jnpr sjm assignor estoppel

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

JUNIPER NETWORKS, INC., a Delaware corporation,

Plaintiff, v. PALO ALTO NETWORKS, INC., a Delaware corporation,

Defendant.

) ) ) ) ) ) ) ) ) ) ) )

Civil Action No. 11-1258-SLR

JUNIPER NETWORKS, INC.’S REPLY BRIEF IN SUPPORT OF ITS MOTION FOR

SUMMARY JUDGMENT OF ASSIGNOR ESTOPPEL MORRIS, NICHOLS, ARSHT & TUNNELL, LLP Jack B. Blumenfeld (#1014) Jennifer Ying (#5550) 1201 North Market Street P.O. Box 1347 Wilmington, DE 19801 (302) 658-9200 [email protected] [email protected]

OF COUNSEL: Attorneys for Plaintiff Juniper Networks, Inc. Morgan Chu Jonathan S. Kagan IRELL & MANELLA, LLP 1800 Avenue of the Stars, Suite 900 Los Angeles, CA 90067-4276 (310) 277-1010 Lisa S. Glasser David C. McPhie IRELL & MANELLA LLP 840 Newport Center Drive, Suite 400 Newport Beach, CA 92660 (949) 760-0991

Case 1:11-cv-01258-SLR Document 227 Filed 10/10/13 of 16 PageID #: 9543

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REDACTED - PUBLIC VERSION

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Original Filing Date: October 3, 2013 Redacted Filing Date: October 10, 2013

TABLE OF CONTENTS

Page

- i -

I. INTRODUCTION ........................................................................................................ 1

II. PAN’S ADMISSIONS THAT MAO IS A FOUNDER ARE DISPOSITIVE .............................................................................................................. 1

III. PAN AVAILED ITSELF OF MAO’S KNOWLEDGE AND ASSISTANCE TO CONDUCT INFRINGEMENT ...................................................... 3

IV. ZUK ASSIGNED THE ‘723 PATENT TO JUNIPER .................................................. 7

V. ASSIGNOR ESTOPPEL IS NOW RIPE FOR DECISION ......................................... 10

VI. CONCLUSION .......................................................................................................... 10


TABLE OF AUTHORITIES

Page(s)

- ii -

Cases

Applied Materials, Inc. v. Negevtech, Inc., 2005 WL 1656894 (N.D. Cal. July 14, 2005) .......................................................................9

BASF Corp. v. Aristo, Inc., 872 F. Supp. 2d 758 (N.D. Ind. 2012) ............................................................................... 10

Bd. of Trs. of the Leland Stanford Junior Univ. v. Roche Molecular Sys., 583 F.3d 832 (Fed. Cir. 2009), aff’d, 131 S. Ct. 2188 (2011) .................................................8

Brocade Commc’ns Systems, Inc. v. A10 Networks, Inc., 2012 WL 2326064 (N.D. Cal. June 18, 2012) .................................................................... 10

Cedarapids, Inc. v. Johnson Crushers, Int’l, Inc., 2005 WL 2086755 (M.D. Tenn. Aug. 26, 2005) ................................................................ 10

Diamond Scientific Co. v. Ambico, Inc., 848 F.2d 1220 (Fed. Cir. 1988) ....................................................................................... 1, 9

Ethicon, Inc. v. United States Surgical Corp., 135 F.3d 1456 (Fed. Cir. 1998) ...........................................................................................8

HWB, Inc. v. Braner, Inc., 869 F. Supp. 579 (N.D. Ill. 1994).....................................................................................4

Leading Edge Tech. Corp. v. Sun Automation, Inc., No. H-90-2316, 1991 WL 398682 (D. Md. Sept. 24, 1991) ................................................. 10

Mentor Graphics v. Quickturn, 150 F.3d 1374 (Fed. Cir. 1998) ........................................................................................7

Shamrock Techs, Inc. v. Medical Sterilization, Inc., 903 F.2d 789 (Fed. Cir. 1990).................................................................................... passim

Statutes

35 U.S.C. § 112 ...........................................................................................................................4

Cal. Bus. & Prof. Code § 16600 .....................................................................................................8


Page(s)

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Other Authorities

Fed. R. Civ. P. 56 ........................................................................................................................3

Fed. R. Evid. 802 ........................................................................................................................3


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I. INTRODUCTION

PAN’s decision to devote a substantial portion of its opposition brief to criticizing the Federal

Circuit’s assignor estoppel jurisprudence—law that this Court has already applied in this case—is

telling.1 PAN does not genuinely contest the facts set forth in Juniper’s motion. Under governing

precedent (as it has existed for at least twenty-five years), the uncontroverted facts establish assignor

estoppel in at least three ways.

