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EXHIBIT 18

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

LP MATTHEWS, L.L.C.

) ) Plaintiff, ) ) v. ) ) BATH & BODY WORKS, INC., LIMITED ) BRANDS, INC.; KAO BRANDS CO. ) (f/k/a THE ANDREW JERGENS ) COMPANY); and KAO CORPORATION ) ) Defendants. ) __________________________________________)

Civil Action No. 04-1507-SLR

JURY TRIAL DEMANDED

PROPOSED JURY INSTRUCTIONS

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TABLE OF CONTENTS PRELIMINARY INSTRUCTIONS ............................................................................................... 1 1.0 Introduction..................................................................................................................... 1 1.1 Alternative ­ Based On 1993 District Of Delaware Instruction ..................................... 2 GENERAL INSTRUCTIONS ........................................................................................................ 5 2.0 General Instruction.......................................................................................................... 5 2.1 Introduction..................................................................................................................... 6 2.2 DUTIES AS JURORS .................................................................................................... 7 2.3 Juror's Duties .................................................................................................................. 8 2.4 BURDEN OF PROOF .................................................................................................... 9 2.5 Burdens of Proof ........................................................................................................... 10 2.6 EVIDENCE................................................................................................................... 12 2.7 Evidence Defined.......................................................................................................... 13 2.8 WITNESS ­ CONFLICTS IN TESTIMONY .............................................................. 15 2.9 Credibility of Witnesses................................................................................................ 16 2.10 Number of Witnesses.................................................................................................... 17 2.11 DIRECT AND CIRCUMSTANTIAL EVIDENCE ..................................................... 18 2.12 Direct and Circumstantial Evidence ............................................................................. 19 2.13 Consideration of Evidence............................................................................................ 20 2.14 Expert Witnesses........................................................................................................... 21 2.15 Expert Witnesses........................................................................................................... 22 THE PARTIES AND THEIR CONTENTIONS .......................................................................... 23 3.0 Course Of The Trial ...................................................................................................... 23 3.1 Introduction................................................................................................................... 24 3.2 Jurors' Duties ................................................................................................................ 25 3.3 Burdens Of Proof .......................................................................................................... 26 3.4 The Parties' Contentions............................................................................................... 27 3.5 The Parties and Their Contentions................................................................................ 30 3.6 Plaintiff's Contentions .................................................................................................. 31 3.7 Defendants' Contentions............................................................................................... 32 3.7.1 BBW's Contentions .............................................................................................. 32 3.7.2 Kao's Contentions................................................................................................. 32 3.8 Summary Of Patent Issues ........................................................................................... 34 3.9 Summary of Patent Issues............................................................................................. 37 INFRINGEMENT......................................................................................................................... 40 4.0 Infringement.................................................................................................................. 40 4.1 Infringement.................................................................................................................. 41 4.2 Infringement ­ Burden Of Proof................................................................................... 42 4.3 Patent Claims- Generally .............................................................................................. 43 4.4 Patent Infringement....................................................................................................... 44 4.5 Patent Claims ­ Dependent And Independent ................................................................ 46 4.6 Independent and Dependent Claims ............................................................................. 47 4.7 Patent Infringement ­ Direct .......................................................................................... 48 4.8 Direct Infringement ­ Literal ......................................................................................... 49 4.9 Direct Infringement - Literal Infringement................................................................... 50

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4.10 The Court Determines What Patent Claims Mean.......................................................... 52 4.11 Claim Construction for the Case................................................................................... 53 4.12 Open-Ended Or "Comprising" Claims ........................................................................... 55 4.13 Open Ended Or "Comprising" Claims.......................................................................... 56 4.14 Direct Infringement ­ Doctrine Of Equivalents.............................................................. 57 4.15 Situations Where Resort To Doctrine Of Equivalents Is Not Permitted.......................... 59 4.16 Determination Of Infringement...................................................................................... 60 4.17 Willful Infringement ...................................................................................................... 61 4.18 Willfulness .................................................................................................................... 63 PATENT VALIDITY ................................................................................................................... 64 5.0 Validity.......................................................................................................................... 64 5.1 Presumption Of Validity ................................................................................................ 65 5.2 Patent Invalidity ............................................................................................................ 66 5.3 Prior Art Defined .......................................................................................................... 67 5.4 The Written Description Requirement............................................................................ 70 5.5 Written Description....................................................................................................... 71 5.6 Enablement.................................................................................................................... 72 5.7 Enablement ................................................................................................................... 73 5.8 Anticipation ­ Generally................................................................................................ 74 5.9 Anticipation By Printed Publication Or A Prior Patent ................................................ 75 5.10 Obviousness................................................................................................................... 77 5.11 Obviousness .................................................................................................................. 78 5.12 Scope And Content Of The Prior Art ............................................................................. 80 5.13 Scope and Content of the Prior Art............................................................................... 81 5.14 Differences Over The Prior Art...................................................................................... 82 5.15 Differences Over the Prior Art...................................................................................... 83 5.16 Level Of Ordinary Skill ................................................................................................. 84 5.17 Level of Ordinary Skill ................................................................................................. 85 5.18 Motivation To Combine................................................................................................. 86 5.19 Obviousness Decision ­ Combining References .......................................................... 87 5.20 Obviousness ­ Hindsight ............................................................................................... 88 5.21 Objective Criteria Concerning Obviousness................................................................... 89 5.22 Objective Criteria Concerning Nonobviousness (Secondary Considerations) ............. 90 5.23 Obvious To Try ............................................................................................................. 91 5.24 Obviousness ­ Expertise of Board and Board Decision ............................................... 92 PATENT UNENFORCEABILITY .............................................................................................. 93 6.0 Unenforceability ........................................................................................................... 93 6.1 Unenforceability ........................................................................................................... 94 6.2 Inequitable Conduct ...................................................................................................... 95 6.3 Materiality..................................................................................................................... 96 6.4 Intent ............................................................................................................................. 97 6.5 Balancing ...................................................................................................................... 98 DAMAGES ................................................................................................................................... 99 7.0 Generally ....................................................................................................................... 99 7.1 Damages...................................................................................................................... 100 7.2 Compensatory Damages In General............................................................................. 102

