Case 3:17-cv-05659-WHA Document 124 Filed 06/27/18 Page 1 of 21
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` Pages 1 - 20
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
`
`Before The Honorable William H. Alsup, Judge
`
`)
`Finjan, Inc.,
` )
` Plaintiff, )
` )
` VS. ) NO. CV-17-5659 WHA
` )
`Juniper Network, Inc.,
`)
` )
` Defendant.
`)
` )
`
` San Francisco, California
` Wednesday, June 27, 2018
`
`
`TRANSCRIPT OF PROCEEDINGS
`
`
`APPEARANCES:
`
`For Plaintiff: KRAMER, LEVIN, NAFTALIS & FRANKEL LLP
` 990 Marsh Road
` Menlo Park, California 94025
`
` BY: JAMES HANNAH, ESQ.
`
`
`
`For Defendant: IRELL & MANELLA LLP
` 1800 Avenue of the Stars - Suite 900
` Los Angeles, California 90067
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` BY: SHARON SONG, ESQ.
`
`
`
`
`
`
`
`Reported By: Vicki Eastvold, RMR, CRR
` Official Reporter
`
`
`
`
`
` Pages 1 - 20
`
`UNITED STATES DISTRICT COURT
`
`NORTHERN DISTRICT OF CALIFORNIA
`
`Before The Honorable William H. Alsup, Judge
`
`)
`Finjan, Inc.,
` )
` Plaintiff, )
` )
` VS. ) NO. CV-17-5659 WHA
` )
`Juniper Network, Inc.,
`)
` )
` Defendant.
`)
` )
`
` San Francisco, California
` Wednesday, June 27, 2018
`
`
`TRANSCRIPT OF PROCEEDINGS
`
`
`APPEARANCES:
`
`For Plaintiff: KRAMER, LEVIN, NAFTALIS & FRANKEL LLP
` 990 Marsh Road
` Menlo Park, California 94025
`
` BY: JAMES HANNAH, ESQ.
`
`
`
`For Defendant: IRELL & MANELLA LLP
` 1800 Avenue of the Stars - Suite 900
` Los Angeles, California 90067
`
` BY: SHARON SONG, ESQ.
`
`
`
`
`
`
`
`Reported By: Vicki Eastvold, RMR, CRR
` Official Reporter
`
`
`
`
`
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`Wednesday - June 27, 2018
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` 10:36 a.m.
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`P R O C E E D I N G S
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`---000---
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`THE CLERK: Calling Civil Action 17-5659, Finjan,
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`Inc., versus Juniper Network, Inc.
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`Counsel, please approach the podium and state your
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`appearances for the record.
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`MR. HANNAH: Good morning, Your Honor. James Hannah
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`on behalf of Finjan.
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`THE COURT: Hannah?
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`MR. HANNAH: Hannah. James Hannah.
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`MS. SONG: Good morning, Your Honor. Sharon Song from
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`Irell and Manella on behalf of Juniper Network, Inc.
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`THE COURT: All right. How can I help you this
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`morning?
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`MR. HANNAH: Well, Your Honor, may it please the
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`Court, we have an issue with regard to the protective order in
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`this case. It's become apparent that the parties can't agree
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`on providing a stipulated protective order to the Court.
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`Finjan's position is that the case law in this district
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`has been crystal clear since 2013; you know, starting with the
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`Grobler case, and continuing to EPL Holdings, and Judge
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`Orrick's case six months later with LifeScan, and two months
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`later after that Judge Grewal reaffirmed it again that
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`litigation counsel can participate in a limited manner in
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`IPR's.
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`Those cases laid out a two-factor test. The first factor
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`was whether the representation was going to implicate
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`competitive decision-making. And the second factor was whether
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`the choice of counsel outweighs any risk.
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`Judge Grewal, Judge Orrick, Judge Corley, all specifically
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`found that in order to mitigate the first factor that there can
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`be no amendment of the claims.
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`THE COURT: There can be what?
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`MR. HANNAH: There can be no amendment of the claims
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`during the IPR proceedings. And we've agreed to that.
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`In order to mitigate the second factor, which is the
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`choice of counsel outweighing the risk, the court has -- the
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`court and the case law has specifically said that we have to
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`make an affirmation we won't use confidential information
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`during IPR's. Again, that's exactly what we stipulated to that
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`we provide in the protective order.
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`And the guiding principle in all those cases is that there
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`shouldn't be undue expense on the patentee.
