IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

WESTERN DIVISION





DETHMERS MANUFACTURING COMPANY, INC.,
Plaintiff,

No. C 96-4061-MWB

vs.



PRELIMINARY

AND FINAL INSTRUCTIONS

TO THE JURY

AUTOMATIC EQUIPMENT MANUFACTURING COMPANY,
Defendant.

____________________



TABLE OF CONTENTS

PRELIMINARY INSTRUCTIONS

NO. 1 - PRELIMINARY INSTRUCTIONS

NO. 2 - STATEMENT OF THE CASE

NO. 3 - ELEMENTS OF CLAIMS

NO. 4 - BURDEN OF PROOF

NO. 5 - DUTY OF JURORS

NO. 6 - ORDER OF TRIAL

NO. 7 - DEFINITION OF EVIDENCE

NO. 8 - CREDIBILITY OF WITNESSES

NO. 9 - STIPULATED FACTS

NO. 10 - DEPOSITIONS

NO. 11 - INTERROGATORIES

NO. 12 - OBJECTIONS

NO. 13 - BENCH CONFERENCES

NO. 14 - NOTE-TAKING

NO. 15 - CONDUCT OF JURORS DURING TRIAL

FINAL INSTRUCTIONS

NO. 1 - INTRODUCTION

NO. 2 - IMPEACHMENT OF WITNESSES

NO. 3 - BREACH OF CONTRACT

NO. 4 - PROMISSORY ESTOPPEL

NO. 5 - UNJUST ENRICHMENT

NO. 6 - DAMAGES--IN GENERAL

NO. 7 - DAMAGES--SPECIFIC

NO. 8 - DELIBERATIONS



VERDICT FORM

PRELIMINARY INSTRUCTION NO. 1 - PRELIMINARY INSTRUCTIONS



Members of the jury, before the lawyers make their opening statements, I give you these preliminary instructions to help you better understand the trial and your role in it. Consider these instructions, together with any oral instructions given to you during the trial and the written final instructions given at the end of the trial, and apply them as a whole to the facts of the case. In considering these instructions, the order in which they are given is not important.



PRELIMINARY INSTRUCTION NO. 2 - STATEMENT OF THE CASE



The following brief summary of the case is not to be considered evidence or proof of any facts or events in the case. It simply informs you of the factual disputes between the parties.

This is a civil case brought by plaintiff Dethmers Manufacturing Company, Inc., against defendant Automatic Equipment Manufacturing Company. In these instructions, I will refer to the parties as "Dethmers" and "Automatic," respectively. Dethmers asserts the claims in this case on behalf of a person named Richard Parent, as the result of an assignment of claims from Parent to Dethmers. Both Dethmers and Automatic make tow bars used to tow an automobile behind a recreational vehicle, or R.V. Richard Parent developed an idea or invention for a new type of tow bar. Parent's idea or invention involved a swivel or universal joint. His tow bar could also be folded up on the back of an R.V. for storage when not in use. Dethmers claims, on Parent's behalf, that Automatic has wrongfully used Parent's ideas or invention in the design and manufacture of its tow bars without properly compensating Parent. Therefore, in this case, Dethmers seeks appropriate compensation for the use of Parent's ideas. Automatic denies Dethmers's claims.

This case also involves claims related to various patents owned by the parties. However, those patent claims are not currently before you, although you may hear evidence concerning various patents to help you understand the case. In this trial, you will decide only the "non-patent" claims.

More specifically, Dethmers asserts three claims: (1) breach of contract; (2) promissory estoppel; and (3) unjust enrichment. For its breach-of-contract claim, Dethmers contends that Parent entered into a contract with Automatic, through an agent of Automatic, under which Parent agreed to disclose his invention, and in exchange, Automatic agreed not to use the invention without paying for it. However, Dethmers contends that Automatic then breached the contract by using Parent's invention without compensating him for it. Automatic counters that no such agreement was reached, that its purported agent had no authority to enter into such an agreement, and that Parent suffered no damages as a result of a breach of contract.

Next, Dethmers contends that, if there was no contract, it is still entitled to recover damages on a claim of promissory estoppel. A claim of promissory estoppel is based on the rule that if a person makes a promise that the person should reasonably expect would induce another person to act in a certain way, and the promise does induce the other person to act in the way expected, then the promise is binding on the person who made it, if an injustice can be avoided only by enforcing the promise. Here, Dethmers contends that Automatic made a promise to Parent that, if Parent disclosed his idea or invention, Automatic would not use Parent's idea or invention without paying him for it, Automatic should reasonably have expected that Parent would be induced by the promise to disclose his invention and Parent did disclose it, Automatic has not compensated Parent for use of his idea, and injustice can only be avoided if Automatic's promise is enforced. Automatic disputes that any such promise was made, that the person who allegedly made such a promise had the authority to make any promises, that Parent relied on any such promise in disclosing his invention to Automatic, or that Parent suffered any damages in reliance on such a promise.