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7.3 Burden Of Proof .......................................................................................................... 103 7.4 Reasonable Certainty .................................................................................................. 104 7.5 Date Damages May Begin ........................................................................................... 105 7.6 Methods For Computing Damages............................................................................... 106 7.7 Reasonable Royalty As A Measure Of Damages ......................................................... 107 7.8 Reasonable Royalty As A Measure of Damages ........................................................ 108 7.9 Factors For Determining Reasonable Royalty.............................................................. 110 7.10 Reasonable Royalty ­ Relevant Factors ..................................................................... 112 7.11 Availability of Non-infringing Alternatives ............................................................... 114 7.12 Interest......................................................................................................................... 115 7.13 Closing Statement ­ Damages...................................................................................... 116 7.14 Closing Statement ­ Damages .................................................................................... 117 7.15 Curative Instruction .................................................................................................... 118 DELIBERATIONS AND VERDICT .......................................................................................... 119 8.0 INTRODUCTION....................................................................................................... 119 8.1 Deliberation And Verdict............................................................................................ 120 8.2 UNANIMOUS VERDICT........................................................................................... 121 8.3 Unanimous Verdict ..................................................................................................... 122 8.4 DUTY TO DELIBERATE .......................................................................................... 124 8.5 Duty To Deliberate ..................................................................................................... 125 8.6 COURT HAS NO OPINION....................................................................................... 127 8.7 Court Has No Opinion ................................................................................................ 128

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LP Matthews objects to the Kao defendants' and the Limited defendants' proposed instructions, unless noted that the instruction is "Agreed." The Kao defendants reserve the right to object to any instructions that are identified on the Proposed Jury Instructions as having been proposed by LP Matthews PRELIMINARY INSTRUCTIONS 1.0 INTRODUCTION1 Ladies and gentlemen, you have been selected as jurors in this case. What I will now say is intended to introduce you to the trial and the law that you will apply to evaluate the evidence that you will hear. I will also give you detailed instructions on the law at the end of the trial. All of my instructions are important, and you should consider them together as a whole. Please listen carefully to everything I say. This is a case about patent infringement. The parties are LP Matthews L.L.C., the plaintiff, and Bath & Body Works, Inc., Limited Brands, Inc., Kao Brands Co. (f/k/a The Andrews Jergens Company), and Kao Corporation, the defendants. LP Matthews owns United States Patent Number 5,063,062, which you may hear called the `062 patent or the "Cleaning Compositions With Orange Oil" patent by the lawyers and witnesses in the case. LP Matthews contends that defendants infringe the `062 patent. Defendants contend that they did not infringe the `062 patent. Defendants also contend that the `062 patent is invalid and unenforceable.

LP Matthews: Uniform Jury Instructions for Patent Cases in the United States District Court for the District of Delaware (2004), Preliminary Instruction.

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1.1

ALTERNATIVE ­ BASED ON 1993 DISTRICT OF DELAWARE INSTRUCTION2 Now let me tell you a little bit about patent law. Patent law comes from the United States

Constitution. The Constitution grants Congress the power to enact laws "to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." With this power, Congress enacted the patent laws. Tangible goods, processes and methods may be patented. For a good, process or method to be patentable, it must be new and useful. In addition, a good, process or method is patentable only if, when the good, process or method was invented, it was not obvious to a person having ordinary skill in the art of the invention. Under the patent laws, the United States Patent and Trademark Office in the Washington, D.C. area, which we refer to as the PTO, examines patent applications and determines whether an invention should be granted a United States patent. A patent application must include a number of things, including a detailed description of the invention that is sufficiently full, clear, concise and exact to enable any person skilled in the art of the invention to make and use the invention of a disclosure of the best mode of carrying out the invention known to the inventor at the time the application is filed. The application includes a written description of the invention, called a "specification," and may include drawings that illustrate the invention. A patent

specification ends with one or more numbered sentences that are called the patent's claims and that particularly and distinctly define the subject matter that the inventor regards as his or her invention.

LP Matthews: Uniform Jury Instructions for Patent Cases in the United States District Court for the District of Delaware (2004), Preliminary Instruction.

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When the PTO receives a patent application, it is assigned to an examiner, who examines the application, including the claims, to determine whether the application complies with the requirements of the patent laws. The examiner reviews files of prior work of others in the form of voluminous files of patents and publications. This type of material is called "prior art." Documents found in the search of prior art are called "references." In conducting the search of prior art, the examiner notes in writing on the file the classes or subclasses of art searched. All of the papers concerning the examination of a patent application before the PTO are called the "prosecution history" or "file wrapper." If, after reviewing the prior art maintained at the PTO, the examiner concludes that the claims presented by the applicant defined the applicant's claimed invention (over the most relevant known prior art), the application is granted as a U.S. patent. A patent gives its owner the right to exclude others from making, using or selling the patented invention throughout the United States for a specific period of time, usually 20 years from the date the application was filed with the PTO. A person who, without the patent owner's permission, makes, uses, sells, offers to sell or imports into the United States a patented invention is infringing that patent. Sometimes in a court case, you are also asked to decide about validity, that is whether the patent should have been allowed at all by the PTO. A party accused of infringement is entitled to challenge whether the asserted patent claims are sufficiently new or non-obvious in light of the prior art or whether other requirements of patentability have been met. In other words, a defense to an infringement lawsuit is that the patent in question is invalid. You may wonder why it is that you would be asked to consider such things when the patent has already been reviewed by a government examiner. There are several reasons for this.