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`Here there's a tremendous amount of expense that would be
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`dealt with if trial counsel was not allowed to participate in
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`the IPR's. We've been representing -- I've personally been
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`representing Finjan in over 58 IPR's involving these patents.
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`And that's just from a count I did during our meet and confer
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`on Docket Navigator. There might be more. I just literally
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`typed in my name and "Finjan." 58 IPR's.
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`We have currently pending IPR's that I'm representing
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`Finjan. For me to have to -- and for us to have to go, and
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`Finjan, to hire additional separate counsel and come up to
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`speed on 58 IPR's and 13 years of experience -- I've been
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`representing Finjan for 13 years now in various litigations --
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`it's just a huge expense that we would have to -- that Finjan
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`would have to endure.
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`And there's absolutely no risk to Juniper in this case.
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`First of all, they're trying to box us out of an IPR that they
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`didn't even file. When I asked counsel I said, Are there any
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`plans to file? She said, I'm a unaware of any plans to file an
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`IPR.
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`So they're not trying to protect themselves. It's merely
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`a tactic to try and box us out of this litigation, which is
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`completely contrary to the controlling case law.
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`THE COURT: Go back to the point about -- I think you
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`said under no circumstances would Finjan seek to amend the
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`claims in the IPR. Did I understand you correctly?
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`MR. HANNAH: You understood me correctly. We -- trial
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`counsel, me, I will not participate, or my team will not
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`participate, in any IPR in which Finjan attempts to --
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`THE COURT: Would there be some other IPR where it
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`was -- an amendment was the result?
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`MR. HANNAH: In the -- are you asking the 58 IPR's?
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`THE COURT: I'm talking about the IPR that Juniper
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`could be not involved in but that would involve the patents
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`being asserted now against Juniper.
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`MR. HANNAH: So in each of the patents that involve
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`Juniper, there's been IPR's that were instituted. All the
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`claims confirmed that are asserted, no amendments were ever
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`made. And there's no plan to -- Okay. To answer your
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`question, there's no plan to amend any claims.
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`THE COURT: You're being cute here.
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`MR. HANNAH: Okay. I'm sorry, Your Honor.
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`THE COURT: Let me ask. Are there IPR's now pending
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`that involve any of the patents asserted against Juniper?
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`MR. HANNAH: Yes. There's one IPR with that --
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`against -- that Cisco initiated.
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`THE COURT: All right. So with respect to that one,
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`are you telling me that under no circumstances will there be
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`any amendment to that patent?
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`MR. HANNAH: Yes, Your Honor. I affirmatively confirm
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`we are not amending any claims in that, and we can't, because
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`of the protective order in that case. We have a protective
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`order in the Cisco case as well in which Cisco agreed for us to
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`participate if we don't amend the claims. And since we're --
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`THE COURT: Then -- well, what if the IPR finds the
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`patent invalid, and you have a possibility of narrowing the
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`claims and thereby saving them. You're telling me you won't do
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`that.
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`MR. HANNAH: We will not amend the claims.
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`THE COURT: Well, what's wrong with that?
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`MS. SONG: Your Honor, may it please the Court, this
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`dispute over the prosecution bar has already been ruled on by
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`this Court over a month ago.
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`The parties jointly submitted a proposed stipulated
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`protective order that identified differing positions on the
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`prosecution bar. Juniper wanted the strong prosecution bar
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`provided for in the model protective order, and Finjan wanted a
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`watered-down version. And each party stated their arguments
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`for why they wanted different versions of the prosecution bar.
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`The Court ruled in May that no good reason exists to
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`deviate from the interim model protective order and rejected
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`Finjan's arguments to that effect.
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`Mr. Hannah asserted in the meet and confer that the
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`interim model protective order doesn't govern in this case --
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`THE COURT: It does not specifically call out IPR.
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`MS. SONG: So if you look at the express language of
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`the model protective order, it provides that -- it defines
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`prosecution to include anything that directly or indirectly
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`drafts, amends, advises or otherwise affects the scope or
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`maintenance of patents claims.
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`THE COURT: Well, if they're not going to amend the
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`claims, how could that come into play?
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`MS. SONG: It could still come into play, because
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`during the IPR Finjan can re-characterize or re-cast the
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`meaning of search and claim terms that become part of the
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`prosecution history. And in the model protective order, they
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`acknowledge that the fact that even if you can't broaden the
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`scope of the claims it could still be prejudicial because they,
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`for example, include within the scope of prosecution ex parte
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`re-examinations.