Finally, Dethmers contends that it is entitled to recover reasonable compensation for Automatic's use of Parent's idea or invention on a claim of unjust enrichment. A claim of unjust enrichment is based on the rule that one should not be allowed to profit or enrich oneself unjustly at the expense of another. Dethmers contends that Automatic has used Parent's idea or invention, even though those parties never reached a subsequent agreement on Automatic's use of the idea or invention after Parent disclosed it. Dethmers contends that Automatic will be unjustly enriched if it is allowed to profit or enrich itself by using Parent's idea or invention without paying him reasonable compensation for it. Automatic contends that it has not improperly used Parent's idea or invention in its products, and therefore has not been unjustly enriched by using Parent's idea or invention, and that Parent suffered no damages as a result of Automatic's use of his idea or invention, if it did indeed use his idea or invention.

You will be asked to resolve these disputes between the parties.

PRELIMINARY INSTRUCTION NO. 3 - ELEMENTS OF CLAIMS



To help you follow the evidence, here is a brief summary of the nature and elements of Dethmers's claims.

Breach of contract

In order to win on its claim of breach of contract, Dethmers must prove each of the following by the greater weight of the evidence:

1. Parent and Automatic entered into a contract;

2. The terms of the contract;

3. Automatic breached the contract;

4. Automatic's breach was a proximate cause of damage to Parent; and

5. The nature and extent of damage.



Promissory estoppel

In order to win on its claim of promissory estoppel, Dethmers must prove each of the following by the greater weight of the evidence:

1. Automatic, through an agent with proper authority, promised that it would not use Parent's invention without paying for it;

2. Parent reasonably relied upon Automatic's promise;

3. Parent's reliance upon the promise was foreseeable by Automatic; and

4. Parent was damaged because of his reliance on Automatic's promise.



Unjust enrichment

In order to win on its claim of unjust enrichment, Dethmers must prove each of the following by the greater weight of the evidence:

1. Automatic developed Parent's concept for a tow bar;

2. Automatic has sold and/or is selling a tow bar or tow bars and accessories based upon its use of Parent's idea;

3. Automatic is profiting or has profited from selling such products;

4. Automatic is not compensating Parent for the use of his ideas; and

5. It would be inequitable and unconscionable to permit Automatic to avoid paying Parent reasonable compensation.



This is only a preliminary outline of the elements of Dethmers's claims. At the end of the trial, I will give you final written instructions that explain these claims in greater detail. Because they are more detailed, those final instructions govern on the elements of Dethmers's claims.

PRELIMINARY INSTRUCTION NO. 4 - BURDEN OF PROOF



In these instructions, you are told that your verdict depends on whether you find certain facts have been proved. The burden of proving a fact is upon the party whose claim depends upon that fact. In this case, facts must be proved by the "greater weight of the evidence." To prove something by the greater weight of the evidence is to prove that it is more likely true than not true. It is determined by considering all of the evidence and deciding which evidence is more believable. If, on any issue in the case, the evidence is equally balanced, you cannot find that issue has been proved.

The "greater weight" of the evidence is not necessarily determined by the greater number of witnesses or exhibits a party has presented. The testimony of a single witness that produces in your mind a belief in the likelihood of truth is sufficient for proof of any fact and would justify a verdict in accordance with such testimony. This is so, even though a number of witnesses may have testified to the contrary, if after consideration of all of the evidence in the case, you hold a greater belief in the accuracy and reliability of that one witness.

You may have heard of the term "proof beyond a reasonable doubt." That is a stricter standard which applies in criminal cases. It does not apply in civil cases such as this. You should, therefore, put it out of your minds.

PRELIMINARY INSTRUCTION NO. 5 - DUTY OF JURORS



It will be your duty to decide from the evidence what the facts are. You, and you alone, are the judges of the facts. You will hear the evidence, decide what the facts are and then apply those facts to the law which I will give you in these preliminary instructions, any instructions given during the trial, and in the final instructions at the conclusion of the case. You will then deliberate and reach your verdict. You are the sole judges of the facts; but you must follow the law as stated in my instructions, whether you agree with it or not.

You have been chosen and sworn as jurors in this case to try the issues of fact presented by the parties. Do not allow sympathy or prejudice to influence you. The law demands of you a just verdict, unaffected by anything except the evidence, your common sense, and the law as I will give it to you.

