NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

XPERTUNIVERSE INC.,

Plaintiff-Appellant,

v.

CISCO SYSTEMS, INC.,

Defendant-Appellee.

______________________ 

2014-1281

______________________ 

Appeal from the United States District Court for the 

District of Delaware in No. 1:09-cv-00157-RGA, Judge 

Richard G. Andrews.

______________________ 

Decided: January 21, 2015

______________________ 

DONALD R. DUNNER, Finnegan, Henderson, Farabow, 

Garrett & Dunner, LLP, of Washington, DC, argued for 

plaintiff-appellant. With him on the brief was ALLEN M.

SOKAL. 

KATHLEEN M. SULLIVAN, Quinn Emanuel Urquhart & 

Sullivan, LLP, of New York, New York, argued for defendant-appellee. With her on the brief were CLELAND B.

WELTON, II; and DANIEL H. BROMBERG, of Redwood 

Shores, California. Of counsel on the brief were BRETT M.
2 XPERTUNIVERSE INC. v. CISCO SYSTEMS, INC. 

SCHUMAN, Morgan, Lewis, & Bockius LLP, of San Francisco, California, and KELL M. DAMSGAARD, of Philadelphia, Pennsylvania. 

______________________ 

Before PROST, Chief Judge, MAYER, and LOURIE, Circuit 

Judges.

PER CURIAM. 

XpertUniverse Inc. (“XpertUniverse”) appeals a final 

judgment of the United States District Court for the 

District of Delaware granting judgment as a matter of law 

(“JMOL”) on its claim for fraudulent concealment, see 

XpertUniverse Inc. v. Cisco Sys., Inc., No. 1:09-cv-00157, 

2013 WL 6118447 (D. Del. Nov. 20, 2013) (“JMOL Decision”), and summary judgment on its claims for breach of 

contract and trade secret misappropriation, see XpertUniverse Inc. v. Cisco Sys., Inc., No. 1:09-cv-00157, 2013 WL 

867640 (D. Del. Mar. 8, 2013) (“Summary Judgment 

Decision”). We affirm.

BACKGROUND

XpertUniverse developed expert-location software for 

corporate call centers. J.A. 1083–84. It asserts that its 

technology “broke down the walls of traditional call centers—where a fixed group of individuals with a fixed set 

of skills waited for calls—and allowed organizations to 

capitalize and share the knowledge of their employees, 

regardless of their role or location.” J.A. 6034. In the 

spring of 2004, XpertUniverse demonstrated its product 

at the annual “G Force” conference hosted by Genesys 

Telecommunications Laboratories, Inc. (“Genesys”). J.A. 

1085. According to XpertUniverse, Genesys was “very, 

very impressed” with its product, J.A. 1086, and the two 

“companies were rapidly forming a mutually beneficial 

business partnership and were prepared to quickly go to 

market because [Genesys’] router was already integrated 

with [XpertUniverse’s] technology.” Br. of Plaintiff-
XPERTUNIVERSE INC. v. CISCO SYSTEMS, INC. 3

Appellant at 15; see also J.A. 1087. In the summer of 

2004, however, Laurent Philonenko, Genesys’ chief executive officer, left Genesys and became general manager of 

the Customer Contact Business Unit (“CCBU”) at Cisco 

Systems, Inc. (“Cisco”). Soon thereafter, XpertUniverse 

began working with Cisco to integrate its technology into 

Cisco’s routers. J.A. 1086–87.

In August 2004, XpertUniverse and Cisco executed a 

non-disclosure agreement, J.A. 1087–88, and by April 

2005, XpertUniverse had been admitted to Cisco’s Technology Developer Partner (“TDP”) program, J.A. 1073. 

Participants in the TDP program pay a small fee that 

entitles them to assistance from Cisco engineers in integrating their technology with Cisco products. J.A. 1613–

14. In December 2005, John Hernandez, the director of 

product management at the CCBU, invited XpertUniverse 

to apply for Cisco’s SolutionsPlus program. J.A. 1191. 

Admission to the SolutionsPlus program was very important to XpertUniverse because it would allow Cisco’s 

“army of salespeople” to sell XpertUniverse’s product at 

full commission. J.A. 1190; see also J.A. 1335, 1337. 

Admission to the program would also allow XpertUniverse’s “product to be listed in Cisco’s catalog as a Cisco 

approved product.” J.A. 1190.

Cisco informed XpertUniverse that admission to the 

SolutionsPlus program was “VERY selective.” J.A. 5129. 

Furthermore, even if the SolutionsPlus Governance 

Council (the “Governance Council” or “Council”) approved 

a product, it still had to undergo a 90-day test period, 

after which Cisco could decide “in its sole discretion” 

whether to keep the product in the SolutionsPlus program 

for a two-year period. J.A. 5151.

