IN THE UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF TEXAS 

WACO DIVISION 

WSOU INVESTMENTS, LLC D/B/A 

BRAZOS LICENSING AND 

DEVELOPMENT, 

 Plaintiff, 

v. 

MICROSOFT CORPORATION 

 Defendant. 

CASE NO. 6:20-CV-00454-ADA 

CASE NO. 6:20-CV-00461-ADA 

CASE NO. 6:20-CV-00465-ADA 

JURY TRIAL DEMANDED 

BRAZOS’ OBJECTIONS TO PRETRIAL DISCLOSURES 

Plaintiff WSOU Investments, LLC d/b/a Brazos Licensing and Development (“Brazos”) 

files the following objections to Microsoft’s proposed exhibits, witnesses, jury instructions, and 

verdict form. Brazos objects to the requested jury instructions without prejudice to subsequent 

objections under Fed R. Civ. P. 51. 

I. Objections to Proposed Witnesses 

Brazos has no objections to Microsoft’s Initial Trial Witness List (Dkt. No. 184-7).1

 

To the extent that witnesses may appear by deposition designation, Brazos’s objections are 

included in their exchange with Microsoft, dated May 17, 2022. 

II. Objections to Proposed Exhibits 

Brazos’ current objections to Microsoft’s proposed exhibits are set forth in Microsoft’s 

Second Amended Trial Exhibit List, dated May 31, 2022, attached as Exhibit 1. 

III. Objections to Requested Final and Preliminary Jury Instructions (Dkt. Nos. 

184-8, 184-10) and Verdict Form (Dkt. Nos. 184-13). 

Disputed Proposed Preliminary Jury 

Instructions 

Objection 

1

 All docket numbers in these objections refer to the Case. No. 6:20-cv-00454 docket. 

Case 6:20-cv-00461-ADA Document 179 Filed 06/07/22 Page 1 of 19
2 

Brazos’ Proposed Instruction: “The 

patents involved in this case generally relate 

to computer networks and software for 

monitoring computer networks.” 

Microsoft’s Proposed Instruction: “The 

patents involved in this case generally relate 

to computer networks.” 

[Requested Proposed Jury Instruction No. 2] 

Brazos requests its instruction be given 

because it accurately describes the nature of 

the patents involved in this case. See, e.g., 

U.S. Patent No. 8,274,902 (describing the 

“Field of the Invention” as “relat[ing] to 

methods for monitoring the performance of 

networks.”). 

Brazos’ Proposed Instruction: “Brazos” 

and “Brazos Patents” 

Microsoft’s Proposed Instruction: 

“WSOU” and “’702, ’160, and ’902 Patents” 

[Requested Proposed Jury Instruction Nos. 2, 

4, 6, 7, 8] 

Microsoft should be profited from referring to 

“We-Sue” for the reasons set forth in Brazos’ 

Omnibus Motions in Limine. See Dkt. No. 

178. Brazos submits that its use of “Brazos 

Patents” to refer to the patents-at-issue 

collectively is more streamlined than listing all 

the patents by their individual numbers when 

referring to the patents collectively. 

Brazos’ Proposed Instruction: “Brazos is 

the owner of the three patents . . .” 

Microsoft’s Proposed Instruction: “WSOU 

is asserting three patents . . .” 

[Requested Proposed Jury Instruction Nos. 2, 

4]

Brazos is entitled to an instruction that 

identifies Brazos as the owner of the Asserted 

patents for the reasons set forth in Brazos’ 

Opposition to Microsoft’s Motion for 

Summary Judgment of No Standing. See Dkt. 

No. 155. 

Brazos’ Proposed Instruction: “whether 

or not the owner commercializes or 

manufactures that invention” 

Microsoft’s Proposed Instruction: The 

above instruction not be given 

[Requested Proposed Jury Instruction No. 3] 

Brazos’ proposed instruction guards against 

juror confusion regarding whether a patent 

owner that does not commercialize or 

manufacture an invention possesses the right 

to exclude. 

Brazos’ Proposed Instruction: “The 

purpose of the claims is to particularly 

identify what the claimed invention is and to 

define the scope of the patent owner’s 

Brazos’ proposed instruction was given 

verbatim by this Court in Freshub, Inc. et al. 

v. Amazon.com Inc., No. 6:21-cv-00511, Dkt. 

No. 241 (W.D. Tex. June 21, 2021). 

Case 6:20-cv-00461-ADA Document 179 Filed 06/07/22 Page 2 of 19
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exclusive rights. The claims define a patent 

owner’s rights under the law. The claims are 

important because it is the words of the 

claims that define what a patent covers. The 

figures and text in the rest of the patent 

provide a description or examples of the 

invention and provide a context for the 

claims, but it is the claims that define the 

breadth of the patent’s coverage. Therefore, 

what a patent covers depends, in turn, on what 

each of its claims covers. 

