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Case 1 :07-cv-00113-GIVIS Document 51 Filed 07/24/2008 Page 1 of 3
Asuev S. GEDDES
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WILMINGTON, DELAWARE 19899
July 24, 2008
The Honorable Gregory M. Sleet VIA ELECTRONIC FILING
United States District Court
844 King Street
Wilmington, Delaware 19801
Re: Cisco Systems, Inc., and Cisco Technology, Inc. v. T elcordia Technologies, Inc.,
C.A. No. 07-1 13-GMS
Dear Chief Judge Sleet:
Cisco’s opening summary judgment letter is fueled by its ill-fated position of having
asserted inhingement against products that prcdate the very patents that it asserts} Consequently,
Cisco now seeks summary judgment that the accused products are not prior art. Cisco’s sole
argument is that no legally adequate evidence exists supporting a prior use or sale. Specifically,
Cisco contends that there is no evidence of corroboration. Cisco is mistaken and factually
2 . . , . .
wrong. Accordingly, Cisco s briefing request should be demed.
Cisco’s arguments fail because they are hinged upon an improper assumption that
Telcordia solely relies on the oral testimony of one deponent. This is simply untrue. For
purposes of its summary judgment motion, Cisco has failed to identify the actual documentary
evidence produced by Telcordia that establishes evidence of patent barring events under Section
102. The witness testimony, though unnecessary, is consistent with and corroborates those
docmnents. Thus, there is sufficient evidence supporting Telcordia’s position that the accused
products are prior art to the patents-in-suit in view of Cisco’s infringement contentions.
Telcordia Provided Evidence that the Accused Products are Prior Art
Contrary to what Cisco contends, the record shows both documentary evidence and oral
testimony that corroborate a prior invention, use, sale, publication, and/or prior knowledge under
35 U.S.C. § 102. As this Court knows, "[c]orroborating evidence may take many forms."
Ethicon, Inc. v. US. Surgical Corp., 135 F.3d 1456, 1461 (Fed. Cir. 1998). For example,
contemporaneous docmnents or circumstantial evidence may corroborate. Id. In this case, the
I Telcordia contends that the accused products do not infringe. Nevertheless, Telcordia also maintains that the
asserted claims are invalid under Cisco’s strained infringement contentions, because those contentions point to
accused functionality that was the subject of a prior invention, use, sale, publication, and/or prior knowledge under
Section 102.
2 In order to avoid burdening the Court with voluminous copies of the documents cited herein (all of which have
previously been produced to Cisco), we have cited to examples — identifying them by Bates number and by the date
on which they were produced to Cisco — but we have not provided copies of the documents. Should the Court
conclude that it would be helpful to see copies of the cited documents, however, Telcordia of course will provide
them promptly upon request.
{O0232088;v1}

Case 1 :07-cv-00113-GIVIS Document 51 Filed 07/24/2008 Page 2 of 3
The Honorable Gregory M. Sleet
July 24, 2008
Page 2
documentary evidence alone establishes that the allegedly infringing features of the accused
products were the subject of patent barring events. The oral testimony of Telcordia witness Don
McGowan is consistent with these doctunents.
For instance, Telcordia has produced technical and contractual documents dating back to
1985. As such, any documents pre-dating the patents-in-suit that disclose the very features Cisco
now points to as infringing are evidence of a patent barring event. As to the ‘988 Patent, for
example, Cisco appears to suggest that a use of "broadcast warning messages" is an infringing
act. This accused feature, however, already existed at Telcordia well before the earliest ‘988
patent priority date. Indeed, Telcordia’s technical documents Hom July 1993 for NMA Release
3.4 describe the same accused "broadcast warning messages."3 In fact, the portions of a 2006
document on which Cisco appears to rely for infringement are simply a shorter version of the
same description found in the earlier 1993 document. Accordingly, tmder Cisco’s own
infringement contentions, there is a factual dispute as to Telcordia’s prior invention, publication,
use, sale, and/or prior knowledge as prior art.
Similarly, Cisco appears to suggest that a use of batch programming or an NMA
scheduler feature could constitute an infringing act. Here again, each of these accused features
already existed at Telcordia before the earliest priority date for the ‘988 patent. Telcordia’s
technical doctunents &om February 1992 for NMA Release 3.2 describe the same allegedly
infringing features.4 Therefore, these documents also illustrate a factual dispute.
