Case 3:17-cv-05659-WHA Document 221 Filed 11/08/18 Page 1 of 2
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`Paul Andre
`Partner
`T 650-752-1700
`F 650-752-1800
`PAndre@KRAMERLEVIN.com
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`November 8, 2018
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`990 Marsh Road
`Menlo Park, CA 94025-1949
`T 650.752.1700
`F 650.752.1800
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`Honorable William Alsup
`U.S. District Court, Northern District of California
`San Francisco Courthouse
`Courtroom 12 – 19th Floor
`450 Golden Gate Avenue
`San Francisco, CA 94102
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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:
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`Plaintiff Finjan, Inc. (“Finjan”) respectfully requests permission to file Daubert motions
`according to the same schedule that the Court set for Juniper Networks, Inc. (“Juniper”).
`Specifically, Finjan requests permission to file opening Daubert motions on November 12,
`requiring Juniper to file its opposition on November 19 at noon, and requiring Finjan to file
`its reply on November 23 at noon. See Dkt. 215 (setting the same schedule for Juniper).
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`On October 26, 2018, the Court denied the parties’ stipulation to an amended briefing
`schedule for Daubert motions (Dkt. 213). After Juniper filed a letter brief requesting
`reconsideration (Dkt. 214), the Court set a briefing schedule for Juniper’s motions but did
`not provide a schedule for Finjan’s motions (Dkt. 215). Juniper has since refused to
`stipulate to allow Finjan to file Daubert motions on the same schedule.
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`Yesterday, Juniper filed two separate “rebuttal” damages reports, one from Dr. Ugone
`(Juniper’s damages expert) and one from Dr. Rubin (Juniper’s technical expert). These
`reports contain many deficiencies that call for Daubert motions, as set forth below:
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`Deficiencies in Dr. Ugone’s Report:
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` Unreliable methodology based on reliance on uncomparable Juniper licenses,
`including software licenses, as “reasonableness check” and a lump sum picked
`from thin air.
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` Based on insufficient or incorrect facts, including (1) using the wrong royalty base
`for the accused product revenues, yielding a difference for just United States
`accused product revenues of over $140M, (2) no facts for improper reliance on
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`KRAMER LEVIN NAFTALIS & FRANKEL LLP
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` SILICON VALLEY | NEW YORK | PARIS
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`Case 3:17-cv-05659-WHA Document 221 Filed 11/08/18 Page 2 of 2
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`Hon. William Alsup
`November 8, 2018
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`historic data from “free” licenses, especially because Juniper previously
`submitted a sworn declaration to the Court stating that Juniper did not perform
`historic tracking of free licenses, (3) no basis for his tracking of SRX Products using
`serial numbers (4) no facts to support effective royalty rates based on certain
`Finjan licenses.
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` Reliance on information not disclosed during discovery or disclosed days before
`Ugone’s report, including (1) costs associated with servers, (2) alleged non-
`infringing alternatives or use of the alternatives as a “constrain[t] on royalty
`payment” (3) portion of Amazon invoices associated with certain accounts, (4)
`individuals not disclosed in his report referred to just as “juniper personnel.”
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`Deficiencies in Dr. Rubin’s Report:
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` Dr. Rubin provides opinions that are not relevant to the December 10th trial,
`including: (1) challenges to validity of Claim 10 under 35 U.S.C. §§102 and 103;
`(2) arguing the claim is abstract; and (3) inequitable conduct and prosecution
`laches.
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` Dr. Rubin applies the incorrect legal standard for whether there is an “inventive
`concept” in Claim 10 of the ‘494 Patent.
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`Given these deficiencies and Juniper’s delays in disclosure, it would be inequitable to
`allow Juniper to file Daubert motions but not allow Finjan to do the same. Thus, Finjan
`respectfully requests a briefing schedule to file its Daubert motions identical to the
`schedule and page limits that the Court provided for Juniper at Dkt. 215.
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`Sincerely,
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`Paul J. Andre
`Counsel for Plaintiff Finjan, Inc.
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