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For example, there may be facts or arguments the examiner did not consider, such as prior art that was not located by the PTO or provided by the applicant. Also, because the patent

application process is private, other interested people do not have the opportunity to present materials to the examiner. There is, of course, also the possibility that mistakes were made or important information overlooked. Examiners have a lot of work to do, and no process is perfect. You will hear many of the terms I used in this description during the trial. They are summarized in the "Glossary of Patent Terms," which will be given to you along with these instructions. Feel free to refer to this glossary throughout the trial.

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GENERAL INSTRUCTIONS 2.0 GENERAL INSTRUCTION3 Until this case is submitted to you for your deliberation, you are to keep an open mind and not decide any issue in this case. You also must not discuss this case with anyone, remain within hearing of anyone discussing it, or read, watch, or listen to any discussion of the case in any news or entertainment media. After this case has been submitted to you, you must discuss this case only in the jury room when all members of the jury are present. It is important that you wait until all the evidence is received and you have heard my instructions on the applicable rules of law before you deliberate among yourselves. The only evidence you may consider will be the evidence presented at trial. Because of this, you should not attempt to gather any information on your own that you think might be helpful. Do not do any outside reading on this case and do not in any other way try to learn about the case outside the courtroom. The reason for these rules, as I am certain you will understand, is that you must decide this case solely on the evidence presented at the trial.

LP Matthews: Uniform Jury Instructions for Patent Cases in the United States District Court for the District of Delaware (2004), Preliminary Instruction.

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2.1

Introduction4 Members of the jury, now it is time for me to instruct you about the law that you must

follow in deciding this case. 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. I will explain the positions of the parties and the law you will apply in this case. I will explain the rules that you must follow during your deliberations in the jury room, and the possible verdicts that you may return. everything I say. You will have a written copy of these instructions with you in the jury room for your reference during your deliberations. You will also have a verdict form, which will list the interrogatories, or questions, that you must answer to decide this case. Please listen very carefully to

Defendants: Model Jury Instruction No. 1.1, Uniform Jury Instructions for Patent Cases in the United States District Court for the District of Delaware, http://www.ded. uscourts.gov/JuryMain.htm (March 1993).

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2.2

DUTIES AS JURORS5 Now a word about your duties as jurors. Trial by jury is one of the cornerstones of our

free society. Faithful performance by you of your duties is vital to the administration of justice. You have two main duties as jurors. The first is to decide what the facts are based on the evidence that you will see and hear in court. Deciding what the facts are is your job, not mine, and nothing that I will say or do should influence your determination of the facts in any way. In deciding what the facts are, you must not engage in guesswork or speculation. You must not be influenced in any way by any personal feeling of sympathy for, or prejudice against, either side in this case. Each side is entitled to the same fair and impartial consideration. Your second duty is to take the principles of law that I explain to you and apply them to the facts in reaching your verdict. It is my job to instruct you about the law, and you are bound by the oath you just took to follow my instructions, even if you personally disagree with them. This includes these instructions and the instructions that I will give you during and after the trial. All of my 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.

LP Matthews: Uniform Jury Instructions for Patent Cases in the United States District Court for the District of Delaware (2004), Preliminary Instruction.

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2.3

Juror's Duties6 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. Deciding what the facts are is your job, not mine, 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, under the appropriate burden of proof, which party should prevail on each of the issues presented. It is my job to instruct you about the law, and 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. 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.

Defendants: Model Jury Instruction No. 1.2, Uniform Jury Instructions for Patent Cases in the United States District Court for the District of Delaware, http://www.ded. uscourts.gov/JuryMain.htm (March 1993).

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2.4

BURDEN OF PROOF7 The plaintiff, LP Matthews, has the burden to prove patent infringement by what is called

a preponderance of the evidence. That means LP Matthews has to produce evidence that, when considered in light of all of the facts, leads you to believe that what LP Matthews claims is more likely true than not. To put it differently, if you were to put LP Matthews' and the defendants' evidence on the opposite sides of a scale, the evidence supporting LP Matthews' claims would have to make the scales tip somewhat on his side. In this case, the defendants argue that the '062 patent is not valid. A patent, however, is presumed to be valid unless proven otherwise. Accordingly, the defendants have the burden to prove the patent-in-suit is not valid by clear and convincing evidence. Clear and convincing evidence is evidence that produces an abiding conviction that the truth of a fact is highly probable. The burden to prove a fact by clear and convincing evidence is a heavier burden than the burden to prove that fact by preponderance of the evidence.

LP Matthews: Uniform Jury Instructions for Patent Cases in the United States District Court for the District of Delaware (2004), Preliminary Instruction.