This case should be considered and decided by you as an action between persons of equal standing in the community, of equal worth, and holding the same or similar stations in life. In this case, the parties are corporations. The mere fact that a party is a corporation does not mean that it is entitled to any greater or lesser consideration by you. All persons, including individuals and corporations, stand equal before the law, and are entitled to the same fair consideration by you.

When a corporation is involved, of course, it may act only through natural persons as its agents or employees; and, in general, any agent or employee of a corporation may bind the corporation by the acts and declarations made while acting within the scope of the authority delegated to the employee by the corporation, or within the scope of the employee's or agent's duties as an employee or agent of the corporation.

You should not take anything I may say or do during the trial as indicating what I think of the evidence or what I think your verdict should be.

PRELIMINARY INSTRUCTION NO. 6 - ORDER OF TRIAL



The trial will proceed in the following order:

After I conclude these preliminary instructions, the plaintiff's lawyer may make an opening statement. Next, the defendant's lawyer may make an opening statement. An opening statement is not evidence, but is simply a summary of what the lawyers expect the evidence to be.

The plaintiff will then present evidence and witnesses and the defendant may cross-examine. Following the plaintiff's case, the defendant may present evidence and witnesses and the plaintiff may cross-examine. Following the defendant's case, the plaintiff may take a further opportunity to present additional evidence.

After the evidence is concluded, I will give you the final instructions on the law that you are to apply in reaching your verdict. The lawyers will then make their closing arguments to summarize and interpret the evidence for you. As with opening statements, closing arguments are not evidence. I will then give you some final instructions on deliberations, and you will retire to deliberate on your verdict.

PRELIMINARY INSTRUCTION NO. 7 - DEFINITION OF EVIDENCE



You shall base your verdict only upon the evidence, these instructions, and other instructions that I may give you during the trial.

Evidence is:

1. Testimony in person or testimony previously given, which includes depositions or videotaped depositions.

2. Exhibits admitted into evidence by the court.

3. Stipulations, which are agreements between the parties.

4. Any other matter admitted into evidence.

Evidence may be direct or circumstantial. You should not be concerned with these terms since the law makes no distinction between the weight to be given to direct and circumstantial evidence. The weight to be given any evidence is for you to decide.

The following are not evidence:

1. Statements, arguments, questions, and comments by the lawyers.

2. Objections and rulings on objections.

3. Testimony I tell you to disregard.

4. Anything you saw or heard about this case outside the courtroom.

You should not take anything I may say or do during the trial as indicating what I think of the evidence.

PRELIMINARY INSTRUCTION NO. 8 - CREDIBILITY OF WITNESSES



In deciding what the facts are, you may have to decide what testimony you believe and what testimony you do not believe. You may believe all of what a witness says, or only part of it, or none of it.

In deciding what testimony to believe, consider the witnesses' intelligence, their opportunity to have seen or heard the things they testify about, their memories, the motives they may have for testifying a certain way, their manner while testifying, whether they said something different at an earlier time, the general reasonableness of their testimony, and the extent to which their testimony is consistent with other evidence that you believe.

In deciding whether or not to believe a witness, keep in mind that people sometimes hear or see things differently and sometimes forget things. You need to consider therefore whether a contradiction is an innocent misrecollection or lapse of memory or an intentional falsehood, and that may depend on whether it has to do with an important fact or only a small detail.

You may hear testimony from persons described as experts. Persons who have become experts in a field because of their education and experience may give their opinions on matters in that field and the reasons for their opinions. Consider expert testimony just like any other testimony. You may accept it or reject it. You may give it as much weight as you think it deserves, considering the witness's education and experience, the reasons given for the opinion, and all the other evidence in the case.

Also, an expert witness may be asked to assume certain facts are true and to give an opinion based on that assumption. This is called a hypothetical question. If any facts assumed in the question are not proved by the evidence, you should decide if that omission affects the value of the expert's opinion.

PRELIMINARY INSTRUCTION NO. 9 - STIPULATED FACTS



The plaintiff and defendant have agreed or "stipulated" to certain facts and have reduced these facts to a written agreement or stipulation. Any counsel may, throughout the trial, read to you all or a portion of the stipulated facts. You should treat these stipulated facts as having been proved.



PRELIMINARY INSTRUCTION NO. 10 - DEPOSITIONS



Certain testimony from a deposition may be read into evidence. A deposition is testimony taken under oath before the trial and preserved in writing. Consider that testimony as if it had been given in court.