Working with Elizabeth Eiss, XpertUniverse’s president, Balaji Sundara, a Cisco product manager, prepared 

XpertUniverse’s SolutionsPlus application. J.A. 1343. In 

April 2006, Sundara presented XpertUniverse’s applica-
4 XPERTUNIVERSE INC. v. CISCO SYSTEMS, INC. 

tion to the Governance Council. J.A. 1343–44. The 

Council, however, voted to deny the application, concluding that XpertUniverse’s platform appeared to be a “niche 

product” which was not likely to result in “horizontal 

revenue pull through.” J.A. 10948. The Governance 

Council was also concerned that Cisco’s sales force would 

have difficulty selling XpertUniverse’s technology. J.A. 

11132; see also J.A. 1215. 

Hernandez testified at trial that the “vast majority of 

companies” underwent “multiple reviews” by the Governance Council, and that he had been confident that the 

Council’s concerns about XpertUniverse’s technology 

could eventually be overcome. J.A. 1621; see also J.A. 

1631. In order to allay the Council’s fear that XpertUniverse’s technology would not generate significant revenue 

for Cisco, Hernandez knew that he needed to secure a 

“lighthouse account,” or lead customer, for XpertUniverse’s product. J.A. 1631. CitiGroup Inc. (“CitiGroup”), 

which in May 2006 was close to beginning a joint pilot 

project with XpertUniverse and Cisco, J.A. 1350, 5085–86, 

could potentially provide such a lighthouse account, J.A. 

1631. Likewise, XpertUniverse’s platform could potentially be used to supply “competency based routing” for 

FedEx Corporation (“FedEx”), a major Cisco client. J.A. 

11065–68. Hernandez instructed Cisco’s CitiGroup team 

to put together a “business case” for admitting XpertUniverse to the SolutionsPlus program to take back to the 

Governance Council. J.A. 1631; see also J.A. 5085.

Hernandez also asked Eiss for assistance in responding to the Governance Council’s concern that Cisco’s sales 

staff would have difficulty selling XpertUniverse’s product. J.A. 11148–51. For two months, Hernandez and Eiss 

worked together to develop a presentation showing that 

Cisco’s own sales staff, as well as its “channel” partners, 
XPERTUNIVERSE INC. v. CISCO SYSTEMS, INC. 5

could effectively market XpertUniverse’s technology.1 

J.A. 11077; see also J.A. 11097, 11102–03.

In the fall of 2006, Hernandez approached Carl Wiese, 

an influential member of the Governance Council. J.A. 

11100; see also J.A. 1657 (explaining that Wiese was the 

“lead influencer” on the Council). Hernandez explained to 

Wiese that both CitiGroup and FedEx could become lead 

customers for XpertUniverse’s technology, J.A. 11100; see 

also J.A. 1639–40.2 He emphasized, moreover, that 

making XpertUniverse a SolutionsPlus partner could 

provide Cisco with significant revenue opportunities, both 

in the short and the long term. J.A. 1631–32, 1638–42, 

11100. On October 6, 2006, Wiese emailed Hernandez, 

agreeing to support XpertUniverse’s admission to the 

SolutionsPlus program. J.A. 11100.

1 At trial, Eiss testified that she was unaware until 

January 2007 that the Governance Council had voted to 

deny XpertUniverse’s SolutionsPlus application. J.A. 

1216. Eiss conceded, however, that she had been aware 

that the Council had considered XpertUniverse’s application, but had not yet approved it. J.A. 1216 (“I knew, of 

course, that we didn’t have an approval.”). Eiss further 

acknowledged that she had been informed that the Council had expressed “valid concerns” about the ability of 

Cisco’s sales staff to market XpertUniverse’s product 

effectively. J.A. 1215.

2 Hernandez also suggested that XpertUniverse’s 

product could be sold to International Business Machines 

Corporation (“IBM”). J.A. 11100. In early 2006, IBM

expressed interest in XpertUniverse’s technology, J.A. 

1094, and considered offering it $20 million for a “standstill” agreement which would have precluded XpertUniverse’s sale for a year, J.A. 1095. IBM, however, 

ultimately declined to make XpertUniverse an offer. J.A. 

1105.

 
6 XPERTUNIVERSE INC. v. CISCO SYSTEMS, INC. 

By December 2006, however, it became clear that 

Hernandez would be unable to secure a lead customer for 

XpertUniverse’s product. J.A. 1642. The FedEx project 

never materialized and the pilot project with CitiGroup 

“fell apart,” J.A. 1642, due to serious internal problems at 

CitiGroup, J.A. 1106; see also J.A. 1100–01. In January 

2007, Hernandez called Victor Friedman, XpertUniverse’s 

founder, and informed him that he had “exhausted all 

possibilities,” J.A. 1643, and that it was “the end of the 

opportunity” for XpertUniverse to be admitted to the 

SolutionsPlus program, J.A. 1642. Hernandez stated, 

however, that Cisco still wanted XpertUniverse to participate in the TDP program, which would allow Cisco and 

XpertUniverse to “validate interoperability between 

[their] two solutions and jointly sell side by side in the 

market place.” J.A. 10953.

