Sprint Communications Company LP v. Vonage Holdings Corp., et al

Filing 379

RESPONSE by Defendants/Counter Claimants Vonage America, Inc., Vonage Holdings Corp. re 373 MOTION to Strike 354 Prosecution History Estoppel Defense and Arguments Relating to Same in Vonage's Trial Brief. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Campbell, Terrence)

Sprint Communications Company LP v. Vonage Holdings Corp., et al

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EXHIBIT A

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS SPRINT COMMUNICATIONS COMPANY L.P., ) Plaintiff, v. THEGLOBE.COM, INC., VOICEGLO HOLDINGS, INC., NONAGE HOLDINGS CORP., NONAGE AMERICA, INC., Defendants. ) ) ) ) ) ) ) Case No. 05-2433-JWL

PLAINTIFF SPRINT COMMUNICATIONS COMPANY L.P.'S FIRST SET OF INTERROGATORIES TO DEFENDANT NONAGE AMERICA, INC. Pursuant to Rule 33 of the Federal Rules of Civil Procedure, Sprint

Communications Company L.P. ("Sprint") hereby propounds its First Set of Interrogatories to Defendant Nonage America, Inc. and requests that they be answered separately, fully, and under oath within thirty (30) days of service pursuant to Rule 33(b)(3) of the Federal Rules of Civil Procedure.

1.

The following shall apply to all requests: The singular of each word shall be construed to include its plural, a. and vice versa; "And" as well as "or" shall be construed both conjunctively as well b. as disjunctively; c. d. "Each" shall be construed to include "every," and vice versa; "Any" shall be construed to include "all," and vice versa; and

The present tense shall be construed to include the past tense and e. vice versa.

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2.

If you believe that any of the following requests calls for an assertion of a

claim of privilege, answer so much of the request as is not objected to, state that part of each request to which you raise objection, and set forth the basis for your claim of privilege with respect to such information you refuse to give. 3. If, for reasons other than a claim of privilege, you refuse to answer any

request, please state the grounds upon which the refusal is based with sufficient specificity to permit determination of the propriety of such refusal. 4. If you believe that any of the following requests calls for an assertion of

the work-product or attorney-client privilege, Plaintiff is requested to prepare a "privilege log" listing the following information for each such document: the paragraph or subparagraph to which the document is a. responsive; b. c. d. e. the title or general subject matter of the document; the type of document (e.g., letter, memorandum, note, report, etc.); the date of the document; the name of the author of the document;

f. the person(s) for whom the document was prepared, to whom it was sent, or who received copies; and g. 5. the nature of and the basis for the claim of the privilege.

Each request shall be deemed continuing, so as to require supplemental or

mandatory responses should you obtain additional responsive information subsequent to your initial responses. 6. If you do not agree with any definition of the terms provided herein you

are instructed to provide a reasonable, alternative definition for that term, consistent with industry custom and usage.

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7.

Each of the definitions and instructions contained herein shall be fully

applicable to each request notwithstanding that a definition or instruction above may, in whole or in part, be reiterated in a particular request and notwithstanding that a particular request may incorporate supplemental instructions or definitions. If, however, you provided any alternate

definitions in accordance with Instruction No. 6, indicate whether, and how, any answer to any request would differ if you relied on your alternate definition in responding to that request instead of the definitions provided. DEFINITIONS 1. " Th e Asse rte d Pat e nt s" refers to United States Patent Nos. 6,304,572,

6,633,561, 6,463,052, 6,452,932, 6,473,429, 6,298,064 and 6,665,294.
2. "You," "your," or "Defendant" shall mean, separately and collectively,

Defendant Vonage America, Inc., its licensees, and any subsidiaries, affiliates, predecessors, successors, parents, divisions, persons or entities acting for or on its behalf, whether in existence now or at any time. 3. Company L.P. 4. " Regarding ," " relate (s) to ," or " relating to " mean to contain, record, "Plaintiff" or " Sprint" refers to Plaintiff Sprint Communications

discuss, mention, note, evidence, memorialize, analyze, describe, comment upon, refer to, have any connection with or have any tendency to prove or disprove the matters set forth. 5. "Document" is defined to be synonymous in meaning and equal in scope

to the usage of the term in Rule 34(a) of the Federal Rules of Civil Procedure and includes computer records in any format. By way of further explanation, "Document(s)" shall mean all non-identical copies of material of every kind and description which are recorded by hand-

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writing, printing, typing, photographing, photostatting, graphic representation, mechanical, electronic, magnetic, or any other means of recording, any form of communication, information or representation, including letters, words or numbers or their equivalent, or data compilations of any sort whatsoever. The term "document(s)" is therefore defined to include, among other

things, information stored on electronic media, videotapes, motion pictures, computer data, and any other electronic, mechanical or magnetic records or representations of any kind including without limitation all tapes, cassettes, magnetic, optical or other discs, magnetic cards, e-mail, and recordings. A draft or nonidentical copy is a separate document within the meaning of this
term.

