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`Case 3:17-cv-05659-WHA Document 257-2 Filed 11/27/18 Page 1 of 8
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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.
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`
`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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`10613111
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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. 3 TO EXCLUDE IRRELEVANT
`TESTIMONY FROM DR. AVIEL RUBIN
`
`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. 3
`(Case No. 3:17-cv-05659-WHA)
`
`
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`

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`Case 3:17-cv-05659-WHA Document 257-2 Filed 11/27/18 Page 2 of 8
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`Finjan’s Motion in Limine No. 3 (“MIL3”) is a poorly disguised effort to address the
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`issues Finjan identified in its letter to the Court seeking two Dauberts. Dkt. 221 at 2. These
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`issues are not appropriate for either a Daubert motion or a motion in limine, as they amount to
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`critiques of Dr. Rubin’s analysis that should be addressed through cross-examination. Indeed,
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`Finjan never identifies any specific Federal Rule of Evidence and instead generally just includes
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`(if anything) vague allegations of “prejudice” or “confusion” without any explanation for exactly
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`what prejudice or confusion might accrue. Finjan’s complaints are baseless and do not warrant
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`exclusion of any of Dr. Rubin’s opinions.
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`A.
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`Expert Opinions On Whether Claim 10 Is Abstract Should Not Be Admitted,
`But The Jury Must Be Provided With Context On Alice Step 1.
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`Juniper does not intend to have Dr. Rubin provide an opinion that Claim 10 is abstract, as
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`the Court has already determined this issue under Step 1 of the Alice test. Dkt. 189 at 18-19.
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`Thus, Juniper agrees with Finjan that it would be inappropriate for either party’s expert to opine
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`on this issue.1 Because Step 2 of the Alice test expressly depends on the Court’s finding of
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`abstractness under Step 1, however, the jury will need to be informed that the Court found this
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`claim abstract. The Supreme Court has explained that when a patent is directed to “patent-
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`ineligible concepts” such as an abstract idea, then one must ask “what else is there in the claims
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`before us?” Alice Corp. Pty. Ltd. v. CLS Bank Intern., 134 S.Ct. 2347, 2355 (2014). To answer
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`this, one must “determine whether the additional elements ‘transform the nature of the claim’ into
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`a patent-eligible application.” Id. This involves a “search for an ‘inventive concept’—i.e., an
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`element or combination of elements that is ‘sufficient to ensure that the patent practice amounts to
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`significantly more than a patent upon the [ineligible concept] itself.” Id. (citations omitted). 2
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`Therefore, in order to apply this test, the jury must be told what the “ineligible concept” is—i.e.,
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`the jury must be provided with the Court’s finding that “the thrust of Claim 10 is on analyzing a
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`file and extracting information” which is “merely an abstract idea” (Dkt. 189 at 19); otherwise,
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`they will not have the background necessary to assess Step 2.
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`1 Finjan’s expert Dr. Orso includes an entire section in his report titled “Claim 10 Is
`Directed to Patent-eligible Subject Matter at Step 1.”
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`2 All emphasis added, unless otherwise noted.
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`10613111
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`- 1 -
`
`JUNIPER’S OPPOSITION TO
`FINJAN’S MOTION IN LIMINE NO. 3
`(Case No. 3:17-cv-05659-WHA)
`
`
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`

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`Case 3:17-cv-05659-WHA Document 257-2 Filed 11/27/18 Page 3 of 8
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`B.
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`Dr. Rubin’s Testimony On The Prosecution History Is Relevant To Damages.
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`Juniper agrees with Finjan that inequitable conduct and prosecution laches are not at issue
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`in the December trial and Juniper does not intend to introduce testimony solely directed to these
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`issues. Finjan overreaches, however, when it suggests that certain testimony offered by Dr. Rubin
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`is “only relevant to prosecution laches and inequitable conduct.” MIL3 at 2.
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`For example, Mr. Kroll, a named inventor on the ‘494 Patent, testified that it “was Finjan’s
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`practice to promptly file patents on important technology.” Ex. 15 (Kroll Depo. Tr.) at 99:7-10.
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`Despite this, Finjan waited roughly 15 years to file the ‘494 Patent, which is relevant to the
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`importance of the ‘494 Patent. If, therefore, Finjan argues that the ‘494 Patent is “important” (or
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`more important than the other patents in its portfolio), evidence regarding the delay in filing is
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`directly relevant to rebut these assertions.
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`As to Mr. Kroll’s and Mr. Touboul’s statements about who invented Claim 10, Juniper will
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`not address this topic unless Finjan does. For example, if Mr. Kroll provides testimony that is
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`inconsistent with his prior statements that he invented Claim 10 or that is inconsistent with Mr.
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`Touboul’s declaration to the USPTO, Juniper would need to impeach Mr. Kroll with that prior
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`testimony and/or evidence. See U.S. v. Hale, 422 U.S. 171, 176 (1975) (“A basic rule of evidence
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`provides that prior inconsistent statements may be used to impeach the credibility of a witness.”).
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`C.
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`Finjan Mischaracterizes Dr. Rubin’s Opinions Related to Damages and § 101.
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`Finjan next argues that “Dr. Rubin includes many specious arguments that directly touch
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`on anticipation and obviousness, but are couched as being relevant to damages and non-
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`infringement.” MIL3 at 3. Finjan’s argument is disingenuous, given that the testimony it protests
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`is a direct rebuttal to the opinions of Finjan’s own experts on damages and § 101 issues.
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`In particular, Finjan takes issue with Dr. Rubin’s opinions and demonstratives on the issues
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`of whether Finjan invented behavior-based malware analysis, whether detecting unknown viruses
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`existed and was well-known before the ‘494 Patent, and whether Claim 10 provides any
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`meaningful benefits over the prior art. MIL3 at 3. But Finjan fails to acknowledge that these
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`opinions directly respond to the claims of Finjan’s experts. For example:
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` Mr. Arst supports his analysis regarding the value of the ‘494 Patent by opining that Finjan
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`10613111
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`- 2 -
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`JUNIPER’S OPPOSITION TO
`FINJAN’S MOTION IN LIMINE NO. 3
`(Case No. 3:17-cv-05659-WHA)
`
`
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`

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`Case 3:17-cv-05659-WHA Document 257-2 Filed 11/27/18 Page 4 of 8
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`was “‘the inventor’ of proactive content behavior inspection.” Ex. 16 (Arst Report) at p. 5.
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` Dr. Orso testified that Finjan’s “behavior-based analysis was novel. So this kind of
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`analysis used to detect unknown malware, based on this behavioral analysis, was novel.”
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`Ex. 17 (Orso Depo. Tr.) at 85:10-13.
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` Dr. Cole opines that Claim 10 “provides tangible benefits over then-existing malware
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`detection technology” (Ex. 9 (Cole Report) at ¶ 25) and was innovative because it could
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`“detect potentially suspicious malware based on the potential behavior of the malware” and
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`because it protects “against viruses that had never been seen before” (Id. at ¶ 22-23).
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`To the extent that Finjan intends to present testimony from its experts on these issues, Juniper is
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`certainly entitled to rebut it with evidence and opinions from Dr. Rubin that behavior-based
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`analysis was well-known long before the alleged priority date of the ‘494 Patent and that there
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`were also many systems that existed for detecting unknown viruses. See Mueller v. Auker, 700
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`F.3d 1180, 1191 (9th Cir. 2012) (affirming admissibility of expert’s “opinion testimony [because
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`it] was relevant … as direct rebuttal to the [plaintiff’s] expert”); PSM Holding Corp. v. National
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`Farm Financial Corp., 2013 WL 12080306, at *18 (C.D. Cal. Oct. 8, 2013).
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`Finjan’s other argument that Dr. Rubin should not be allowed to “show that elements of
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`the ‘494 Patent were already known in alleged prior art references” makes no sense. MIL3 at 3.
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`The Court specifically identified the issue of whether Claim 10 includes an “inventive concept” as
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`an issue to be decided at the December trial. Dkt. 189 at 20. Obviously, one way to show that
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`something was well-known, routine, or conventional—and thus does not contain an “inventive
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`concept”—is to show that it was disclosed in a mountain of prior art references. This is precisely
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`what Dr. Rubin has done here, and it is perfectly appropriate. See, e.g., Pacific Biosciences of
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`Cal., Inc. v. Oxford Nanopore Techs., Inc., 2018 WL 1419082, at *7 (D. Del. Mar. 22, 2018)
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`(considering “eight prior art references … which together provide ‘a timeline of the
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`development’” of the purported inventive concept).
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`In general, Finjan appears to have missed the forest for the trees with respect to Dr.
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`Rubin’s § 101 analysis. Juniper agrees with Finjan that the “mere fact that something is disclosed
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`in a piece of prior art, for example, does not mean it was well-understood, routine, and
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`10613111
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`- 3 -
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`JUNIPER’S OPPOSITION TO
`FINJAN’S MOTION IN LIMINE NO. 3
`(Case No. 3:17-cv-05659-WHA)
`
`
`
`

`

`Case 3:17-cv-05659-WHA Document 257-2 Filed 11/27/18 Page 5 of 8
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`conventional.” Berkheimer v. HP Inc., 881 F.3d 1360, 1369 (Fed. Cir. 2018). But Berkheimer—
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`which addressed an order on summary judgment, not a motion in limine—was not commenting on
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`the proper evidentiary sources for consideration by a jury; rather, Berkheimer merely held that a
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`statement in a patent’s specification that it comprised non-conventional activity was sufficient to
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`create a genuine issue of fact regarding whether the claimed activity was indeed routine and
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`conventional in the art. Id. The present situation is completely different, as Dr. Rubin relies on
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`dozens of references to support his conclusion that various limitations were indeed well known by
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`considering them collectively. For example, Dr. Rubin relies on a 1995 article by Morton
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`Swimmer titled “Dynamic Detection And Classification Of Computer Viruses Using General
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`Behaviour Patterns” (“Swimmer”). The PTAB determined that Swimmer rendered obvious Claim
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`1 of the ‘494 Patent, which is virtually identical to Claim 10. See Ex. 18 (Rubin Report) at ¶¶ 28-
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`29. It is thus difficult to see how Finjan could dispute that this prior art document supports Dr.
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`Rubin’s opinion. But, most importantly, Dr. Rubin does not rely on Swimmer alone, rather he
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`cites Swimmer as one of many references that in aggregate demonstrate that Claim 10 was well
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`known, routine, and conventional.
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`D.
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`Finjan’s Attempt To Prevent Dr. Rubin From Relying On Documentary
`Evidence To Support His Opinions Is Meritless.
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`Finjan next moves to exclude Dr. Rubin from relying on various references to support his
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`§ 101 opinions. To advance this argument, Finjan baldly states that (1) Dr. Rubin cannot rely on
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`research papers or patent applications to establish what was well known or conventional because
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`they describe “new technologies” and (2) Dr. Rubin cannot rely on a patent publication as
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`evidence for § 101 unless it was published before the priority date of the ‘494 Patent. MIL3 at 4-
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`6. Finjan does not cite to any authority to support its positions. Finjan’s quibbles are nothing
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`more than factual critiques of Dr. Rubin’s analysis, which is not a proper basis for exclusion.
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`Moreover, Finjan appears to be missing the point. Dr. Rubin does not opine that the
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`computer security community learned from these references after they were published; rather, Dr.
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`Rubin opines that, when the many references cited in his report are considered together, the
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`references in aggregate show what was becoming routine in the community In other words, Dr.
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`10613111
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`- 4 -
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`JUNIPER’S OPPOSITION TO
`FINJAN’S MOTION IN LIMINE NO. 3
`(Case No. 3:17-cv-05659-WHA)
`
`
`
`

`

`Case 3:17-cv-05659-WHA Document 257-2 Filed 11/27/18 Page 6 of 8
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`Rubin relies on these references collectively as contemporaneous documentation of what a dozen
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`researchers were working on years before the ‘494 Patent, which is highly relevant to determining
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`whether those teachings were well-understood, routine, or conventional activity. Within this
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`context, it is irrelevant whether the documents were published before the priority date.
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`Finjan also misrepresents the references that Dr. Rubin is relying on. For example, Finjan
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`claims that none of the specific references it identifies were published before the priority date.
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`This is not true. For example, Finjan ignores that Gryaznov was first published in September
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`1995 and then published again in 1999. See Ex. 19 (1995 Gryaznov). As another example, Finjan
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`claims that Juniper is using disclosures from the specific citations it identifies that discuss the
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`invention or new research, as opposed to the background describing the state of the art. Once
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`again, this is not true. For example, the portions of Gryaznov cited by Dr. Rubin make it clear that
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`they are referring to the state of the art as of its original publication, i.e., 1995. See Ex. 20 (Rubin
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`Damages Report) at ¶ 23 (citing Gryaznov at p. 232: “I could not resist comparing [the author’s
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`scanner] to other existing heuristic scanners”). Similarly, Dr. Rubin cites the “Background of the
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`Invention” of U.S. Patent No. 5,615,367 to Bennett, which notes the use database managers with
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`non-relational databases. Ex. 18 (Rubin Report) at ¶ 51 (citing column 2, line 40). As another
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`example, