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`Case 3:17-cv-05659-WHA Document 256-2 Filed 11/27/18 Page 1 of 9
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`IRELL & MANELLA LLP
`Jonathan S. Kagan (SBN 166039)
`jkagan@irell.com
`Joshua Glucoft (SBN 301249)
`jglucoft@irell.com
`Casey Curran (SBN 305210)
`ccuran@irell.com
`Sharon Song (SBN 313535)
`ssong@irell.com
`1800 Avenue of the Stars, Suite 900
`Los Angeles, California 90067-4276
`Telephone: (310) 277-1010
`Facsimile: (310) 203-7199
`
`Rebecca Carson (SBN 254105)
`rcarson@irell.com
`Kevin Wang (SBN 318024)
`kwang@irell.com
`840 Newport Center Drive, Suite 400
`Newport Beach, California 92660-6324
`Telephone: (949) 760-0991
`Facsimile: (949) 760-5200
`
`Attorneys for Defendant
`JUNIPER NETWORKS, INC.
`
`
`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`SAN FRANCISCO DIVISION
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`FINJAN, INC., a Delaware Corporation,
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`Plaintiff,
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`vs.
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`JUNIPER NETWORKS, INC., a Delaware
`Corporation,
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`Defendant.
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`10613102
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`Case No. 3:17-cv-05659-WHA
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`DEFENDANT JUNIPER NETWORKS,
`INC.’S OPPOSITION TO PLAINTIFF
`FINJAN INC.’S MOTION IN LIMINE
`NO. 2 TO EXCLUDE IMPROPER
`CLAIM CONSTRUCTION TESTIMONY
`
`Date: December 4, 2018
`Time: 9:00 a.m.
`Courtroom: Courtroom 12, 19th Floor
`Before: Hon. William Alsup
`
`JUNIPER’S OPPOSITION TO
`FINJAN’S MOTION IN LIMINE NO. 2
`(Case No. 3:17-cv-05659-WHA)
`
`
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`

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`Case 3:17-cv-05659-WHA Document 256-2 Filed 11/27/18 Page 2 of 9
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`A.
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`Introduction
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`Finjan’s motion to preclude Dr. Rubin from introducing claim construction evidence to the
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`jury in this case should be denied because Dr. Rubin intends to submit no such evidence. Contrary
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`to Finjan’s argument, neither Dr. Rubin’s expert report nor his expected testimony includes any
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`evidence contrary to the agreed construction of “database” including the embedded term “database
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`schema.” Rather, Dr. Rubin intends only to apply agreed constructions to the accused products.
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`Dr. Rubin’s opinion is that the accused products do not satisfy the requirements of “database” (as
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`that term is used in the ‘494 Patent), not that the construction of “database” should be modified in
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`any way. Accordingly, while Juniper agrees with the basic premise of Finjan’s motion—that the
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`parties should not argue claim construction to the jury—Finjan’s motion should be denied because
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`Dr. Rubin’s testimony is limited to the application of the agreed constructions.
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`B.
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`Dr. Rubin’s Analysis Applies the Agreed Constructions of “Database” and
`“Database Schema.”
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`Dr. Rubin’s analysis and expected testimony use only the agreed constructions of
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`“database” and “database schema.” As Dr. Rubin explains in his rebuttal report, the construction
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`of “database” he applies is “a collection of interrelated data organized according to a database
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`schema to serve one or more applications.” See Ex. 8 (Rubin Rebuttal Report) at, e.g., ¶ 28. This
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`is the same construction that Finjan’s expert, Dr. Cole, used in his analysis. Ex. 9 (Cole Report) at
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`¶ 83. While the term “database schema” does not appear in the claim language itself—and was
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`thus not expressly identified by the parties as requiring construction—Dr. Rubin used the
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`definition of this term previously proposed by Finjan and adopted by Dr. Cole. Specifically,
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`Finjan proposed in a prior inter partes review (IPR) of the ‘494 Patent that the definition of
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`“database schema” is “a description of a database to a database management system (DBMS) in
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`the language provided by the DBMS.” Ex. 10, IPR2015-01892, Paper 27 (Finjan’s Patent
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`Owner’s Response) at 38-39 (quoting Medvidovic Dec.).1 Finjan’s technical expert in this case,
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`Dr. Cole, confirmed that this is the proper definition of “database schema” during his June 21,
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`1 Finjan again proposed the identical construction in another IPR involving the same claim. See
`Ex. 11, IPR2016-00159, Paper 17 at 35 (quoting Medvidovic Dec.).