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2.5

Burdens of Proof8 This is a civil case. LPM has the burden or proving its claims of patent infringement by

what is called a preponderance of the evidence. LPM also has to prove patent infringement independently for both BBW and Kao. This means that LPM has to produce evidence which, when considered in light of all the facts, leads you to believe that what LPM claims is more likely true than not, and it must do that separately for both BBW and Kao. To put it differently, if you were to put LPM's evidence and the evidence of BBW on opposite sides of a scale, the evidence supporting LPM's claims would have to make the scales tip on its side. Similarly, if you were to put LPM's evidence and the evidence of Kao on opposite sides of a scale, the evidence supporting LPM's claims would have to make the scales tip on its side. In this case, BBW and Kao are each urging that the `062 patent is invalid. BBW and Kao have the burden of proving by clear and convincing evidence that the asserted claims of the `062 patent are invalid. Clear and convincing evidence is evidence that produces an abiding Proof by clear and

conviction that the truth of the factual contention is highly probable.

convincing evidence, therefore, is a higher burden than proof by a preponderance of the evidence. BBW is also urging that the `062 patent is unenforceable. BBW has the burden of proving this claim by clear and convincing evidence. LPM is also charging BBW and Kao with willful infringement. LPM has the burden of proving willful infringement by clear and convincing evidence. Clear and convincing evidence is evidence that produces an abiding conviction that the truth of the factual contention is highly probable. LPM must prove willful infringement separately for BBW and Kao.

Defendants: Model Jury Instruction No. 1.3, Uniform Jury Instructions for Patent Cases in the United States District Court for the District of Delaware, http://www.ded. uscourts.gov/JuryMain.htm (March 1993).

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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 LPM, BBW or Kao has met its burden of proof.

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2.6

EVIDENCE9 The evidence you will consider consists of the sworn testimony of witnesses, the exhibits

admitted into evidence, and any facts the parties admit or agree to. Nothing else is evidence. The lawyers' statements and arguments are not evidence; their questions and objections are not evidence. My comments or questions are not evidence. Nothing you see or hear outside the courtroom is evidence. From time to time it may be the duty of the attorneys to make objections to evidence that should not be presented at this trial under the rules of evidence. It is my duty as the judge to rule on those objections and decide whether you can consider the evidence in question. My decisions about the admission of evidence are governed by rules of law. You must not be influenced by any objection or by my reasons for making an evidentiary ruling. If I sustain an objection or order evidence stricken from the trial, do not speculate about what a witness might have said or what an exhibit might have shown. You must not consider that evidence. 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. Make your decisions about the trial based only on the evidence, as I have defined it here, and nothing else.

LP Matthews: Uniform Jury Instructions for Patent Cases in the United States District Court for the District of Delaware (2004), Preliminary Instruction.

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2.7

Evidence Defined10 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, the exhibits that I allowed into evidence, the stipulations that the lawyers agreed to, and the facts that I have judicially noticed. Nothing else is evidence. The lawyers' statements and arguments are not evidence. Their questions and objections are not evidence. My legal rulings are not evidence. None of my comments or questions are evidence. The notes taken by jurors are not evidence. Certain charts and graphics may have been used to illustrate testimony from witnesses. Unless I have specifically admitted them into evidence, these charts and graphs are not themselves evidence, even if they refer to or identify 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. And sometimes I may have ordered you to disregard things that you saw or heard, or I struck things from the record. You must completely ignore all of these things. Do not even think about them. 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.

Defendants: Model Jury Instruction No. 1.4, Uniform Jury Instructions for Patent Cases in the United States District Court for the District of Delaware, http://www.ded. uscourts.gov/JuryMain.htm (March 1993).

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Make your decision based only on the evidence, as I have defined it here, and nothing else.

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2.8

WITNESS ­ CONFLICTS IN TESTIMONY11 You are the sole judges of the credibility of the witnesses and the weight their testimony

deserves. For example, you may be guided by the appearance and demeanor of the witnesses as they testified and the witnesses' apparent fairness in giving their testimony. Other factors which may influence your evaluation of a witness' credibility include the existence of evidence that is inconsistent with the testimony given or 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 the witness gave at trial. You may also consider any bias or interest the witness may have in the outcome of these proceedings. You should remember that a simple mistake does not necessarily mean that the witness is not telling the truth. People may tend to forget some things or remember other things

inaccurately. If a witness makes a misstatement, you must consider whether it is simply an innocent lapse of memory or an intentional falsehood, and that may depend on whether it concerns an important fact or an unimportant detail. If you find the testimony in this case to be in conflict, it will be your duty at the end of the case to reconcile the conflicts if you can. If you cannot do so, it is your duty to disregard that portion of the testimony that you, in your judgment, consider not to be worthy of credit. Lastly, the number of witnesses presented is not important; concentrate on how believable the witnesses are and how much weight you believe their testimony deserves.

LP Matthews: Uniform Jury Instructions for Patent Cases in the United States District Court for the District of Delaware (2004), Preliminary Instruction.

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Credibility of Witnesses12 In determining the weight to give to the testimony of a witness, you should ask yourself

whether there was 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 something that was different from the testimony he or she gave at the trial. 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.

Defendants: Model Jury Instruction No. 1.7, Uniform Jury Instructions for Patent Cases in the United States District Court for the District of Delaware, http://www.ded.uscourts.gov/JuryMain.htm (March 1993).

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2.10

Number of Witnesses13 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.

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Agreed: Model Jury Instruction No. 1.8, Uniform Jury Instructions for Patent Cases in the United States District Court for the District of Delaware, http://www.ded. uscourts.gov/JuryMain.htm (March 1993).

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2.11

DIRECT AND CIRCUMSTANTIAL EVIDENCE14 In this trial, the parties may present "direct evidence" and "circumstantial evidence." Direct evidence is simply evidence like the testimony of an eyewitness that, if you

believe the testimony, directly proves a fact. For example, 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 facts and 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. The law makes no distinction between direct or circumstantial evidence. Nor is a greater degree of certainty required of circumstantial evidence. You should consider all the evidence, both direct and circumstantial, and give it whatever weight you believe it deserves.

