Case 3:17-cv-05659-WHA Document 242-3 Filed 11/19/18 Page 1 of 6
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`PAUL ANDRE (State Bar No. 196585)
`pandre@kramerlevin.com
`LISA KOBIALKA (State Bar No. 191404)
`lkobialka@kramerlevin.com
`JAMES HANNAH (State Bar No. 237978)
`jhannah@kramerlevin.com
`HANNAH LEE (State Bar No. 253197)
`hlee@kramerlevin.com
`KRAMER LEVIN NAFTALIS & FRANKEL LLP
`990 Marsh Road
`Menlo Park, CA 94025
`Telephone: (650) 752-1700
`Facsimile: (650) 752-1800
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`Attorneys for Plaintiff
`FINJAN, INC.
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE NORTHERN DISTRICT OF CALIFORNIA
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`FINJAN, INC.,
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`Plaintiff,
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`v.
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`JUNIPER NETWORKS, INC.,
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`Defendant.
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`Case No.: 17-cv-05659-WHA
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`FINJAN’S PROPOSED REDACTIONS –
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`EXHIBIT 6 TO JUNIPER NETWORKS,
`INC.’S MOTION TO EXCLUDE THE
`TESTIMONY OF MR. KEVIN- M. ARST –
`REDACTED
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`EX. 6 TO JUNIPER’S MOTION - REDACTED
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`Case 3:17-cv-05659-WHA Document 242-3 Filed 11/19/18 Page 2 of 6
`Case 3:17-cv-05659-WHA Document 242-3 Filed 11/19/18 Page 2 of6
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`Case 3:17-cv-05659-WHA Document 242-3 Filed 11/19/18 Page 3 of 6
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`24· ·BY MS. CARSON:
`25· · · · Q.· You said "the rates are somewhat
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`·1· ·established."· What is the established rate?
`·2· · · · · · MR. KASTENS:· Objection; form.
`·3· · · · · · THE WITNESS:· So in our licensing
`·4· ·negotiations, we use 8 and 16 percent as a starting
`·5· ·point for defining the value of that license.
`·6· ·BY MS. CARSON:
`·7· · · · Q.· Eight and 16 percent of what?
`·8· · · · A.· Sales revenue, either hardware sales or
`·9· ·software sales revenue.· And sometimes now that
`10· ·includes either subscriptions or service fees
`11· ·related to cloud implementations as well.
`12· · · · Q.· So that would be revenue associated with
`13· ·the sales of the products that Finjan believes
`14· ·incorporate its technology; correct?
`15· · · · · · MR. KASTENS:· Objection; form.
`16· · · · · · THE WITNESS:· Typically, yes, it would be
`17· ·sales by those categories.· Yes.
`18· ·BY MS. CARSON:
`19· · · · Q.· You mentioned that in 2014 Finjan
`20· ·implemented licensing best practices; is that right?
`21· · · · A.· I believe that's the correct timeframe,
`22· ·yes.
`23· · · · Q.· And who was responsible for coming up with
`24· ·those best practices?
`25· · · · A.· It was a focus of the leadership team.· It
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`·1· ·was in consultation with the industry, as well as
`·2· ·working through what the implications would be with
`·3· ·our public company board.
`·4· · · · Q.· Did you participate in that effort?
`·5· · · · A.· I did, yes.
`·6· · · · Q.· And what are the best practices that it
`·7· ·came up with?
`·8· · · · · · MR. KASTENS:· Objection; form.
`·9· · · · · · THE WITNESS:· It could best be summarized
`10· ·by saying at all of the potential interaction points
`11· ·with the prospective licensee, that we provide
`12· ·insight and information per our analysis, that we
`13· ·are willing to maintain an open line of
`14· ·communication; frankly, trying to encourage a
`15· ·consistent dialogue from one licensing negotiation
`16· ·through the entire pipeline of licensing
`17· ·negotiations that we had.
`18· ·BY MS. CARSON:
`19· · · · Q.· Does Finjan make an effort to take
`20· ·reasonable positions when it's negotiating a
`21· ·license?
`22· · · · · · MR. KASTENS:· Objection; form.
`23· · · · · · THE WITNESS:· I believe we do, yeah.
`24· ·BY MS. CARSON:
`25· · · · Q.· Is it important to Finjan to take
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`·1· ·reasonable positions when negotiating a license?
`·2· · · · · · MR. KASTENS:· Objection; form.
`·3· · · · · · THE WITNESS:· We believe the credibility is
`·4· ·a very important component of licensing
`·5· ·negotiations.
`·6· ·BY MS. CARSON:
`·7· · · · Q.· Why does Finjan believe credibility is a
`·8· ·very important component of licensing negotiations?
`·9· · · · · · MR. KASTENS:· Objection; form.
`10· · · · · · THE WITNESS:· In my experience, most
`11· ·licensing negotiations have a willing seller and an
`12· ·unwilling buyer scenario.
`13· ·BY MS. CARSON:
`14· · · · Q.· How does that make it important to have
`15· ·credibility?
