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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)-- ANDREW FLINT

GCA Law Partners LLP 1891 Landings Drive FLINT; CASE NO. 3:12-CV-01106-WHA Mountain View, CA 94043 (650)428-3900

The United States District Court for the Northern District of California presents its 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 Francisco, State of California, United States of America. 6

This Court requests the assistance described herein as necessary in the interests of justice. The assistance requested is that the appropriate judicial authority of the Ontario 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.

A.Name of Witness

Andrew Flint, 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 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 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).

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.

C. The Relevant Facts and Witnesses

Defendant Fortinet's defenses in this action include an assertion that the '601 Patent is invalid in light of prior art. In particular, Fortinet contends inter alia that a computer network firewall product from Border Network Technologies, Inc. ("BTNi"), a 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 as the GCA Law Partners LLP 1891 Landings Drive FLINT; CASE NO. 3:12-CV-01106-WHA Mountain View, CA 94043 (650)428-3900 JANUS Firewall Server, and later as BorderWare (the "JANUS/BorderWare Prior Art 2 Product"). 3

Ontario, Canada. In particular, Fortinet contends 6 that Mr. Flint has information pertinent to the conception and reduction to practice of the 7 JANUS/BorderWare Prior Art Product that Fortinet contends invalidates the patent-in-suit. 8 Fortinet has asserted that Mr. Flint 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. Flint was a participant in the installation of the JANUS/BorderWare Prior Art 12 Product along with another non-party witness (Omaya Elguindi) at two companies in the 13 spring of 1994. 14 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 16 thereof. 17

Fortinet has identified non-party witnesses believed to have information relevant to 4 the allegedly invalidating JANUS/BorderWare Prior Art Product. Mr. Flint is among those 5 witnesses, and is located in the Province of

D.Basis for the Issuance of These Letters Rogatory

These letters have been issued based upon the ...


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