Cisco introduced its own expert location products in 

September 2008. J.A. 10199–200. Soon thereafter, 

XpertUniverse filed suit, asserting claims against Cisco 

for patent infringement, fraud, breach of the parties’ 

nondisclosure agreement, and trade secret misappropriation. J.A. 10005–06, 10016–25, 10083–91, 10096–106. 

After discovery was complete, the district court granted 

Cisco’s motion for partial summary judgment on XpertUniverse’s claims for trade secret misappropriation and 

breach of the parties’ non-disclosure agreement. Summary Judgment Decision, 2013 WL 867640, at *3–6. The 

court concluded that XpertUniverse had failed to identify 

all but two of its forty-six purported trade-secrets with 

sufficient particularity, and that there was no evidence 

that Cisco used the remaining two trade secrets in any of 

its products. Id. at *4. The court determined, moreover, 

that XpertUniverse failed to raise any genuine issue of 

material fact on the question of whether Cisco breached 

the parties’ August 2004 non-disclosure agreement by 

incorporating information from XpertUniverse’s confidential documents in its products. Id. at *5–6.
XPERTUNIVERSE INC. v. CISCO SYSTEMS, INC. 7

The district court likewise granted summary judgment against XpertUniverse on all but one of its fraud 

claims. The court concluded that XpertUniverse had 

raised genuine issues of material fact only on the question 

of whether Cisco fraudulently concealed XpertUniverse’s 

“status” in the SolutionsPlus program. Id. at *7.

Following a six-day trial, a jury found that Cisco’s Expert Advisor and Remote Expert products infringed 

XpertUniverse’s U.S. Patent Nos. 7,366,709 and 

7,499,903. J.A. 45–47. The jury awarded a total of 

$34,383 in infringement damages. J.A. 45–47. The jury 

also found that Cisco committed “fraud by concealment,” 

and that XpertUniverse sustained damages of $70 million 

as a result of this fraud.3 J.A. 45.

On November 20, 2013, the district court granted Cisco’s motion for JMOL on the jury’s fraudulent concealment verdict.4 JMOL Decision, 2013 WL 6118447, at *3–

6. According to the court, XpertUniverse failed to show 

that Cisco’s nine-month delay in informing it about the 

Governance Council’s April 2006 vote was a material nondisclosure. Id. at *3–4. There was no evidence, moreover, 

that XpertUniverse went out of business or lost its purported $70 million in market value5 because it learned of 

3 The trial court declined to instruct the jury on punitive damages, ruling that Hernandez was not a Cisco 

officer, director, or managing agent. J.A. 1688–89, 1752–

53.

4 The district court denied Cisco’s motion for JMOL 

on the jury’s patent infringement award. JMOL Decision, 

2013 WL 6118447, at *6. On appeal, neither party challenges the jury’s infringement determination or the 

amount of infringement damages awarded.

5 The jury based its damages award on testimony 

from Walter Bratic, XpertUniverse’s expert, who opined 

that XpertUniverse had a value of “at least $70 million” 

 
8 XPERTUNIVERSE INC. v. CISCO SYSTEMS, INC. 

the Council’s vote in January 2007 rather than April 

2006. Id. at *4–5. In the court’s view, there was “no 

substantial evidence from which the jury could have 

found that concealment of the ‘denial’ for nine months 

caused [XpertUniverse] to forego, or lose, other valuable 

partnerships, and thereby lose its entire value.” Id. at *5.

XpertUniverse then filed a timely appeal with this 

court. We have jurisdiction under 28 U.S.C. § 1295(a)(1).

DISCUSSION

A. Standard of Review

“We review grants of summary judgment and postverdict JMOL on state law claims under the law of the 

regional circuit, since they present procedural issues not 

unique to patent law.” Shum v. Intel Corp., 633 F.3d 

1067, 1076 (Fed. Cir. 2010); see also Koninklijke Philips 

Elects. N.V. v. Cardiac Sci. Operating Co., 590 F.3d 1326, 

1332 (Fed. Cir. 2010). In the Third Circuit, a district 

court’s rulings on motions for JMOL are subject to de novo 

review. W.V. Realty, Inc. v. N. Ins. Co., 334 F.3d 306, 311 

(3d Cir. 2003); Warren v. Reading Sch. Dist., 278 F.3d 

163, 168 (3d Cir. 2002). A grant of JMOL “is appropriate 

only where, viewing the evidence in the light most favorable to the non-movant and giving it the advantage of 

every fair and reasonable inference, there is insufficient 

evidence from which a jury could reasonably find liability.” Gagliardo v. Connaught Labs., Inc., 311 F.3d 565, 

568 (3d Cir. 2002) (citations and internal quotation marks 

omitted); see also Agrizap, Inc. v. Woodstream Corp., 520 

F.3d 1337, 1342 (Fed. Cir. 2008).

before the Governance Council’s April 2006 vote to deny

its SolutionsPlus application, J.A. 1450, but that it had 

lost all value by January 2007 when Cisco disclosed the 

denial, J.A. 1467–68, 1473–74.