LP Matthews: Uniform Jury Instructions for Patent Cases in the United States District Court for the District of Delaware (2004), Preliminary Instruction.

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2.12

Direct and Circumstantial Evidence15 Some of you may have heard the terms "direct evidence" and "circumstantial evidence." Direct evidence is evidence like the testimony of any eyewitness which, if you believe it,

directly proves a fact. If a witness testified that he or she saw it raining outside, and you believed him or 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 weights that you should give to either one, nor does it say that one is any better evidence than the other. You should consider all the evidence, both direct and circumstantial, and give it whatever weight you believe it deserves.

Defendants: Model Jury Instruction No. 1.6, Uniform Jury Instructions for Patent Cases in the United States District Court for the District of Delaware, http://www.ded. uscourts.gov/JuryMain.htm (March 1993).

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2.13

Consideration of Evidence16 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.

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Agreed: Model Jury Instruction No. 1.5, Uniform Jury Instructions for Patent Cases in the United States District Court for the District of Delaware, http://www.ded. uscourts.gov/JuryMain.htm (March 1993).

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2.14

EXPERT WITNESSES17 When scientific, technical or other specialized knowledge may be helpful to the jury, a

person who has special knowledge, skill, education, training or experience in that technical field, called an expert witness, is permitted to state an opinion on those matters. The value of this kind of testimony depends upon the qualifications and skill of the witness, the sources of the witness's information, and the reasons supplied for any opinions given. You should consider this kind of testimony like all other testimony you hear and weigh it by the same tests. However, as with any other witness, you are not required to accept any expert's opinions. It will be up to you to decide whether to rely upon them.

LP Matthews: Uniform Jury Instructions for Patent Cases in the United States District Court for the District of Delaware (2004), Preliminary Instruction.

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2.15

Expert Witnesses18 When scientific, technical or other specialized knowledge might be helpful to the jury, a

person who has special knowledge, skill, experience, training or education -- he or she is called an expert witness -- is permitted to state his or her opinion on those matters. However, you are not required to accept that opinion. As with any other witness, it is up to you to decide whether to rely upon it.

18

Defendants: Adapted from Model Jury Instruction No. 1.9, Uniform Jury Instructions for Patent Cases in the United States District Court for the District of Delaware, http://www.ded.uscourts.gov/JuryMain.htm (March 1993). See also Fed. R. Evid. 702.

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THE PARTIES AND THEIR CONTENTIONS 3.0 COURSE OF THE TRIAL19 The case will now begin. First, the plaintiff, LP Matthews, may make an opening statement outlining its case. Then the defendants may make opening statements outlining their cases. Neither side is required to make an opening statement. Opening statements are not evidence; their only purpose is to help you understand what the evidence will be. Next, the parties will present their evidence. LP Matthews will first introduce the

evidence that it believes will support its claims. When LP Matthews is finished, the defendants will introduce evidence to defend against the plaintiff's claims. LP Matthews then has the opportunity to offer rebuttal evidence. After you have heard all of the evidence, I will instruct you on the law that you must apply in this case. Then each side may make a closing argument, although no one is required to do so. The closing arguments are not evidence; their only purpose is to give each side the opportunity to summarize its case and to help you understand the evidence it has presented. Finally, after the closing arguments, you will deliberate and arrive at your verdict.

LP Matthews: Uniform Jury Instructions for Patent Cases in the United States District Court for the District of Delaware (2004), Preliminary Instruction.

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3.1

INTRODUCTION20 Members of the jury, I will now instruct you about the law that you must follow in

deciding this case.

LP Matthews: Uniform Jury Instructions for Patent Cases in the United States District Court for the District of Delaware (2004), No. 1.1.

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3.2

JURORS' DUTIES21 Remember your duties as jurors as I explained them to you at the beginning of the case.

You must decide what the facts are from the evidence you saw and heard in court. Nothing I have said or will say should influence your determination of the facts in any way. Do not guess or speculate, and do not be influenced in any way by any personal feeling of sympathy for, or prejudice against, either side in this case. All parties are entitled to the same fair and impartial consideration. You must also take the principles of law that I will now explain to you and apply them to the facts in reaching your verdict. You are bound by the oath you took to follow my instructions, even if you personally disagree with them. All of my instructions are important, and you should consider them together as a whole. This includes the instructions that I gave you when we started and during trial. I will not repeat my earlier instructions about evidence and how to weigh and consider it. You have copies of these instructions, however, and you should refer to them as you feel necessary. 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.

LP Matthews: Uniform Jury Instructions for Patent Cases in the United States District Court for the District of Delaware (2004), No. 1.2; Tristrata Technology, Inc. v. ICN Pharma., Inc., C.A. No. 01-150-JJF, D.I. 165 (D. Del. Nov. 21, 2003).

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3.3

BURDENS OF PROOF22 LP Matthews has the burden to prove its claims of patent infringement and its claims of

damages by a preponderance of the evidence. That means LP Matthews must produce evidence that, when considered in light of all of the facts, leads you to believe that what LP Matthews claims is more likely true than not. To put it differently, if you were to put LP Matthews' and defendants' evidence on the opposite sides of a scale, the evidence supporting LP Matthews' claims would have to make the scales tip somewhat on its side. Defendants have the burden to prove that the `062 patent is not valid by clear and convincing evidence. Clear and convincing evidence is evidence that produces an abiding conviction that the truth of a fact is highly probable. In addition, LP Matthews must prove its claims of willful infringement by clear and convincing evidence and not by a preponderance of the evidence.

LP Matthews: Uniform Jury Instructions for Patent Cases in the United States District Court for the District of Delaware (2004), No. 1.3; Tristrata Technology, Inc. v. ICN Pharma., Inc., C.A. No. 01-150-JJF, D.I. 165 (D. Del. Nov. 21, 2003).