First, PAN’s repeated admissions that Yuming Mao assigned the Mao patents to Juniper and

has the status of “founder” at PAN conclusively establish privity for assignor estoppel. See Diamond

Scientific Co. v. Ambico, Inc., 848 F.2d 1220, 1224-25 (Fed. Cir. 1988) (a “corporation founded by the

assignor” is in privity for purposes of establishing assignor estoppel).

Second, the extensive, uncontroverted evidence that PAN availed itself of Mao’s knowledge

and assistance to develop the accused products is independently dispositive of privity. See Shamrock

Techs, Inc. v. Medical Sterilization, Inc., 903 F.2d 789, 794 (Fed. Cir. 1990) (privity established on

summary judgment where corporation “availed itself of [the assignor’s] ‘knowledge and assistance’”

regarding infringement).

Third, for the ‘723 patent which was co-invented by Mao and PAN co-Founder Nir Zuk,

assignor estoppel applies for an additional reason: this Court already held that Zuk and PAN are in

privity (D.I. 53 at 9), and the undisputed facts now establish that Zuk assigned this invention to Juniper.

II. PAN’S ADMISSIONS THAT MAO IS A FOUNDER ARE DISPOSITIVE

PAN does not contest that, under binding Federal Circuit precedent, an assignor’s status as a

“founder” is dispositive of privity for purposes of assignor estoppel. See, e.g., Diamond, 848 F.2d at

1 PAN’s criticisms are both irrelevant and without merit. For example, the MedImmune

case cited by PAN did not address assignor estoppel; rather, it addressed the different doctrine of licensee estoppel. See Diamond, 848 F.2d 1223 (noting that the “public policy favoring allowing a licensee to contest the validity of the patent is not present in the assignment situation.”).


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1224-25; D.I. 53 at 9. Juniper’s opening brief describes the numerous admissions by PAN that Mao is

a PAN Founder. See D.I. 173 at 3, 8-9 (citing PAN investor presentations, marketing materials,

internal e-mails, website, business cards, and deposition testimony that Mao is a PAN “Founder”).

PAN does not even attempt to explain away its admissions, other than to note that Mao

requested the Founder title when he joined the company. There is no evidence that the title he

requested was inaccurate. To the contrary, PAN concedes that it consistently acknowledges Mao’s

“status as ‘founder’” on its “website, investor presentations, and Mr. Mao’s business cards.” D.I. 200

at 14 (characterizing as “unremarkable” that “PAN’s website, investor presentations, and Mr. Mao’s

business cards would refer to his status as ‘founder’”).2 Moreover, PAN does not dispute that Mao was

richly compensated for his founding role, with PAN stock grants of more than . Ex 15 at

125:23-126:17.3

PAN’s contention that Mao nonetheless should not be considered a founder because “[b]efore

Mao arrived at PAN, the company was well on its way to developing the

” (D.I. 200 at 3) is not

supported by any admissible evidence. As the testimony that PAN cites makes clear, by “well on its

way” PAN means that it was attempting to obtain initial financing by providing potential investors

high-level information about a potential product. See id. at 3-4 including citation to Mao Depo. at

253:24-254:16

2 The only evidence that PAN offers in response to any of Juniper’s evidence of Mao’s

status as Founder is a declaration from PAN’s counsel stating that

(Ex. 7 at PAN001246813), was Chivvis Decl. (D.I. 201) at ¶ 5. Notably, PAN does not contest the relevant facts—including that the document is a PAN

identifying Mao as member of PAN’s “Founding Team.” Whether or not the does not alter that explicit admission.

3 “Ex. __” refers to exhibits attached to the Declaration of Lisa S. Glasser (D.I. 174) submitted with Juniper’s Motion for Summary Judgment of Assignor Estoppel (D.I. 172, 173).