 
XPERTUNIVERSE INC. v. CISCO SYSTEMS, INC. 9

We exercise plenary review over a trial court’s grant 

of summary judgment, applying the same standard applied by the district court. See Marten v. Godwin, 499 

F.3d 290, 295 (3d Cir. 2007). Summary judgment is 

appropriate when there are no genuine issues of material 

fact and when, drawing all factual inferences in favor of 

the nonmoving party, no “reasonable jury could return a 

verdict for the nonmoving party.” Anderson v. Liberty 

Lobby, Inc., 477 U.S. 242, 248 (1986); see Lamont v. New 

Jersey, 637 F.3d 177, 181 (3d Cir. 2011).

B. Fraudulent Concealment

“[T]he elements of a cause of action for fraud based on 

concealment are: (1) the defendant must have concealed 

or suppressed a material fact, (2) the defendant must 

have been under a duty to disclose the fact to the plaintiff, 

(3) the defendant must have intentionally concealed or 

suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact 

and would not have acted as he did if he had known of the 

concealed or suppressed fact, and (5) as a result of the 

concealment or suppression of the fact, the plaintiff must 

have sustained damage.” Bank of Am. Corp. v. Superior 

Ct., 198 Cal. App. 4th 862, 870 (2011) (citations and 

internal quotation marks omitted).6 Thus, to stake out a 

claim for fraudulent concealment, XpertUniverse needed 

to show not only that Cisco intentionally concealed a 

material fact, but that there was a causal nexus between 

the concealment and any damages it sustained. Id.; see 

also Graham v. Bank of Am., N.A., 226 Cal. App. 4th 594, 

609 (2014) (rejecting a claim for fraudulent concealment 

where the damages incurred by the plaintiff were caused 

6 The parties do not dispute that the law of the 

State of California governs XpertUniverse’s fraudulent 

concealment claim. See JMOL Decision, 2013 WL 

6118447, at *2. 

 
10 XPERTUNIVERSE INC. v. CISCO SYSTEMS, INC. 

by “a decline in the overall market” rather than the 

defendant’s omissions).

XpertUniverse’s fraudulent concealment claim fails as 

a matter of law because there was no credible evidence 

that it went out of business and lost all market value as a 

result of Cisco’s nine-month delay in revealing that the 

Governance Council had voted to deny its SolutionsPlus 

application. While admission to the SolutionsPlus program would have enhanced XpertUniverse’s ability to sell 

its product, J.A. 1190, 1335, there was no showing that 

the delay in learning of the Council’s vote caused it to 

forego opportunities to enter into partnerships with 

companies other than Cisco or to lose the financial support of its investors. To the contrary, as the district court 

correctly determined, “the effects of finding out about the 

‘denial’ in January 2007 were [not] any different, or any 

more detrimental to [XpertUniverse], than finding out 

about the ‘denial’ in April, 2006.” JMOL Decision, 2013 

WL 6118447, at *5.

The linchpin of XpertUniverse’s fraudulent concealment claim is that the Governance Council’s April 2006 

vote to deny its SolutionsPlus application was final, and 

that the efforts by Hernandez and others at Cisco to 

secure its admission to the program in the months following the vote were a mere “sham” designed to prevent it 

from entering into a partnership with one of Cisco’s 

competitors. Reply Br. of Plaintiff-Appellant at 4. The 

record, however, belies XpertUniverse’s assertion that the 

Council’s April 2006 vote was “final” and foreclosed any 

opportunity for it to be admitted as a SolutionsPlus 

partner. See JMOL Decision, 2013 WL 6118447, at *3 

(explaining that the Council’s April 2006 vote did not 

mean that XpertUniverse’s SolutionsPlus application was 

“terminally denied”). Hernandez presented uncontroverted testimony that many products underwent “multiple 
XPERTUNIVERSE INC. v. CISCO SYSTEMS, INC. 11

reviews” by the Governance Council.7 J.A. 1621. He 

explained, moreover, that although the Council had 

expressed concern that XpertUniverse’s platform was a 

“niche product,” and that Cisco’s sales force would have 

difficulty marketing it effectively, J.A. 10948, he had been 

confident that he and his team could “pull together the 

material to counter the [Council’s] feedback” and eventually secure XpertUniverse’s admission to the SolutionsPlus program, J.A. 1631. Ross Daniels, a director of 

product marketing at the CCBU, likewise testified that he 

“did not view the decision at the April 19th Governance 

Council meeting [as] final.” J.A. 1326. Even after the 

Council’s vote, Daniels and others at the CCBU continued 

to work “through multiple tracks” to get XpertUniverse 

admitted to the SolutionsPlus program. J.A. 1326; see 

also J.A. 5085.

