Cisco Patent Trial Kicks Off Over Zoom Without A Hitch

By Ryan Davis
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Law360 (May 6, 2020, 10:12 PM EDT) -- A bench trial got underway Wednesday over Zoom due to the pandemic in a case where Cisco Systems is accused of infringing a startup's network security patents, starting with a technical tutorial that went smoothly even with the judge, attorneys and witnesses all participating remotely.

U.S. District Judge Henry Coke Morgan Jr., who decided last month to conduct the trial via videoconference over Cisco's objections, said as the case began that he wanted to get it tried quickly because of the significance of the patent issues involved.

"The court was very anxious to try this case because it involves important issues of intellectual property that could be of national importance for the country," the Virginia federal judge said.

The details of the patents largely went unmentioned in court Wednesday, as most of the day was consumed by a lengthy technical tutorial for the judge about the basics of the technology at issue, including computer networks, routers, switches, firewalls and malware.

But apart from one hiccup where the judge's microphone was on mute for a minute when he took the bench, and an instance where the Zoom window showed an attorney sitting and listening rather than the witness who was speaking, the trial proceeded efficiently despite being entirely online.

Judge Morgan appeared to be participating from his courthouse in Norfolk, Virginia, while one of the witnesses said he was in California and the attorneys mentioned that another witness would later appear from his home in New Hampshire.

Trial participants all had access to the video of the proceedings over Zoom and could see each other, but reporters and other members of the public could only access the audio by dialing a phone number.

The judge said at the outset, "We are going to follow as closely as is possible to do under the circumstances the regular rules of the court," and will be "conducting this trial openly, as far as we can."

He said the public audio feed might be cut when he holds bench conferences with the attorneys about confidential issues.

The judge noted that while he usually sets time limits on the parties in patent trials, "We're not going to do that in this case because I think it would be premature to do that until we learn how proceeding in the manner that we are will affect the progress of the trial."

The trial will likely be a lengthy one. The two sets of proposed findings of fact and conclusions of law filed by the parties run nearly 500 combined pages, and the list of witnesses both sides may call is five pages long.

Cisco had argued the case was a poor choice for a trial by video due to its "inherent complexities," but also said its own WebEx videoconference platform would be better than Zoom. Judge Morgan dismissed those arguments last month.

Centripetal Networks Inc., a network security startup founded in 2009, alleges that Cisco routers, firewalls and network switches infringe five of its patents. It claims that after Cisco held meetings to discuss buying or licensing Centripetal's patents between 2015 and 2017, no deal was reached and Cisco instead copied the technology.

Cisco maintains that it had no interest in Centripetal's technology because it is too slow and expensive to be successful. It says Centripetal cannot identify anything specific that Cisco copied and that its products don't infringe the patents because they operate differently.

The virtual setup for the trial required some precautions that would not be necessary when the participants are in the same physical location. The judge warned witnesses who are slated to appear not to watch the video of the trial or discuss the proceedings with any other witness, which he said would violate a court order.

Wednesday's technical tutorial featured two computer science professors, Centripetal technical expert Nenad Medvidovic of the University of Southern California and Cisco technical expert Kevin Almeroth of the University of California, Santa Barbara, walking the judge through the operation of computer networks and finer points like encryption protocols.

The parties' voluminous court filings were used as a humorous reference point when the experts discussed data packets, the segments computer files are split into so they can be transmitted. After an attorney hazarded a guess that the proposed findings would have to be split into 100 packets, Almeroth paused and estimated it would be closer to one million.

"You wouldn't want to try to carry them," the judge broke in, to laughter.

The tutorial ran for over four hours, not including a recess for lunch, during which Judge Morgan actively questioned both experts about an array of technical details. By the end, he seemed prepared to dive into specifics of the case — more or less.

"This helps me understand the basics of what we're talking about, but translating the basics into the words of the claims and how the products operate, I have a feeling is going to be more complex," he said.

The judge had planned to hear opening statements Wednesday, but the tutorial took so long, he adjourned for the day when it was over and said openings would be delivered Thursday.

During a break in the trial, a court staffer told the attorneys about an unusual incident that happened during a previous videoconference hearing in a different case.

"One of the attorneys had a picture of Judge Morgan as their [Zoom] background," she said. "We were like, uh, no."

The patents-in-suit are U.S. Patent Nos. 9,137,205; 9,203,806; 9,560,176; 9,686,193 and 9,917,856.

Centripetal is represented by Paul J. Andre, Lisa Kobialka, James Hannah, Hannah Lee and Cristina L. Martinez of Kramer Levin Naftalis & Frankel LLP, and Stephen E. Noona of Kaufman & Canoles PC.

Cisco is represented by L. Norwood Jameson, Matthew C. Gaudet, John R. Gibson, Jennifer H. Forte, Joseph A. Powers, John M. Baird, Christopher J. Tyson and Nicole E. Grigg of Duane Morris LLP, Neil H. MacBride of Davis Polk & Wardwell LLP, and Dabney J. Carr IV of Troutman Sanders LLP.

The case is Centripetal Networks Inc. v. Cisco Systems Inc., case number 2:18-cv-00094, in the U.S. District Court for the Eastern District of Virginia.

--Editing by Breda Lund.

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