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Kind - my strategy was to take a foreign holiday so there is plenty else to think about!

Correct Sammy88. Those will be the reasons we will see appearing in the judgment, nothing else

The jury will have to decide if the infringement was wilful.
A judge has discretion on the multiplier. He will only consider the appropriate multiplier according to the strict terms of his role, which is essentially to weigh up how egregious was the wilful infringement so that Samsung recieves the correecr penalty. Judges will decide the matter according to the law but if ordinary human emotions come into it the discretion can be applied to even up the scales a bit if Samsung gets off lightly on damages.

Hi Sammy
The judge has quite a bit of leeway in that scenario because if the jury come up with a lower award than is truly justified then judge will know this, and may use his discretion to apply the 3x multiplier judiciously in order to right the wrong. The converse might be true if the jury awards a very high damages figure.

Thank you Nanogeddon. It is getting close!

Nice sentiment, PJT12, but for balance it's a pretty low bar! Lol

I am old friends with someone high up in the civil service so maybe reading too much of their spin, but this was recent-

https://www.bizjournals.com/triangle/news/2022/07/20/north-carolina-united-kingdom-sign-trade-agreement.html?ana=TRUEANTHEMTWT_RA&taid=62d897087b696400019ac5d4&utm_campaign=trueAnthem%3A+Trending+Content&utm_medium=trueAnthem&utm_source=twitter

Hawi, that's another practical point I was musing over yesterday. Some posters have stressed about Samsung's Texas factory investment swaying a jury (irrational IMO!). I do wonder though whether the effect of closer US/UK diplomatic ties after Brexit has had an influence on the way judge's are thinking. There are plenty of US companies that stand to benefit from Nanoco IP.

BeC it's a small wonder the judge allows the parties to have a punt at it at all. How many trials each year cover the same legal principles...? It must be hundreds. Maybe its just a sense check exercise for the judge

Yes, that's the simplest and most important thing that will stick in the minds of a jury IMO. How they are supposed to judge what level of competence a QD scientist would need to make practical use of the invention Lord only knows. Who knows, but it could it be that Nancoco's case would have been safer and stronger before a judge now that it has won all the other key battles pre-trial.

SAA i didn't post the Samsung alternative text. It's docket 238, exhibit B

BeC. For Samsung trying to prove invalidity it isn't balance of probabilities, its tougher than that-

"Samsung has the burden of proving invalidity of Nanoco’s patent claims by clear and convincing evidence"

It's the last thing they will be told. The judge will have a good say in this presumably, as they will be his words.

It's a pleasure. I must confess I find this part of the jury instructions fairly impenetrable. I would prefer that the judge uses some Samsung's text instead. The last sentence of 7.1, for instance, could be a lot clearer. I have read it a few times and i am not even sure what they are trying to say. And in 7.2, using a term like 'dispositive' I would not say is suitable for a jury. Much of it could be explained in more simple language. Hope BT is reading this!

8. Level of Ordinary Skill

NANOCO: Several times in my instructions, I referred to a person of ordinary skill in the “art,” or in the field of the invention. It is up to you to decide the level of ordinary skill in the field of the invention. In deciding what the level of ordinary skill in the field of the invention is, you should consider all the evidence introduced at trial, including but not limited to:

1. The levels of education and experience of the inventor and other persons actively working in the field;
2. The types of problems encountered in the field;
3. Prior art solutions to those problems;
4. Rapidity with which innovations are made; and
5. The sophistication of the technology.

7.2 Enablement
NANOCO: Samsung also contends that the Asserted Claims of Nanoco’s Asserted Patents are invalid because the specification does not contain a sufficiently full and clear description of how to make and use the full scope of the claimed invention. To succeed on this claim of invalidity, Samsung must show by clear and convincing evidence that the Asserted Patents do not contain a sufficiently full and clear description of the claimed invention. To be sufficiently full and clear, the description must contain enough information to have allowed a person having ordinary skill in the field of technology of the patent to make and use the full scope of the claimed invention at the time the patent application was filed. This is known as the “enablement” requirement. If a patent claim in not enabled, it is invalid. In order to be enabling, a patent must permit persons having ordinary skill in the field of technology of the patent to make and use the full scope of the claimed invention at the time of filing without having to conduct undue experimentation. However, some amount of experimentation to make and use the invention is allowable. In deciding whether a person having ordinary skill would have to experiment unduly in order to make and use the invention, you may consider several factors:
(1) the time and cost of any necessary experimentation;
(2) how routine any necessary experimentation is in the field of invention;
(3) whether the patent discloses specific working examples of the claimed invention;
(4) the amount of guidance presented in the patent;
(5) the nature and predictability of the field of invention;
(6) the level of ordinary skill in the field of invention; and
(7) the scope of the claimed invention.

