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Sonal Mehta/SV/WGMIUS

To JohnWiliiamson(g)finnegan. com
04/13/200704:56 PM

cc Sasha. Mayergoyz(g)lw. com
Subject RE: Telcordia v. Cisco/Lucen tLink

John
We disagree with your position that the pretrial statement cannot be modified to address Mr. Gurey passing. The argument that your hands are tied procedurally from making such an addition to the statement of undisputed facts because " there is no procedural mechanism for such a modification," is at odds with our concerted effort to build an increased spirit of cooperation.
Telcordia apparently intends to rely at trial on testimony relating to Mr. Gurey s role in the prosecution of the patents- in-suit. See , e. , Telcordia s deposition designations for Messrs. Falk and Fleischer. The jury is entitled to know why Mr. Gurey is not at trial to present his testimony in response. Given your refusal to acknowledge his death through a neutral undisputed statement of fact , we will raise this issue with Judge Sleet.

Regards,
Sonal N. Mehta Weil Gotshal & Manges 201 Redwood Shores Pkwy Redwood Shores , CA 94065

t: (650) 802- 3118 f: (650) 802- 3100 sonal. mehta~weil. com

WIlliamson, John " ..:John. Williamson(g)fmnegan.com::To ..:SonaI.Mehta(g)weil.com::-

04/12/200708:52 PM

cc ..:Sasha. Mayergoyz(g)lw. com::Subject RE: Telcordia v. Cisco/Lucent

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Sonal
Thank you for your email. We regret to hear of Mr. Gurey s passing.
We see no reason to modify the statement of uncontested facts in the pretrial order. For one, there is no procedural mechanism for such a modification. Moreover , because the statement of uncontested facts as it stands does not make any mention of Mr. Gurey, there is no reason to modify the statement.

Regards
John

From: Sent: To: Cc: Subject:

Sonal.Mehta(Q)weil.com (mailto:SonaI.Mehta(Q)weil.com)

Tuesday, April 10, 2007 1:13 Williamson , John Sasha. Mayergoyz(Q)lw. com

Telcordia v. Cisco/Lucent

John
It has come to our attention that Steven Gurey passed away earlier this year. Accordingly, Defendants propose that we modify the statement of uncontested facts to include the following: " Steven Gurey passed away in 2007. " Please confirm Telcordia will agree.

Regards
Sonal N. Mehta Weil Gotshal & Manges 201 Redwood Shores Pkwy Redwood Shores , CA 94065

t: (650) 802- 3118 f: (650) 802- 3100 sonal. mehta(g)weil. com
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EXHIBIT 2

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 v.

IN THE UNITED STATES DISTRICT COURT IN AND FOR THE DISTRICT OF DELAWARE - TELCORDIA TECHNOLOGIES INC., Plaintiff/Counterclaim Defendant, : : : : : : : : : : : :

Civil Action

LUCENT TECHNOLOGIES, INC., Defendant/Counterclaim Plaintiff. - - TELCORDIA TECHNOLOGIES, INC.,

No. 04-874-GMS

: Civil Action : Plaintiff/Counterclaim : Defendant, : : v. : : LUCENT TECHNOLOGIES INC., : : Defendant/Counterclaim : Plaintiff. : No. 04-875-GMS - - TELCORDIA TECHNOLOGIES, INC., : Civil Action : Plaintiff/Counterclaim : Defendant, : : v. : : CISCO SYSTEMS, INC., : : Defendant/Counterclaim : Plaintiff. : No. 04-876-GMS - - Wilmington, Delaware Thursday, January 5, 2006 1:30 p.m. - - BEFORE: HONORABLE GREGORY M. SLEET, U.S.D.C.J.

7/23/2007 6:57 PM

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 harmless.

If you unseasonally disclose the information you had an obligation to disclose under 26(e)(2), then you lose and you can't use that at trial. That is what should be implemented here. THE COURT: It says unless such failure is

MR. REINES:

It is their burden to show We don't We

substantial justification and harmlessness. think it is at all harmless. are living by it. schedule.

We have a schedule.

The Court said very clearly, I set my

Everyone is expected to live by it. THE COURT: There is no question about it.

The Court is very jealous of its process, counsel know that, and very resentful, not in a personal way, but when lawyers sort of try to take the process in hand on your own. We have to deal with that on a daily basis.

It takes up too much of our time. So I am disappointed that resort to the Court wasn't made by plaintiff in a more aggressive manner. I have to say, Mr. Burley, it does appear that, as you have suggested earlier -- well, I am sure you didn't say it exactly this way, maybe not at all -you sort of went on and did what you wanted to do anyway in spite of what the Court said you couldn't do and what

7/23/2007 6:58 PM

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products that we have essentially defined by setting out certain technological criteria. At t h e outset, It's important to note that Cisco and Alcatel have both agreed to provide dlscovery In exactly this way. And, i n fact, we sent to Lucent's outside counsel the agreement that we had executed with Cisco, and asked them to agree to exactly the same thing, substituting Lucent every time that Cisco appeared in the agreement that we had entered into with Cisco. What we have done here Is defined the products

M THE UNITED STATES DISTRICT COURT
I N AHD TOR THE DISTRICT O f DU&P&E

- - TELCORDI?. TECHNOLOGIES I N C . . Plaintiff,
V.

:

C i v i l Action

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LOCENT TECHNOLOGIES, m c . ,
Defendant.
:

N o . 01-075

(m)

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Wilrmngron, D P ~ ~ Y ~ V O Tuesday, O c t o b e r 11. 2005

- - -

1O:OO a.m.
Teleconforfmcn

11 for which we seek discovery i n very narrow technologlcal
12 13 14 15 16 17 18 19 terms that certainly Lucent is able to understand and is able to determine the universe of products that satisfy these criteria without any problems. Moreover, at this stage, Telcordia is not seeking full discavery with respect to all of the products that meet these criteria. What we are doing is going through sort of a stepped or staged process where we are asking Lucent now t o identify the products that meet the criteria and provide a discrete set of what we have called relevant functionality documents relating to the products that meet the criteria. We have then committed to promptly identifying the universe of allegedly infringing products for which Lucent must provide full discovery. Your Honor, our posltlon that discovery is
4

_ _ -

BEFORE:

HONO?ABLE GREGORY H. S m T , U . S . D . C . J.