A claim sets forth, in words, a set of 

requirements. Each claim sets forth its 

requirements in a single sentence. The 

requirements of a claim are often referred to 

as ‘claim elements’ or ‘claim limitations.’ The 

coverage of a patent is assessed claim-by 

claim. 

If a system or method satisfies each of 

these requirements in that sentence, then it is 

covered by the claim. In other words, a claim 

covers a system or method where each of the 

claim elements or limitations is present in that 

system or performed by that method. If a 

system or method is missing even one 

limitation or element of a claim, the system or 

method is not covered by that claim.” 

Microsoft’s Proposed Instruction: “The 

purpose of the claims is to particularly point 

out what the claimed invention is and to 

define the scope of the patent owner’s 

exclusive rights under each patent.” 

[Requested Proposed Jury Instruction No. 3]

Microsoft’s proposed instruction fails to 

provide detail on patent claims that the jury 

requires to decide these cases. 

Brazos’ Proposed Instruction: “The 

Patent Examiner’s job is also to decide if the 

inventor’s description of the invention is 

complete and clear enough to meet the 

requirements of a patent, including the 

requirement that the description enable 

someone of ordinary skill in the field to 

Microsoft’s proposed instruction does not 

provide adequate detail to the jury. 

Case 6:20-cv-00461-ADA Document 179 Filed 06/07/22 Page 3 of 19
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actually make and use the invention, as well 

as to decide whether written description 

support exists in the specification for each 

claim.” 

Microsoft’s Proposed Instruction: 

“Separately, the Patent Examiner also may

consider whether the claims are adequately 

enabled and described by the application’s 

specification.” 

[Requested Proposed Jury Instruction No. 3] 

Brazos’ Proposed Instruction: “products” 

Microsoft’s Proposed Instruction:

“software or systems” 

[Requested Proposed Jury Instruction No. 6]

Brazos objects to Microsoft’s proposed 

description as needlessly narrow. 

Brazos’ Proposed Instruction: “Microsoft’s 

Network Policy Server/Network Policy 

Access Server for the ’702 Patent; 

Microsoft’s Azure Monitor for the ’160 

Patent; and Microsoft’s Azure Monitor, 

Network Watcher, and Network Performance 

Monitor for the ’902 Patent.” 

Microsoft’s Proposed Instruction: 

“Microsoft’s Network Policy Server for the 

’702 Patent; Microsoft’s Azure Monitor for 

the ’160 Patent; and Microsoft’s Network 

Performance Monitor for the ’902 Patent.” 

[Requested Proposed Jury Instruction No. 6] 

Brazos submits this dispute can be resolved 

through adoption of Microsoft’s proposed 

description of the accused functionalities. 

Brazos’ Proposed Instruction: “Brazos 

argues that Microsoft directly infringed the 

asserted claims of the patents-in-suit. There 

are two ways in which a patent claim can be 

directly infringed. First, a claim can be 

literally infringed. Brazos asserts literal 

infringement for each of the asserted claims in

Brazos’ proposed instruction provides 

necessary detail to the jury and mirrors the 

instructions given by this Court in VLSI. See 

VLSI Tech., Inc. v. Intel Corp., No. 6:21-cv0057, Dkt. No. 565 (W.D. Tex. March 1, 

2021). Microsoft’s attempt to eliminate 

Brazos’ proposed instruction on the doctrine 

Case 6:20-cv-00461-ADA Document 179 Filed 06/07/22 Page 4 of 19
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the ’160, ’702, and ’902 Patents. 

Second, a claim can be infringed under what 

is called the “doctrine of equivalents.” Brazos 

asserts infringement under the doctrine of 

equivalents with respect to each of the 

asserted claims in the ’160, ’702, and ’902 

Patents. 

To determine infringement, you must 

compare the accused product or process with 

each claim of the Brazos Patents that Brazos 

asserts is infringed by that specific product or 

process. A patent claim is literally infringed 

only if the accused Microsoft product or 

process includes each and every element in 

that patent claim. You must determine literal 

infringement with respect to each asserted 

patent claim individually. You heard that 

there is more than one claim asserted here— 

and more than one claim from each of the 

three Brazos Patents—you have to determine 

for each of those claims individually whether 

or not it is infringed. 

