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Network Protection Sciences, LLC v. Fortinet

April 24, 2013

NETWORK PROTECTION SCIENCES, LLC PLAINTIFF,
v.
FORTINET, INC. DEFENDANTS.



LETTERS OF REQUEST FOR INTERNATIONAL JUDICIAL ASSISTANCE (LETTERS ROGATORY)-- OMAYA ELGUINDI

The United States District Court for the Northern District of California presents its 2 compliments to the appropriate judicial authority of Canada, and requests judicial assistance 3 to obtain evidence to be used in a civil proceeding before this Court in the above-captioned 4 matter. A trial on this matter is scheduled to commence on September 30, 2013, in San 5 Francisco, State of California, United States of America. 6

This Court requests the assistance described herein as necessary in the interests of 7 justice. The assistance requested is that the appropriate judicial authority of the Ontario 8 Superior Court of Justice, or such other Court as may be applicable, compel the appearance 9 of the individual identified below to appear for an oral deposition and to produce documents. 10

A.Name of Witness

Omaya Elguindi, resident of Toronto, Ontario, Canada.

B.Nature of the Action and This Court's Jurisdiction

This matter is an action for infringement of United States Patent No. 5,623,601 ("the '601 Patent") brought by Plaintiff Network Protection Sciences LLC ("NPS") against 15 Defendant Fortinet Inc. ("Fortinet"). (Eastern District of Texas Docket No. 1). The matter 16 was transferred from the Eastern District of Texas to this Court under Title 28, Section 17 1404(a), of the United States Code on March 6, 2012, and is now pending in this Court 18 before the undersigned United States District Court Judge. (See Docket No. 123). 19

As a patent infringement matter, this case arises under the patent laws of the United States, Title 35 of the United States Code. This Court has subject matter jurisdiction over 21 this case pursuant to Title 28, Sections 1331 and 1338, of the United States Code. 22

C. The Relevant Facts and Witnesses

Defendant Fortinet's defenses in this action include an assertion that the '601 Patent 25 is invalid in light of prior art. In particular, Fortinet contends inter alia that a computer 26 network firewall product from Border Network Technologies, Inc. ("Border Network), a 27 company located in Ontario, Canada, which was subsequently acquired by WatchGuard Technologies, is prior art to and invalidates the '601 patent.

This firewall product was known 8 as the JANUS Firewall Server, and later as BoderWare (the "JANUS/BorderWare Prior Art 2 Product"). 3

Fortinet has identified non-party witnesses believed to have information relevant to 4 the allegedly invalidating JANUS/BorderWare Prior Art Product prior art. Ms. Elguindi is 5 among those witnesses, and is located in the Province of Ontario, Canada. In particular, 6 Fortinet contends that Ms. Elguindi has information pertinent to the conception and reduction 7 to practice of the JANUS/BorderWare Prior Art Product that Fortinet contends invalidates the 8 patent-in-suit. Fortinet has asserted that Ms. Elguindi has knowledge that the prior art for the 9 JANUS/BorderWare Prior Art Product was made publicly available by no later than July 13, 10 1994 and that it was not abandoned, suppressed or concealed. Fortinet has further asserted 11 that Mr. Elguindi installed the JANUS/BorderWare Prior Art Product at two companies in 12 the spring of 1994. 13

These assertions by Defendant Fortinet, if true, may impact the enforceability of the '601 Patent and may serve as a defense to the pending claim against Fortinet for infringement 15 thereof. 16

D.Basis for the Issuance of These Letters Rogatory

These letters have been issued based upon the ...


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