APPEARRNCES :

JOHN G . DAY, ESP. Ashby 6 Geddes -andDON 0. EUP.LEY, ESP. I R I C W H. SMITH, ESP., and JOHN n. WILLLRMSON, ESP. F i n n e g a n , X e n d a r s o n , Farabov, Gazrett 6 Cunner, L . L . P . ( w a s h i n g c o n . D.C.)
C o u n s e l for P l a L n t L f f

JOXH W. S W , ESQ. Young C o n a w a y S t a r g a t t 6 T a y l o r , U P -andDAVID a . NELSON, ESQ., STEVEN C. C-, ESP., ISRAEL 5 . W X E R W Y Z . E S P . . and DAVID C. W N E , ESQ. L a t h a m 6 Watkms

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(New York, New York)

1 Counsel for Defendant 2 THE COURT: Good morning, counsel. Let's start off with a roll call for plaintiff. MR. DAY: Good morning, Your Honor. For Telcordia this morning you have John Day from Ashby & Geddes as local counsel. And with me on the phone from Finnegan Henderson, lead counsel for Telcordia are Don Burley, Richard Smith, and John Williamson. THE COURT: Good morning, gentlemen. (Counsel respond "Good morning.") THE COURT: For Lucent. MR. SHAW: Good morning, Your Honor. John Shaw at Young Conaway for Lucent. With me are Steve Cherny, Dave Nelson, Israel Mayergoyz and Dave McKone from Latham & Watkins. THE COURT: Good morning. Let's start off with Telcordia's issues. I s it possible to group these three items and discuss them all at the same time? O r should we take them indivldually? MR. BURLM: Your Honor, I thlnk it is logical to talk about all three i n the same context. I think all three raise the same basic issue.
THE COURT: Okay.

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required i n this situation is directly supported by the Federal Rules and case law. I thlnk the problem here is that when we were communicating wlth Lucent counsel, we set out the criteria, which narrowed what we had originally included in our interrogatories. We narrowed them to the technological criteria that are set out in the letter. Lucent then responded and said that it would consider providing discovery on the products that met the criteria, but only if we first stated that all products that met the criteria infringed one of the three patents. We were unable to make and can't make a categorical statement like that. We take our Rule 1 1 obligations seriously, and we weren't willing to say and can't say as a definitive no exceptlon situation that all products that meet these criteria infringe the patents. What we are able to say, though, and I believe have made quite clear to Lucent, is that we belleve It's much more likely than not that any product that meets these criteria infringes the patent, the relevant patent that is connected to the particular criteria, and, in fact, we are unaware of any products that meet the criterla that do not infringe the patent. Certainly, that information, we believe, would be enough to bring a suit for infringement. It's certainly way beyond the kind of lnformatlon that is needed in order

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MR. BURLEY: As the letter indicates, Your Honor, we are seeking information, discovery, relatlng to

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that they believed were infringing the patent.
So what we did, rather than simply object and

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The rule, the Federal Rules and the standards established in Rule 26(b)(l) is not absolute certainty that the information relates to Infringement. It's that, in the language of Rule 26(b)(l), the discovery is reasonably calculated to lead to the discovery of admissible evidence. Certainly, these criterla are sufficient to indicate that If a product meets given what we have sald about the criteria, that that is reasonably calculated to lead to the discovery of admissible evidence. Further, Your Honor, the only alternative that we can see here

say, this is unduly burdensome, we are not going to provide discovery, we don't understand your definitlon, we actually responded with our interrogatorles and said, well, this definition is overly broad but we have

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unintelligible, but we do have the information you have given us before, so we will produce information on those products and we will respond to your discovery requests with respect to those six products that you have identlfied. At the same time they gave us interrogatory responses because we had asked them to identify the products they alleged to infringe. And only one of those six products was actually on that particular list at the time.
So our natural response was, well, I guess you

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-- either a product that meets these

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criteria is an infringing product or there Is a distinct possibility that Lucent might argue at some point that the product, while it meets the criteria, doesn't infringe for some particular reason, i n which case we would expect Lucent to argue that the product was a noninfringing alternative.
So In either case, we would be entitled to discovery

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relating to the product.

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are not accusing the other products of infringement anymore and you don't want discovery on those products. Their response was, no, we are accusing this one product, and we want discovery on those other five products as well. And they also then supplemented their interrogatory responses and identified t w o more of the products from that original six that they had accused of infringement plus one new p r o d u e But three of the products that were originally identified still were not identified as infringing products when they Supplementedthe interrogatorles.
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In other words, it is not correct, as Lucent
implicitly assumes, that our ability to obtain discovery related to a product is confined only to products that definltively infringe. Finally, Your Honor, as a practical matter, Lucent is able, obviously, to answer these interrogatorles,
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1 provide the information that we have requested as the first

So then we went into it and said, well, we are

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stage of this process with little disruption or difficulty. The only alternative for us would be to buy Lucent's universe of products and reverse-engineer them, which would be both time-consuming, extremely expensive, and also impossible t o achieve the end result that we need to achleve, because there are certainly dlscontlnued products that we couldn't obtain on the market. For all these reasons, Your Honor, we believe the discovery we sought is very limited and should be ordered. THE COURT: Thank you, Mr. Burley. Lucent. MR. NELSON: Your Honor, this is Dave Nelson from Latham & Watkins. Let m e step back just a little bit and give you some context for this position. We started out in this case, in the original interrogatory responses, Telcordla gave us the definition of

already a t the stage based upon the products you have identified where we have produced at this stage over 1 3 . million pages of documents, which is a substantial burden, substantial cost. I n fact, we have produced, Lucent has produced more documents than all the other partles In this litigation combined at this point in time. So we asked them, with respect to this definition, we need a more specific definition. We are not telling you that you need to identiw by product number exactly which products infringe. But you need to provide us a specific definition of what you believe the scope o your f claims to be, which is what the Federal Rules tie discovery to. Their response to that was to provide us with another definition that still would include nearly all of the products that Lucent makes, and at the same time say we will not confirm that thls Is the scope of our claim. In other words, we will not confirm that this is consistent with our invention, but what we will confirm is that we believe what we are asking for I much broader than the s invention.
So we are trying to reach a compromise with

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the products in suit that literally did include every single
product that Lucent makes. We did not believe that that was consistent with the scope o their claim and was a f ridlalous burden in terms of the discovery they were asking
us for. Prior to that time we had actually talked to them

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them. We want them reasonably at this point in time to take a position, if they will confirm for us that thls Is the

and they had given us information concernlng slx products

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1 scope of their claim, what we have told them is we will go