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`It's a proceeding where you can't broaden the scope and
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`you can only narrow the claims. But that's included in the
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`definition of prosecution in the model protective order. Any
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`statement made by the patent owner during an IPR becomes
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`prosecution history. Even if they're not narrowing it, they
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`can re-characterize it using the confidential information
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`they've received from Juniper.
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`THE COURT: But he's saying that they won't narrow it.
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`MS. SONG: Right. But what we're concerned with --
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`we're not only concerned about them narrowing it; we're talking
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`about even if they're making a statement as to the meaning of a
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`term, they can use the confidential information they've
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`received from Juniper. For example, the terminology they've
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`received in the confidential information to make a statement
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`that affects their patent infringement claims in this case.
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`THE COURT: All right.
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`Mr. Hannah, what do you say to that point that even if
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`you're not trying to ask for an explicit narrowing, you can
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`nevertheless make an argument in the IPR that takes advantage
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`of what you've learned in this case to say that the terms
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`actually mean something narrower, and that you don't even need
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`an amendment because that's what it already means? What do you
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`say to that?
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`MR. HANNAH: Your Honor, that's been squarely
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`addressed in the four cases that --
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`THE COURT: That's not good enough.
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`MR. HANNAH: Okay.
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`THE COURT: I don't follow what other judges have
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`done. It's not binding. That's a bogus argument. I want to
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`make my own decision.
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`MR. HANNAH: Sure.
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`THE COURT: So explain to me why that's not a
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`legitimate argument.
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`MR. HANNAH: Because, Your Honor, we're going to make
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`the -- we'll make the affirmative -- an affirmation that we
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`will not use their confidential information in the IPR. That's
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`a stipulation that we have made with parties.
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`THE COURT: So you would not -- you promise that in
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`the IPR you would not use that information to construct an
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`argument as to what the terms mean, and you would ignore that
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`information in the IPR. Is that what you're telling me?
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`MR. HANNAH: I am telling you that, Your Honor. And
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`in addition, these terms have already been construed in a
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`previous IPR. Our position is going to be -- is -- our
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`position has to be consistent with the previous IPR that had
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`involved the 633 patent. The record's largely been set.
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`THE COURT: You're actually saying you won't use the
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`information, the confidential information, in any way in the
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`IPR.
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`MR. HANNAH: In any way. There's no way --
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`THE COURT: What's wrong with that? If I have his
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`word that he will do that, why isn't that good enough?
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`MS. SONG: So the only way Juniper would be assured
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`that they would keep their promise is if the prosecution bar in
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`the model protective order applies and they bar any attorney
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`who's had access to the confidential information from
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`participating in the IPR.
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`How can they wall off just information from the brain of
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`an individual who's already reviewed that confidential
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`information is also participating in an IPR where any statement
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`by Finjan becomes part of the prosecution history?
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`And also, there's no prejudice to Finjan because for all
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`the asserted patents the counsel of record with the USPTO is a
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`different firm who has already participated in the prosecution
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`and ex parte re-examinations.
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`THE COURT: Wait, wait. How can that be? Mr. Hannah
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`said that he's done 58 of these IPR's for Finjan. And he wants
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`to be in this one, too.
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`MS. SONG: Right. But what I'm saying is there will
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`be minimal expense because there's a different law firm that
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`has already been a part of the prosecution and ex parte
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`re-examination proceedings for the asserted patents. So what
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`we don't understand is why that firm who hasn't had access to
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`the confidential information produced in this case cannot
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`represent Finjan.
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`THE COURT: All right. Why is that? Why isn't it the
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`firm that's already in there? What's wrong with that? Her
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`point.
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`MR. HANNAH: Okay. So talk about twisting words. So
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`this is Dawn Marie Bey. Ms. Bey. She's not involved in any
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`IPR's.
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`again.
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`THE COURT: You talk so fast I can't hear you. Say it
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`MR. HANNAH: The counsel that she's referring to, Dawn
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`Marie Bey.
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`THE COURT: Donna Marie --
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`MR. HANNAH: Her name is Dawn Marie Bey.
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`THE COURT: B-E-Y?
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`MR. HANNAH: Yes. Ms. Bey. She is not involved in
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`any IPR's. Zero.
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`THE COURT: You just got through telling me she was.
