Case 3:17-cv-05659-WHA Document 222 Filed 11/09/18 Page 1 of 2
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`November 9, 2018
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`Hon. William Alsup
`U.S. District Court, Northern District of California
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`E m a i l j k a g a n @ i r e l l . c o m
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`Re: Finjan, Inc. v. Juniper Networks, Inc., Case No. 3:17-cv-05659-WHA
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`Dear Judge Alsup:
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`Defendant Juniper Networks, Inc. (“Juniper”) submits this response to plaintiff Finjan, Inc.’s
`(“Finjan”) letter to the Court (Dkt. No. 221). In particular, Juniper seeks to correct certain
`inaccuracies in Finjan’s letter and to clarify Juniper’s position on the issues raised by Finjan.
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`As an initial matter, Finjan’s assertion that Juniper refused to stipulate to a schedule for
`Finjan’s proposed Daubert motions is not true. Juniper expressly offered to negotiate a workable
`briefing schedule for both parties once Finjan identified the basis for the Daubert motion it was
`seeking to file. See Ex. 1 (Carson/Manes Email Chain). Rather than provide Juniper with this
`information, Finjan submitted its letter to the Court without any warning to Juniper. Had Finjan met
`and conferred with Juniper, the parties likely could have resolved most (if not all) of the issues raised
`in Finjan’s letter without the Court’s involvement.
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`Dr. Rubin’s Reports
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`With regard to Dr. Rubin, the majority of the issues identified by Finjan are not actually in
`dispute—something Finjan would have learned if it had met and conferred with Juniper before filing
`its letter. For example, Finjan states that it wishes to file a Daubert to preclude Dr. Rubin from
`offering opinions that (1) Claim 10 is invalid under 35 U.S.C. §§ 102 and 103 or (2) relate to
`inequitable conduct or prosecution laches. Juniper agrees with Finjan that, per the Court’s August
`24, 2018 Order (Dkt. No. 185) at pages 20-21, these issues will not be tried in December and will
`instead be decided at some later time. Juniper is therefore willing to stipulate that Dr. Rubin will not
`provide an opinion on these issues at the December 2018 trial. Finjan also notes that it wishes to
`exclude Dr. Rubin from “arguing the claim is abstract.” Again, Dr. Rubin will not be providing expert
`testimony on this point, as the Court already determined that Claim 10 is abstract in its August 24,
`2018 Order. As such, Juniper understands that the jury will simply be instructed that Claim 10 is
`abstract and both sides will be limited to introducing evidence on Step 2 of the Alice test.
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`The only other issue that Finjan identifies with respect to Dr. Rubin is the allegation that “Dr.
`Rubin applies the incorrect legal standard for whether there is an ‘inventive concept’ in Claim 10 of
`the ‘494 Patent.” Dr. Rubin submitted his expert opinion on § 101 issues on September 11. See Ex
`2.1 If Finjan believed there was a basis to file a Daubert motion on Dr. Rubin’s § 101 opinion (which
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`1 Dr. Rubin’s November 7 report was directed to damages issues, including the benefits of the
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`invention (or lack thereof) over the prior art, the availability of non-infringing alternatives, and the
`technical comparability of various licenses. The parties agreed that Juniper’s damages expert reports
`would be due on November 7 to accommodate the fact that Finjan refused to make its Rule 30(b)(6)
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`Case 3:17-cv-05659-WHA Document 222 Filed 11/09/18 Page 2 of 2
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`I R E L L & M A N E L L A L L P
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`INCLUD ING PROFESSIONAL CORPORATIONS
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`includes his “inventive concept” analysis), then Finjan should have timely filed a regularly noticed
`motion. Finjan chose not to do so, however. Juniper should not be forced to oppose such a motion
`in less than half the normal time allotted just because Finjan made a strategic choice to delay raising
`this issue. The shortening of time for Juniper to respond would be problematic given that there are
`eight fact and expert depositions scheduled to occur between November 13 and November 19
`(Juniper’s time to oppose under Finjan’s proposed schedule). Accordingly, Juniper respectfully
`requests that the Court deny Finjan’s request to file a Daubert motion regarding Dr. Rubin.
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`Dr. Ugone’s Report
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`To the extent that Finjan believes that it has a basis to move to exclude Juniper’s economic
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`damages expert, Dr. Keith Ugone, on the grounds that he has (1) purportedly applied an “unreliable
`methodology based on reliance on uncomparable Juniper licenses” and (2) has allegedly used the
`wrong revenue base in his analysis,2 Juniper does not oppose Finjan’s request to file a Daubert motion
`and would be amenable to Finjan’s proposed briefing schedule.
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`The remaining issues raised by Finjan, however, are not the proper subject of a Daubert
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`motion, which is limited to whether Dr. Ugone’s reasoning and methodology are scientifically valid
`and can properly be applied to the facts. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579,
`592-93 (1993). For example, Finjan’s allegation that Dr. Ugone’s opinion is “[b]ased on insufficient
`or incorrect facts” is not a basis to exclude his opinion; rather, this is properly addressed through cross
`examination. Likewise, Finjan’s allegation that Dr. Ugone relies “on information not disclosed during
`discovery or disclosed days before [his] report” is not the proper subject of a Daubert motion.
`Moreover, a Daubert motion regarding that alleged deficiency is clearly improper because the parties
`are still conducting fact discovery; indeed, Finjan is scheduled to take four fact witness depositions
`of Juniper employees next week. It appears that Finjan now regrets its strategic decision not to depose
`any of Juniper’s financial, marketing, or licensing employees before submitting its damages report,
`but Finjan’s strategic regrets do not provide a legitimate basis for excluding testimony and a Daubert
`motion is clearly not the proper vehicle for Finjan to attempt to correct its own blunders.
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`In sum, Juniper respectfully requests that, in the event that the Court permits Finjan to file a
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`Daubert motion, the Court limits Finjan to a single motion regarding Dr. Ugone and limits that motion
`to the issues of whether Dr. Ugone applied the correct royalty base and whether his analysis of
`Juniper’s licenses is reliable.
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`Respectfully submitted,
`/s/ Jonathan Kagan
`Jonathan S. Kagan
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`witness on licensing issues available prior to November 2. See Dkt. 206 at 4 (“Juniper shall serve its
`rebuttal expert reports related to damages issues by November 7, 2018.”).
`2 Finjan’s argument regarding on the royalty base suggests that the proper base is $140 million.
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`This number includes approximately $80 million in revenues for SRX devices that are not compatible
`with Sky ATP, even though Finjan’s infringement theory is directed only at (1) Sky ATP and (2) SRX
`devices operating in combination with Sky ATP. Finjan’s damages theory also includes an additional
`approximately $58 million in revenues for SRX devices that support Sky ATP but which were
`incapable of operating with Sky ATP because the SRX customer did not activate and configure a Sky
`ATP license.
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