PRELIMINARY INSTRUCTION NO. 11 - INTERROGATORIES



During this trial, you may hear the word "interrogatory." An interrogatory is a written question asked by one party of another, who must answer it under oath in writing. Consider interrogatories and the answers to them as if the questions had been asked and answered here in court.

PRELIMINARY INSTRUCTION NO. 12 - OBJECTIONS



From time to time during the trial I may be called upon to make rulings of law on objections or motions made by the lawyers. It is the duty of the lawyer for each party to object when another party offers testimony or other evidence that the lawyer believes is not properly admissible. You should not show prejudice against a lawyer or the party the lawyer represents because the lawyer has made objections. You should not infer or conclude from any ruling or other comment I may make that I have any opinions on the merits of the case favoring one side or the other. Also, if I sustain an objection to a question that goes unanswered by the witness, you should not draw any inferences or conclusions from the question itself.

PRELIMINARY INSTRUCTION NO. 13 - BENCH CONFERENCES



During the trial it may be necessary for me to talk with the lawyers out of your hearing, either by having a bench conference here while you are present in the courtroom, or by calling a recess. Please understand that while you are waiting, we are working. The purpose of these conferences is to decide how certain evidence is to be treated under the rules of evidence, and to avoid confusion and error. We will, of course, do what we can to keep the number and length of these conferences to a minimum.







PRELIMINARY INSTRUCTION NO. 14 - NOTE-TAKING



If you want to take notes during the trial, you may. However, it is difficult to take detailed notes and pay attention to what the witnesses are saying. If you do take notes, be sure that your note-taking does not interfere with listening to and considering all of the evidence. Also, if you take notes, do not discuss them with anyone before you begin your deliberations. Do not take your notes with you at the end of the day. Be sure to leave them on your chair in the courtroom. The court attendant will safeguard the notes. No one will read them. The notes will remain confidential throughout the trial and will be destroyed at the conclusion of the trial.

If you choose not to take notes, remember it is your own individual responsibility to listen carefully to the evidence. You cannot give this responsibility to someone who is taking notes. We depend on the judgment of all members of the jury; you must all remember and consider the evidence in this case.

Whether or not you take notes, you should rely on your own memory regarding what was said. Your notes are not evidence. A juror's notes are not more reliable than the memory of another juror who chooses to consider the evidence carefully without taking notes. You should not be overly influenced by the notes.

You will notice that we do have an official court reporter making a record of the trial. However, we will not have typewritten transcripts of this record available for your use in reaching your verdict.



PRELIMINARY INSTRUCTION NO. 15 - CONDUCT OF JURORS

DURING TRIAL





You will not be required to remain together while court is in recess. However, to ensure fairness, you, as jurors, must obey the following rules:

First, do not talk among yourselves about this case, or about anyone involved with it, until the end of the case when you go to the jury room to decide on your verdict.

Second, do not talk with anyone else about this case, or about anyone involved with it, until the trial has ended and you have been discharged as jurors.

Third, when you are outside the courtroom, do not let anyone tell you anything about the case, or about anyone involved with it until the trial has ended and your verdict has been accepted by me. If someone should try to talk to you about the case during the trial, please report it to me.

Fourth, during the trial you should not talk with or speak to any of the parties, lawyers or witnesses involved in this case--you should not even pass the time of day with any of them. It is important not only that you do justice in this case, but that you also give the appearance of doing justice. If a person from one side of the case sees you talking to a person from the other side--even if it is simply to pass the time of day--an unwarranted and unnecessary suspicion about your fairness might be aroused. If any lawyer, party, or witness does not speak to you when you pass in the hall, ride the elevator, or the like, remember it is because they are not supposed to talk or visit with you either.

Fifth, do not read any news stories or articles about the case, or about anyone involved with it, or listen to any radio or television reports about the case or about anyone involved with it.

Sixth, do not do any research or make any investigation about the case on your own.

Seventh, do not make up your mind during the trial about what the verdict should be. Keep an open mind until after you have gone to the jury room to decide the case and you and your fellow jurors have discussed the evidence.

DATED this 14th day of August, 2000.



FINAL INSTRUCTION NO. 1 - INTRODUCTION



Members of the jury, the instructions I gave you at the beginning of the trial and any oral or written instructions I gave you during the trial remain in effect. I now give you some additional instructions.

You must, of course, continue to follow the instructions I gave you earlier, as well as those I give you now. You must not single out some instructions and ignore others, because all are important. The instructions I am about to give you now, as well as the preliminary instructions given to you at the beginning of the trial, are in writing and will be available to you in the jury room. All instructions, whenever given and whether in writing or not, must be followed. This is true even though some of the instructions I gave you at the beginning of the trial are not repeated here.