1 consistent with their belief as to the scope of the

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ahead and produce those products as best as we can determine that meet those criteria. They have told us that they will not do that. Now, with the definition that they provided at this point in time,

I understand that Telcordia is saying,

well, they can't obtain the information. But our website contains the information at the level of detail that they have asked for in terms of this. They could go through that and determine which of these products that they believe that they have claims on, and then we can go ahead and produce documents, as we have done with all the other products. The burden that we are talking about, to go through, when we have already produced a million-three, and there are more documents that are being produced at this point in time, the expense, the burden to go through this, when they will not confirm for

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us that the definition they

have set out for these accused products is conslstent with what they believe to be the scope of their invention, Is an unreasonable burden for our client to undertake, and for the costs associated with that.
So we are not hiding behind anything. We have

responded with noninfringement contentlons. We have responded with our Invalidity contentions, even though we have not received from them any confirmation as to what they
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2 Invention, and they would be entitled t o discovery on all 3 those products, get that information, determine where they 4 are going t o place that burden on the defendants, determine 5 where they are going to walk the Ilne, and then take a 6 position as to what they believe to be the scope of their 7 claim. I submit that that is not what the Federal Rules 8 9 provide. THE COURT: Okay. Thanks, Mr. Nelson. 10 Mr. Buriey, your reaction. I interested in am 11 12 hearing from you as to why the compromise position that has 13 been offered by Lucent is insufficient for your purposes. MR BURLEY. I not sure, Your Honor, am 14 15 listening to what the compromise position is. Maybe this Is 16 leading me to wonder whether this is a semantical argument 17 that we are having, listening to Lucent's counsel talk about 18 our supposed refusal to say that the scope of our discovery 19 Is consistent with the scope of the invention. What I said i n my initial statement was that we 20 21 understood Lucent t o be asking us to state affirmatively and 22 categorically that any product that met the technological 23 criteria that we set out infringed. We have -24 THE COURT: Mi-. Nelson, I don't think that's 25
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1 believe to be the scope of their claims i n this case. And

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we will continue to provide discovery on anything that they do identify to be within the scope of their claims. But contrary to Telcordla's position on what the scope of the Federal Rules is on discovery, what the federal rule says is you get discovery on those things reasonably calculated to lead to the discovery of admissible evidence concerning your claims. I n fact, the Federal Circuit stated specifically that discovery is not for purposes of determining whether or not you can make a claim. I t is for gathering information to help to prove or disprove the claims that you believe you have without discovery.

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what you said, is it?

M R NELSON: No, sir, that is not. We had asked
them t o conflrm that that is the scope of their invention. MR BURLEY: I not sure what the phrase the am scope of the invention means. Maybe that is the semantical problem. THE COURT: Perhaps Mr. Nelson can give you his definition.
M R NELSON: The scope of the invention

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-- they

have litigated this patent before, Your Honor, ail the way through to the Federal Circuit. Certainly, they have an idea, I assume they took a position i n that case as to what they believed t o be the invention of the patent, in other words, why It is they got that patent.
My concern when I asked them that question,

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So the statement that the Federal Rules allow
you to simply broadly cast a net that you, yourself, know is much broader than the scope of your claim and that you get discovery t o determine whether

or not you i n fact have a

which is a pretty straightforward one, and I suspect they are going to go t o the jury and say, here is what we invented, here Is why we are different from the prior art, and this is the scope of the invention in this case, my concern, when I ask them that question, is "We are not going to confirm that, but we want discovery on all these other thlngs," Is that it completely shifts the burden and requires me and my client to undertake the burden to say, okay, here is everything I make. Now you determine, based upon that, what is going to be the scope of your claim and

claim is incorrect. That is not the scope of the rules and that is not the burden that we are talking about placing on a party here. That is not consistent with the requirement under the Federal Rules. I n fact, under Telcordia's construction of the rules, what they would have t o do is file a lawsuit, name one product, and then make a general statement to say, I would like to have information concerning any products that you make that do X Y and 2, refuse t o confirm that that is ,

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1 you determine what position you are going to take as to the

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scope of the invention of your patent. MR. BURLN. Your Honor, we are not saying that.
I t doesn't sound like maybe we are as far apart as Lucent's

counsel might be implying.
I t sounded to us, when they were asking about

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than not that any product that meets these criteria infringes.

I n fact, if we knew of other products, let's say
we dispensed with all the products that we have identified before, and we found out in some way that a Lucent product met one of these technological criteria, I think that would

the scope of the Invention, that they were asking essentially for a claim construction. Claim constructlon under Your Honor's order isn't t o be provided by the parties until sometime i n December. We certainly can say and have said that any product that meets or satisfies the technological criteria that we have set out comes within

be sufficient for us to tile a complaint, So I think at
thls stage the dlscovery that we are seeking Is only related to products for which we could file suit independently. THE COURT: Mr. Nelson. MR. NELSON: Your Honor, I think that the point we are

-- it infringes, so

- let's just take the '306. What they have asked us
My simple question is, If they

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for, their definition of products i n suit, what they are looking for discovery on is a l l Lucent products that map packetized data Infrlnge.

comes within the scope of the invention as defined by the claims. I f you are trying t o find an easy one-sentence answer to what the scope of the invention is, that is not part of what happens i n an infringement case. We don't define the invention in a one-sentence sound bite. The invention is defined by the claim terms. THE COURT: Let me interrupt for a second. I will tell you, the Court does agree with Mr. Nelson's assessment of the Federal Rules insofar as he points out that, by way of example, and perhaps an extreme example, you file one claim and then you ask for the universe

will confirm that any Lucent product that maps packetized data and does not infringe comes within the scope of what they believe t o be their invention, then, yes, that's fine, we will produce the documents that they are looking for on those things. But that's what I don't hear. Obviously, it is a very important question.
I not trylng t o hide the ball here, because am

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there are many, many pieces of prior art that we have given them in detailed fashion. There are systems that are described in the background section of the patent themselves
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that's obviously a much overly simplified statement of what

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Nelson, can agree, that Mr. Nelson's