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3.4

THE PARTIES' CONTENTIONS23 LP Matthews contends that the defendants' products infringe claims 6 and 9 of the '062

patent. Specifically, LP Matthews contends that Kao Brands Company and Kao Brands Corporation's Ultra Healing and Extreme Care products infringe claims 6 and 9 of the '062 patent. LP Matthews also contends that Kao Brands Company and Kao Brands Corporation's infringement is willful. LP Matthews contends that claims 6 and 9 of the '062 patent are infringed by the following products sold by defendants Bath & Body Works, Inc. and Limited Brands, Inc.: Mango Mandarin Creamy Body Wash, True Blue Spa Better Lather Than Never Bubble Bath and Shower Cream, Mango Mandarin Skin Renewal & Anti-Aging Body Wash, Burt's Bees Citrus Facial Scrub, Burt's Bees Orange Essence Facial Cleanser, True Blue Spa Good Clean Foam Face Wash, Pure Simplicity Ginger Rejuvenating Shower Foam, Pure Simplicity Ginger Rejuvenating Body Scrub, Mango Mandarin Body Lotion, Cool Citrus Basil Body Lotion, Murad Resurgence Sheer Lustre Day Moisture, Murad Resurgence Age-Diffusing Serum, Murad Resurgence Age-Balancing Night Cream, Murad Skin Perfecting Lotion, Murad Acne Spot Treatment, Pure Simplicity Ginger Rejuvenating Body Lotion, Pure Simplicity Oat Oil-Control Face Moisturizer, Pure Simplicity Burdock Root Skin Mattifier, Pure Simplicity Ginger Rejuvenating Hand & Nail Cream, Pure Simplicity Fig Hydrating Hand & Nail Cream, and Pure Simplicity Everlasting Flower Night Nourisher. LP Matthews also contends that the following products sold by defendants Bath & Body Works, Inc. and Limited Brands, Inc. ­ Mango Mandarin Skin Refining Body Scrub, Mango

LP Matthews: Uniform Jury Instructions for Patent Cases in the United States District Court for the District of Delaware (2004), No. 2.

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Mandarin Hand Repair & Healing Hand Cream, Mango Mandarin Skin Repair & Healing Body Butter, Pure Simplicity Salt Toning Body Balm, Pure Simplicity Ginger Rejuvenating Body Balm, and Pure Simplicity Fig Hydrating Body Balm ­ infringe claim 9 of the '062 patent. LP Matthews also contends that Bath & Body Works, Inc. and Limited Brands, Inc.'s infringement is willful. BBW contends that its accused products do not infringe either of the asserted claims of the `062 patent. BBW also contends that the asserted claims of the `062 patent are invalid because: (1) each asserted claim of the `062 patent is anticipated by a single prior art reference, (2) each asserted claim of the `062 patent would have been obvious to a person of ordinary skill in the art as of the date the invention was made, based on one or a combination of prior art references, (3) the `062 patent lacks an enabling disclosure for each asserted claim of that patent, (4) the `062 patent contains an inadequate written description of the invention of each asserted claim of that patent. BBW also contends that the '062 patent is unenforceable because of inequitable conduct committed by LPM or the inventors during prosecution of the `062 patent before the United States Patent and Trademark Office. Kao contends that none of the four KBC products that LPM accuses of infringing claims 6 and 9 of the `062 patent infringes either of those claims. Kao also contends that claims 6 and 9 of the `062 patent are invalid because:

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(1) each of those claims would have been obvious to a person of ordinary skill in the art as of the date the invention was made as set forth in a decision of the Board of Patent Appeals in a continuation-in-part application of the `062 patent; and (2) the '062 patent does not have a written description of the invention as asserted by LPM.

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3.5

The Parties and Their Contentions The Parties24 Plaintiff is LP Matthews, L.L.C., which I will refer to as LPM. LPM asserts that it is the

owner of U.S. Patent No. 5,063,062, which I will refer to as the '062 patent or the patent-in-suit. There are four defendants. They are Bath & Body Works, Inc., Limited Brands, Inc., Kao Brands Co. (which was formerly known as The Andrew Jergens Company) ("KBC") and Kao Corporation . I will refer to Bath & Body Works, Inc. and Limited Brands, Inc. collectively as BBW. I will refer to Kao Brands Co. and Kao Corporation collectively as Kao. BBW manufactures and sells various lines of skin care products. KBC also manufactures and sells different lines of skin care products.

Defendants: Adapted as to general format from Model Jury Instruction 2.1, Uniform Jury Instructions for Patent Cases in the United States District Court for the District of Delaware, http://www.ded.uscourts.gov/JuryMain.htm (March 1993).

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3.6

Plaintiff's Contentions25 LPM contends that BBW has directly infringed claims 6 and 9 of the `062 patent by

making, using, selling, and offering to sell certain skin care products. LPM further contends that Kao has directly infringed claims 6 and 9 of the `062 patent by making, using, selling, and offering to sell certain skin care products. LPM contends that BBW's and Kao's infringement was willful. LPM also contends that, as a result of the infringement of the patent in suit by BBW and, separately, by Kao, BBW and Kao are each liable for damages. Specifically, LPM contends that it is entitled to damages in the form of a reasonable royalty from BBW for BBW's alleged infringement of the `062 patent. LPM also contends that it is also entitled to a reasonable royalty from Kao for Kao's alleged infringement of the `062 patent.

Defendants: Adapted as to general format from Model Jury Instruction 2.2, Uniform Jury Instructions for Patent Cases in the United States District Court for the District of Delaware, http://www.ded.uscourts.gov/JuryMain.htm (March 1993).