Numerous Cisco emails and other documents confirm 

that Hernandez continued to push for XpertUniverse’s 

admission to the SolutionsPlus program in the months 

following the Council’s April 2006 vote. See J.A. 5056–57, 

5085–86, 11077, 11097, 11132, 11145. Hernandez instructed Robert DePinto, the account manager on Cisco’s 

CitiGroup team, J.A. 1627, to build a “business case” for 

admitting XpertUniverse to the SolutionsPlus program, 

7 XpertUniverse argues that a flowchart it received 

from Cisco in January 2006 indicates that “if the Council 

rejects a candidate, nothing further happens.” Br. of 

Plaintiff-Appellant at 19 (citing J.A. 5233). Notably, 

however, a later Cisco flowchart, dated April 2006, shows 

that a SolutionsPlus application may be resubmitted even 

if it is initially rejected by the Governance Council. J.A. 

11024. More importantly, XpertUniverse failed to rebut 

Hernandez’s unequivocal testimony that, in practice, 

many SolutionsPlus applications were reviewed “multiple” times by the Governance Council, J.A. 1621.

 
12 XPERTUNIVERSE INC. v. CISCO SYSTEMS, INC. 

J.A. 5056; see also J.A. 5085, 11132, 11142, 11145. In 

addition, in June 2006 Hernandez asked Eiss, XpertUniverse’s president, for assistance in putting together a 

presentation to counter the Governance Council’s concern 

that Cisco’s sales staff would have difficulty selling XpertUniverse’s product. J.A. 11148–51; see also J.A. 11097, 

11102–03. Furthermore, in an effort to allay the Council’s 

fear that XpertUniverse’s platform was a niche product 

that would not generate significant revenue for Cisco, 

Hernandez worked to secure a “lighthouse account,” or 

lead customer, for XpertUniverse’s technology. J.A. 1627, 

1631, 11065.

In October 2006, Hernandez contacted Wiese, the 

most influential member of Cisco’s Governance Council, 

J.A. 1657, and explained that XpertUniverse’s technology 

could be used in important projects for CitiGroup and 

FedEx, two major Cisco clients, J.A. 1627. Hernandez 

argued, moreover, that making XpertUniverse a SolutionsPlus partner would provide Cisco not only with 

significant short-term revenue opportunities, but “a longterm play for success.” J.A. 1640; see also J.A. 1639, 

11100. Shortly thereafter, Wiese emailed Hernandez, 

agreeing to support XpertUniverse’s admission to the 

SolutionsPlus program. J.A. 11100. We reject, therefore, 

XpertUniverse’s assertion that the Council’s April 2006 

vote was “final” and that the efforts, in the period between April and December 2006, to secure XpertUniverse’s admission to the SolutionsPlus program were a 

mere “sham designed to ‘stall’ [XpertUniverse] from 

discovering the finality of the Council’s decision,” Reply 

Br. of Plaintiff-Appellant at 4.8 It was only in December 

8 Even if Cisco deliberately delayed in informing 

XpertUniverse about the Governance Council’s April 2006 

vote, moreover, this would be insufficient, standing alone, 

to support a viable fraudulent concealment claim. As 

 
XPERTUNIVERSE INC. v. CISCO SYSTEMS, INC. 13

2006, after the proposed projects with CitiGroup and 

FedEx had fallen through, that Hernandez concluded that 

it was “the end of the opportunity” for XpertUniverse to 

be admitted to the SolutionsPlus program. J.A. 1642.

Significantly, moreover, although XpertUniverse 

might not have been immediately informed of the Governance Council’s April 2006 vote to “deny” its SolutionsPlus application, it knew that admission to the 

program was extremely competitive, J.A. 5129, and that 

the Council had considered, but not yet approved, its 

application, J.A. 1215–16. Indeed, in the months after the 

Council’s vote, XpertUniverse was aware not only that its 

SolutionsPlus application had not yet been approved, J.A. 

1216, but that the Governance Council had voiced “valid 

concerns” about the ability of Cisco’s sales staff to sell its 

product, J.A. 1215.9 XpertUniverse fails to show that any 

difference between what it knew (that its application had 

not yet been approved and that the Governance Council 

doubted whether Cisco’s sales staff could effectively 

market XpertUniverse’s product) and what it allegedly 

did not know (that the Council had made a non-final 

discussed previously, XpertUniverse needed to show not 

only that Cisco intentionally concealed a material fact, 

but that any damages it incurred were caused by the 

concealment. See Graham, 226 Cal. App. 4th at 609. 9 Although Eiss conceded that she knew that the 

Council had expressed “valid concerns” about the ability 

of Cisco’s sales staff to sell XpertUniverse’s product, she 

attempted to characterize these concerns as insignificant 

“training and education issues.” J.A. 1215. To the contrary, however, because Cisco invests significant resources in managing and promoting a SolutionsPlus 

product, J.A. 1639, the issue of whether Cisco employees 

could effectively market XpertUniverse’s technology was 

clearly a very important concern.