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that map packetized data and do not infringe. So if that is the scope of their Invention, then I want that confirmation, because I strongly believe that these claims are invalid. But I need to get it one way or the other. MR BURLEY: Let me answer that, if I may, Your Honor, first by talking about the other two patents. I t is a little easier with respect to the '633 and '763 patents. THE COURT: Let me interrupt one more time, Mr. Burley. I think if we could speak about this conceptually, keeping In mind what the rules, that is the rules of discovery, are designed to accomplish, rather than speaking about it in terms of specific patents and specific technology, I think we can get through this rather qulckly, if we can achieve agreement on what is permitted and what is not. No? MR. BURLN: I will address that, Your Honor. I absolutely agree and am not that far away from where Mr. Nelson is. My understanding with respect to the '306 patent is we believe it is more likely than not that any Lucent product that maps packetized data into a sonlc frame infringes the '306 patent. As I understand it, and I will ask Dick Smith t o speak up i f I say anything that is technologically wrong, as I understand it, with the '306 Datent, that is one of the reasons whv we have asked for the

frankly, as an aside, that you necessarily have a different reading of the Federal Rules. You have perhaps stated your understanding of the Federal Rules a little differently. But it sounds t o me like there is a basis for agreement here. That is, I think you understand, Mr. Burley, that you can't ask the question that Mr. Nelson says you can't ask and expect discovery on everything. MR. BURLEY: Your Honor, the next point I was going t o make is I fully agreed with Mr. Nelson. I can't file suit, for example, as we did here and ask for infringement on all Lucent switch products. I think I have to deflne the products i n some way, either by, you know, something like the integrated circuit that it contains or the technological function that it performs or in some way where I can at least reasonably say that we believe it's at least likely or possible that a product that satisfies or performs a certain function or contains a certain integrated circuit, for example, infringes. Now, I don't think I have to say that definitively without exception. Maybe that was what the confusion was here. I n this case, Your Honor, as I said before, I can sav that certainlv bevond the reaulrement of more llkelv . .

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1 technical functionality documents. We want to be able to

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either see Something related to the clrcultry or understand

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packetize data and then maps those into sonic frames, that that comes within their claim as to their invention. Obviously, I disagree as to the definition of

the mapping protocols that are used. And we should be able, understanding the mapping protocols or the circuitry, t o be

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able to determine more definitively, certainly with the ability to allege infringement, once we see that information. MR. SMITH: Correct.

MR. BURLEY: That was Mr. Smith saying I didn't misspeak, Your Honor. THE COURT: Mr. Nelson. MR. NELSON: Your.Honor, if there are some mapping protocols that are relevant for them t o determine whether this comes within their claims or does not come within their claims, then all I asking for, and I am have in interrogatory responses, interrogatories, and I have in the context of trying to define these accused products, tell me what that is. They obviously know what that is. That is fine. I f that is relevant to determining whether or not it comes wlthin their inventfon, then I am entitled to know that at this stage.

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I f they want t o supplement down the road, I
would question whether or not it's valid to supplement when

you are the inventor on the patent and have litigated it
before, what you believe to be the scope of your invention,
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that scope. A l l I want is that confirmation. I f I that get

conflrmation, I agree with you, I have no fight with respect to providing the initial set of discovery that they are after. THE COURT: Mr. Burley, do you have difficulty with that request?
M R BURLEY: Yes, Your Honor. We have no

trouble w i t h that question. We said more likely than not that is the case. We are not saying that if we looked at something eventually that there might not be some aspect of the circuitry or something that caused us to reach a different conclusion. But we believe

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we do not know of

any product that would meet those criteria or satisfy those protocols that does not infringe.

I can't say it more

definitively than that because it's impossible, given unless you are actually examining the circuitry, It is

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physically impossible t o say without exception that there is infringement.
We realize that, of course, you know, at any

trial of this case we would have t o establish that there was

in fact infringement. But at this stage, knowing what we
know is certainly enough to allege infringement in a case

20

but if they want t o supplement, we can deal with Rule 26(e) and the requirements down the road. But if they have that information and these mapping protocols that they are talking about are relevant to that determination, then they need to tell me that. MR. BURLEY: My understanding, Your Honor am sorry if I interrupted Mr. Nelson. Were you finished? MR. NELSON: Yes, sir. MR. BURLEY: I was just handed our letter of

-- I

11 July 13th to counsel, which defines packetized data as data

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believe that formatted according to certain protocols. So I we have already listed that. I f there are any questions relating to this, Your Honor, I think that this i something s that we can certainly iron out with Lucent if they don't understand us. But we set seven protocols in the definition of packetized data in our letter of July 13 t o counsel. THE COURT: Mr. Nelson, are you aware of that letter?

MR. NELSON: I am aware that what those
protocols are is packetizing protocols. Actually, one of them is not even a packetiring protocol. But still, the other shoe hasn't dropped yet In that this letter and followup communicatlons with this letter, they still will not confirm for me that if something uses these protocols to

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and satisfy Rule 11, we believe it's much more likely than not that, in fact, when these criteria are satisfied there is infringement of the patent. THE COURT: I think you gentlemen are in violent agreement, perhaps. I t sounds t o me like you are using different language, some more, some less, to say the same thing.
Mr. Nelson, do you disagree?

M R NELSON: The only thing that I disagree with
a little bit, Your Honor, is they keep phrasing this in terms of infrlngement. I asking them as to the scope of am their claim. I mean, when you sit down and you are the patentowner, when you write the claim, you don't have the products that are going to come in the future and the schematics and the circuit diagrams to determine whether or not this is something that would come within the scope of your claims. That i s the only confirmation I am asking for. It's their patent, their inventors. They have litigated it before. Just confirm with me. I don't need the more likely than not a product infringes. What is it

--

is it something that uses one of these seven protocols that they have listed here In this letter to map packetized data into sonic frames? I s that coextensive with what they believe to be the scope of their claims? I f they will confirm that, then
YOU

are riaht. we are i n absolute

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pointedly, Your Honor, yes, I want them to take a position here. I t ' s not only necessary for purposes of trying to limit the burden on discovery or a t least go back and

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THE COURT: Mr. Burley, are you able t o do that?