6.

"Per s on " or "per s on s" mean any natural person, corporation, partnership,

proprietorship, association, joint venture, governmental or other public entity, or any other form of organization or legal entity, and all its officials, directors, officers, employees, representatives and agents. 7. "Correspondence" means, but shall not be limited to, any letter,

telegram, telex, TWX, facsimile, e-mail, notice, message, memorandum or other written communication or transcription of notes of a communication. 8. "Report" means, but shall not be limited to, any study, analysis, appraisal,

inspection, survey, test, poll, memorandum, or statistical or financial compilation of information, including without limitation periodic reports of financial condition and reports of examination. 9. "C ommuni c ation " means any written, oral or other transmission of fact,

information, ideas or opinion, including, but not limited to, any utterance, notation, questions, command, interjection, expression, gesture, suggestive conduct or statement of any nature whatsoever, any conversation (whether by telephone or otherwise), and any meeting and also

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including, but not limited to, correspondence, financial records, corporate records, reports and documents as defined immediately above.

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INTERROGATORIES INTERROGATORY NO. 1: Identify each product and/or service that is utilized for providing telephony services, which Vonage America, Inc. distributes, sells, uses, markets or offers for sale, wherein any portion of a telephone call is transmitted over both a packet-based network and a circuit-switched network or device (such as the Public Switched Telephone Network or a standard POTS telephone), and describe, in detail, the operation of each such product or service. RESPONSE:

INTERROGATORY NO. 2: For each product and/or service identified in response to Interrogatory No. 1, identify and describe each component, whether hardware or software, utilized in the provision of such product and/or service and identify the manufacturer, owner, model, and location of all such components. RESPONSE:

INTERROGATORY NO. 3: Describe, in detail, the date and circumstances under which Vonage America, Inc. first learned of the Asserted Patents, including when and how Vonage America, Inc. first acquired or requested a copy of the Asserted Patents. RESPONSE:

INTERROGATORY NO. 4: Describe, in detail, the full factual basis and explanation for Vonage America, Inc.'s contention that any alleged acts of infringement have not been willful or intentional.

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RESPONSE:

INTERROGATORY NO. 5: Describe, in detail, the full factual basis and explanation for Vonage America, Inc.'s contention that Sprint's Asserted Patents are invalid, void and/or unenforceable under one or more sections of Title 35 of the U.S. Code. RESPONSE:

INTERROGATORY NO. 6: Describe, in detail, the full factual basis and explanation for Vonage America, Inc.'s contention that Plaintiff's claim is barred, in whole or in part, by the doctrines of laches, estoppel and unclean hands. RESPONSE:

INTERROGATORY NO. 7: Describe, in detail, the full factual basis and explanation for Vonage America, Inc.'s contention that Vonage America, Inc. has not infringed any of the Asserted Patents. RESPONSE:

INTERROGATORY NO. 8:

For each of the products and/or services identified

in response to Interrogatory No. 1, identify the number of units sold, the number of subscribers or customers, dollar revenues from sales, gross profits, net profits, actual profits, and projected profits from the sale or distribution of the accused products. RESPONSE:

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Dated: January 5, 2006

/s/ Adam P. Seitz B. Trent Webb, KS Bar No. 15965 Eric A. Buresh, KS Bar No. 19895 Adam P. Seitz, KS Bar No. 21059 SHOOK, HARDY & BACON LLP 2555 Grand Blvd. Kansas City, Missouri 64108-2613 816-474-6550 Telephone [phone] Facsimile ATTORNEYS FOR PLAINTIFF SPRINT COMMUNICATIONS COMPANY L.P.

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CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing PLAINTIFF SPRINT TO

COMMUNICATIONS

COMPANY L.P.'S

FIRST SET OF INTERROGATORIES

DEFENDANT NONAGE AMERICA, INC. was sent via e-mail and First Class mail, postage prepaid, this 5th day of January, 2006, to: James D. Oliver Scott C. Nehrbass Foulston Siefkin LLP 40 Corporate Woods Suite 1050 9401 Indian Creek Parkway Overland Park, Kansas 66210 James W. Dabney Henry C. Lebowitz Malcolm J. Duncan Fried, Frank, Harris, Shriver & Jacobson LLP One New York Plaza New York, New York 10004 Attorneys for Defendants theglobe.com, Inc. and Voiceglo Holdings, Inc. Don R. Lolli Patrick J. Kaine Dysart Taylor Lay Cotter & McMonigle P.C. 4420 Madison Avenue Kansas City, Missouri 64111 Patrick D. McPherson Patrick C. Muldoon Barry Golob Duane Morris LLP 1667 K. Street N.W. Washington, DC 20006-1608 Attorneys for Defendants Nonage Holdings Corp. and Nonage America, Inc.

/s/ Adam P. Seitz Attorneys for Sprint Communications Company L.P.

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