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).4

The record evidence clearly establishes that all meaningful development of the accused

products took place after Mao joined the “Founding Team.” Mr. Mao’s two co-Founders, Zuk and

Rajiv Batra, testified For example,

Zuk admitted that even though PAN sometimes refers to the company being “founded in 2005,”

—exactly

coinciding with Mao’s arrival. Ex. 27 at PAN002026071. Similarly, Mr. Batra testified

Ex. 19 at 80:19-81:14, 84:15-19. These admissions further confirm that

Mao was a “Founder” of PAN in every meaningful sense of the title.

III. PAN AVAILED ITSELF OF MAO’S KNOWLEDGE AND ASSISTANCE TO CONDUCT INFRINGEMENT

Mao’s role at PAN, including his critical, early-stage work developing the accused products, is

a second, independent basis for finding privity. As the Federal Circuit held in Shamrock, summary

judgment of assignor estoppel is properly granted even as to non-founder employees where (for

example) the defendant “availed itself of [the assignor’s] ‘knowledge and assistance’ to conduct

infringement.” Shamrock, 903 F.2d at 794.

PAN’s opposition presents no analysis under this governing standard, much less any evidence

sufficient to create a genuine dispute of fact. Instead, PAN miscites Shamrock as holding that privity

requires a showing that the “employer could not have initiated the infringing operations without the

assistance of the assignor/inventor” (D.I. 200 at 10), and then addresses this straw man question of

4 Additionally, PAN’s cited evidence is not admissible because it contains multiple levels

of hearsay. See Fed. R. Civ. P. 56(c)(2); Fed. R. Evid. 802.


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whether it was “impossible” for PAN to infringe without Mao.5 But neither Shamrock nor any other

precedent requires a showing that it was impossible to infringe a patent without the assignor. Indeed, in

Shamrock, there was no discussion of any specific technical work performed by the assignor, much less

argument or evidence that it would have been impossible for the defendant to infringe without him. In

Shamrock, the evidence that the Federal Circuit held dispositive of privity was that the assignor served

in a senior management role in setting up and running the facility that carried out the infringing process.

Shamrock, 903 F.2d at 794 (assignor “was hired in part to start up infringing operations,” “oversaw the

design and construction of [the] facilities,” and served as a “Vice-President in charge of Operations.”).

PAN does not (and cannot) dispute that Mao had substantial involvement in PAN’s infringing

operations, just as in Shamrock and its numerous progeny discussed in Juniper’s opening brief. There

is no dispute that ,

when Mao joined as Chief Architect, that Mao and that Mao

and even

Ex. 27 at 237:10-13; Ex. 28 at PAN000526928. Indeed, PAN’s co-Founder Zuk testified that he

Ex. 18 at 488:24-489:25, Ex. 23; see also Ex. 18 at 486:20-25;6 Exs. 22, 24; Ex. 15 at

5 PAN relies upon HWB, Inc. v. Braner, Inc., 869 F. Supp. 579, 582 (N.D. Ill. 1994) for

this proposition. In addition to not being binding on this court, HWB’s commentary was dicta. In HWB, the assignor was a salesperson who had no involvement in design or manufacture of the accused products. Id. (Braner “did not avail itself of Richards’ knowledge and assistant in order to manufacture the infringing product.”). Indeed, an “impossible to infringe with the assignor” standard presumably could very rarely (if ever) be met, given the 35 U.S.C. § 112 requirement that every patent have an enabling disclosure.

6 PAN’s argument that Zuk later realized that Mao “was not necessarily the right person to do that” (D.I. 200 at 18) is not supported by the cited testimony, which appears to be referring to the comment that immediately preceded and not the . In any event, Zuk’s vague assertion cannot controvert the evidence that Mao was centrally involved in


- 5 -

84:23-25, 100:10-11; Ex. 16 at 332:10-333:12. PAN presents no evidence controverting any of the

following facts:

Mao ” (e.g., Ex. 28 at PAN000526930;

Ex. 16 at 516:21-519:15).

Mao

” (Ex. 28 at PAN000526928).

During PAN’s development of the PA-4000 (PAN’s first release of the accused product line), Mao

Ex. 15 at 289:9-290:20.

Mao Ex. 32; Ex. 16 at 568:19-569:13.

Mao . Ex. 37 at PAN000964175; Ex. 42.

Mao (e.g., Ex. 28 at

PAN000526930; Ex. 16 at 516:21-519:15; see also Ex. 28 at PAN000526928).

Mao

Ex. 34; Ex. 21 at J0021883.

developing the accused products, E.g., Ex. 28 at PAN000526928, 00052630; Ex. 16 at 516:21-519:15.