In considering these instructions, the order in which they are given is not important.

Neither in these instructions nor in any ruling, action, or remark that I have made during the course of this trial have I intended to give any opinion or suggestion as to what your verdict should be.

FINAL INSTRUCTION NO. 2 - IMPEACHMENT OF WITNESSES



In Preliminary Instruction No. 8, I instructed you on the credibility of witnesses. I now give you this further instruction on how the credibility of a witness can be "impeached."

A witness may be discredited or "impeached" by contradictory evidence, or by evidence that at some time the witness has said or done something, or has failed to say or do something, that is inconsistent with the witness's present testimony. If you believe any witness has been impeached and thus discredited, it is your exclusive province to give the testimony of that witness such credibility, if any, as you may think it deserves.

FINAL INSTRUCTION NO. 3 - BREACH OF CONTRACT



Dethmers's first claim alleges breach of contract. For this claim, Dethmers contends that Parent entered into a contract with Automatic, either through an agent of Automatic, or through the subsequent silence of Automatic, under which Parent agreed to disclose his invention, and in exchange, Automatic agreed not to use the invention without paying for it. However, Dethmers contends that Automatic then breached the contract by using Parent's invention without compensating him for it. Automatic counters that no such agreement was reached, that its purported agent had no authority to enter into such an agreement, that its subsequent silence did not constitute an acceptance of the contract, and that Parent suffered no damages as a result of a breach of contract.

In order to win on its claim of breach of contract, Dethmers must prove each of the following by the greater weight of the evidence:

1. Parent and Automatic entered into a contract.

A contract consists of an offer by one party and an acceptance by the other. An "offer" is an expression of willingness to enter into an agreement with another, made in such a way that the other party is justified in believing that acceptance is invited and will result in a contract. An "acceptance" of an offer is an expression of agreement to the terms of the offer, made while the offer is still open. For an acceptance to be valid, there must not be any substantial variation between the offer and the claimed acceptance.

Dethmers contends that William Bachman acted as Automatic's agent in accepting an offer from Parent and that Automatic is therefore bound by Bachman's alleged acceptance. If you find that (1) Automatic led Parent to believe that Bachman was authorized to enter into an agreement on behalf of Automatic, and (2) that Parent's belief that Bachman had this authority was reasonable, then, as between Automatic and Parent, and regarding the contract alleged here, Automatic is bound by the acts of Bachman.

In the alternative, Dethmers contends that Automatic accepted the terms of the offer alleged here by its subsequent silence. The silence or inaction of a party constitutes acceptance only if: (1) the party accepted the benefit of the offered services, thing, or idea, understanding that compensation was expected, and having had a reasonable opportunity to reject the services, thing, or idea; or (2) the offering party gave the other party reason to understand that silence or inaction would constitute acceptance and the other party intended that its silence or inaction would constitute acceptance.

For there to be a contract, the parties must agree to do or not to do something and the agreement must be supported by "consideration." If you find that Parent agreed to disclose his ideas and Automatic agreed not to use his ideas without paying for them, then there was "consideration." The agreement may be written, oral, inferred from conduct, or found in some combination of ways.



2. The terms of the contract.

Dethmers alleges that the terms of the contract between Automatic and Parent provided that Parent agreed to disclose his invention, and in exchange, Automatic agreed not to use the invention without paying Parent for it.



3. Automatic breached the contract.

Dethmers contends that Automatic breached the contract by using his invention without compensating him for it.



4. Automatic's breach was a proximate cause of damage to Parent.

A proximate cause is a cause that produces a result in a natural and continuous sequence, and without which the result would not have occurred.



5. The nature and extent of damage.

If Dethmers has failed to prove all of the above elements by the greater weight of the evidence, your verdict must be for Automatic on Dethmers's claim of breach of contract. However, if Dethmers has proved all of these elements by the greater weight of the evidence, then Dethmers is entitled to damages in some amount for breach of contract by Automatic.



FINAL INSTRUCTION NO. 4 - PROMISSORY ESTOPPEL



Next, Dethmers contends that, if there was no contract, it is still entitled to recover damages on a claim of promissory estoppel. A claim of promissory estoppel is based on the rule that if a person makes a promise that the person should reasonably expect would induce another person to act in a certain way, and the promise does induce the other person to act in the way expected, then the promise is binding on the person who made it, if an injustice can be avoided only by enforcing the promise. Here, Dethmers contends that Automatic made a promise to Parent that, if Parent disclosed his idea or invention, Automatic would not use Parent's idea or invention without paying him for it, Automatic should reasonably have expected that Parent would be induced by the promise to disclose his invention and Parent did disclose it, Automatic has not compensated Parent for use of his idea, and injustice can only be avoided if Automatic's promise is enforced. Automatic disputes that any such promise was made, that the person who allegedly made such a promise had the authority to make any promises, that Parent relied on any such promise in disclosing his invention to Automatic, or that Parent suffered any damages in reliance on such a promise.

