained 23 MOSFETs, 7 bipolar transistors, 4 inverters and 6 resistors.

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4. 4.1

INFRINGEMENT

CLAIM INFRINGEMENT [AGREED]

Before you can decide whether MPS has infringed Linear's '178 and '258 patents, you will have to understand patent "claims." Patent claims define, in words, the boundaries of what is Linear's protected invention. The patent claims are the numbered paragraphs at the end of the patent. The patent claims at issue here are claims 1, 2, 34, 41 and 55 of the '178 patent, beginning at column 16, line 35 of the '178 patent, and claims 1, 2, 3 and 34 of the '258 patent, beginning at column 16, line 40 of the '258 patent. Only the claims of a patent can be infringed. Neither the specification, which is the written description of the invention, nor the drawings of a patent can be infringed. The specification and drawings merely describe certain embodiments of the invention. Each of the claims must be considered individually, and to show infringement of a patent, Linear need only establish that one claim of the patent has been infringed.

Sources: Adapted from Instruction 3.1 given in Telcordia Technologies, Inc. v. Cisco Systems, Inc., No. 04-876-GMS; Uniform Jury Instructions For Patent Cases In The United States District Court For The District of Delaware 3.1 (1993).

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4.2

CONSTRUCTION OF CLAIMS [AGREED IN PART]

You have a copy of each patent in your juror book. As I already said, the claims of each patent at issue are 1, 2, 34, 41 and 55 of the '178, and 1, 2, 3 and 34 of the '258. I will provide you with a list of claim terms from each patent and the meaning of the terms the Court construed in Appendix A. As used in these claims, the definitions for certain terms as I construed them must be applied.

Source: Adapted from Instruction 3.2 given in Telcordia Technologies, Inc. v. Cisco Systems, Inc., No. 04-876 (GMS).

Reservation of Rights The parties object to each and every claim construction that is inconsistent with the claim constructions that they proposed in their claim construction briefs. The bases for their objections are of record. The parties reserve the right to challenge these constructions on appeal.

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4.3

PATENT INFRINGEMENT ­ GENERALLY [AGREED]

A patent confers on its owner the right to exclude others from importing, making, using, selling or offering to sell the patented invention in the United States during the term of its patent. The patent owner may do so by filing a lawsuit for patent infringement. Here, Linear, the patent owner, has sued MPS, and has alleged that MPS's MP 1543 infringed claims 1, 2, 34, 41 and 55 of Linear's '178 patent, and claims 1, 2, 3 and 34 of Linear's '258 patent. Any person or business entity which imports, makes, uses, sells or offers to sell, without the patent owner's permission, any product, apparatus or method legally protected by at least one claim of a patent within the United States before the patent expires, infringes the patent. You must decide whether Linear has proven by a preponderance of the evidence that MPS's products or methods infringe any of the asserted claims of the '178 or '258 patents.

Source: Adapted from Instruction 3.3 given in Telcordia Technologies, Inc. v. Cisco Systems, Inc., No. 04-876 (GMS).

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4.4

DIRECT INFRINGEMENT [DISPUTED] Linear Proposed Direct Infringement

MPS would be liable for directly infringing Linear's '178 or '258 patents if you find that Linear has proven by a preponderance of the evidence that MPS has made, used, sold, or offered to sell the invention defined in one or more asserted claims of Linear's '178 patent or '258 patent in the United States. A person may directly infringe a patent without knowledge that what he is doing is an infringement of the patent. He may directly infringe even though in good faith he believes that what he is doing is not an infringement.

Source: Adapted from Uniform Jury Instructions For Patent Cases In The United States District Court For The District of Delaware 3.4 (1993).

MPS objections to Linear Proposed Direct Infringement MPS objects to Linear's proposal because Linear has offered no evidence that MPS has directly infringed through the sale of any product. Furthermore, Linear concedes that sales of the MP1543 do not directly infringe, because the MP1543 must be incorporated into a product and used in a specific way in order to even arguably directly infringe any of the asserted claims. Thus, the sole purpose of this instruction is to provide a foundation for Linear's potential claim of indirect infringement. MPS also objects to Linear's proposal as incomplete and misleading in that good faith is relevant to issues such as indirect infringement.

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Linear's objection to MPS's proposed instruction states that "MPS's instruction does not even instruct the jury on the standard for direct infringement and is lacking such basic principles as 1) the burden of proof is a preponderance of the evidence; 2) a claim can be infringed by making, using, selling or offering to sell the invention, 3) any one of the asserted claims may be singularly infringed; and 4) infringement can be proven by circumstantial evidence (rather than direct evidence of use)." Linear's complaints are without merit. The jury already has been instructed ­ numerous times ­ that the burden of proof for infringement is a preponderance of the evidence. See, e.g., instruction 1.10 ("Burdens of Proof), instruction 2.5 ("Summary of Patent Issues"), instruction 3.4 ("Patent Infringement ­ Generally"). Similarly, the jury already has been instructed ­ in the immediately preceding instruction ­ that a claim can be infringed by making, using, selling or offering to sell a product covered by the claim. See instruction 3.4 ("Patent Infringement ­ Generally"). Linear's assertion that MPS's proposed instruction does not include the principle that infringement is to be considered on a claim-by-claim basis is simply wrong. MPS's proposed instruction states that explicitly. Lastly, the jury has already been instructed that it may consider both direct and circumstantial evidence. See Instruction 1.4 ("Direct and Circumstantial Evidence"). MPS objects to Linear's unnecessary and prejudicial repetition. Linear's contention that it is not necessary to instruct the jury that the "United States