7 This is one of the few facts from Juniper’s opening brief that PAN even purports to address. However, PAN’s suggestion that Mao

is not supported by the cited evidence. Mao was clear that he was

Ex. 16 at 517:15-19 ( Moreover, PAN’s argument that most software companies need quality

assurance facilities and source code controls only underscores their importance to getting PAN started as a operating business.

8 PAN does not even attempt to justify Instead, PAN ignores it in its brief.


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Mao . Ex. 31; Ex. 16 at 574:19-576:2.

Mao Ex. 15 at 284:4-287:24.

Mao

” E.g., Exs. 39-43; see also Ex. 16 at 583:12-16

Ex. 44 at PAN000644916.

PAN’s suggestion that the assignor estoppel analysis requires specifically linking Mao’s

activities to the elements of each patent-in-suit (D.I. 200 at 18) is unsupported—not a single case that

either party cites purports to impose any such requirement. Nonetheless, the record evidence

repeatedly links Mao to the entire architecture of the accused products (see, e.g., Ex. 28

), as well as to specific hardware and software

elements at the center of Juniper’s infringement contentions, such as (for example)

Exs. 3, 4, 15 at 303:12-306:7, 16 at 568:19-569:13, 31, 32, 33, 34.

Indeed, PAN admits that Mao worked on , which PAN itself describes as

relevant to infringement. D.I. 200 at 18-20.9 Thus, even if there were a requirement to link the

assignor to the elements of the asserted claims (and there is no such requirement), it is met here.

Finally, PAN’s argument that Mao’s involvement in the infringing products “all . . . relate[s] to

products released after the PA-4000 Series” (D.I. 200 at 19) is wholly unsupported. To the contrary, it

is undisputed that Mao (e.g., Ex. 28 at

PAN000526930) (emphasis added) and specifically led

Id. at PAN000526928. Reflecting Mao’s central role in the first product release, many of the

documents cited in Juniper’s opening brief (including those discussed in the bulleted points above) are

9 PAN’s suggestion that designed PAN’s products (D.I. 200 at 18) is simply an attorney statement, unsupported by any evidence, and is incorrect.


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See, e.g., Ex. 15 at 289:9-290:20; Ex. 16 at 516:21-519:15, 568:19-569:13; 28 at

PAN000526930; Exs. 32, 42; Ex. 37 at PAN000964175.10

IV. ZUK ASSIGNED THE ‘723 PATENT TO JUNIPER

An additional basis for assignor estoppel exists as to the ‘723 patent, which names both Mao

and Zuk as inventors. At the pleading stage, Zuk’s privity with PAN was established. Nevertheless,

because Zuk’s assignment of that patent had to be demonstrated by facts outside the pleadings, Juniper

did not at that time seek a finding of assignor estoppel for the ‘723 patent based on Zuk.

With this motion, Juniper and the Court are no longer confined to the four corners of the

pleadings, and Zuk’s assignment to Juniper is established by the uncontroverted facts. PAN does not

dispute that Zuk entered into an Invention Agreement under which Zuk agreed to assign all of his

inventions to NetScreen “[i]n partial consideration and as a condition of [his] continued employment

with NetScreen.” Ex. 20 at J0003042. PAN does not dispute that Zuk specifically agreed: “I hereby

assign and agree to assign to NetScreen or its designee, without further consideration, my entire right,

title, and interest in and to all Inventions . . . including all rights to obtain, register, perfect, and enforce

patents . . . .” Id. at J0003043 (emphasis added). Similarly, there is no dispute that Zuk’s Invention

Agreement remained in effect after NetScreen’s merger with Juniper, and Juniper succeed to

NetScreen’s rights. Id. at J0003042, J0003045.

It is well-established that the language “‘hereby assign’ effect[s] a present assignment of [the

10 PAN’s contention that there is a “line of cases” requiring proof that the assignor is the

corporation’s “corporate disguise” is incorrect. PAN cites Mentor Graphics and Nortel for this proposition, but neither case uses that phrasing nor endorses such a rule in concept. To the contrary, the Mentor Graphics panel favorably cited Shamrock as finding privity based on the assignor’s title, ownership of shares, and the fact that he “oversaw the construction and operation of the facilities where the alleged infringement occurred.” Mentor Graphics v. Quickturn, 150 F.3d 1374, 1379 (Fed. Cir. 1998). Similarly, this court in Acushnet used the phrase “corporate guise,” but did not present it as a prerequisite for privity. 2000 WL 987979, at *2-3.