A patent claim is infringed under the doctrine 

of equivalents if there is an equivalent 

component or process step in the accused 

Microsoft products or processes for each 

element of the patent claim that is not literally 

present in the accused Microsoft products or 

processes. Brazos must prove that it is more 

likely than not that the accused Microsoft 

products or methods contain the equivalent of 

each element of the claimed invention that is 

not literally present in the accused Microsoft 

products. An equivalent of an element is a 

component or method step that is only 

insubstantially different from the claimed 

element. One way of showing that an element 

is only insubstantially different is to prove 

that it performs substantially the same 

function, in substantially the same way, to 

achieve substantially the same result as would 

be achieved by the element that is not literally 

present in the accused product or method.” 

of equivalents is also premature. As Brazos 

has describes in its Opposition to Microsoft’s 

Motions in Limine, Brazos is entitled to elicit 

particularized testimony on the doctrine of 

equivalents at trial. See Dkt. No. 187. 

Case 6:20-cv-00461-ADA Document 179 Filed 06/07/22 Page 5 of 19
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Microsoft’s Proposed Instruction: “To 

determine the question of infringement, you 

must compare the accused software or system 

or its use with each claim of the ’702, ’160, or 

’902 Patent. A patent claim is infringed only 

if the accused software or system includes or 

is used by Microsoft to perform each and 

every element in that patent claim. You must 

determine infringement with respect to each 

asserted patent claim individually. You heard 

that there is more than one claim asserted 

here—and more than one claim from each of 

the three patents. Therefore, you have to 

determine for each of those claims whether or 

not it is infringed. You have to do that for 

each individual claim in each of the ’702, 

’160, and ’902 Patents.” 

[Requested Proposed Jury Instruction No. 6] 

Brazos’ Proposed Instruction: “Microsoft 

must prove invalidity of each asserted claim 

by clear and convincing evidence in order to 

overcome the presumption of validity.” 

Microsoft’s Proposed Instruction: No 

instruction on the “presumption” be given. 

[Requested Proposed Jury Instruction No. 6] 

Brazos’ proposed instruction accurately states 

the burden of proof with respect to invalidity 

and was given by this Court in VLSI. See 

VLSI Tech., Inc. v. Intel Corp., No. 6:21-cv0057, Dkt. No. 565 (W.D. Tex. March 8, 

2021). 

Brazos’ Proposed Instruction: The below 

instruction not be given. 

Microsoft’s Proposed Instruction: “With 

respect to infringement, WSOU carries the 

burden of proof. With respect to invalidity, 

Microsoft carries the burden of proof.” 

[Requested Proposed Jury Instruction No. 6] 

Brazos withdraws its objection to inclusion of 

Microsoft’s proposed instruction, subject to 

substitution of “WSOU” to “Brazos” in 

Microsoft’s proposed instruction. 

Brazos’ Proposed Instruction: The below 

instruction not be given. 

Brazos submits that the instruction is 

adequate and more concise without 

Case 6:20-cv-00461-ADA Document 179 Filed 06/07/22 Page 6 of 19
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Microsoft’s Proposed Instruction: “even if 

not described in a single piece of prior art.” 

[Requested Proposed Jury Instruction No. 6] 

Microsoft’s additional proposed language. 

The proposed instruction excluding 

Microsoft’s proposed addition mirrors that 

given by this Court in Freshub, Inc. et al. v. 

Amazon.com Inc., No. 6:21-cv-00511, Dkt. 

No. 241 (W.D. Tex. June 21, 2021). 

Brazos’ Proposed Instruction: “Witnesses 

are not counted. The test is not the

relative number of witnesses, but the relative 

convincing force of the evidence. Witness 

testimony is weighed. The testimony of a 

single witness is sufficient to prove any fact, 

even if a greater number of witnesses testify 

to the contrary. If after you have considered 

all of the other evidence, you can choose to 

believe the single witness.” 

Microsoft’s Proposed Instruction: “You are 

to weigh the testimony, not the number of 

witnesses themselves. There’s no test for 

relative number of witnesses. It is the relative 

convincing force of the evidence throughout 

the trial.” 

[Requested Proposed Jury Instruction No. 9] 

Brazos’ proposed instruction will assist the 

jury and parallels that given by this Court in 

Freshub, Inc. et al. v. Amazon.com Inc., No. 

6:21-cv-00511, Dkt. No. 241 (W.D. Tex. June 

21, 2021). 

Brazos’ Proposed Instruction: “The fact 

that a person brought a lawsuit and is in court 

seeking damages creates no inference that the 

person is entitled to a judgment. The act of 

making a claim in a lawsuit, by itself, does 

not in any way tend to establish that claim and 

is not evidence. Conversely, the fact that a 

person is defending against a lawsuit creates 

no inference that the person’s defense is 

meritorious. The act of defending against a 

lawsuit, by itself, does not in any way tend to 

negate the merits of a claim and is not 

evidence.” 