M R BURLEY:

I am

--

THE COURT: Yes or no, Mr. Burley. Are you able t o do that? I think you are looking down the road and perhaps, maybe

justify t o my client why they are being asked t o go and get
millions of more pages of documents, which is not going to be a well-received conversation, as you might imagine, but then, in addition, I have my invalidity contentions. I have given them a number of things. The target may move. But at least I want t o be able t o argue at some point, Your Honor, that the target has moved as opposed to, no, no, that was never the target, you are mistaken. THE COURT: Mr. Burley, do we have an agreement here? MR. BURLEY: I t sounds t o me like we have got an agreement, Your Honor. I have said what I have said. I think I have confirmed, with the caveat that, if there is information of which I not aware... am THE COURT: I defy anyone to read this transcript and tell me what we have agreed on. But I am going t o take it on a lot of faith that counsel are going t o be able to work through what I think you have agreed to. We are going t o leave it a t that. I don't think we can massage this much more a t this point because, quite frankly, I am trying t o conceptualize the words that I would utter that
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-- I mean t o read tea leaves here -- it don't

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sounds to me you are concerned about being locked Into a position you don't want t o be locked into. Understood. MR. BURLEY: It's less that, Your Honor, than it is a feeling that he is asking us t o construe the claims according t o

-- this is for the '306 patent -- according to

certain protocols. THE COURT: Is that what you are asking, Mr. Nelson? Whether your asklng it or not, is that what you are later going t o come back and argue? MR. NELSON: I asking for exactly the am confirmation you asked for. THE COURT: I don't see it as problematic, Mr. Burley. I struggling, right now, with why you are am struggling. MR. BURLEY: I f you will give me just a second, Your Honor. THE COURT: Sure. MR. BURLEY: Your Honor, as I understand it, the protocols establish certain criteria, but they don't set out

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,

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1 all of the details by which those criteria are implemented.

would sound like a coherent order of some sort. I will leave it there.

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THE COURT: Okay. MR. BURLEY: So t o say that, maybe it's just there can be different ways t o accomplish the same end. But without establishing

M R BURLEY: Your Honor, if I may suggest, the
order that we would request Your Honor to enter would be

-- without knowing a hundred percent

how a detail required by a protocol is implemented, I can't say definitively how a product that satisfies a particular protocol works. I t is only how it works that determines whether or not it infringes the '306patent. What we can say is that we know the product that satisfies certain protocols. The ones we are aware of work in ways that would infringe the patent. So unless there is information we are unaware of, we can confirm that. THE COURT: All right. Mr. Nelson, that sounds to me that Mr. Burley has, without using the exact terminology that you are requesting, has agreed. No?

M R NELSON: I f he is providing a confirmation
that something that maps packetized data uses these protocols into sonic frames comes within something that they believe t o be the scope of what they claim is their inventlon, then you are right. THE COURT: Without the detail of how it works. MR. NELSON: Not the detail of how it works. I f they are willing to make that confirmation, then that is correct. You know, of course, this is, as you stated very

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~

just t o go through this staged process that we have
requested t o which Cisco and Alcatel agreed, that they identify the product, provide very limited documents related t o the functionality, then we will get right back to them and make sure there isn't information of which we are unaware that would cause us t o think a product did not infringe. We will confirm what the universe of infringing products is and they will provide full discovery on that. THE COURT: Mr. Nelson, can you respond to that, please. MR. NELSON: The problem that I have with the restatement of that, Your Honor, is we have gone back away from the confirmation I was asking for, which is confirm for me that this falls within the scope of your claims, Le., the scope of your invention, to, well

--

THE COURT: I think Mr. Burley is willing to do that. Or are you not, Mr. Burley?

M R BURLEY: I f we want t o make this a one-stage
process, I am perfectly willing t o confirm that we belleve that any product that meets these criteria infringes. I f

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that's what Lucent counsel, Mr. Nelson, would prefer, I will do it that way. THE COURT: Mr. Nelson. MR. NELSON: I think that's just the corollary of the same thing. I f they are going t o confirm that, that that's a confirmation within the scope of their invention

of talking with Mr. Cherny and counsel a little more. I can foresee other arguments coming out. I was reluctant to say anything, though, about Mr. Nelson

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THE COURT: 1think, without exactly buying into your language, they have agreed to your proposal. MR. NELSON: Rlght. THE COURT: Let's see i f you can get through it. MR. NELSON: Understood. One point on the Cisco and Alcatel we heard about, Your Honor. Just for your information, my understanding is when Cisco went through this process and identified things, that it was somewhere upwards of six or seven hundred products that were identifled. So I am not really sure we should be using that process as the model process. THE COURT: Is that true, Mr. Burley? MR. BURLW. Your Honor, I don't know.

I am

looking at John Williamson, and John says he does not know. Cisco, I presume, has many more products. Our understanding is that Lucent's production had had only about 500 products. But certainly, however many Cisco identified just was something that they felt was a reasonable thing t o agree to.

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- for example, about Mr.

Nelson's comments about 1 3 million documents have been . produced i n discovery, because I can see a battle coming up on who Is going t o pay for this. We determined over the weekend that, according to our best estimate, about a million pages of those what Mr. Nelson says are 1 3 million . are sourcecodes that have been provided in totally unusable form. As I understand, they are pictures of sourcecode, not readable by anything. The parties had discussed how sourcecode would be provided. I t was specifically contemplated that sourcecode would be provided on CDs and electronically, in electronically searchable format. THE COURT: That is a matter not rlpe for today. MR. BURLEY: I recognize that, Your Honor. I t is just one of the things that is behind my request. I have no problem talking t o Mr. Cherny. THE COURT: At this polnt, Mr. Burley, your request is premature. Mr. Cherny correctly points out, as far as I recollect, that this is the first time I have met with counsel In a discovery dispute on this matter. I think that's accurate. UNIDENTIFIED SPEAKER That is correct.
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We are not having the problems with Cisco that we are having with Lucent. THE COURT: Okay. Let's see how you make out if you need t o come back, because the devil is i n the details, and you will just have to come back. MR. BURLEY: Your Honor, on that point. And this is not

THE COURT: So then, given my current practice, you have t w o more strikes. Then we will ship you off to a discovery panel. MR. B U R L N Okay, Your Honor. THE COURT: AI1 right, Let's go onto the issues raised by Lucent. No. 1 . MR. CHERNY: That would be me, Your Honor. The first two issues really relate to our laches defense and in some ways can be combined. I start with will No. I. These patents, all the patents In sult are very old patents, and not surprisingly, we have brought laches and estoppel defenses based on the fact that it has been, since the beginning of Lucent, you know, that we have been doing the acts that they accuse of Infringement, and that's ten years ago. One of the things we need to prove up for laches is obviously that they knew or should have known what we were doing that they accuse of infringement. We have the odd situation here where Telcordia acts as a testing body for the R-Box, Baby Bells, and has done so for ten, 15 years. I t used t o be called Bellcore. They test our products. They have tested our products since the inception of Lucent. They also sell their own products that they claim are intercompatlble with the products that they accuse

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-- we would not like to come back to Your Honor.