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assignor’s] future inventions.” Bd. of Trs. of the Leland Stanford Junior Univ. v. Roche Molecular Sys.,

583 F.3d 832, 842 (Fed. Cir. 2009), aff’d, 131 S. Ct. 2188 (2011). Thus, an assignment of Zuk’s

interest in the ‘723 patent arose by operation of law and did not require execution of additional papers.

See id. PAN does not attempt to distinguish this settled law. Unable to dispute the material facts or

law, PAN advances four arguments, each of which is unavailing.

First, PAN argues that Juniper has not proven that Zuk is an inventor of the ‘723 patent.

However, Zuk is named as an inventor on the issued patent, which demonstrates inventorship unless

disproven by clear and convincing evidence. E.g., Ethicon, Inc. v. United States Surgical Corp., 135

F.3d 1456, 1461 (Fed. Cir. 1998) (“Patent issuance creates a presumption that the named inventors are

the true and only inventors.”). PAN has never disputed inventorship of the ‘723 patent, much less

adduced any evidence that Zuk is improperly named as an inventor. Clifford Ex. UU at 285:1-5.

Second, PAN argues that Zuk’s Invention Agreement is “null and void” under California

Business & Professions Code § 16600. PAN cites no authority in support of this argument, and for

good reason. Roche, which applies California law, rejected exactly this argument, finding “no merit” in

a California Business & Professions Code § 16600 challenge to language virtually identical to that at

issue here. Roche, 583 F.3d at 845-456 (rejecting § 16600 challenge and noting that “California courts

apply section 16600 to employment restrictions on departing employees, not to patent assignments”).

Third, PAN argues that Juniper “did not file the application that resulted in the ‘723 patent until

more than five years after Mr. Zuk’s departure.” This characterization is both misleading and

irrelevant. The application from which the ‘723 patent issued was in fact filed on Jan. 25, 2006 (after

an August 2, 2005 provisional), and the ‘723 patent is a continuation of that application.11 As PAN

11 PAN’s passing reference to Juniper “broaden[ing]” the patents-in-suit “through years

of amendments” (D.I. 200 at 6), which similarly cites no supporting evidence, is also incorrect. Each of the Mao patents at issue on this motion either issued directly from the assigned application or from a continuation with the same disclosure.


- 9 -

implicitly acknowledges, this does not change the assignor estoppel analysis. Indeed, it precisely

parallels Diamond, which also involved several continuation applications:

Our concern must be with the balance of the equities. The fact is that [the inventor] assigned the rights to his invention, irrespective of the particular language in the claims describing the inventions when the patents were ultimately granted.

Diamond, 848 F.2d at 1226 (emphasis in original); see also Applied Materials, Inc. v. Negevtech, Inc.,

2005 WL 1656894, at **3-5 (N.D. Cal. July 14, 2005).

PAN’s final argument—that Zuk failed to sign the inventor’s oath—not only lends no support

to PAN’s position, but indeed shifts the equities yet further in favor of estoppel here. PAN does not

dispute (or even address) the facts set forth in Juniper’s opening brief demonstrating that Zuk—while

still at Juniper but secretly planning a new company to compete with Juniper—deliberately flouted his

patent prosecution obligations to impede Juniper’s filing of the ‘723 patent’s application. Zuk was able

to delay the application’s filing by more than a year by repeatedly ignoring or cancelling meeting

requests from Juniper’s patent counsel. Exs. 50, 17 at 298:8-21; D.I. 150 at JA-194 – JA-195, JA-197

– JA-199, JA-202, JA-210 – JA-215, JA-218. Contrary to PAN’s suggestion that Zuk voiced

opposition to signing the documents (D.I. 200 at 11), the evidence is that Zuk never said a word in

criticism of the application or so much as suggested that he would not sign the Oath.12 Id. Instead, he

simply strung along Juniper with a series of excuses to cancel meetings until he abruptly left Juniper to

start PAN. Id. It would be the epitome of unfairness for Zuk to delay the filing of a Juniper patent that

constituted an obstacle to his new business, but then be permitted to defend against infringement claims

by using that later filing date to argue that the patent is invalid.

12 Nor did Zuk suggest at any point in this extensive correspondence, or during this

litigation, that he is not an inventor of the ‘723 patent. See also Ex. 17 at 300:25-301:19.