Microsoft’s Proposed Instruction: “The fact 

that a person brought a lawsuit and is in court 

seeking damages creates no inference that the 

Brazos’ proposed instruction clarifies that 

inferences are not to be drawn improperly 

from either the filing of a lawsuit or raising 

defenses. Brazos’ proposed instruction 

mirrors this Court’s instructions in Freshub. 

See Freshub, Inc. et al. v. Amazon.com Inc., 

No. 6:21-cv-00511, Dkt. No. 241 (W.D. Tex. 

June 21, 2021) (instructing that the fact that a 

defendant raises defenses is not evidence). 

Case 6:20-cv-00461-ADA Document 179 Filed 06/07/22 Page 7 of 19
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person is entitled to a judgment. The act of 

making a claim in a lawsuit, by itself, does 

not in any way tend to establish that claim and 

is not evidence.” 

[Requested Proposed Jury Instruction No. 14] 

Disputed Proposed Final Jury Instructions Objection 

Brazos’ Proposed Instruction: “Brazos” 

and “Brazos Patents” 

Microsoft’s Proposed Instruction: 

“WSOU” and “’702, ’160, and ’902 Patents”

[Requested Final Jury Instruction Nos. 1, 3, 8, 

14, 16, 17, 18, 19, 21, 24, 25, 27]

Microsoft should be profited from referring to 

“We-Sue” for the reasons set forth in Brazos’ 

Omnibus Motions in Limine. See Dkt. No. 

178. Brazos submits that its use of “Brazos 

Patents” to refer to the patents-at-issue 

collectively is more streamlined than listing all 

the patents by their individual numbers when 

referring to the patents collectively. 

Brazos’ Proposed Instruction: Requested 

Jury Instruction No. 3 be given. 

Microsoft’s Proposed Instruction: No 

separate instruction on the burdens of proof 

[Requested Final Jury Instruction No. 3]

Brazos’ proposed jury instruction on burdens 

of proof serves to remind the jury of the 

applicable standards. 

Brazos’ Proposed Instruction: “Brazos 

must prove infringement by a preponderance 

of the evidence. That is, Brazos must prove 

that it is more likely than not, that Microsoft 

made, used, sold, or offered for sale within 

the United States, or imported into the United 

States, software or systems that meet all of the 

requirements of a claim and did so without 

the permission of Brazos during the time the 

Brazos Patents were in force. You may think 

of this preponderance of the evidence 

standard as slightly greater than 50%. A party 

can infringe a patent without knowing of the 

patent or without knowing that what the party 

is doing is patent infringement.” 

Brazos’ proposed instruction, including the 

assistance of percentages, provides helpful 

detail on the preponderance-of-the-evidence 

standard and is consistent with the instruction 

given by this Court in VLSI. See VLSI Tech., 

Inc. v. Intel Corp., No. No. 6:21-cv-0057, 

Dkt. No. 565 (W.D. Tex. March 8, 2021). 

Case 6:20-cv-00461-ADA Document 179 Filed 06/07/22 Page 8 of 19
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Microsoft’s Proposed Instruction: “WSOU 

must prove infringement by a preponderance 

of the evidence. That is, WSOU must prove 

that it is more likely than not, that Microsoft 

made, used, sold, or offered for sale within 

the United States, or imported into the United 

States, software or systems that meet all of the 

requirements of a claim and did so without 

the permission of WSOU during the time the 

’702, ’160, and ’902 Patents were in force.” 

[Requested Final Jury Instruction Nos. 3, 17] 

Brazos’ Proposed Instruction: “The fact 

that Brazos filed a lawsuit or that Microsoft 

raises defenses is not evidence that either is 

entitled to a judgment. Anyone may make a 

claim, file a lawsuit, or raise a defense. The 

act of making a claim or raising a defense in a 

lawsuit, by itself, does not in any way tend to 

establish that claim or defense and is not 

evidence.” 

Microsoft’s Proposed Instruction: “The fact 

that a person brought a lawsuit and is in court 

seeking damages creates no inference that the 

person is entitled to a judgment. Anyone may 

make a claim and file a lawsuit. The act of 

making a claim in a lawsuit, by itself, does 

not in any way tend to establish that claim and 

is not evidence.” 

[Requested Final Jury Instruction No. 8]

Brazos’ proposed instruction clarifies that 

inferences are not to be drawn improperly from 

either the filing of a lawsuit or raising 

defenses. Brazos’ proposed instruction 

mirrors this Court’s instructions in Freshub. 

See Freshub, Inc. et al. v. Amazon.com Inc., 

No. 6:21-cv-00511, Dkt. No. 241 (W.D. Tex. 

June 21, 2021) (instructing that the fact that a 

defendant raises defenses is not evidence).

Brazos’ Proposed Instruction: 

“Claims 1, 3, 8, 10, 11, 12, 16, and 17 of U.S. 