In order to win on its claim of promissory estoppel, Dethmers must prove each of the following by the greater weight of the evidence:

1. Automatic, through an agent with proper authority, promised that it would not use Parent's invention without paying for it.

In this case, Dethmers contends that William Bachman, acting as Automatic's agent, promised that Automatic would not use Parent's invention without paying for it, and that Automatic is therefore bound by Bachman's promise. If you find that (1) Automatic led Parent to believe that Bachman was authorized to act on behalf of Automatic, and (2) that Parent's belief that Bachman had this authority was reasonable, then, as between Automatic and Parent, and regarding the promise alleged here, Automatic is bound by the acts of Bachman.



2. Parent reasonably relied upon Automatic's promise.

A person is entitled to rely upon what any reasonable person would understand from Automatic's conduct.



3. Parent's reliance upon the promise was foreseeable by Automatic.

Parent's reliance upon the promise was foreseeable by Automatic if Parent's reliance was probable according to ordinary and usual experience.



4. Parent was damaged because of his reliance on Automatic's promise.

Parent was damaged because of his reliance on Automatic's promise if his damage resulted in a natural and continuous sequence from the promise, and without the promise his damage would not have occurred.



If Dethmers has failed to prove all of the above elements by the greater weight of the evidence, your verdict must be for Automatic on Dethmers's claim of promissory estoppel. However, if Dethmers has proved all of these elements by the greater weight of the evidence, then Dethmers is entitled to damages in some amount on its claim of promissory estoppel.

FINAL INSTRUCTION NO. 5 - UNJUST ENRICHMENT



Finally, Dethmers contends that it is entitled to recover reasonable compensation for Automatic's use of Parent's idea or invention on a claim of unjust enrichment. A claim of unjust enrichment is based on the rule that one should not be allowed to profit or enrich oneself unjustly at the expense of another. Dethmers contends that Automatic has used Parent's idea or invention, even though those parties never reached a subsequent agreement on Automatic's use of the idea or invention after Parent disclosed it. Dethmers contends that Automatic will be unjustly enriched if it is allowed to profit or enrich itself by using Parent's idea or invention without paying him reasonable compensation for it. Automatic contends that it has not improperly used Parent's idea or invention in its products, and therefore has not been unjustly enriched by using Parent's idea or invention, and that Parent suffered no damages as a result of Automatic's use of his idea or invention, if it did indeed use his idea or invention.

In order to win on its claim of unjust enrichment, Dethmers must prove each of the following by the greater weight of the evidence:

1. Automatic has used Parent's idea in tow bars it has manufactured;

2. Automatic has sold and/or is selling a tow bar or tow bars and accessories based upon its use of Parent's idea;

3. Automatic is benefitting or has benefitted from selling such products;

4. Automatic is not compensating Parent for the use of his ideas; and

5. It would be inequitable and unconscionable to permit Automatic to avoid paying Parent reasonable compensation.

Something is "inequitable" and "unconscionable" if it is manifestly unfair.



If Dethmers has failed to prove all of the above elements by the greater weight of the evidence, your verdict must be for Automatic on Dethmers's claim of unjust enrichment. However, if Dethmers has proved all of these elements by the greater weight of the evidence, then Dethmers is entitled to damages in some amount on its claim of unjust enrichment.

FINAL INSTRUCTION NO. 6 - DAMAGES--IN GENERAL



If you find in favor of Dethmers on one or more of its claims, you must award Dethmers such sum as you find will fairly and justly compensate Dethmers for any damages you find Parent sustained as a direct result of Automatic's wrongful conduct. However, I must explain to you now some matters applicable to all of your determinations of damages.

In arriving at the amount of damages on a claim, you cannot establish a figure by taking down the estimate of each juror as to damages and agreeing in advance that the average of those estimates shall be your award of damages for that claim.

Remember, throughout your deliberations, you must not engage in any speculation, guess, or conjecture. Although the precise amount of the plaintiff's damages may be difficult to determine, that should not affect the plaintiff's recovery. On the other hand, the plaintiff is not to be awarded purely speculative damages. Damages may be awarded only when there is some reasonable basis in the evidence in the case for determining that the plaintiff has in fact suffered a loss, even though the amount of such loss is difficult to determine.