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`MR. HANNAH: No. Her language was cute. She was
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`saying that she's involved in the prosecution of the Finjan
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`patents. So Ms. Bey is involved in ex parte re-exams or other
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`prosecution matters, not IPR's.
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`THE COURT: Who is involved in the IPR for your side?
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`MR. HANNAH: Me. The four attorneys that we put in
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`there. Paul Andre, myself, Michael Lee, and Jeff Price are the
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`primary people involved.
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`THE COURT: So you're telling me that you're already
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`-- your firm's already in the IPR.
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`MR. HANNAH: Yeah. We're -- we are already in the
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`IPR. It's a pending IPR against Cisco. Cisco allowed us to
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`participate. And Juniper's trying to come in with this twisted
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`view of the model protective order to box us out of an IPR that
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`they're not even involved with. That's why this dispute is so
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`confusing because it's not even an IPR involving Juniper.
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`Juniper's trying to come in and get us out of a Cisco IPR.
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`THE COURT: Yes, except -- yes. That's a fair point.
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`But the fair response is, well, whatever comes out of the IPR
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`will still be a burden upon Juniper.
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`MR. HANNAH: Yes, Your Honor, but we will not use
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`Juniper confidential information, we will not use Cisco
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`confidential information, any confidential information from any
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`case that we've ever had we will not use in the IPR's. And we
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`have never used that in the IPR's. And that has never been an
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`issue with any of the 58 IPR's that we've been involved with.
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`THE COURT: All right. Ms. Song, can you point to
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`some historical example where Mr. Hannah's firm has misused, or
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`it looks like they've misused, or there's a high degree of
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`suspicion, where -- in these 58 cases -- where that's occurred?
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`Misuse has occurred?
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`MS. SONG: No, Your Honor. So related to that point,
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`if -- so what -- the motion that Finjan brings now is really a
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`motion for reconsideration.
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`THE COURT: Look, I didn't have an argument -- that's
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`another technical argument. I'm going to do it on the merits.
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`MS. SONG: Yes, Your Honor.
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`THE COURT: So I want to decide this on the merits the
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`right way. I didn't have an argument before. So let's --
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`don't say it's just reconsideration. I didn't understand it
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`like I understood it then.
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`MS. SONG: My only point, Your Honor, is that Juniper
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`had 24 hours because Finjan's filed this as a motion to compel
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`to oppose this motion after you gave the order setting this
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`hearing on Monday. So we would like a full opportunity to
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`respond and search for and review the prosecution history on
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`their prior 50 or more IPR's and have an opportunity to present
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`to the Court our substantive arguments on this issue. Because
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`with the motion for reconsideration, they should have sought
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`leave from the Court first. So given -- it's unfair and
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`prejudicial to Juniper that within 24 hours we could have done
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`all that.
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`THE COURT: All right. Maybe I'll do that.
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`What's wrong with that? What's wrong with that idea?
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`MR. HANNAH: Well, Your Honor, we produced all of the
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`IPR's already to them months ago so they've had that in their
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`possession. If they were going to be able to raise that as an
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`argument they would have raised that already.
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`There is nothing in any of -- there's nothing in any of
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`the IPR's that we misused any confidential information. It
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`would have been brought up in other cases. And it's certainly
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`-- I mean, in terms of -- this is a Cisco -- it's a Cisco IPR.
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`So if there was some misuse of information with regard to the
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`633 patent, then Cisco would have raised it.
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`THE COURT: Do you still have a lawsuit going against
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`Cisco?
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`MR. HANNAH: Yes. Absolutely.
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`THE COURT: Who has that case?
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`MR. HANNAH: Judge Freeman in San Jose.
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`THE COURT: How come she doesn't have this case if
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`it's the same patent? Who had the first case? Me or her?
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`MR. HANNAH: In terms of the Cisco case? I would say
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`--
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`THE COURT: It's the same patent, right?
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`MR. HANNAH: Well, there's some overlapping patents
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`and there's some not patents, but I believe the Cisco case was
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`Case 3:17-cv-05659-WHA Document 124 Filed 06/27/18 Page 14 of 21
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`the first filed case.
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`THE COURT: Well, then, I think under our procedures
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`she's supposed to have this case. I'm going to have to look
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`into that. But in the meantime, I have an issue I need to
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`decide.
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`MS. SONG: And, Your Honor, if I may briefly.
