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`INCLUDING PROFESSIONAL CORPORATIONS
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`W R I T E R ' S D I R E C T
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`Hon. William Alsup
`U.S. District Court, Northern District of California
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`Re:
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`Finjan, Inc. v. Juniper Networks, Inc., Case No. 3:17-cv-05659-WHA
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`Dear Judge Alsup:
`Defendant Juniper Networks, Inc. (“Juniper”) respectfully submits this discovery letter brief
`requesting that the Court issue an Order amending the Stipulated Protective Order (see Dkt. No.
`149) to allow Juniper to use confidential information produced in this case in inter partes review
`(“IPR”) proceedings, so long as the information is sealed and protected in the same manner with the
`Patent Trial and Appeal Board. The confidential information Juniper seeks to use in the IPR
`proceedings is crucial to addressing any assertions by Plaintiff Finjan, Inc. (“Finjan”) regarding
`secondary considerations of non-obviousness that Finjan has raised in prior IPR proceedings.
`
`In multiple prior IPR proceedings involving other defendants, Finjan has argued that its
`licensing of certain patents serves as a secondary consideration of non-obviousness, and thus
`weighs against invalidating its patents. See, e.g., Cisco Sys., Inc. v. Finjan, Inc., IPR2018-00391
`(Paper 12) at 39-40 (Sept. 10, 2018) (“The commercial success of the patented inventions disclosed
`in the ‘633 Patent is evidenced through Finjan’s successful licensing program and the commercial
`success of the products covered under those licenses[.]”); ESET, LLC et al. v. Finjan, Inc.,
`IPR2017-01738 (Paper 31) at 55 (Aug. 21, 2018) (same). Moreover, Finjan has specifically faulted
`past petitioners for purportedly failing to address the licensing evidence that Finjan produced to
`those petitioners in the corresponding district court cases. For example, in its Patent Owner
`Response to an IPR brought by Cisco, Finjan argued:
`
`In the active litigation between Patent Owner and Petitioner, Patent
`Owner has provided Petitioner with substantial evidence related to
`secondary considerations of nonobviousness. Thus, there is simply
`no excuse for Petitioner’s failure to address this critical portion of
`the obviousness analysis.
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`. . .
`
`The fact that Petitioner chose to ignore this evidence, skip this
`important component of the obviousness analysis, and provide the
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`A REGISTERED LIMITED LIABILITY LAW PARTNERSHIP
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`Board with an incomplete obviousness analysis is basis alone for
`denying its obviousness arguments.
`See Cisco, IPR2018-00391 (Paper 12) at 38; see also ESET, IPR2017-01738 (Paper 31) at 54.
`
`On May 16, 2018, Finjan served Juniper with interrogatory responses
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`Eyes Only.”
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` Finjan designated its responses as “Highly Confidential – Attorneys’
`
`Given that these interrogatory responses
` Juniper requested that Finjan agree to allow Juniper to use them as an exhibit in the
`IPR petitions Juniper was planning to file. Ex. 2 at 6. Juniper also offered to file them under seal in
`the IPR pursuant to a protective order that offers the same protections as the protective order in this
`litigation. Id. Finjan refused. Id. at 3-4. Despite Juniper’s repeated requests to schedule a meet
`and confer on this issue (both in writing and via voice message), Finjan refuses to respond to
`Juniper’s requests for Finjan to provide times that it is available for a teleconference. Id. at 1-4, 6.
`
`It is unreasonable for Finjan to block Juniper’s efforts to use discovery produced under the
`Stipulated Protective Order in this case in the IPR proceedings Juniper has initiated. Given that
`Juniper has agreed to maintain the same level of confidentiality in the IPR proceedings that are in
`
`1 Juniper has challenged Finjan’s designation as being improper under the terms of the
`Protective Order, as the responses do not contain “extremely sensitive ‘Confidential Information or
`Items,’ disclosure of which to another Party or Non-Party would create a substantial risk of serious
`harm that could not be avoided by less restrictive means.” See Dkt. No. 149 at 2 (Section 2.8).
`Further, the responses include “non-technical, purely financial or license information” that,
`according to the Protective Order, is not properly designated as “Highly Confidential – Attorneys’
`Eyes Only.” Id. As of the date of this letter, Finjan has refused to meet and confer with Juniper on
`this issue.
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`place in this litigation, Finjan can suffer no prejudice (other than having its bogus arguments
`rejected by the PTAB, which Juniper contends is not legitimate prejudice). For these reasons,
`Juniper therefore seeks an order amending the Stipulated Protective Order in this case to allow
`Juniper to use Finjan’s confidential information in the IPR proceedings, as long as the information
`is sealed and protected. Juniper has attached a proposed amendment to the Stipulated Protective
`Order as Exhibit 3.
`
`Respectfully submitted,
`/s/ Jonathan S. Kagan________
`Jonathan S. Kagan
`IRELL & MANELLA LLP
`Attorneys for Juniper Networks, Inc.
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