Our concern is we are imposing on Your Honor i n doing this. We are wondering whether it might make sense to consider appointing a special master that we could go back to 50 that

11 we could avoid having t o impose on you.
THE COURT: I s this something that both parties have talked about? MR. CHERNY: Your Honor, we haven't spoken or even heard the suggestion of a special master before. Glven where we are in the case and how long it has been going on, this is the first and only discovery dispute that we have had t o bring to the Court. I am not sure it's time yet. Certainly it is something we can discuss wlth the other side regarding whether both sides can agree whether it is necessary and if so to come back to the Court and say, you know, we think there is enough discovery disputes here that we need to have a discovery master. THE COURT: Mr. Burley, your reaction? MR. BURLEY: Your Honor, I don't omose the idea Page 25

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So there is a lot of information at Telcordia

1 and that we gave them to you. But once they went into the 2 black hole of Telcordla I don't know how they saw them,

--

regarding our products, how they work, and they have had it for years. What we have asked for was, give us the documents that show what you knew, when you knew it, who

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what they used them for, when they used them. THE COURT: Got you. Who is going to respond for Telcordia?
MR. BURLEY: Your Honor, I think here we have

5

6 knew it there, regarding things like testing, certification, 7 intercompatibility. For example, i f you say something is 8 intercompatible with our products, you must know how our 9 products work. They have responded by saying, look, you gave us 10 11 thls Information pursuant to a contract where we agreed t o 12 only use it for certain purposes. And to me, that seems to 13 be a substantive response to our laches argument. I f they 14 want to make an argument that somehow they have 15 compartmentalized knowledge of felcordia and therefore that 16 excuses the ten years that they delayed in bringing this
17
suit, that's fine, they can make that at trial. But at this point, all we want is to find out the factual information. We want the documents that we gave them over the years that show, you know, what they knew about our products that they now accuse infringe.
I t is a very strange situation where a testing

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body, a body that goes out there and has essentially put their stamp of approval for ten years, said, go out, you can buy these products, to various companies like Verlzon and

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got basically an agreement In the works that just needs to have the details ironed out. As Mr. Cherny Indicates, the knowledge that Telcordia has about the products is through a program that is called Ozmine (phonetic), where Telcordla . tests the products and certifies them for purchase by the regional Bell companies, the R-Box. t h e problem is that we are contractually precluded from using any of the Information that is obtained through the Ozmine program for any purpose other than that testing and certification.
So the trial team at Finnegan Henderson and the

people at Telcordta, as I understand It, that work on litigation, know nothing about Ormine and the products

--

excuse me, the materials that were submitted by Lucent to Telcordia for thls certification purpose. And Lucent then proposed to Telcordia and I think very

-THE COURT: Counsel, I going to cut you off, am
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because you started your comments by saying you thought you

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1 such, and then after ten years of stamping the approval and

had an agreement. That I fine, because I s have got other things I need to move on to. I s there an agreement or not? MR. BURLEY: I sorry, Your Honor. I am should have gotten to that part faster. Lucent's proposal was that they would waive the contractual restrictions on Telcordia. But they were only agreeing to waive it for the limited purpose of identifying infringing products. We need a broader waiver just t o make sure we can use whatever information we can for whatever purposes associated with

2 3 4

saying these products are fine, they function correctly, all our products are compatible with them, they come back and say those products we have been telling you to buy for ten years, they infringe our patent that issued five years ago.
I don't mind If they want t o try to make some

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argument that somehow they have compartmentalized information we have given them over the years. But it seems to me I have the right t o at least discover, you know, what they knew, who knew it, what they used it for within Telcordia, whether it's for compatibility, testing or whatever, and to give me a witness that I can ask questions of, to say, okay, who knew this at felcordia? What dld they know? When did they know it? When did they know that we did the functionalities that Mr. Burley is talking about Infringe? That's all we want, is the discovery. We don't want t o get into a fight about, a substantive fight about laches versus non-laches. We want the discovery that will help us show the bases for our laches defense. THE COURT: Are you getting a response from plaintiff that at the very least you know what they knew because you provided the information in the first place? MR. CHERNY: They are saying you have the documents. Mv answer is, I understand we have the documents

11 this litigation., But we think we can figure out exactly
what the waiver ought to be. So this shouldn't be something that we have to bring to Your Honor. MR. CHERNY: Your Honor, I don't want to waste your time talking about this. But what we are doing is mixing apples and oranges here. What Mr. Burley is alluding t o is when we were having the fight that Mr. Nelson was discussing before about them identifying accused products, we said, you have all the stuff in house. We understand your contention that you can't look it over, you haven't looked at it. I f you want, go look at the stuff you have in house, and we are not going to complain if you want to do that to identify accused products. That's wholly different from somehow conditionina. aivina me the documents thev have in hand. and -. -

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a witness to tell me what they knew, and my having to waive some contractual provision. I shouldn't have to waive a contractual provision to just get them t o produce the .

THE COURT: That's a little difficult

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MR CHERNY: I not sure how they could have am done it after they filed suit.

3

documents they have i n house and to get discovery on who knew what. At that point, we can argue about how the documents are going to be used substantively a t trial, whether waivers need t o be put in place. All I want is the discovery. I don't want t o have to say, i n order to get you to produce the documents regarding the certification process and produce a witness t o tell me who knew what and who knew what about our products within Telcordia, that somehow I have to waive a contractual provision. All I want is the documents in the discovery. MR. BURLEY: Your Honor, I not sure how we am even talk t o or prepare a witness. I t seems to me without at least some waiver of our contractual provision, I can't talk to the people at Telcordia t o find out what they have got and produce this stuff to Mr. Cherny. I t seems I am violating the contract. MR. CHERNY: I f I can cut through it, we have no problem with outside counsel talking to the witnesses or helping to produce the documents. I don't know why we have to then waive all of the rights regarding

THE COURT: Rule 11 looms large there. 4 Could I a response from plaintiff? 5 get MR BURLEY: Yes, Your Honor. 6 Our position with respect to when we became 7 8 first aware of Lucent's allegedly infringing activities is 9 that is not really a question seeking factual information. 10 I t is at best a mixed question of fact and law that required 11 us to determine when we had establlshed infringement. We 1 12 had established, in compliance with Rule 1 , that we believe 13 that Lucent infringed -THE COURT: Mr. Burley, I don't have time for 14 15 these games. Clearly, the response is not adequate and

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-- that

potentially may attach to use of these documents for any
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needs t o be re-thought. I f literally what is represented and implied in this paragraph is what you said, you can't have meant it So I not prepared or willing to listen to am a lot of legalese on why you responded the way you responded. What I ordering you to do is to supplement am this response. Okay?