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V. ASSIGNOR ESTOPPEL IS NOW RIPE FOR DECISION

As the Court recognized in identifying summary judgment as the appropriate forum to resolve

these issues (D.I. 53 at 9), assignor estoppel can and should be established now. Whether assignor

estoppel applies is “a question for the court to decide,” and is properly “resolved through summary

judgment.” BASF Corp. v. Aristo, Inc., 872 F. Supp. 2d 758, 774 (N.D. Ind. 2012); see also, e.g.,

Shamrock, 903 F.2d at 793; Brocade Commc’ns Systems, Inc. v. A10 Networks, Inc., 2012 WL

2326064, at *5, 7 (N.D. Cal. June 18, 2012); Cedarapids, Inc. v. Johnson Crushers, Int’l, Inc., 2005

WL 2086755, at *5-6 (M.D. Tenn. Aug. 26, 2005).

PAN half-heartedly argues that summary judgment is not the appropriate forum for resolution

of assignor estoppel, ignoring the settled law that assignor estoppel is for the court and citing an out-of-

circuit case from 1991. PAN’s single case, moreover, is readily distinguishable—for example, it

involved disputes about inequitable conduct which had not been developed on the summary judgment

record. Leading Edge Tech. Corp. v. Sun Automation, Inc., No. H-90-2316, 1991 WL 398682, at *16

(D. Md. Sept. 24, 1991) (“disputed issues of material fact exist concerning whether inequitable conduct

on the part of plaintiff bars application in this case of the doctrine of assignor estoppel”). Every other

case cited by the parties resolved the issue at summary judgment or via a motion to strike, following the

settled law that assignor estoppel is an issue for the Court ideally suited for summary judgment.

VI. CONCLUSION

This Court has already held, and there is no dispute, that Mao assigned the ‘459, ‘700, ‘612,

‘347, and ‘723 patents to Juniper and signed Inventor’s Oaths for each. Exs. 1-6; see also D.I. 53, 54.

With the remaining issue of privity (and, in the case of the ‘723 patent, Zuk’s assignment) now

established by PAN’s admissions and uncontroverted facts, Juniper respectfully requests that summary

judgment of assignor estoppel be granted.


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OF COUNSEL: Morgan Chu Jonathan S. Kagan Talin Gordnia IRELL & MANELLA, LLP 1800 Avenue of the Stars, Suite 900 Los Angeles, CA 90067-4276 (310) 277-1010 Lisa S. Glasser David C. McPhie Rebecca Clifford IRELL & MANELLA LLP 840 Newport Center Drive, Suite 400 Newport Beach, CA 92660 (949) 760-0991 October 3, 2013

MORRIS, NICHOLS, ARSHT & TUNNELL LLP /s/ Jack B. Blumenfeld Jack B. Blumenfeld (#1014) Jennifer Ying (#5550) 1201 North Market Street P.O. Box 1347 Wilmington, DE 19801 (302) 658-9200 [email protected] [email protected] Attorneys for Plaintiff


CERTIFICATE OF SERVICE

I hereby certify that on October 10, 2013, I caused the foregoing to be

electronically filed with the Clerk of the Court using CM/ECF, which will send notification of

such filing to all registered participants.

I further certify that I caused copies of the foregoing document to be served on

October 10, 2013, upon the following in the manner indicated:

Philip A. Rovner, Esquire Jonathan A. Choa, Esquire POTTER ANDERSON & CORROON LLP 1313 North Market Street Hercules Plaza Wilmington, DE 19801 Attorneys for Defendant

VIA ELECTRONIC MAIL

Daralyn J. Durie, Esquire Ragesh K. Tangri, Esquire Ryan M. Kent, Esquire Brian C. Howard, Esquire Sonali D. Maitra, Esquire DURIE TANGRI LLP 217 Leidesdorff Street San Francisco, CA 94111 Attorneys for Defendant

VIA ELECTRONIC MAIL

Harold J. McElhinny, Esquire Michael A. Jacobs, Esquire Matthew A. Chivvis, Esquire Matthew I. Kreeger, Esquire MORRISON & FOERSTER LLP 425 Market Street San Francisco, CA 94105 Attorneys for Defendant

VIA ELECTRONIC MAIL

/s/ Jennifer Ying

Jennifer Ying (#5550)


jnpr sjm assignor estoppel

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