You must not award damages under any of these Instructions by way of punishment or through sympathy. Your judgment must not be exercised arbitrarily, or out of sympathy or prejudice, for or against any of the parties. The amount you assess for any item of damage must not exceed the amount caused by the wrongful conduct of the defendant as proved by the evidence.

The fact that I am instructing you on the proper measure of damages should not be considered as an indication that I have any view as to which party is entitled to your verdict in this case. Instructions as to the measure of damages are given only for your guidance, in the event that you should find that a party is entitled to damages in accord with the other instructions.

Finally, you must award full damages, in accordance with Final Jury Instruction No. 7, on each claim on which you find the plaintiff has prevailed. I will prevent the award of any duplicative damages.

FINAL INSTRUCTION NO. 7 - DAMAGES--SPECIFIC



I will now explain the measure of damages on each of Dethmers's claims.

Damages for breach of contract. In a breach of contract case, the ultimate objective of a damages award is to put the injured party in the same position the injured party would have occupied if the contract had been performed, that is, to make the injured party whole. Such damages are sometimes called "benefit of the bargain" damages. Therefore, if Dethmers has proved the elements of its breach-of-contract claim, as set out in Final Jury Instruction No. 3, by the greater weight of the evidence, the proper measure of Parent's damages (through Dethmers) for breach of a contract not to use Parent's invention without compensating him would be the compensation that Parent expected to receive under the contract, if the contract had been performed. In other words, Parent should be awarded a reasonable royalty or licensing fee as the payment he expected to receive if Automatic decided to use his idea after he disclosed it.

A reasonable royalty is a fee paid for each product incorporating Parent's invention that Automatic sells. It is the amount of money that the owner of the idea would accept from someone who desires to obtain a license to use the invention without either party being forced to enter into a license, and both being willing to reach an agreement. You should determine what amount of money would have been agreed to in a hypothetical arms-length negotiation between Parent and Automatic at the time Automatic's use of Parent's ideas began. You should also assume that both Parent and Automatic knew all pertinent information at the time of the hypothetical negotiations. You should further assume that a reasonable royalty would allow Automatic a reasonable profit, although the fact that, as events unfurled after the hypothetical royalty negotiations, Automatic would not actually have made a profit paying the royalty so determined, or did not in fact make a profit on products incorporating Parent's invention, is irrelevant.

In determining what is a reasonable royalty, you may consider the following factors to the extent that you find they are pertinent:

1) the rates paid by Automatic for the use of other inventions comparable to Parent's idea or invention;

2) the nature and scope of the license, as exclusive or non-exclusive, or as restricted or nonrestricted in terms of territory or to whom the manufactured product could be sold;

3) Parent's established policy and marketing program, if any, to maintain the exclusivity of his inventions by not licensing others to use the invention or by granting licenses under special conditions designed to preserve that exclusivity;

4) the commercial relationship between Automatic and Parent, such as, whether they are competitors in the same territory in the same line of business, or whether they are inventors or promoters;

5) the effect of selling the invention in promoting sales of other products of Automatic, the anticipated value of the invention to Automatic as a generator of sales of its other items, and the extent of such sales;

6) the term of the licenses;

7) the utility and advantages of the invention over the old modes or devices, if any, that had been used for working out similar results;

8) the nature of the invention, the character of the commercial embodiment of it as owned and produced by Parent, and the benefits to those who have used the invention;

9) the extent to which Automatic has made use of the invention, and any evidence probative of the value of that use;

10) the portion of the profit or of the selling price that may be customary in the particular business or in comparable businesses to allow for the use of the invention or an analogous invention;

11) the portion of the realizable profit that should be credited to the invention as distinguished from other elements, the manufacturing process, business risks, or significant features or improvements added by Automatic;

12) the opinion testimony of qualified experts;

13) whether the invention in question was a "pioneer invention" concerning a function never before performed, a wholly novel device, or one of such novelty and importance as to make it a distinct step in the progress of the art, entitling the owner to a premium; and

14) any other economic factor that a normally prudent person in the business would, under similar circumstances, take into consideration in negotiating the hypothetical license.



Promissory estoppel. Promissory estoppel provides for damages as justice requires and does not attempt to provide the plaintiff damages based upon the "benefit of the bargain," which is the measure of damages for breach of contract, as explained above. Instead, the measure of damages under a theory of promissory estoppel is the loss incurred by the promisee in reasonable reliance on the defendant's promise, or "reliance damages." Therefore, if Dethmers has proved the elements of its promissory estoppel claim, as set out in Final Jury Instruction No. 4, by the greater weight of the evidence, you should award as damages the loss incurred by Parent in reasonable reliance on Automatic's promise to compensate him for use of his invention.