Patent No. 7,106,702 (also referred to as 

‘’702 Patent’).” 

“Claims 1, 2, 4, 5, 10, 11, and 12 of U.S. 

Patent No. 7,366,160 (also referred to as the 

Brazos withdraws its objection to correlation 

of the accused functionalities in Requested 

Final Jury Instruction No. 14. 

Case 6:20-cv-00461-ADA Document 179 Filed 06/07/22 Page 9 of 19
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‘’160 Patent’).” 

“Claims 1, 2, and 6 of U.S. Patent No. 

8,274,902 (also referred to as the ‘’902 

Patent’).” 

Microsoft’s Proposed Instruction: 

“Claims 1, 3, 8, 10, 11, 12, 16, and 17 of U.S. 

Patent No. 7,106,702 (also referred to as 

‘’702 Patent’) by the accused functionality of 

Microsoft’s Network Policy Server (or 

‘NPS’) software and system.” 

“Claims 1, 2, 4, 5, 10, 11, and 12 of U.S. 

Patent No. 7,366,160 (also referred to as the 

‘’160 Patent’) by the accused functionality of 

Microsoft’s Azure Monitor software.” 

“Claims 1, 2, and 6 of U.S. Patent No. 

8,274,902 (also referred to as the ‘’902 

Patent’) by the accused functionality of 

Microsoft’s Network Performance Monitor 

(or ‘NPM’) software.” 

[Requested Final Jury Instruction No. 14] 

Brazos’ Proposed Instruction: That the 

below instruction not be given. 

Microsoft’s Proposed Instruction: 

“You must compare the accused functionality 

of Network Policy Server (or “NPS”) to each 

of the requirements of Claims 1, 3, 8, 10, 11, 

12, 16, and 17 of the ’702 Patent.” 

“You must compare the accused functionality 

of Azure Monitor to each of the requirements 

of Claims 1, 2, 4, 5, 10, 11, and 12 of the ’160 

Patent.” 

“You must compare the accused functionality 

of Network Performance Monitor (or “NPM”) 

to each of the requirements of Claims 1, 2, 

Microsoft’s proposed instruction is redundant, 

lengthens an already-long charge, and could be 

taken by the jury as a comment by the Court on 

the evidence. 

Case 6:20-cv-00461-ADA Document 179 Filed 06/07/22 Page 10 of 19
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and 6 of the ’902 Patent.” 

[Requested Final Jury Instruction No. 17] 

Brazos’ Proposed Instruction: “products” 

Microsoft’s Proposed Instruction:

“software or system” 

[Requested Final Jury Instruction Nos. 14, 17] 

Brazos objects to Microsoft’s proposed 

description as needlessly narrow. 

Brazos’ Proposed Instruction: “Brazos 

has shown that any claims of any patent are 

infringed and Microsoft has not shown they 

are invalid, what amount of damages, if any, 

Brazos for infringement of those claims.” 

Microsoft’s Proposed Instruction: “WSOU 

has shown that any claims of any patent are 

infringed and Microsoft has not shown they 

are invalid, what amount of damages, if any, 

WSOU has proven by a preponderance of the 

evidence for infringement of those claims.” 

[Requested Final Jury Instruction No. 14] 

Brazos withdraws its objection to inclusion of 

the burden of proof for damages, subject to 

substitution of “WSOU” for “Brazos” in 

Microsoft’s proposed instruction. 

Brazos’ Proposed Instruction: “Each 

claim is effectively treated as if it were its 

own separate patent.” 

Microsoft’s Proposed Instruction: Brazos’ 

proposed instruction not be given. 

[Requested Final Jury Instruction No. 15]

Brazos’ requested instruction was provided by 

this Court in Freshub, Inc. et al. v. 

Amazon.com Inc., No. 6:21-cv-00511, Dkt. 

No. 241 (W.D. Tex. June 21, 2021). To the 

extent that Microsoft claims any risk of juror 

confusion given that these cases involves 

separate patents, Brazos notes that Freshub

similarly involved three distinct patents. 

Brazos’ Proposed Instruction: Only the 

italicized part of Microsoft’s proposed 

instruction be given. 

Microsoft’s Proposed Instruction: “If any 

requirement of a dependent claim is not met, 

or if any requirement of the independent 

Microsoft’s longer requested jury instruction 

is redundant and may be interpreted as a 

comment by the Court on the strength of 

Brazos’ case. 

Case 6:20-cv-00461-ADA Document 179 Filed 06/07/22 Page 11 of 19
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claim from which the dependent claim 

depends is not met, then the product is not 

covered by that dependent claim. On the 

other hand, if the requirements of an 

independent claim are met by a product, but a 

requirement of a dependent claim is not met, 

the independent claim is still infringed.” 

