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Network Protection Sciences, LLC v. Fortinet

April 24, 2013



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

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

The United States District Court for the Northern District of California presents its

Francisco, State of California, United States of America. 6

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

Rayan Zachariassen, 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

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

JANUS Firewall Server, and later as BorderWare (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. Mr. Zachariassen is among 5 those witnesses, and is located in the Province of Ontario, Canada. Based upon Fortinet's 6 contentions, Mr. Zachariassen is believed to have information pertinent to the conception and 7 reduction to practice of the JANUS/BorderWare Prior Art Product that Fortinet contends 8 invalidates the patent-in-suit. Fortinet contends that Mr. Zachariassen, along with other non-9 party witnesses and BTNi engineers Glenn Mackintosh and Steven Lamb, worked on the 10 concept for the JANUS/BorderWare Prior Art Product and was involved in the creation of the 11 product, which it contends was publicly known and used in the United States since July 1994 12 and about which Mr. Zachariassen is a knowledgeable witness. 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 following criteria:

1.The discovery requested is relevant.

The evidence sought by the letters rogatory is necessary for trial and intended to be 21 adduced at trial, if admissible. This required evidence is relevant to the American proceeding 22 in that it is anticipated to have bearing on a central defense -- invalidity of the patent at issue -- 23 to the Plaintiff's primary cause of action for patent infringement. 24

5 evidence, if any, pursuant to Section 60 of the Ontario Evidence Act and consistent with Rule 6

31.10 of the Rules of Civil Procedure. 7

11 be taken in a foreign country "under a letter of request, whether or not captioned a 'letter 12 rogatory.'" This Court has the inherent authority to ...

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