Furthermore, Telcordia has produced a contract with Grupo Tea confirming that the
accused features were supported by NMA and the subject of Section 102 events.5 By way of this
June 1994 contract, Telcordia shipped NMA Release 4.0 to Grupo Tea for the purpose of having
portions of the NMA software translated from English to Spanish. The terms of that contract
designate a list of technical documents, user forms, and screens that were to be translated by
Grupo Tea. Notably, that list recites the exact same 1992 and 1993 documents described above.
The translation list further denotes the user forms and screens corresponding to the accused
NMA scheduler feature, as well as the commands used to send a message to a network element.
Thus, there is no dispute. The Grupo Tea contract, alone or in combination with the independent
technical documents listed therein, establishes evidence of prior art in view of Cisco’s
inhingement contentions for the ‘988 patent.
Mr. McGowan’s testimony supports and corroborates these doctunents. As Cisco
recognizes, Mr. McGowan testified that "there has been ‘virtua11y no change’ between NMA
versions 3.2 and 18.1 with respect to the accused features." Cisco Opening Letter, at 2 (citing
McGowan Tr., at 60: 13-62: 15). Consistent with that statement, the technical documents show
that the accused features were in fact supported by NMA as early as Releases 3.3 and 3.4.
3 "Using the NMA System to Transmit Broadcast Warning Messages," BR 190-602-510, Issue 1 (July 1993), NMA
Release 3.4, produced October 12, 2007 at TCOR 0055584-5626.
4 "Network Monitoring and Analysis System, User Programming Guide," BR 190-602-306, Issue 1 (Feb. 1992),
NMA Release 3.3, produced October 12, 2007 at TCOR 0055745-813.
5 Subcontractor Agreement Between Grupo Tea and Bellcore (June 4, 1994), produced October 12, 2007 at TCOR
0228640-8733.

Case 1 :07-cv-00113-GIVIS Document 51 Filed 07/24/2008 Page 3 of 3
The Honorable Gregory M. Sleet
July 24, 2008
Page 3
Likewise, the Grupo Tea contract confirms that the same accused features were supported in
NMA Release 4.0. Given these facts, Cisco cannot credibly argue that Mr. McGowan’s
testimony is uncorroborated. Nor can Cisco argue that there is not any evidence that the accused
products are prior art in view of Cisco’s infringement contentions for the ‘988 patent.
The same holds true for the ‘622 patent. Although Telcordia maintains that it does not
inhinge, Cisco’s theory of infringement relies on product features that pre-date the patent,
evidencing a prior invention, use, and/or sale. Telcordia’s documents illustrate this point,
showing that as of 1989, NMA facilities allowing communications to a network element were
already deployed at several locations across the United States.6
The fact that Mr. McGowan did not directly link his testimony to the documents during
his deposition is immaterial. Cisco had the opporttmity to explore whether the documents
refreshed Mr. McGowan’s recollection, but it strategically chose not to. Moreover, Cisco’s
disingenuous attempt to discredit Mr. McGowan’s recollections based on the testimony that he
was not able to find corroborating documents is misleading. Contrary to what Cisco suggests,
Mr. McGowan never represented that his search encompassed all of "Telcordia’s library and
other Hles." In fact, Mr. McGowan made clear on multiple occasions that his document search
was speciically directed to the oldest electronic copies that he could find. Cisco Opening Letter,
Ex. 2 [McGowan Tr.], at 58:2-14, 89:9-14. He also clearly acknowledged that he had not yet
found older doctunents because he had not "actually go[ne] to New Jersey and rifl[ed] through
the libraries and things like that." Cisco Opening Letter, Ex. 2 [McGowan Tr.], at 89:9-14.
Accordingly, Mr. McG0wan’s statements about his electronic search do not detract &om the
documentary evidence supporting his recollections. The existence of corroborating documents is
entirely consistent with his testimony.
For at least these reasons, Telcordia respectfully submits that sufficient evidence exists
supporting Telcordia’s position that the accused products are prior art to the patents—in-suit. As
such, Cisco’s summary judgment request should be denied.
Respectfully,
/s/ T yjizny Geyer Lydon
Tiffany Geyer Lydon
c: Vincent P. Kovalick, Esquire (via electronic mail)
Jack B. Blumenfeld, Esquire (by hand and via electronic mail)
Matthew D. Powers, Esquire (via electronic mail)
6 "Memorandum for File: OCS Requirements for NMA," Dec. 16, 1988, produced October 12, 2007 at TCOR
0255752-755.