 
14 XPERTUNIVERSE INC. v. CISCO SYSTEMS, INC. 

decision to “deny” its SolutionsPlus application) materially impacted its behavior. See JMOL Decision, 2013 WL 

6118447, at *3. To the contrary, as the district court 

correctly determined, there was no credible evidence that 

XpertUniverse ‘‘would have withdrawn from [its] active 

relationship with Cisco” even if it had been immediately 

informed about the Council’s April 2006 vote. Id.

C. Damages

A second, and even more significant, defect in XpertUniverse’s fraudulent concealment claim is that it failed 

to show that the nine-month delay in learning of the 

Council’s vote caused it to go out of business and lose its 

purported $70 million in market value. See Graham, 226 

Cal. App. 4th at 608 (“For fraudulent concealment, the 

plaintiff must plead and prove he or she sustained damage as a result of the concealment or suppression of 

fact.”). Contrary to XpertUniverse’s assertions, there was 

no credible evidence that it could have “preserv[ed]” its 

purported $70 million market value, Br. of PlaintiffAppellant at 52, even if it had been immediately informed 

of the Council’s vote.

To support its claim for lost-value damages, XpertUniverse relied upon the testimony of its expert, Bratic. 

According to Bratic, XpertUniverse was worth “at least 

$70 million” before the Council’s April 2006 vote, but had 

lost all market value by January 2007 when it learned of 

the vote. J.A. 1450; see also J.A. 1462–64, 1467–68, 1473. 

Significantly, however, Bratic failed to make any valuation comparisons between XpertUniverse and other 

similar ventures. Instead, he based his valuation of 

XpertUniverse on the revenue projections furnished by 

XpertUniverse’s own officers. J.A. 10996. These unsupported projections forecasted that XpertUniverse would 

experience revenue growth of more than 30,000% in the 

period between 2006 and 2010, notwithstanding the fact 

that it had not yet sold a product and had no contracts for 
XPERTUNIVERSE INC. v. CISCO SYSTEMS, INC. 15

future sales, J.A. 1001, 11100–01. Given that Bratic’s 

testimony was predicated upon the irrationally exuberant 

revenue projections furnished by XpertUniverse management, it provided an inadequate evidentiary foundation for the claim that XpertUniverse had a market value 

of $70 million in April 2006. See Sargon Enter., Inc. v. 

Univ. of S. Cal., 55 Cal. 4th 747, 776 (2012) (rejecting 

expert testimony which assumed that the plaintiff’s 

“market share would have increased spectacularly over 

time to levels far above anything it had ever reached”);

Piscitelli v. Friedenberg, 87 Cal. App. 4th 953, 989 (2001) 

(“[D]amages which are speculative, remote, imaginary, 

contingent, or merely possible cannot serve as a legal 

basis for recovery.”).

Even more fundamentally, XpertUniverse failed to 

show that it suffered any diminution in market value as a 

result of the nine-month delay in learning of the Council’s 

vote. XpertUniverse’s lost-value damages claim hinges on 

its contention that if it had been informed of the Council’s 

vote in April 2006, rather than January 2007, it could 

have preserved its market value by “monetiz[ing] a . . . 

partnership” with CitiGroup, IBM, or Genesys. Br. of 

Plaintiff-Appellant at 65. At trial, however, XpertUniverse failed to show that the nine-month delay in learning 

of the Council’s vote caused it to forego any viable partnership opportunities. Although CitiGroup came close to 

beginning a joint pilot project with XpertUniverse and 

Cisco in May 2006, J.A. 1350, 5085–86, that project fell 

through due to internal financial problems at CitiGroup.10 

J.A. 1106, 1349–51, 11058. Given that CitiGroup lacked 

the resources to fund even a pilot project, J.A. 1106, there 

was insufficient evidence for a reasonable jury to conclude 

10 In the summer of 2006, CitiGroup underwent a 

major reorganization and was forced to lay off 17,000 

employees. J.A. 1101.

 
16 XPERTUNIVERSE INC. v. CISCO SYSTEMS, INC. 

that CitiGroup would have been willing—or able—to 

enter into any type of long-term partnership arrangement 

with XpertUniverse or to invest the resources necessary 

to enable it to sustain its purported $70 million market 

value.