[Requested Final Jury Instruction No. 16] 

Brazos’ Proposed Instruction: “If you 

find that an independent claim has been 

infringed, you must decide, separately, 

whether the product meets the additional 

requirement(s) of any claims that depend 

from the independent claim to determine 

whether those dependent claims have also 

been infringed. A dependent claim includes 

all the requirements of any of the claims to 

which it refers plus additional requirement(s) 

of its own. For dependent claims, if you find 

that a claim to which a dependent claim refers 

is not infringed, there cannot be infringement 

of that dependent claim. However, if the 

requirements of an independent claim are met 

by a product, but a requirement of a 

dependent claim is not met, the independent 

claim is still infringed.” 

Microsoft’s Proposed Instruction: “For 

dependent claims, if you find that a claim to 

which a dependent claim refers is not 

infringed, there cannot be infringement of that 

dependent claim. On the other hand, [if] you 

find that an independent claim has been 

infringed, you must still decide, separately, 

whether the product meets the additional 

requirement(s) of any claims that depend 

from the independent claim to determine 

whether those dependent claims have also 

been infringed. A dependent claim includes 

all the requirements of any of the claims to 

which it refers plus additional requirement(s) 

of its own.” 

Microsoft’s dispute with Brazos’ proposed 

language boils down to its request that the 

proposed language, “However, if the 

requirements of an independent claim are met 

by a product, but a requirement of a 

dependent claim is not met, the independent 

claim is still infringed,” not be included. This 

language was included in the instructions 

given by this Court in the same case cited by 

Microsoft, Profectus Technology LLC v. 

Google LLC, No. 6:20-cv-101, Dkt. No. 193 

(W.D. Tex. Oct. 6, 2021) and will prevent 

juror confusion here. 

Case 6:20-cv-00461-ADA Document 179 Filed 06/07/22 Page 12 of 19
13 

[Requested Final Jury Instruction No. 17]

Brazos’ Proposed Instruction: An 

instruction on the doctrine of equivalents be 

given. 

Microsoft’s Proposed Instruction: No 

instruction on the doctrine of equivalents be 

given. 

[Requested Final Jury Instruction No. 17]

Microsoft’s attempt to eliminate Brazos’ 

proposed instruction on the doctrine of 

equivalents is premature. As Brazos has 

describes in its Opposition to Microsoft’s 

Motions in Limine, Brazos is entitled to elicit 

particularized testimony on the doctrine of 

equivalents at trial. See Dkt. No. 187. 

Brazos’ Proposed Instruction: “You 

should not compare the accused technology or 

processes with any specific example set out in 

the patent or with the prior art in reaching 

your decision on infringement. The only 

correct comparison is with the language of the 

claim itself. You must reach your decision as 

to each assertion of infringement based on the 

meaning and scope of the claims, the legal 

requirements for infringement, and the 

evidence presented to you by the parties.” 

Microsoft’s Proposed Instruction: The 

above instruction not be given. 

[Requested Final Jury Instruction No. 17]

Brazos’ proposed instruction assists that trier 

of fact and was given by this Court in ESW 

Holdings, Inc. v. Roku, Inc., No. 6:19-cv00044, Dkt. No. 172 (W.D. Tex. April 9, 

2021). 

Brazos’ Proposed Instruction: An 

instruction on willfulness be given. 

Microsoft’s Proposed Instruction: No 

instruction on willfulness be given. 

[Requested Final Jury Instruction No. 18]

Brazos’ respective complaints in these cases 

allege that Microsoft had received “notice and 

actual or constructive knowledge” of the 

patents-at-issue since “at least the date of 

service of the original Complaint.” See, e.g.,

Dkt. No. 73. An instruction on willfulness 

should be given. 

Brazos’ Proposed Instruction: An 

instruction on the presumption of validity be 

given. 

Microsoft’s Proposed Instruction: No 

Brazos’ proposed instruction accurately states 

the burden of proof with respect to invalidity 

and was given by this Court in VLSI. See 

VLSI Tech., Inc. v. Intel Corp., No. 6:21-cvCase 6:20-cv-00461-ADA Document 179 Filed 06/07/22 Page 13 of 19
14 

instruction on the presumption of validity be 

given. 

[Requested Final Jury Instruction Nos. 19, 21]

0057, Dkt. No. 565 (W.D. Tex. March 8, 

2021). 

Brazos’ Proposed Instruction: The above 

instruction not be given. 