Unjust enrichment. Damages for unjust enrichment are the reasonable value of the services or benefit the plaintiff provided. Therefore, if Dethmers has proved the elements of its unjust enrichment claim, as set out in Final Jury Instruction No. 5, by the greater weight of the evidence, the law implies the existence of a contract requiring Automatic to pay Parent a reasonable royalty on each product it sells that incorporates Parent's ideas. The manner in which you are to calculate a reasonable royalty is set out for you in this instruction in the explanation of damages for breach of contract.

Remember that damages for wrongful conduct, like other elements of any claim, must be proved by the greater weight of the evidence.

FINAL INSTRUCTION NO. 8 - DELIBERATIONS



In conducting your deliberations and returning your verdict, there are certain rules you must follow.

First, when you go to the jury room, you must select one of your members as your foreperson. That person will preside over your discussions and speak for you here in court.

Second, it is your duty, as jurors, to discuss this case with one another in the jury room. You should try to reach agreement if you can do so without violence to individual judgment. Each of you must make your own conscientious decision, but only after you have considered all the evidence, discussed it fully with your fellow jurors, and listened to the views of your fellow jurors. Do not be afraid to change your opinions if the discussion persuades you that you should, but do not come to a decision simply because other jurors think it is right, or simply to reach a verdict. Remember at all times that you are not partisans. You are judges--judges of the facts. Your sole interest is to seek the truth from the evidence in the case.

Third, if you need to communicate with me during your deliberations, you may send a note to me through the Court Security Officer, signed by one or more jurors. I will respond as soon as possible either in writing or orally in open court. Remember that you should not tell anyone--including me--how your votes stand numerically.

Fourth, your verdict must be based solely on the evidence and on the law which I have given to you in my instructions. Nothing I have said or done is intended to suggest what your verdict should be--that is entirely for you to decide.

Finally, I am giving you the verdict form. A verdict form is simply the written notice of the decision that you reach in this case. You will take this form to the jury room, and complete it when you have reached a verdict. Your verdict must be unanimous and you must all sign the verdict form. When you have reached a verdict, the foreperson will advise the Court Security Officer that you are ready to return to the courtroom.

DATED this 18th day of August, 2000.

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

WESTERN DIVISION





DETHMERS MANUFACTURING COMPANY, INC.,
Plaintiff,

No. C 96-4061-MWB

vs.



VERDICT FORM

AUTOMATIC EQUIPMENT MANUFACTURING COMPANY,
Defendant.

____________________





On the claims of plaintiff Dethmers Manufacturing Company, Inc., against defendant Automatic Equipment Manufacturing Company, we, the Jury, find as follows:



CLAIM 1: BREACH OF CONTRACT



CLAIM As explained in


Breach of Contract
Final Jury Instruction No. 3
Do you find that plaintiff Dethmers Manufacturing Company has proved its claim of breach of contract by the greater weight of the evidence?

Yes _____

No _____

If you answered "yes," in what way do you find that defendant Automatic entered into the contract? _____ a. Through Mr. Bachman, as Automatic's agent

_____ b. Through silence or inaction

_____ c. Both

If you answered "yes," what, if any, damages do you award, as damages for breach of contract are explained in Final Jury Instruction No. 7?





$ ____________________


CLAIM 2: PROMISSORY ESTOPPEL



CLAIM As explained in


Promissory Estoppel
Final Jury Instruction No. 4
Do you find that plaintiff Dethmers Manufacturing Company has proved its claim of promissory estoppel by the greater weight of the evidence?

Yes _____

No _____

If you answered "yes," what, if any, damages do you award, as damages for promissory estoppel are explained in Final Jury Instruction No. 7?





$ ____________________






CLAIM 3: UNJUST ENRICHMENT



CLAIM As explained in


Unjust Enrichment
Final Jury Instruction No. 5
Do you find that plaintiff Dethmers Manufacturing Company has proved its claim of unjust enrichment by the greater weight of the evidence?

Yes _____

No _____

If you answered "yes," what, if any, damages do you award, as damages for unjust enrichment are explained in Final Jury Instruction No. 7?





$ ____________________






Date: ________________ Time: ________________





_______________________________

Foreperson

_______________________________

Juror



_______________________________

Juror



_______________________________

Juror



_______________________________

Juror



_______________________________

Juror



_______________________________

Juror



_______________________________

Juror