Nor was there any credible evidence that XpertUniverse could have preserved its market value by partnering 

with Genesys or IBM. While XpertUniverse’s technology 

allegedly had already been integrated with Genesys’ 

router, J.A. 1086–87, no Genesys witness testified that it 

had any interest, in the spring of 2006, in entering into a 

partnership with XpertUniverse.11 Likewise, although 

IBM “considered” paying XpertUniverse $20 million for a 

standstill agreement precluding XpertUniverse’s sale for 

a year, J.A. 1105, 1094–95, it ultimately declined to make 

an offer, and no IBM witness testified that it would have 

been willing to enter into a partnership arrangement with 

XpertUniverse in the spring of 2006. There was, moreover, no showing that in April 2006 either Genesys or IBM 

would have had the ability, or the desire, to invest the 

resources necessary to allow XpertUniverse to effectively 

11 XpertUniverse attempts to bolster its contention 

that it could have entered into a successful partnership 

with Genesys by pointing to a May 2006 email from 

Sundara noting that there was a danger that Genesys 

might try to “buy[] out” XpertUniverse. J.A. 5086. This 

email, however, is insufficient to show that Genesys 

would have been willing to acquire, or partner with, 

XpertUniverse on terms that would have allowed it to 

retain its purported $70 million market value. See JMOL

Decision, 2013 WL 6118447, at *5 (“Acquisition by 

Genesys is unsupported by anything more than a Cisco 

email noting a ‘risk’ of that acquisition; there is no evidence that [XpertUniverse] was ever up for sale or that 

Genesys had ever made a bid.”).

 
XPERTUNIVERSE INC. v. CISCO SYSTEMS, INC. 17

market its product and preserve its market value. See 

JMOL Decision, 2013 WL 6118447, at *5 (emphasizing 

that there was no evidence that any potential partnership 

with Genesys or IBM would have “add[ed] value to [XpertUniverse], in April 2006 or at any other relevant time”).

More significantly, XpertUniverse fails to show that 

the nine-month delay in learning of the Governance 

Council’s vote destroyed any potential partnership opportunities. Even assuming arguendo that Genesys or IBM 

would have been willing to enter into a partnership with 

XpertUniverse in April 2006, there was no credible evidence suggesting that they would not have been equally 

willing to do so in January 2007. We reject XpertUniverse’s assertion that its ability to broker a partnership 

agreement with a company other than Cisco was “destroyed,” Br. of Plaintiff-Appellant at 43, because it “exhausted its resources” trying to integrate its technology 

with Cisco’s router in the period between April 2006 and 

January 2007, id. at 66. By April 2006, XpertUniverse 

was already in a precarious financial position, strapped 

for cash and considering employee layoffs. J.A. 1212; see

also J.A. 11071–76. Despite operating for almost eight 

years, it had no sales and no contracts for future sales. 

J.A. 1106, 1200. Nor had it succeeded in producing a fully 

functional product. J.A. 1106, 1200. XpertUniverse 

points to no persuasive evidence showing that any additional resources it expended between April 2006 and 

January 2007 trying to integrate its product with Cisco’s 

router materially impacted its ability to enter into a 

partnership with a company other than Cisco.

Equally unavailing is XpertUniverse’s argument that 

the nine-month delay in learning of the Council’s vote 

“caused [its] investors to flee,” Br. of Plaintiff-Appellant at 

66. Friedman testified that his company lost the backing 

of its investors because it was not admitted to the SolutionsPlus program. See J.A. 1199 (“[W]e were counting on 

SolutionsPlus to drive revenue . . . and [XpertUniverse] 
18 XPERTUNIVERSE INC. v. CISCO SYSTEMS, INC. 

was functioning . . . through investors that were backing 

what we were doing because this was going to happen. 

And so when it didn’t happen . . . the investors . . . went 

away . . . .”). While being denied admission to the SolutionsPlus program may well have caused XpertUniverse 

to lose the backing of its investors, there was no evidence 

that the nine-month delay in learning of the Council’s 

vote was responsible for any erosion in investor support. 

See JMOL Decision, 2013 WL 6118447, at *5 (“[I]f disclosure of Cisco’s ‘denial’ in January 2007 destroyed [XpertUniverse], it is reasonable to wonder why disclosure of the 

‘denial’ in April 2006 would not have had the same effect.”). In short, there was insufficient evidence that 

learning of the Council’s vote in January 2007, rather 

than April 2006, caused, or even hastened, XpertUniverse’s financial demise.

D. Trade Secret Misappropriation and Breach of Contract

We likewise reject XpertUniverse’s contention that 

the district court erred in granting summary judgment 

against it on its trade secret misappropriation and breach 

of contract claims. To support a claim for trade secret 

misappropriation under California law, “the information 

claimed to have been misappropriated [must] be clearly 

identified.” Silvaco Data Sys. v. Intel Corp., 184 Cal. App. 