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`THE COURT: But let's go back to the -- it is
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`troubling to me that you can't point to any concrete instance
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`where Mr. Hannah or his firm have even possibly abused the
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`information that they got out of litigation during some IPR.
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`And secondly, his firm already is in the IPR. It's not even
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`your IPR, it's Cisco's. And so it would be a big prejudice to
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`them to have to bow out of that case, right?
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`MS. SONG: So first on that point, Your Honor, we were
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`relying on the Court's order in May that said that the interim
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`model --
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`THE COURT: I'm vacating that order right now. Don't
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`mention that order again.
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`MS. SONG: So I'm only mentioning that because that's
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`why we have not had the opportunity to fully review the, like,
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`50 or more IPR's Finjan has been involved in. Our concern also
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`addresses --
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`THE COURT: I'm going to give you one week to file
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`whatever you want. One week from today to file whatever you
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`want. And then one week thereafter, for you to file a response
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`
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`Case 3:17-cv-05659-WHA Document 124 Filed 06/27/18 Page 15 of 21
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`that Juniper thinks will show that Finjan has abused the
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`confidential information in other cases.
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`I have a strong feeling you won't find a shred of evidence
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`to back that up. It's just big firm hype. And I don't -- I
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`think you're going to dig a hole that you're going to regret
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`you dug, because I'm -- I don't like just big firm -- that's
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`what -- you're from a big firm, and this is the way you big
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`firm patent lawyers are, including your firm on the Finjan
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`side. You litigate over everything imaginable.
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`So I don't like this, but I'm going to give you the
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`chance. And if you come up with some good examples where
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`there's been abuse, then God bless you, I'll take that into
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`account. I don't think you're going to find it.
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`MS. SONG: And just to raise one point, Your Honor.
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`So Finjan is already involved in the Cisco IPR, which means
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`they've already violated the terms of the model protective
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`order. And they should have raised this to your attention
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`before they got --
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`THE COURT: No, no. IPR is not mentioned by the model
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`protective order.
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`MS. SONG: But there's no ambiguity that IPR becomes
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`part of the prosecution history of a patent.
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`THE COURT: Where does it say -- to me it's ambiguous.
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`I can see the argument both ways. So it may -- maybe that's
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`the right answer, but it's not 100 percent.
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`Case 3:17-cv-05659-WHA Document 124 Filed 06/27/18 Page 16 of 21
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`MS. SONG: Yes, Your Honor. So that's why Juniper --
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`we just think they should have raised this earlier if it was a
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`big concern to them. And they didn't. So we don't think that
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`they should be rewarded for the fact that they delayed in
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`bringing this to the Court's attention.
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`THE COURT: All right. If you think that's a
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`legitimate argument, you have one week to raise all that to --
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`But here's the thing you need to be aware of, Ms. Song.
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`The main threat to you that I could see, and I was sympathetic
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`to before the hearing, is that the information that you turn
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`over could then be used to narrow the claims so that it reads
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`on your product and still is valid. However, Mr. Hannah has
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`sworn that off and said that will never happen because they
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`will not amend the claims. Well, that's -- that goes a long,
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`long way toward eliminating the prejudice.
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`And then in addition he's saying: And we will not use the
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`information in any way in the IPR. Well, that, then, if we can
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`rely on that, eliminates any prejudice to you. And you're left
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`to argue, Well, in the past they have done it, so they'll do it
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`again. Well, okay, time giving you a chance to prove out of 58
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`times that they have done it in the past.
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`MS. SONG: Well, Your Honor, we've asked prior to this
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`hearing more than four times of Finjan what they've
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`specifically done to wall off access to confidential
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`information. They did not provide a response, and so our
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`Case 3:17-cv-05659-WHA Document 124 Filed 06/27/18 Page 17 of 21
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`concerns were not addressed. And as I mentioned before, we do
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`not understand how they can wall off completely access to
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`confidential information when the same attorneys are involved.
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`THE COURT: When what?
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`MS. SONG: When the same attorneys are involved.
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`THE COURT: Well, it's your law firm, right? Your
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`whole firm is affected by what you -- it's not just Mr. Hannah.
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`It's your whole firm, right?
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`MR. HANNAH: Right, Your Honor.
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`THE COURT: So who do they got to be walled off from?
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`MS. SONG: Well, it's the same attorneys on the IPR as
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`the ones that are on this case. And so they're the ones -- the
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`same attorneys who are part of the Cisco IPR are the ones who
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`have access to Juniper's confidential information in this case,
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`and so that's where our concern arises.