`16· · · · A.· Credibility is the foundation of a
`17· ·relationship that develops through the licensing
`18· ·process.· If you don't have confidence that the
`19· ·information that you're getting or the consistency
`20· ·of the communications that are available to you --
`21· ·what happens is it tends to erode the relationship
`22· ·and adds a longer or more prolonged timeline to the
`23· ·process.
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`1 don't -- I don't know how to -- I don't know how to
`2 answer it in that hypothetical. I'd need more
`3 information.
`4 BY MS. CARSON:
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`6 BY MS. CARSON:
`7 Q. Would you agree that if a company is
`8 offering a free product but none of its customers
`9 actually use it, that that wouldn't be providing a
`10 lot of value to the company?
`11 MR. KASTENS: Objection; form.
`12 THE WITNESS: I don't think I could agree
`13 to that. I think there is more variables that have
`14 to be considered.
`15 BY MS. CARSON:
`16 Q. Such as what?
`17 A. So to be competitive in the space, you have
`18 technologies that are embedded or being used in
`19 products for which a customer may see the benefit of
`20 but for which they are not directly paying a fee for
`21 its use.
`22 Q. What if they're not being used at all in
`23 the product?
`24 MR. KASTENS: Objection; form.
`25 THE WITNESS: In that hypothetical, I
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`4 BY MS. CARSON:
`5 Q. Is it fair to say that Finjan has entered
`6 into more than 20 license agreements since June
`7 2005?
`8 MR. KASTENS: Objection; form.
`9 THE WITNESS: I believe that's accurate to
`10 say that there has been, you know, 20 or more
`11 license agreements, yes.
`12 BY MS. CARSON:
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`Case 3:17-cv-05659-WHA Document 242-3 Filed 11/19/18 Page 5 of 6
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`Q. And Finjan has granted many different
`entities a license to use its patents; correct?
`A. It has, yes.
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`Q. Does Finjan have an established rate for
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`cloud-based?
`A. We use, as a starting point, a per-user
`rate.
`Q. And what is that?
`A. It's $8 per user.
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`Q. Which ones are you aware of?
`A. As I sit here, I don't -- I don't remember
`which ones they are.
`Q. Do you know if they resulted in licenses?
`A. I would expect that they resulted in
`licenses, yes.
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`Case 3:17-cv-05659-WHA Document 242-3 Filed 11/19/18 Page 6 of 6
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`·6· ·BY MS. CARSON:
`·7· · · · Q.· Do you know if the accused products in this
`·8· ·case are hardware or software products?
`·9· · · · · · MR. KASTENS:· Objection; form.
`10· · · · · · THE WITNESS:· My understanding is that
`11· ·it's -- when you say the "case," the full case or
`12· ·the case that's been sort of made smaller?
`13· ·BY MS. CARSON:
`14· · · · Q.· Let's start with the whole case.· So in the
`15· ·case that Finjan brought against Juniper, do you
`16· ·know if the accused products are hardware or
`17· ·software products?
`18· · · · · · MR. KASTENS:· Objection; form.
`19· · · · · · THE WITNESS:· I believe in the whole case,
`20· ·it's a mixture of hardware and software.
`21· ·BY MS. CARSON:
`22· · · · Q.· And do you know in -- strike that.
`23· · · · · · With regard to the '494 patent, which will
`24· ·be tried in December, do you know if the accused
`25· ·products are hardware or software products?
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`13· ·BY MS. CARSON:
`14· · · · Q.· Would you agree that it's Finjan's position
`15· ·that not any one patent in its portfolio is more
`16· ·valuable than another?
`17· · · · · · MR. KASTENS:· Objection; form.
`18· · · · · · THE WITNESS:· We say that the patents in
`19· ·the portfolio, the entire portfolio, is core.· So on
`20· ·an individual patent, we don't ascribe value from a
`21· ·monetary perspective to any one patent versus
`22· ·another.· What we talk about or how we think about
`23· ·value is in terms of what contributions the
`24· ·respective technology represents in each licensing
`25· ·discussion or in each litigation.
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`·1· · · · · · MR. KASTENS:· Objection; form.
`·2· · · · · · THE WITNESS:· Not as I sit here.
`·3· ·BY MS. CARSON:
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`·1· ·BY MS. CARSON:
`·2· · · · Q.· So would you agree that it's Finjan's
`·3· ·position that not any one patent in its portfolio is
`·4· ·more valuable than another?
`·5· · · · · · MR. KASTENS:· Objection; form.
`·6· · · · · · THE WITNESS:· If by value we don't mean
`·7· ·monetary but by value we think that all the
`·8· ·technological contributions to the industry are
`·9· ·reflected in the portfolio.
`10· ·BY MS. CARSON:
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`21· ·BY MS. CARSON:
`22· · · · Q.· So I'm not sure that answered my question.
`23· · · · · · Do you think it would be fair to ask a
`24· ·licensee to pay royalties on products that Finjan
`25· ·agrees don't infringe the patents?
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