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CNX Gas Corp. v. CDX Gas

April 28, 2008

CNX GAS CORPORATION, AND CNX GAS COMPANY LLC PLAINTIFFS,
v.
CDX GAS, LLC, DEFENDANT,
v.
CONSOL ENERGY, INC., COUNTER-DEFENDANT.



PRELIMINARY JURY INSTRUCTIONS

MEMBERS OF THE JURY: NOW THAT YOU HAVE BEEN SWORN, I WILL GIVE YOU SOME PRELIMINARY INSTRUCTIONS TO GUIDE YOU IN YOUR PARTICIPATION IN THE TRIAL.

A. INTRODUCTION

LADIES AND GENTLEMEN, THIS IS A PATENT CASE. THE PLAINTIFFS IN THIS CASE ARE CNX GAS CORPORATION, CNX GAS COMPANY LLC, AND CONSOL ENERGY, INC. I WILL REFER TO THE PLAINTIFFS COLLECTIVELY AS "CONSOL." THE DEFENDANT IN THIS CASE IS CDX GAS LLC. I WILL REFER TO THE DEFENDANT AS "CDX."

THE CASE INVOLVES U.S. PATENT NOS. 6,357,523, 6,561,288, AND 6,964,298. THE PATENTS IN THIS CASE ARE OWNED BY CDX AND WILL BE REFERRED TO AS THE CDX PATENTS OR PATENTS-IN-SUIT. PATENTS ARE OFTEN REFERRED TO BY THEIR LAST THREE DIGITS. THUS, THE PATENTS MAY BE REFERRED TO AS THE '523, '288, AND '298 PATENTS.

THE CDX PATENTS RELATE TO METHODS AND SYSTEMS FOR REMOVING WATER AND METHANE GAS FROM A SUBTERRANEAN COAL SEAM PRIOR TO COAL MINING OPERATIONS. DURING TRIAL THE PARTIES WILL OFFER TESTIMONY TO FAMILIARIZE YOU WITH THIS TECHNOLOGY.

B. WHAT A PATENT IS AND HOW ONE IS OBTAINED

PATENTS ARE GRANTED BY THE UNITED STATES PATENT AND TRADEMARK OFFICE (SOMETIMES CALLED "THE PTO"), WHICH IS PART OF OUR FEDERAL GOVERNMENT. THE GOVERNMENT IS SPECIFICALLY AUTHORIZED BY THE UNITED STATES CONSTITUTION TO ENACT PATENT LAWS AND ISSUE PATENTS TO PROTECT INVENTIONS. INVENTIONS THAT ARE PROTECTED BY PATENTS MAY BE OF PRODUCTS, COMPOSITIONS, OR OF METHODS FOR DOING SOMETHING, OR FOR USING OR MAKING A PRODUCT OR COMPOSITION.

A VALID UNITED STATES PATENT GIVES THE PATENT HOLDER THE RIGHT FOR UP TO 20 YEARS FROM THE DATE THE PATENT APPLICATION WAS FILED, OR IN SOME CASES, FOR 17 YEARS FROM THE DATE THE PATENT ISSUED, TO PREVENT OTHERS FROM MAKING, USING, OFFERING TO SELL, OR SELLING THE PATENTED INVENTION WITHIN THE UNITED STATES, OR FROM IMPORTING IT INTO THE UNITED STATES, WITHOUT THE PATENT HOLDER'S PERMISSION.

A PATENT INCLUDES A "SPECIFICATION" WHICH CONTAINS A WRITTEN DESCRIPTION OF THE CLAIMED INVENTION TELLING WHAT THE INVENTION IS, HOW IT WORKS, HOW TO MAKE IT AND HOW TO USE IT SO OTHERS SKILLED IN THE FIELD WILL KNOW HOW TO MAKE OR USE IT. THE SPECIFICATION CONCLUDES WITH ONE OR MORE NUMBERED SENTENCES. THESE ARE THE PATENT "CLAIMS." THE CLAIMS DEFINE THE BOUNDARIES OF ITS PROTECTION AND GIVE NOTICE TO THE PUBLIC OF THOSE BOUNDARIES.

C. THE SIGNIFICANCE OF PATENT CLAIMS

THE CLAIMS OF THE PATENT ARE THE MAIN FOCUS OF THIS CASE BECAUSE THE CLAIMS DEFINE THE PATENT OWNER'S RIGHTS UNDER THE LAW. THAT IS, THE CLAIMS DEFINE WHAT THE PATENT OWNER MAY EXCLUDE OTHERS FROM DOING DURING THE TERM OF THE PATENT.

THE CLAIMS OF A PATENT SERVE TWO PURPOSES. FIRST, THEY STATE THE BOUNDARIES OF THE INVENTION. SECOND, THEY PROVIDE NOTICE TO THE PUBLIC OF THOSE BOUNDARIES. IT IS THE CLAIMS THAT ARE AT ISSUE WHEN THE VALIDITY OF A PATENT IS CHALLENGED.

IN THIS CASE, CDX IS ASSERTING THAT CONSOL HAS INFRINGED 5 CLAIMS, SPECIFICALLY CLAIMS 12 AND 16 OF THE '523 PATENT, CLAIMS 32 AND 41 OF THE '288 PATENT, AND CLAIM 41 OF THE '298 PATENT. THESE CLAIMS ARE LOCATED AT THE END OF THE RESPECTIVE PATENTS WHICH ARE IN YOUR EXHIBIT BINDER. ACCORDINGLY, DURING THE TRIAL, THE PARTIES WILL FOCUS ON THE INVENTION AS IT IS DESCRIBED BY THESE CLAIMS, AND YOU ARE TO DO THE SAME WHEN DECIDING AT THE END OF THE TRIAL HOW TO ANSWER THE QUESTIONS POSED TO YOU.

D. BURDEN OF PROOF

THIS IS A CIVIL CASE. CONSOL IS THE PARTY THAT BROUGHT THIS LAWSUIT. CDX IS THE PARTY AGAINST WHICH THE LAWSUIT WAS FILED. CONSOL HAS THE BURDEN OF PROVING ITS CASE BY AN APPLICABLE STANDARD OF PROOF.

IN THIS CASE, CONSOL IS URGING THAT CDX'S PATENTS ARE INVALID. THE GRANTING OF A PATENT BY THE PATENT OFFICE CARRIES WITH IT THE PRESUMPTION THAT THE PATENT IS VALID. FROM ISSUANCE OF THE PATENT, IT IS PRESUMED THAT ITS SUBJECT MATTER IS NEW, USEFUL, AND CONSTITUTES AN ADVANCE WHICH WAS NOT, AT THE TIME THE INVENTION WAS MADE, OBVIOUS TO ONE OF ORDINARY SKILL IN THE ART. THE LAW PRESUMES, IN THE ABSENCE OF CLEAR AND CONVINCING EVIDENCE TO THE CONTRARY, THAT THE PATENT OFFICE ACTED CORRECTLY IN ISSUING THE PATENT.

THIS PRESUMPTION OF VALIDITY PUTS THE BURDEN OF PROVING INVALIDITY ON CONSOL. WHILE THIS PRESUMPTION CAN BE REBUTTED, THE BURDEN IS ON CONSOL TO DO SO, 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. CLEAR AND CONVINCING EVIDENCE INVOLVES A HIGHER DEGREE OF PERSUASION THAN IS NECESSARY TO PROVE THAT A FACT IS MORE LIKELY SO THAN NOT SO.

YOU MAY HAVE HEARD OF THE TERM "PROOF BEYOND A REASONABLE DOUBT." THAT IS A STRICTER STANDARD OF PROOF AND IT APPLIES ONLY TO CRIMINAL CASES. IT DOES NOT APPLY IN CIVIL CASES SUCH AS THIS. SO YOU SHOULD PUT IT OUT OF YOUR MIND.

E. THE PARTIES' CONTENTIONS

I WILL NOW BRIEFLY GIVE YOU SOME INFORMATION ABOUT THE PARTIES' CONTENTIONS AND THE ISSUES THAT WILL BE PRESENTED TO YOU AT THIS TRIAL AND THE LAW THAT YOU MUST FOLLOW IN REACHING YOUR VERDICT. I WILL PROVIDE MORE DETAILS ABOUT PARTIES' CONTENTIONS AND THE LEGAL REQUIREMENTS FOR THOSE CONTENTIONS IN MY FINAL INSTRUCTIONS AT THE CLOSE OF THE TRIAL.

THE PARTIES ARE CONSOL, THE PLAINTIFF, AND CDX, THE DEFENDANT. CDX OWNS SEVERAL UNITED STATES PATENTS, WHICH ARE AT ISSUE IN THIS TRIAL. CONSOL CONTENDS THAT CDX'S PATENTS ARE INVALID. CDX CONTENDS THAT ITS PATENTS ARE VALID. MORE SPECIFICALLY, CONSOL CONTENDS THAT CDX'S PATENTS ARE INVALID (A) BECAUSE THE INVENTION CLAIMED IN THOSE PATENTS WERE IN PUBLIC USE PRIOR TO NOVEMBER 20, 1997 (I.E. ONE YEAR BEFORE THE NOVEMBER 20, 1998 FILING DATE OF THE PATENT APPLICATIONS) THAT RESULTED IN CDX'S PATENTS, AND/OR (B) BECAUSE THE INVENTION CLAIMED IN THOSE PATENTS WORKED FOR ITS INTENDED PURPOSE (I.E. HAD BEEN REDUCED TO PRACTICE) PRIOR TO NOVEMBER 20, 1997. CDX CONTENDS THAT ITS PATENTS ARE VALID, BECAUSE CONSOL CANNOT MEET ITS BURDEN OF SHOWING BY CLEAR AND CONVINCING EVIDENCE THAT THE PATENTS ARE INVALID, ARGUING THAT (A) ANY USE OF THE ...


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