No one or more of these factors is alone dispositive. Rather, you must make your decision whether or not the degree of experimentation required is undue based upon all of the evidence presented to you. You should weight these factors and determine whether or not, in the context of this invention and the state of the art at the time of the application, a person having skill would need to experiment unduly to make and use the full scope of the claimed invention.

7.1 Written Description

“NANOCO: The patent law contains certain requirements for the part of the patent called the specification. Samsung argues that Nanoco’s Asserted Claims are invalid because the specifications of the Asserted Patents do not contain an adequate written description of the invention. To succeed on this claim of invalidity, Samsung must show by clear and convincing evidence that the specification fails to meet the law’s requirements for written description of the invention. In the patent application process, the applicant may keep the originally filed claims, or change the claims between the time the patent application is first filed and the time a patent is issued. An applicant may amend the claims or add new claims. These changes may narrow or broaden the scope of the claims. The written description requirement ensures that the issued claims correspond to the scope of the written description that was provided in the original application. In deciding whether the patent satisfies this written description requirement, you must consider the description from the viewpoint of a person having ordinary skill in the field of technology of the patent when the application was filed. The written description requirement is satisfied if a person having ordinary skill reading the original patent application would have recognized that it describes the full scope of the claimed invention as it is finally claimed in the issued patent and that the inventor actually possessed that full scope by the filing date of the original application. The written description requirement may be satisfied by any combination of the words, structures, figures, diagrams, formulas, etc., contained in the patent application. The full scope of a claim or any particular requirements in a claim need to be expressly disclosed in the original patent application if a person having ordinary skill in the field of technology of the patent at the time of filing would have understood that the full scope or missing requirement is in the written description in the patent application."

These are not the legal arguments, but I have extracted the text which represents Nanoco's version of how it says the judge should describe the validity issues in summing up before the jury retires to deliberate:

“I will now instruct you on the rules that you must follow in deciding whether Samsung has proven by clear and convincing evidence that Nanoco’s Asserted Claims are invalid.

An issued United States patent is accorded a presumption of validity based on the presumption that the United States Patent and Trademark Office, which you have heard referred to throughout this trial as the PTO or sometimes just the Patent Office, acted correctly in issuing the patent. This presumption of validity extends to all United States patents that are issued by the PTO. In order to overcome this presumption, the party asserting invalidity must establish by clear and convincing evidence that the claim alleged to be invalid is in fact not valid. Like infringement, invalidity is determined on a claim-by-claim basis. In making your determination as to invalidity, you should consider each claim separately. If one claim of a patent is invalid, this does not mean that any other claim is necessarily invalid. Claims are construed the same way for determining infringement as for determining invalidity.”

Continued.....

I've found it now..... Will post later.

It is sensible to keep this at the forefront of your mind, if following the trial:

In any legal action, facts must be proven by a required amount of evidence known as the burden of proof. The burden of proof in this case is on the Plaintiffs for some issues and on the Defendant for other issues. There are two burdens of proof that you will apply in this case. One is the preponderance of the evidence. The other is clear and convincing evidence. Preponderance of the evidence means evidence that persuades you that a claim is more probably true than not true. And this is sometimes talked about as being the greater weight and degree of credible testimony. The Plaintiff, Nanoco Technologies Ltd, who I will refer to as Plaintiff or Nanoco, has the burden of proving patent infringement by a preponderance of the evidence. Nanoco also has the burden of proving willful patent infringement by a preponderance
of the evidence. Nanoco also has the burden of proving damages for any patent infringement by a preponderance of the evidence. Clear and convincing evidence means evidence that produces in your mind an abiding conviction that the truth of the party’s factual contentions are highly probable. Although proof to an absolute certainty is not required, the clear and convincing evidence standard requires a greater degree of persuasion than is necessary for the preponderance of the evidence standard. If the proof establishes in your mind an abiding conviction in the truth of the matter, then the clear and convincing evidence standard has been met. The defendants in this case are Samsung Electronics Co., Ltd. and Samsung Electronics America, Inc. I will refer to them as Defendants or Samsung. Samsung has the burden of proving invalidity of Nanoco’s patent claims by clear and convincing evidence.