Question 4A5 Jan 2023 22:48
I must question the efficacy of Nanoco's proposed introductory wording to Question 4A - and maybe if someone from the company or legal team is reading this, they will re-consider the point.....? The second sentence below is ok on its own, in my view. But the first sentence might inadvertently lead to the jury into thinking a split ("Yes" / "No") answer for questions 1 & 2 will always require them to answer question 4, whereas in fact, that will not be the case where a valid patent is found not to have been infringed and vice versa.
"NANOCO: If you answered “No” for all Asserted Patents in Question No. 1, OR if you answered “Yes” for all Asserted Claims in Question No. 2, then DO NOT answer Question No. 4. Answer Question No. 4 ONLY as to any Asserted Claim that you have found to be BOTH infringed AND not invalid
It does the same thing, but in my view Samsung's proposed wording is simpler to follow and less likely to result in a mistake by the jury:
IF YOU ANSWERED “YES” IN QUESTION 1 TO FIND A CLAIM WAS INFRINGED, AND YOU ANSWERED “NO” TO QUESTION 2 FOR THAT SAME CLAIM TO FIND IT IS NOT INVALID, THEN ANSWER QUESTION 4.IF YOU FOUND ALL CLAIMS TO BE EITHER NOT INFRINGED OR INVALID, THEN GO TO THE FINAL PAGE AND DO NOT ANSWER QUESTION 4.