M R BURLEY: Yes, Your Honor.
MR CHERNY: Thank you, Your Honor. No. 3, Dave, do you want t o deal with that?
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1 purpose.

I f that's what Mr. Burley needs,

i to be able t o s

2 3
4

talk to the witness, to prepare him and also to collect the documents to give it to

us, we don't have any problem with

outside counsel doing that. THE COURT: I s that sufficient for your needs, Mr. Burley? Sounds like it should be. MR. BURLEY: Your Honor, that sounds like that's at least the beginning of a workable compromise. I not am sure if we will need anything additional beyond that. THE COURT: I would just suggest you not over-lawyer this on both sides. MR. BURLEY: I agree, Your Honor. I trying am not to create an issue where one doesn't exist.
MR. CHERNY: Totally agree.

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THE COURT: No. 3. MR. CHERNY: Actually, one thing on Point 2 , before we get to No. 3. I was combining 1 and 2. Not surprisingly, we have an interrogatory asking them when they first became aware of our allegedly infringing activities. Not surprisingly. They have given us the very surprising answer that they became aware on or after the day they filed suit.

It's pretty surprising when a plaintiff says
that they became aware of the allegedly infringing activities on or after the day they filed suit.

1 MR. NELSON: Your Honor, this one is actually 2 the discussion that we had on the first issue, very similar 3 here with respect to claim construction. THE COURT: There is a process that is outlined 4 believe, for dealing with this. 5 in the scheduling order, I 6 Why is this showing up as a discovery dispute? MR NELSON: The only reason it is showing up as 7 feel 8 a discovery dispute, Your Honor, is, as I said, I like 9 with respect to invalidity purposes in particular we are 10 dealing with a moving target. This was an effort to at 11 least a t some point in time as we are going through and 12 providing our noninfringement responses, as we are going 13 through and providlng our invalidity responses, to have some 14 target so that it's not simply, oh, the target is moved, but 15 there never was any target there at all, you were mistaken. That's the only purpose for this, Your Honor. 16 17 W e don't need t o say much more about that. What I 18 had understood the process to be outlined 19 in the discovery schedule had t o do with specifically the 20 Markman briefing itself, not whether or not there could be 21 discovery 22 THE COURT: I t is more than Markman briefing. 23 The process is designed t o get counsel as early as you can 24 to sit down and i n earnest discuss your positions on claim 25 construction. So it is not just designed to tee up the

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briefing for Markman. There is a meet-and-confer that is contemplated, designed to narrow the field of dispute that leads to the preparation and exchange of positions in the form of claim charts that eventually finds its way, those arguments from the charts, Into the brlefs. So at least, if not literally, the spirit of the thing, it is my thinking, this is informed by the thinking of many, many patent litigants who have come before this particular Court, that this is a way t o begin to crystallize the dispute, or disputes.
So who is going t o handle this for the other

THE COURT: Okay. Mr. Nelson?
M R NELSON: Your Honor, we have asked them

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specific claim terms t o help with the discovery we are going through right now. I t was not intended to jump the gun on your order. That's why we provided them with specific terms we were interested in. I t seems to me

-- there Is a reason

why we chose those terms. We believe that with respect to the invalidity issues, at least in the art we have identified thus far and the noninfringement Issues, these are potentially pivotal issues. That is the reason for it. That has nothing t o do with trying to jump the gun on your order and the process. THE COURT: Well, I think i f counsel can sit down and talk about the reasons that you are asking for things and the reasons that the other side is responding i n a certain way, then perhaps you wlll be able to work through
it. But right now I going to let the process work itself am

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side? MR. BURLEY: Your Honor, we have obviously no problem talking with Lucent's counsel informally about claim constructions and lots of different mechanisms t o advance the ball. The claim constructions have to b e provided, though, under Your Honor's scheduling order by a certain date. And interrogatories shouldn't trump Your Honor's scheduling order. THE COURT: No, they shouldn't. But counsel for Lucent does make the fair and valid point that there are discovery needs and things that need t o be done in order to inform that process, that claim construction process. It's not unreasonable, it seems t o me, for inquiries t o be made
of the other party as to what your contentions are with

out and we will see where you go with regard to No. 3 . No. 4.

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M CHERNY: Your Honor, for t w o of the patents R
i n suit, actually, for all the patents in suit, we have asked for invention dates. Not surprisingly, as you know, with prior art, there are two dates that are important, the filing date, that one is readily apparent to everybody, and for 102(a), (e) and (9) it's the invention date.
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1 regard to the construction of certain claims. Yes? No? 2 Maybe? Go ahead.

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MR. BURLEY: Your Honor, we have given them claim charts, applying the limitations of the claims for the

'306 patent, for example, t o seven products. So there is no
question how we apply the claims to the products. We just haven't gotten to the point where we have, as Contemplated by Your Honor's scheduling order, gotten into the nuances of disputed claim terms and provided our actual positions with respect to those claim terms. Lucent's request here is a very definitive one, asking for information from us on specific claim terms. This jumps the gun and essentially moots Your Honor's, both of what Your Honor has done in requiring that lists of disputed claim terms be exchanged by November 17 and our proposed constructions of those terms by December 8. You know, the fact that we have been through this once before with four systems doesn't mean that we have developed positions

-- doesn't mean in the first place that

we had the same claim terms that were i n dispute in both cases. THE COURT: Understood.

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We asked for all the patents what the invention dates were. For two of them, they said the invention date is the filing date. That is perfectly allowable, t o have the filing date as the invention date. A l l we want i for s them to speak now or forever hold their piece. This is not something they need discovev on. I t is their own invention dates. When we called up and said, is your position that your invention date is this, they said, well, you know, it is our position now but it may change. And I said, well, I don't understand. I t is nothing you need to supplement. Supplementation is where you find something out later. These are your patents, one of which has been in suit against Cisco for a year and a half that you had for 15 years. A l l we want to know is the invention date so when we are looking for prior art that we have a specific target. When I spoke t o Mr. Rainey about a week ago about this and said, you know, can we work this out, he said, well, my position Is that first you have got to come up with art and I will come up with an earlier invention date if I want

-- if I think I need to.