4th 210, 221 (2010). As the trial court correctly determined, XpertUniverse failed to identify forty-four of its 

forty-six purported trade secrets with adequate specificity. See Summary Judgment Decision, 2013 WL 867640, 

at *4; see also Imax Corp. v. Cinema Techs., Inc., 152 F.3d 

1161, 1167–68 (9th Cir. 1998).

As to trade secrets 18 and 33, the two secrets which 

the district court found had been adequately identified, 

XpertUniverse, despite extensive discovery, failed to 

produce any credible evidence that Cisco used either of 

these secrets in its products. See Sargent Fletcher, Inc. v. 

Able Corp., 110 Cal. App. 4th 1658, 1668 (2003) (“[T]o 
XPERTUNIVERSE INC. v. CISCO SYSTEMS, INC. 19

prove misappropriation of a trade secret . . . a plaintiff 

must establish (among other things) that the defendant 

improperly ‘used’ the plaintiff’s trade secret.”); see also 

Silvaco, 184 Cal. App. 4th at 224 (“One clearly engages in 

the ‘use’ of a secret, in the ordinary sense, when one 

directly exploits it for his own advantage, e.g., by incorporating it into his own manufacturing technique or product.”). At trial, Illah Nourbakhsh, XpertUniverse’s 

expert, broadly asserted that XpertUniverse’s trade 

secrets were “embodied” in various Cisco products, Summary Judgment Decision, 2013 WL 867640, at *4; see also 

J.A. 5622. He failed, however, to sufficiently identify any 

particular information that had been incorporated into 

any specific Cisco product. See Summary Judgment 

Decision, 2013 WL 867640, at *4.

On appeal, XpertUniverse asserts that it presented 

evidence sufficient to create a genuine issue of material 

fact as to whether Cisco misappropriated trade secrets 18 

and 33, which include an “architecture diagram” of XpertUniverse’s system “for connecting a customer to the best 

available expert in an organization without negatively 

affecting operations.” Br. of Plaintiff-Appellant at 5. In 

support, XpertUniverse relies on color-coded flowcharts to 

compare its architecture diagram to Cisco’s Expert Advisor and Remote Expert products. We decline to discuss 

these flowcharts in detail, as they have been marked 

confidential, but conclude that they are insufficient to 

show that Cisco misappropriated any XpertUniverse 

trade secret. The features depicted in the flowcharts are 

described in such general terms that they fail to show 

that Cisco misappropriated any specific technology or 

processes developed by XpertUniverse. See Altavion, Inc. 

v. Konica Minolta Sys. Lab. Inc., 226 Cal. App. 4th 26, 43–

44 (2014) (“The trade secret must be described with 

sufficient particularity to separate it from matters of 

general knowledge in the trade or of special knowledge of 

those persons who are skilled in the trade, and to permit 
20 XPERTUNIVERSE INC. v. CISCO SYSTEMS, INC. 

the defendant to ascertain at least the boundaries within 

which the secret lies.” (citations and internal quotation 

marks omitted)). Even assuming arguendo that the colorcoded comparisons upon which XpertUniverse now relies 

were properly introduced at trial, they are insufficient to 

create any genuine issue of material fact as to whether 

Cisco improperly used information from trade secrets 18 

and 33 when developing its Remote Expert and Expert 

Advisor products. See J.A. 5863–64, 5879.

We also reject XpertUniverse’s argument that the district court erred in granting summary judgment on its 

claim that Cisco breached the parties’ 2004 non-disclosure 

agreement. XpertUniverse’s broad and wholly unsupported allegation that “content from numerous [XpertUniverse] documents marked Confidential” could be found 

“directly” in unspecified Cisco products, J.A. 6048, was 

insufficient to preclude summary judgment on its claim 

for breach of the parties’ non-disclosure agreement. 

Contrary to XpertUniverse’s assertions, there is no inconsistency between the district court’s ruling that it raised a 

genuine issue of material fact on the question of whether 

Cisco used confidential information in a patent application and the court’s determination that it failed to raise 

such an issue on the question of whether Cisco used such 

information in its products.12 While Nourbakhsh identified specific XpertUniverse information that was allegedly 

12 Although the trial court held that XpertUniverse 

presented evidence sufficient to raise a genuine issue of 

material fact on its claim that Cisco breached the parties’ 

non-disclosure agreement by disclosing confidential 

information in a patent application, Summary Judgment 

Decision, 2013 WL 867640, at *6, the court subsequently 

ruled that XpertUniverse could not present this claim to 

the jury because there was no evidence of any damages 

resulting from the alleged breach, J.A. 1029–30. 

 
XPERTUNIVERSE INC. v. CISCO SYSTEMS, INC. 21

disclosed in the patent application, his testimony failed to 

sufficiently identify any confidential information used by 

Cisco in its products. See Summary Judgment Decision, 

2013 WL 867640, at *5–6.

CONCLUSION

Accordingly, the judgment of the United States District Court for the District of Delaware is affirmed.

AFFIRMED