Microsoft’s Proposed Instruction: “Most, if 

not all, inventions rely on building blocks of 

prior art. In considering whether a claimed 

invention is obvious, you should consider 

whether, at the time of the claimed invention, 

there was a reason that would have prompted 

a person having ordinary skill in the field of 

the invention to combine the known elements 

in the prior art in a way the claimed invention 

does, taking into account such factors as (1) 

whether the claimed invention was merely the 

predictable result of using prior art elements 

according to their known function(s); (2) 

whether the claimed invention provides an 

obvious solution to a known problem in the 

relevant field; (3) whether the prior art 

teaches or suggests the desirability of 

combining elements claimed in the invention; 

(4) whether the prior art teaches away from 

combining elements in the claimed invention; 

(5) whether it would have been obvious to try 

the combinations of elements, such as when 

there is a design incentive or market pressure 

to solve a problem and there are a finite 

number of identified, predictable solutions.” 

[Requested Final Jury Instruction No. 22]

Microsoft’s proposed instruction is overlylong and redundant in light of the Parties’ 

agreed-upon language in paragraph 3 of the 

proposed instruction, which states: “In 

determining whether a claimed invention is 

obvious, you must consider the level of 

ordinary skill in the field of the invention that 

someone would have had at the time the 

invention was made, the scope and content of 

the prior art, any differences between the prior 

art and the claimed invention, and, if present, 

so-called objective evidence or secondary 

considerations . . .”. 

Brazos’ Proposed Instruction: “A 

standalone prior art reference must enable a 

skilled artisan to make and use the claimed 

invention for the portions of the prior art 

reference being relied upon.” 

Brazos disputes enablement to the extent that 

Microsoft asserts that prior art, would enable 

a person of ordinary skill to practice the 

inventions. Brazos therefore requests that the 

Court adopt the following language proposed 

by Brazos: “A standalone prior art reference 

must enable a skilled artisan to make and use 

Case 6:20-cv-00461-ADA Document 179 Filed 06/07/22 Page 14 of 19
15 

Microsoft’s Proposed Instruction: Brazos’ 

proposed instruction not be given. 

[Requested Final Jury Instruction No. 22]

the claimed invention for the portions of the 

prior art reference being relied upon.” This 

language was included in the Court’s 

instructions in Freshub, Inc. et al. v. 

Amazon.com Inc., No. 6:21-cv-00511, Dkt. 

No. 241 (W.D. Tex. June 21, 2021). 

Brazos Proposed Instruction: “In 

considering whether a claimed invention is 

obvious, you should consider whether, as of 

the effective filing date of the applicable 

asserted claim of the Brazos Patents, there 

was a reason that would have prompted a 

person having ordinary skill in the field of the 

invention to combine the known elements in 

the prior art in a way the claimed invention 

does, taking into account such factors as:” 

Microsoft’s Proposed Instruction: “In 

determining whether the claimed invention is 

obvious, you should take into account any 

objective evidence (sometimes called 

“secondary considerations”) that may shed 

light on whether or not the claimed invention 

is obvious, such as:” 

[Requested Final Jury Instruction No. 22]

Brazos believes the narrow dispute can be 

resolved through adoption of Microsoft’s 

proposed sentence to introduce the secondary 

considerations factors. 

Brazos’ Proposed Instruction: “You 

should not use the patent as a road map for 

selecting and combining items of prior art. 

You must put yourself in the place of a person 

of ordinary skill in the art as of the date of the 

invention” 

Microsoft’s Proposed Instruction: The 

below instruction not be given. 

[Requested Final Jury Instruction No. 22]

Brazos’ proposed instruction—virtually 

identical to that in the AIPLA Model Jury 

Instructions § 7.0 (2019)—is consistent with 

the agreed-upon instructions that the jury 

should be instructed to “not use hindsight” 

and “consider only what was known at the 

time of the invention.”

Brazos’ Proposed Instruction: The below 

instruction not be given. 

Microsoft’s proposed instruction is redundant 

and cumulative. The Parties’ agreed-upon 

Case 6:20-cv-00461-ADA Document 179 Filed 06/07/22 Page 15 of 19
16 

Microsoft’s Proposed Instruction: “If you 

find that Microsoft has not infringed any 

claim of the ’702, ’160, and ’902 Patents, or 

that the claim is invalid, then WSOU is not 

entitled to any damages.” 

[Requested Final Jury Instruction No. 25]

language already instructs the jury that “if you 

find that Microsoft has infringed any valid 

claim” of the relevant patents, “you must then 

consider what amount of damages to award.” 

Brazos’ Proposed Instruction: The below 

instruction not be given. 

Microsoft’s Proposed Instruction: “They 

are not meant to punish an infringer.” 

[Requested Final Jury Instruction No. 25] 

Brazos’ proposed instruction without 

Microsoft’s addition states the correct legal 

standard. Microsoft’s addition poses the risk 

of confusing the jury into believing that only 

lost revenues or profits should be considered 

as opposed to benefits that Microsoft has 

obtained by using the inventions. 