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`10613102
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`- 1 -
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`JUNIPER’S OPPOSITION TO
`FINJAN’S MOTION IN LIMINE NO. 2
`(Case No. 3:17-cv-05659-WHA)
`
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`

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`Case 3:17-cv-05659-WHA Document 256-2 Filed 11/27/18 Page 3 of 9
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`2018 deposition in this case. See Ex. 12 (6/21/18 Cole Depo. Tr.) at 115:17-116:1 (“Q. Would
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`you agree that a database schema is a description of a database to a database management system
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`in the language provided by the database management system? THE WITNESS: That would
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`generally fit my understanding.”2). After Dr. Cole confirmed this definition (and rather than
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`initiate a battle over the interpretation of words in an agreed claim construction), Dr. Rubin simply
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`adopted Finjan’s proposed definition for his analysis. See Dkt. No. 126-1 (Rubin Dec.) at ¶ 15 (“I
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`have adopted the meaning of ‘database schema’ articulated by Finjan’s experts Dr. Medvidovic
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`and Dr. Cole.”). Dr. Rubin continued to use Finjan’s proposed construction of “database schema”
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`in his expert rebuttal report. Ex. 8 (Rubin Rebuttal Report) at ¶¶ 137-38. Because Dr. Rubin
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`adopted Finjan’s proposed construction, he has never argued for a different construction.
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`As discussed below, Dr. Rubin’s conclusion that the accused products do not satisfy the
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`“database” limitation is based on his application of the agreed construction to the accused
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`products, not an argument for a different construction. Ex. 8 (Rubin Rebuttal Report) at ¶ 28 (“I
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`have applied this construction in my analysis.”) and ¶ 99 (“Dr. Cole’s [opinion] ignores the
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`following important points: … [T]o satisfy the claim language, the ‘database’ must meet the
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`agreed construction of ‘database’ which is ‘a collection of interrelated data organized according to
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`a database schema to serve one or more applications.’”).
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`Finjan’s entire motion appears to be based on a misreading or misunderstanding of Dr.
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`Rubin’s expert rebuttal report and associated demonstratives. Specifically, Finjan asserts that Dr.
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`Rubin intends to argue against the agreed construction for “database” (and the term “database
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`schema” included within that agreed construction) rather than apply the constructions to which the
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`parties have agreed. While Dr. Rubin’s opinion is that the accused products do not contain a
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`“database” as that term is used in the ‘494 Patent, that opinion is in fact based on the agreed
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`construction of “database,” as discussed in further detail below.
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`.
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`2 Objections by counsel have been omitted. All emphasis is added unless indicated otherwise.
`JUNIPER’S OPPOSITION TO
`FINJAN’S MOTION IN LIMINE NO. 2
`(Case No. 3:17-cv-05659-WHA)
`
`10613102
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`Case 3:17-cv-05659-WHA Document 256-2 Filed 11/27/18 Page 4 of 9
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`1.
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`Alleged Improper Construction Numbers 1, 3, 6, and 7
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`Finjan argues that Dr. Rubin proposes four constructions that are all allegedly improper
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`because they limit a claim term to the singular form of that term. Specifically, Finjan alleges the
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`following four improprieties:
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` Alleged Improper Construction 1: “a database” should be additionally construed as
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`requiring only a single database.
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` Alleged Improper Construction 3: “a table” should be additionally construed as requiring
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`only a single table.
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` Alleged Improper Construction 6: “[a]3 database schema” should be additionally
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`construed as requiring only a single database schema.
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` Alleged Improper Construction 7: “the language provided by the DBMS” should be
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`additionally construed as requiring only a single language.
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`Finjan MIL No. 2 at 2-3. Finjan’s arguments are plain wrong.