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3.7 3.7.1

Defendants' Contentions26 BBW's Contentions BBW contends that its accused products do not infringe either of the asserted claims of

the `062 patent. BBW also contends that the asserted claims of the `062 patent are invalid because: (1) each asserted claim of the `062 patent is anticipated by a single prior art reference, (2) each asserted claim of the `062 patent would have been obvious to a person of ordinary skill in the art as of the date the invention was made, based on one or a combination of prior art references, (3) the `062 patent lacks an enabling disclosure for each asserted claim of that patent, (4) the `062 patent contains an inadequate written description of the invention of each asserted claim of that patent. BBW also contends that the '062 patent is unenforceable because of inequitable conduct committed by LPM or the inventors during prosecution of the `062 patent before the United States Patent and Trademark Office.

3.7.2

Kao's Contentions Kao contends that none of the four KBC products that LPM accuses of infringing claims

6 and 9 of the `062 patent infringes either of those claims. Kao also contends that claims 6 and 9 of the `062 patent are invalid because:

Defendants: Adapted as to general format from Model Jury Instruction 2.3, Uniform Jury Instructions for Patent Cases in the United States District Court for the District of Delaware, http://www.ded.uscourts.gov/JuryMain.htm (March 1993).

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(1) each of those claims would have been obvious to a person of ordinary skill in the art as of the date the invention was made as set forth in a decision of the Board of Patent Appeals in a continuation-in-part application of the `062 patent; and (2) the '062 patent does not have a written description of the invention as asserted by LPM.

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3.8

SUMMARY OF PATENT ISSUES 27 In this case, you must decide several things according to the instructions that I shall give

you. Infringement: 1. Whether LP Matthews has proven by a preponderance of the evidence that any of

the following accused products sold by defendants Bath & Body Works, Inc. and Limited Brands, Inc. infringe one or both of the asserted claims of the `062 patent, either literally or by the doctrine of equivalents: (a) Burt's Bees Citrus Facial Scrub; (b) Pure Simplicity Ginger Rejuvenating Body Scrub; (c) Pure Simplicity Ginger Rejuvenating Shower Foam; (d) True Blue Spa Better Lather Than Never Bubble Bath & Shower Cream; (e) Bath & Body Works Mango Mandarin Creamy Body Wash; (f) Bath & Body Works Mango Mandarin Skin Redefining Body Scrub; (g) Bath & Body Works Mango Mandarin Renewal & Anti-Aging Body Wash; (h) Burt's Bees Orange Essence Facial Cleanser; (i) True Blue Spa Good Clean Foam Face Wash; (j) Bath & Body Works Cool Citrus Basil Body Lotion; (k) Murad Skin Perfecting Lotion; (l) Pure Simplicity Fig Hydrating Body Balm; (m) Pure Simplicity Ginger Rejuvenating Body Balm; (n) Pure Simplicity Ginger Rejuvenating Body Lotion; (o) Pure Simplicity Ginger Rejuvenating Hand & Nail Cream; (p) Bath & Body Works Mango Mandarin Body Lotion; (q) Bath & Body Works Mango Mandarin Hand Repair & Healing Hand Cream; (r) Bath & Body Works Skin Repair & Healing Body Butter; (s) Murad Acne Spot Treatment; (t) Murad Age-Balancing Night Cream; (u) Murad Age-Diffusing Serum; (v) Murad Sheer Lustre Day Moisture SPF 15; (w) Pure Simplicity Fig Hydrating Hand & Nail Cream; (x) Pure Simplicity Oat Oil Control Face Moisturizer; (y) Pure Simplicity Salt Toning Body Balm; (z) Pure Simplicity Burdock Root Skin Mattifier; or (aa) Pure Simplicity Everlasting Flower Night Nourisher.
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LP Matthews: Adapted as to general format from Model Jury Instruction 2.4, Uniform Jury Instructions for Patent Cases in the United States District Court for the District of Delaware, http://www.ded.uscourts.gov/JuryMain.htm (March 1993).

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2.

Whether LP Matthews has proven by a preponderance of the evidence that any of

the following accused products sold by Kao Brands Co. and Kao Corporation infringe either claim 6 or claim 9 of the `062 patent, either literally or by the doctrine of equivalents: (a) the Curél Ultra Healing Lotion; (b) the Curél Extreme Care Body Lotion; (c) the Curél Extreme Care Body Cleanser; or (d) the Curél Extreme Care Facial Wash. Willfulness: 1. Whether LP Matthews has proven by clear and convincing evidence that Bath &

Body Works, Inc. and Limited Brands, Inc.'s infringement was and is willful. 2. Whether LP Matthews has proven by clear and convincing evidence that Kao

Brands Co.'s and Kao Corporation's infringement was and is willful. Validity: 1. Whether Bath & Body Works, Inc. and Limited Brands, Inc. have proven by clear

and convincing evidence that: i. either of the asserted claims of the `062 patent is invalid as anticipated by the prior art; either of the asserted claims of the `062 patent is invalid as obvious in light of the prior art; or

ii.

either of the asserted claims of the `062 patent is invalid for failing to satisfy either the enablement or written description requirements. 2. Whether Kao Brands Co. and Kao Corporation have proven by clear and

convincing evidence that: i. the asserted claims are invalid as obvious in light of the prior art; and ii. the `062 patent fails to include a written description of the invention as asserted by LP Matthews.

