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Storage Technology Corp. has been busy. Last week it inked a $4.1 billion deal to be acquired by Sun Microsystems Inc., and on Monday came closing arguments in a patent infringement case against another Silicon Valley giant. During closing on Monday, StorageTek asked a San Francisco jury to award it $322.8 million in damages in its suit against Cisco Systems Inc. StorageTek claims that Cisco infringed its patent covering the way networking equipment handles and routes packets of information. StorageTek attorney Ernie Brooks, of the Southfield, Mich., firm Brooks Kushman, said Cisco should pay the company royalties of 1.5 percent of sales of products using Cisco’s so-called NetFlow Feature Acceleration. Cisco attorney Matthew Powers, a partner at Weil, Gotshal & Manges, argued that StorageTek’s patent is invalid and not infringed. The arguments also highlighted how markedly dissimilar the attorneys’ styles are. Brooks used an overhead projector and tried to be folksy; Powers used a PowerPoint presentation and stuck to the facts. Dressed in a dark suit with a pale orange shirt and an orange striped tie, Brooks opened by telling the jury it was troublesome to hear himself called an ambulance chaser by opposing counsel. Brooks also questioned why Cisco had put forth three invalidity defenses. “Why so many?” he asked. “Tell me which is the winner. Have some confidence.” Cisco had included an acceleration feature in about 15 or 20 of its routers and switchers. Powers said Cisco removed the feature from some of the products in 2004 and from the remainder before the case went to trial. Brooks argued that Cisco removed the acceleration feature because it was infringing. Powers told the jurors that they had to decide whether StorageTek had filed a real case in which technology had been stolen or an improper case that was tying up the court system. Wearing a dark suit with a white shirt and blue tie, Powers said when StorageTek filed suit the CEO at the time was “under extreme pressure to do something about StorageTek’s financial performance” and the company had wanted to be acquired by Cisco. “If a case is made up, you find the facts don’t fit the case,” Powers said. “You see [the plaintiff] constantly changing positions on key issues.” He contended that StorageTek had changed its position as to which technology was actually infringed, when inventors actually did the work, what the invention was about and whether Cisco had committed willful infringement. StorageTek dropped the latter charge. Brooks seemed deflated when he gave his rebuttal. “At this stage I wish there was something I could say that mattered,” he told the jury. “It’s hard to find a simple statement that would make a difference.” Brooks attributed any inconsistencies in the trial to his desire to simplify the case so jurors could understand it. “You do the best you can in litigation,” he said. “You try to simplify it. Positions change in litigation all the time.” As for the claim of willful infringement, Brooks said Cisco’s conduct was willful but that retaining the claim would have meant another round of court instructions and arguments. “So I gave it up,” he told the jury. “Does that make me a schemer?” This is the second time StorageTek’s patent suit against Cisco has gone before U.S. District Judge Susan Illston. In 2002, she granted Cisco’s motion for summary judgment, finding that it had not infringed the current patent in question, the ’040 patent, as well as another patent. But in 2003 the Federal Circuit U.S. Court of Appeals found that the district court had erred in constructing terms in the ’040 patent and sent the matter back for further consideration. StorageTek had a separate trade secrets and breach of contract suit against Cisco that arose after Cisco acquired NuSpeed Internet Systems in 2000. StorageTek said NuSpeed had raided its employees and misappropriated trade secrets. Earlier this year the Eighth Circuit U.S. Court of Appeals upheld a Minnesota district court’s finding in Cisco’s favor.

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