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` Alleged Improper Construction 1—“A Database”: Juniper admits that there are
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`“databases” in the accused products, but that is not sufficient to infringe Claim 10; Claim
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`10 requires that an infringing “database” store Downloadable security profile data
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`including a list of suspicious computer operations that may be attempted by the
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`Downloadable. Instead of identifying a database that actually satisfies the requirements of
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`Claim 10, Finjan’s technical expert Dr. Cole artificially combines one “database” in the
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`accused products that does not store a list of suspicious computer operations—the MySQL
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`database—with two other distinct components in the accused product—DynamoDB and
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`S3—to create what Dr. Cole calls “ResultsDB Database,” a non-existent, abstract
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`amalgamation of distinct components that Dr. Cole alleges “acts as a single unified
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`database.” Ex. 9 (Cole Report) at ¶¶ 82, 94. Dr. Rubin explains that Dr. Cole’s
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`“ResultsDB Database” is not really “single unified database” as he claims. Neither Juniper
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`3 Although Finjan’s MIL uses the term “the database schema” (Finjan MIL No. 2 at 6), this
`appears to be a typo because the agreed construction of database requires that the data be
`“organized according to a database schema,” which is also reflected later in Finjan’s motion. See
`id. at p. 6 (“Dr. Rubin’s incorrect construction of ‘a database schema’”).
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`10613102
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`- 3 -
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`JUNIPER’S OPPOSITION TO
`FINJAN’S MOTION IN LIMINE NO. 2
`(Case No. 3:17-cv-05659-WHA)
`
`
`
`

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`Case 3:17-cv-05659-WHA Document 256-2 Filed 11/27/18 Page 5 of 9
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`nor Dr. Rubin contend that the system of Claim 10 cannot be comprised of multiple
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`databases as long as at least one of those databases actually stores Downloadable security
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`profile data including a list of suspicious computer operations that may be attempted by the
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`Downloadable, as required by the claim language.
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` Alleged Improper Construction 3—“A Table”: Dr. Rubin never opines that the claimed
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`database must be limited to one single table. Rather, it is Dr. Cole who identifies one
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`component of his artificial “ResultsDB Database” (DynamoDB) as being in the form of a
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`table but is silent on the other two components (MySQL and S3). Dr. Rubin simply rebuts
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`Dr. Cole’s opinion reliance on a table by pointing out that Dr. Cole fails to identify a table
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`in the other two components underlying the accused “ResultsDB Database.”. See Rubin
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`Rebuttal Report at ¶ 158 (“The code [cited by Dr. Cole] says nothing at all about whether
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`the S3 or MySQL components are organized as tables, so even if portions of DynamoDB
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`are organized as a table, that does not mean that … ‘ResultsDB Database’ is in the form
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`of a table.”). In other words, Dr. Rubin is merely pointing out that Dr. Cole’s own analysis
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`does not lead to the conclusion he would like to draw. But even if Dr. Rubin had opined
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`that “a table” was limited to one table, such an interpretation would be supported by
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`Finjan’s own argument during IPR that the difference between the prior art and the claimed
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`database was that the claimed database is “a database that takes the form of a table, where
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`only one table can be used for each database.” Ex. 10 (IPR2015-01892, Paper 27) at 38.
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` Alleged Improper Construction 6—“A Database Schema”: Dr. Rubin never opines that
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`“a database schema” must be limited to one single database schema; rather, Dr. Rubin
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`rebuts Dr. Cole’s opinion based on the fact that none of the “schemas” identified by Dr.
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`Cole4 actually organize all of the data in Dr. Cole’s “ResultsDB Database.” Dr. Rubin
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`explains that much of the data in this “database” is not organizes according to any database
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`scheme: “The agreed construction of ‘database’ requires that the data be ‘organized
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`4 Juniper does not admit that the “schemas” identified by Dr. Cole are “database schemas.”
`JUNIPER’S OPPOSITION TO
`FINJAN’S MOTION IN LIMINE NO. 2
`(Case No. 3:17-cv-05659-WHA)
`
`10613102
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`according to a database schema,’ not ‘organized only in certain parts according to a
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`database schema.’” Rubin Rebuttal Report at ¶ 139 (emphasis in original).
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` Alleged Improper Construction 7—“The Language”: Dr. Rubin does indeed opine that
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`“the language” as found in the definition of “database schema” requires one language.