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`THE COURT: So what? If they're not going to use your
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`information in that IPR, how can you possibly be harmed?
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`MS. SONG: Well, how can we be assured they're not
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`going to use our confidential information?
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`THE COURT: Well, because you got to show me in 58
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`prior cases there's at least one time that they did. I don't
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`think you'll find it.
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`MR. HANNAH: Your Honor?
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`THE COURT: Yes.
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`MR. HANNAH: May I ask for an order for a further meet
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`
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`Case 3:17-cv-05659-WHA Document 124 Filed 06/27/18 Page 18 of 21
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`and confer in light of your -- in light of your holdings today
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`so that potentially we can eliminate further briefing on this
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`issue? I think that you've given us a lot of guidance, and I
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`would hope that they would come to the table now and actually,
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`you know --
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`THE COURT: All right. I'm going to order you to meet
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`and confer. What day do you want to do that? Today? Some
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`other time?
`
`MR. HANNAH: Well, I don't believe counsel can take a
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`position today. That's what it sounded like when we did the
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`meet and confer earlier. It would probably have to be
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`tomorrow. That's fine. But I just would like someone that has
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`-- someone that can come and propose some language after
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`understanding what your orders have been today. Because it's
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`just --
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`THE COURT: I'm going to order this: That by the end
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`of the week there should be another meet and confer in person.
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`Where do you two practice?
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`MR. HANNAH: Here in northern California.
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`MS. SONG: We are in southern California, so it would
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`have to be by phone.
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`THE COURT: All right. You can do it by phone, but it
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`will have to be -- it can't be emails. I'm going to order at
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`least a one-hour meet and confer by telephone before the end of
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`the week. But that is not going to extend the time. You still
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`Case 3:17-cv-05659-WHA Document 124 Filed 06/27/18 Page 19 of 21
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`got to -- within one week you got to file that brief, and
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`within one week thereafter you got to file your response.
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`MS. SONG: If I can get a little bit more
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`clarification about what you're seeking in the brief.
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`THE COURT: I'm letting you file anything you want.
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`Because if I rule against you, which right now I would, I don't
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`want you to say you didn't get a full and fair chance to brief
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`it.
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`But as a friend of the Court I'm telling you the main
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`thing that I'm worried about is that they have conceded so many
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`things that they will not do, including not amend the claims in
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`the IPR; all of those concessions take away the prejudice. And
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`so you need to explain to me why you're still prejudiced and to
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`show me real life examples from history where Mr. Hannah has
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`abused the protective orders in some other IPR. Possibly that
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`can be shown, but I rather doubt it.
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`But I'm willing to give you that opportunity. But you can
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`put in there -- I'm not even going to give you a page limit.
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`You can put in there anything that you want that you think
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`would stand in the way of what I'm -- my tentative ruling,
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`which is to let them use -- on the conditions given -- let them
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`participate in the IPR.
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`I'm talking about Mr. Hannah and his firm.
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`MS. SONG: Understood, Your Honor. One point. Would
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`it be okay instead of just one week to file by next Friday?
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`
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`Case 3:17-cv-05659-WHA Document 124 Filed 06/27/18 Page 20 of 21
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`I'm just talking because the opposition to the motions for
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`summary judgment in the early shoot-out procedure are due
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`tomorrow.
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`THE COURT: Well, no, because -- when is -- well, a
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`week from today -- a week from today is July 4 so that won't
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`work. Going to say July 5. I'll give you one extra day to
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`July 5.
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`MS. SONG: Thank you, Your Honor.
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`THE COURT: And you can have one week after July 5.
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`MR. HANNAH: Thank you, Your Honor.
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`THE COURT: That's all I can do. I don't think I can
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`-- I don't think there's much more I can do. Thank you.
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`MR. HANNAH: Thank you, Your Honor.
`
`---oOo---
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`Case 3:17-cv-05659-WHA Document 124 Filed 06/27/18 Page 21 of 21
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`
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`CERTIFICATE OF REPORTER
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` I certify that the foregoing is a correct transcript
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`from the record of proceedings in the above-entitled matter.
`
`DATE: Wednesday, June 27, 2018
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`
`
`
`
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`
`
`_________________/s/Vicki Eastvold___________________
`
`Vicki Eastvold, RMR, CRR
` U.S. Court Reporter
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