Then my view was,

why do we have t o play hop-scotch? Why do I have t o come up with a piece of art that I three months before their filing s date only to have them say, our invention date is now at least three months and one day before the filing date?
A lot of courts. YOU know, as a matter of course -.
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M BURLEY: The discovery in this case Is going R
to inform as to what claim terms we actually dispute and how we construe those claims.

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nowadays, just make the plaintiff give you the invention date right off the bat. THE COURT: That's right. MR CHEWY: So I don't understand why I have to fight to get the invention date or why I have t o get into a process where we go out, w e have prior art, we cite it

current Infringers, obviously, on that basis. That doesn't establish the reasonable royalty that would be the result of a hypothetical negotiation between Lucent and Telcordia, and has nothing t o do with any of the factors that are listed in the Georgia-Pacific case. Those include things, for example, like the rate paid by Lucent for use of other patents comparable

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THE COURT: Mr. Cherny, you shouldn't have to. Let's hear from the other side. MR BURLEY: Your Honor, this is a question of who goes first. THE COURT: That's exactly right. You are going to go first.

--

THE COURT: So the answer to the question is you are not prepared t o provide your assessment as to what you will be prepared t o contend before the jury Is a reasonable royalty today, a t this point. M R BURLEY: That's right, Your Honor. THE COURT: That is not unreasonable. And I am not going t o require that you do it a t this point. M R McKONE: Okay, Your Honor. THE COURT: Counsel, thank you. (Teleconference concluded at 11:25 a.m.)

M R BURLEY I read that into your comments to
Mr. Cherny. I was reluctant t o say anything.

O THE COURT: Let's 90 t o N . 5. MR McKONE We have asked Telcordia t o give the

17 factual and legal basis behind its contention that it has
been damaged. Telcordia contends that it is entitled t o a reasonable royalty but it will not state what that royalty is on the patent. We have reason t o believe that they have enough knowledge to give an answer a t this time. For example, on their SRTS patent, they have represented t o standards organizations that the patent is available for licensing on
-~

- a nondiscriminatow basis at a reasonable royalty.
42

18 19 20 21 22 23 24 25

---

Reporter: Kevin Maurer

1 2 3
4

I f you look a t their website, the website indicates that they have dedicated a senior licensing manager devoted just t o licensing the SRTS patent. Telcordia's website also states that the enforcing and licensing of the SRTS patent is worth more today than any other

5
6
7

IT held by Telcordia.
Moreover, they have licensed this patent t o

those patents are being made available t o people who are noi Page 41 11 of 18 sheets

8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

several different companies.

I n fact, back in 1997 Telcordia sent Lucent a
letter offerlng licensing terms for its entire ATM patents

-THE COURT: I think I have your point, counsel. MR McKONE: Yes. That is basically it. We

Do you want to sum up there?

think we are entitled t o what their position is today on the reasonable royalty for the patents i n suit. THE COURT: Who is going t o handle this? MR BURLEY: Your Honor, this is still me. The simple answer to that question is that the reasonable royalty factors that are provided i n Georgia-Pacific deal with a lot of specific information that is part of this discovery process. While it is true that there are certain royalties that we make the patents available to the public on that nondiscriminatory basis,

43 of 43

10/14/2005 11:37:46 A

Case 1:04-cv-00876-GMS
I

Document 399-2

Filed 07/30/2007

Page 20 of 78
32:4, 32:16, 33:15, 34:1, 34:6, 34:7, 34:12, 35:6, 3514, 3523, 37:13,38:3, 38:23, 41 :9, 41 :13, 42:18, 43:12 buy[3] - 6:3, 29:25, 30:4 buying [i] - 257

'306 m - 15:12, 16:l 9, 16:22, 16:24, 21:11,22:9, 3 8 5 '633 [I] - 16:7 '763 [I] - 16:7

0
04-875 (11 - 1 :9

1
1 [4] - 1: I , 28:6, 28:10, 34:17 1.3[3]- 8:3, 27:4, 27:8 102(a111 - 39:25 10:00[1]- 1:11 11 [EJ - 1:1 1, 4: 12, 20:1, 394, 35:12 11:25[1]- 43:17 13[I] - 18:17 13th [I] - 1811 1 15 [2] - 28:21, 40~13 17 [I] - 38115 1997 [I] - 42:9

2
2[2] - 34:16, 34:17 2005 [I] - 1:11 26(b)(l [2] - 513,5 5 26(e [i] - 18:l

23:10, 23:22, 343, 39:16 absolute [2] - 53, 20:25 absolutely [i] 16:17 accomplish [2116:11, 22:4 according [4] 18:12, 21:11, 27:7 accurate 111 - 27:24 accuse 141 - 28:15, 28:19, 28:25, 29:21 accused [EJ- 7:22, 9:18, 17:17, 32:18, 32:23 accusing [2] - 7:16, 7:18 achieve [SI - 6:6, 6:7, 16:14 Action[i] - I :5 activities [a] - 34:20, 34:25, 358 acts ~ 2 1 -28:15, 28:20 actual 111 - 38:9 addition [I] - 23:7 additional [1] - 34:9 address [11- 16:16 adequate [1] - 3535 admissible 131- 5 6 , 510, 10:7 advance [1] - 3735

alternative 131 - 511,

allowable V I - 40:3 alluding [I] - 3236

answer [e] - 325, 13:16, 165, 30:25, 34:21,41:22,42:19, 43:8 apart [11- 13:4 apparent [i] - 39:24 Appearances111 1:14 appeared 111 - 3:8 apples 111 - 32:16 apply [I] - 38:6 applying [1] - 38:4 appointing [i]26:l 0 approval [2] - 29:24, 30:l argue [SI - 514, 5:17, 21:15, 23:10, 33:6
argument 141 11:16, 29:13, 29:14, 30:7 arguments 121 27:2,37:5 artlei - 12:18, 15:23, 39:8,39:23, 40:15, 40:19, 40:22, 41 :6 ash by^ - 1:16, 25 aside (11 - 14:3 aspect 111 - 19:l 3 assessment [2] 13:22,43:9 associated 1219:21, 32:lO assume [i] - 12:12 assumes [1] - 321 Atm[il- 42