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Unenforceability: 1. Whether Bath & Body Works, Inc. and Limited Brands, Inc. have proven by clear

and convincing evidence that the `062 patent is unenforceable. Damages: 1. Whether LP Matthews has proven, by a preponderance of the evidence, damages

constituting a reasonable royalty, and if so, the amount of such reasonable royalty damages.

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3.9

Summary of Patent Issues28 In this case, you must decide several things according to the instructions that I shall give

you. Infringement: 1. Whether LPM has proven by a preponderance of the evidence that any of the

following accused BBW products literally infringe one or both of the asserted claims of the `062 patent: (a) Burt's Bees Citrus Facial Scrub; (b) Pure Simplicity Ginger Rejuvenating Body Scrub; (c) Pure Simplicity Ginger Rejuvenating Shower Foam; (d) True Blue Spa Better Lather Than Never Bubble Bath & Shower Cream; (e) Bath & Body Works Mango Mandarin Creamy Body Wash; (f) Bath & Body Works Mango Mandarin Skin Redefining Body Scrub; (g) Bath & Body Works Mango Mandarin Renewal & Anti-Aging Body Wash; (h) Burt's Bees Orange Essence Facial Cleanser; (i) True Blue Spa Good Clean Foam Face Wash; (j) Bath & Body Works Cool Citrus Basil Body Lotion; (k) Murad Skin Perfecting Lotion; (l) Pure Simplicity Fig Hydrating Body Balm; (m) Pure Simplicity Ginger Rejuvenating Body Balm; (n) Pure Simplicity Ginger Rejuvenating Body Lotion; (o) Pure Simplicity Ginger Rejuvenating Hand & Nail Cream; (p) Bath & Body Works Mango Mandarin Body Lotion; (q) Bath & Body Works Mango Mandarin Hand Repair & Healing Hand Cream; (r) Bath & Body Works Skin Repair & Healing Body Butter; (s) Murad Acne Spot Treatment; (t) Murad Age-Balancing Night Cream; (u) Murad Age-Diffusing Serum; (v) Murad Sheer Lustre Day Moisture SPF 15; (w) Pure Simplicity Fig Hydrating Hand & Nail Cream; (x) Pure Simplicity Oat Oil Control Face Moisturizer; (y) Pure Simplicity Salt Toning Body Balm; (z) Pure Simplicity Burdock Root Skin Mattifier; or (aa) Pure Simplicity Everlasting Flower Night Nourisher.

Defendants: Adapted as to general format from Model Jury Instruction 2.4, Uniform Jury Instructions for Patent Cases in the United States District Court for the District of Delaware, http://www.ded.uscourts.gov/JuryMain.htm (March 1993).

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2.

Whether LPM has proven by a preponderance of the evidence that any of the

following accused Kao products infringes either claim 6 or claim 9 of the `062 patent: (a) the Curél Ultra Healing Lotion; (b) the Curél Extreme Care Body Lotion; (c) the Curél Extreme Care Body Cleanser; or (d) the Curél Extreme Care Facial Wash Willfulness: 1. Whether LPM has proven by clear and convincing evidence that BBW's

infringement was and is willful. 2. Whether LPM has proven by clear and convincing evidence that Kao's

infringement was and is willful. Validity: 1. Whether BBW has proven by clear and convincing evidence that: i. either of the asserted claims of the `062 patent is invalid as anticipated by the prior art; either of the asserted claims of the `062 patent is invalid as obvious in light of the prior art; or

ii.

either of the asserted claims of the `062 patent is invalid for failing to satisfy either the enablement or written description requirements. 2. Whether Kao has proven by clear and convincing evidence that: i. the asserted claims are invalid as obvious in light of the prior art; and ii. the `062 patent fails to include a written description of the invention as asserted by LPM. Unenforceability: 1. Whether BBW has proven by clear and convincing evidence that the `062

patent is unenforceable because of inequitable conduct committed by LPM or the

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inventors during prosecution of the `062 patent before the United States Patent and Trademark Office. Damages: 1. Whether LPM has proven, by a preponderance of the evidence, damages

constituting a reasonable royalty (if infringement and validity are found), and if so, the amount of such reasonable royalty damages.

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INFRINGEMENT 4.0 INFRINGEMENT29 At the beginning of the trial I gave you some general information about patents and the patent system and a brief overview of the patent laws that relate to this case. If you would like to review my earlier instructions at any time during your deliberations, they will be available to you in the jury room. As I stated before, LP Matthews alleges that defendants infringe certain clams of the '062 patent. If any person makes, uses or sells what is covered by a patent claim without the patent owner's permission, that person is said to infringe the patent.

LP Matthews: Uniform Jury Instructions for Patent Cases in the United States District Court for the District of Delaware (2004), No. 3; Tristrata Technology, Inc. v. ICN Pharma., Inc., C.A. No. 01-150-JJF, D.I. 165 (D. Del. Nov. 21, 2003).

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4.1

Infringement Claim Infringement30 To decide whether either BBW or Kao has infringed the `062 patent, you will have to

understand the "claims" of the patent that have been asserted. The patent claims are numbered sentences at the end of the `062 patent. In this case, two claims have been asserted by LPM ­ claim 6 and claim 9. The claims define the invention described and illustrated in the patent. Only the claims of the patent can be infringed. Neither the specification, which is the written description of the invention, nor the drawings of a patent can be infringed. However, the specification may be used to determine the meaning of the claims. Each of the two asserted claims must be considered individually. To show infringement of the `062 patent by each of the defendants, LPM must establish that, as to each defendant separately, an asserted claim has been infringed by that particular defendant. There are two separate pairs of defendants in this case ­ BBW and Kao. LPM has accused each of these companies separately based upon different sets of products. Therefore, you must address the question of infringement by BBW separately from the question of infringe