Brazos’ Proposed Instruction: Separate 

instruction on lump-sum versus running 

royalty. 

Microsoft’s Proposed Instruction: No 

separate instruction on lump-sum versus 

running royalty. 

[Requested Final Jury Instruction No. 26] 

Brazos is entitled to a separate instruction on 

lump-sum versus running royalty—the same 

instruction given by this Court in Freshub, 

Inc. et al. v. Amazon.com Inc., No. 6:21-cv00511, Dkt. No. 241 (W.D. Tex. June 21, 

2021)—in light of Brazos’ damages model in 

these cases. 

 

Brazos’ Proposed Instruction: 

Apportionment can be addressed in a variety 

of ways, including by careful selection of the 

royalty base to reflect the value added by the 

patented feature or by adjustment of the 

royalty rate so as to discount the value of a 

product’s non-patented features; or by a 

combination thereof. 

Microsoft’s Proposed Instruction: The 

above instruction not be given. 

[Requested Final Jury Instruction No. 27] 

Brazos’ proposed instruction provides 

information useful to the trier of fact and was 

given by this Court verbatim in Freshub, Inc. 

et al. v. Amazon.com Inc., No. 6:21-cv-00511, 

Dkt. No. 241 (W.D. Tex. June 21, 2021). 

Case 6:20-cv-00461-ADA Document 179 Filed 06/07/22 Page 16 of 19
17 

Verdict Form Objection 

See Dkt. Nos. 184-12 & 184-13 Brazos requests that its proposed verdict 

form, organized by issue, be used. 

Microsoft’s verdict form requires the jury to 

alternate between issues with different 

burdens and standards of proof, which bears a 

substantial risk of confusing the jury. 

Brazos also requests that an entry for 

willfulness be included. Brazos’ respective 

complaints in these cases allege that 

Microsoft had received “notice and actual or 

constructive knowledge” of the patents-atissue since “at least the date of service of the 

original Complaint.” See Dkt. No. 73. 

DATED: June 7, 2022 /s/ Max L. Tribble 

Max L. Tribble, Jr. 

Texas Bar No. 2021395 

J. Hoke Peacock III 

Texas Bar No. 15673980 

Shawn Blackburn (pro hac vice) 

Texas Bar No. 24089989 

Bryce Barcelo 

Texas Bar No. 24092081 

1000 Louisiana Street, Suite 5100 

Houston, Texas 77002-5096 

Telephone: (713) 651-9366 

Fax: (713) 654-6666 

mtribble@susmangodfrey.com 

tpeacock@susmangodfrey.com 

sblackburn@susmangodfrey.com 

bbarcelo@susmangodfrey.com 

Kalpana Srinivasan 

California Bar No. 237460 

Anna Catherine Coll (pro hac vice) 

California Bar No. 337548 

1900 Avenue of the Stars, 14th Floor 

Los Angeles, California 90067-6029 

Case 6:20-cv-00461-ADA Document 179 Filed 06/07/22 Page 17 of 19
18 

Telephone: (310) 789-3100 

Fax: (310) 789-3150 

ksrinivasan@susmangodfrey.com 

acoll@susmangodfrey.com 

Elizabeth Aronson (pro hac vice) 

New York Bar No. 5704432 

1301 Avenue of the Americas, 32nd Floor 

New York, New York 10019 

Telephone: (212) 336-8330 

Fax: (212) 336-8340 

baronson@susmangodfrey.com 

Mark D. Siegmund 

Texas Bar No. 24117055 

Justin Allen 

Texas Bar No. 24081977 

Gregory Love 

Texas Bar No. 24013060 

STECKLER, WAYNE, COCHRAN, 

CHERRY, PLLC 

8416 Old McGregor Road 

Waco, Texas 76712 

Telephone: (254) 651-3690 

Fax: (254) 651-3689 

mark@swclaw.com 

justin@swclaw.com 

greg@swclaw.com 

COUNSEL FOR PLAINTIFF WSOU 

INVESTMENTS, LLC D/B/A BRAZOS 

LICENSING AND DEVELOPMENT 

 

Case 6:20-cv-00461-ADA Document 179 Filed 06/07/22 Page 18 of 19
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CERTIFICATE OF SERVICE 

 The undersigned certifies that on June 7, 2022, I electronically filed this document with the 

Clerk of Court via the Court’s CM/ECF system which will send notification of such filing to all 

counsel of record, all of whom have consented to electronic service in this action. 

/s/ Max. L. Tribble

Max L. Tribble 

Counsel for Plaintiff 

Case 6:20-cv-00461-ADA Document 179 Filed 06/07/22 Page 19 of 19