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`Finjan’s argument, however, is completely wrong. Finjan argues: :
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`Dr. Rubin contravenes the general rule that the indefinite article is
`construed to mean “more than one.” This means that Dr. Rubin’s
`narrowing of … “the language[“] to mean … “one language[“] is
`legally improper.
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`Finjan MIL No. 2 at p. 6. The problem with Finjan’s argument is that the word “the” is a
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`definite article, not an indefinite article, and thus does indeed denote “one”. See Ex. 13
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`(Merriam Webster defining “the” as a definite article). Thus, unlike alleged improper
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`constructions 1, 3, and 6 which were each preceded by the indefinite article “a,” the term
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`“the language” in the phrase “a description of a database to a database management system
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`(DBMS) in the language provided by the DBMS “ clearly refers to one language both as a
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`matter of grammar and logic. None of the case law cited by Finjan suggests otherwise
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`because all of that case law deals only with indefinite articles “a” and “an,” which Finjan
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`itself recognizes. See Finjan MIL No. 2 at 5-6 (Finjan arguing that “generally accepted
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`rules of claim interpretation [use] the indefinite article such as ‘a’ or ‘an’ means ‘one or
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`more.”). Finjan cites no authority that contradicts the basic English understanding that
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`using the definite article “the” in “the language” means “one language.”
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`2.
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`Alleged Improper Constructions Numbers 2 and 4
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`Finjan alleges that Dr. Rubin proposes two improper constructions related to “a table”:
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` Alleged Improper Construction 2: “a database” should be additionally construed as being
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`a table.
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` Alleged Improper Construction 4: “a table” should be additionally construed as requiring
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`rows and columns.
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`Finjan MIL No. 2 at 2-3. The agreed construction of “database” requires that the “interrelated
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`collection of data be organized according to a database schema.” Both Dr. Cole and Finjan have
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`10613102
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`- 5 -
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`JUNIPER’S OPPOSITION TO
`FINJAN’S MOTION IN LIMINE NO. 2
`(Case No. 3:17-cv-05659-WHA)
`
`
`
`

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`Case 3:17-cv-05659-WHA Document 256-2 Filed 11/27/18 Page 7 of 9
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`explained that tables provide evidence of whether data in a database is organized in such a schema.
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`Dr. Rubin merely cites this testimony and then explains that the data identified by Dr. Cole is not so
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`organized: Dr. Cole’s testimony regarding “tables” is discussed in section XXX, above. As for
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`Finjan, as Dr. Rubin noted in his expert report::
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`Finjan also argued in a prior IPR that the “database schema” according to
`which the collection of data is organized must be “in the form of a table.”
`See IPR2016-00159, Paper No. 17 at p. 36 (relying on Dr. Medvidovic, Ex.
`2011, ¶¶ 110, 121). At the time of the invention, a POSITA would understand
`that a “table” had both rows and columns. See, e.g., Dkt. No. 126-10
`(Webster’s New World Dictionary of Computer Terms); see also, e.g., U.S.
`Patent No. 5,287,493 (issued Feb. 14, 1994) at 1:12-16 (“BACKGROUND
`OF THE INVENTION: One method of organizing a computer database is to
`separate the data into tables which consist of rows and columns of data.”).
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`Ex. 8 (Rubin Rebuttal Report) at ¶ 30. Having argued examining whether data is stored in a table
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`is relevant to a determination of whether that data is stored in the form of a “database” (as that term
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`is used in the ‘494 Patent), Finjan cannot now reverse course and argue that evidence is irrelevant
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`or prejudicial.” See Ex. 14 (F5 Networks, Inc. v. Radware, Inc., Dkt. No. 173, No. 3:17-cv-03166-
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`VC (N.D. Cal. Nov. 19, 2018) at 1 (“Radware cannot abandon its earlier statements to broaden the
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`reach of its patent now that it is arguing for infringement. Even if the PTAB may not have expressly
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`adopted Radware’s interpretation, the public is still entitled to rely on it.”).
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`3.
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`Alleged Improper Constructions Number 5
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`Finjan’s last complaint regarding an allegedly improper construction (number 5) asserts
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`that Dr. Rubin improperly argues that “database schema” should be additionally construed as “a
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`description of a database to a database management system (DBMS) in the language provided by
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`the DBMS.” Finjan MIL No. 2 at 3. But as described above, this is actually the construction
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`proposed by Finjan and adopted by Dr. Cole in his initial deposition in this case. Dr. Rubin
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`simply adopted Finjan’s construction and he has not, and does not intend, to argue against it.
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`C.
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`Dr. Rubin’s Application of the Agreed Claim Constructions Is the Proper
`Subject of Cross-examination, Not a Motion in Limine.
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`As discussed above, Dr. Rubin’s analysis does not “amount[] to arguing claim
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`construction” as Finjan contends (Finjan’s MIL No. 2 at p. 4), rather he is simply interpreting and
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`10613102
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`JUNIPER’S OPPOSITION TO
`FINJAN’S MOTION IN LIMINE NO. 2
`(Case No. 3:17-cv-05659-WHA)
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`

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`applying the agreed claim construction. Dr. Rubin has a right to present his interpretation and
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`application notwithstanding the fact that Finjan may now disagree with Dr. Rubin’s interpretation.
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`See Power Integrations, Inc. v. Fairchild Semiconductor Intern., Inc., 763 F. Supp. 2d 671, 697
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`(D. Del. Oct. 5, 2010) (“The implications of the Court’s constructions are matters on which the
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`parties’ experts may opine, and may disagree.”); Prism Techs. LLC v. AT&T Mobility, LLC, No.
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`8:12CV122, 2014 WL 4843874, at *3 (D. Neb. Sept. 29, 2014) (“The Court is mindful that
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`experts are permitted to reasonably disagree as to the interpretation and application of the Court’s
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`Markman order.”); Transamerica Life Ins. Co. v. Lincoln Nat. Life Ins. Co., 597 F. Supp. 2d 897,
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`910 (N.D. Iowa 2009) (“[T]he parties may reasonably disagree about the interpretation and
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`application of the court’s claim constructions….”).
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`Finjan’s complaints about Dr. Rubin’s interpretation and application of the agreed
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`constructions are a matter for cross-examination, not an in limine motion. See, e.g., Everlight
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`Elecs. Co., Ltd. v. Nichia Corp., No. 12-cv-11758, 2014 WL 4707053, at *8 (E.D. Mich. Sept. 22,
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`2014) (“Nichia merely disagrees with Dr. Bretschneider’s application of the Court’s claim
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`construction to his analysis of the Accused Products. Such challenges are a matter for the jury
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`during cross examination because ‘the application of the Court’s claim construction to the accused
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`products is a question of fact for the jury.’” (quoting Tesco Corp. v. Weatherford Int’l Inc., 750
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`F.Supp.2d 780, 796 (S.D.Tex.2010))); Prism Techs., LLC v. Sprint Spectrum L.P., No.
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`8:12CV123, 2015 WL 3620385, at *2 (D. Neb. June 9, 2015) (denying a motion to exclude and
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`holding that “opposing counsel can cross-examine that expert and let the jury decide who holds
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`the better interpretation” of the court’s claim construction); Corning Inc. v. SRU Biosystems, No.
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`Civ.A 03-633 JJF, 2005 WL 2465900, at *2 (D. Del. Oct. 5, 2009) (“[A]ny deviations between Dr.
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`Buckman’s testimony and the Court’s claim construction will be considered by the Court in
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`determining the weight to afford Dr. Buckman’s testimony.”).
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`10613102
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`D.
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`Conclusion
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`For the reasons stated above, Finjan’s Motion in Limine No. 2 should be denied.
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`- 7 -
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`JUNIPER’S OPPOSITION TO
`FINJAN’S MOTION IN LIMINE NO. 2
`(Case No. 3:17-cv-05659-WHA)
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`Case 3:17-cv-05659-WHA Document 256-2 Filed 11/27/18 Page 9 of 9
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`Dated: November 23, 2018
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`IRELL & MANELLA LLP
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`By: /s/ Rebecca Carson
`Rebecca L. Carson
`Attorneys for Defendant
`JUNIPER NETWORKS, INC.
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`JUNIPER’S OPPOSITION TO
`FINJAN’S MOTION IN LIMINE NO. 2
`(Case No. 3:17-cv-05659-WHA)
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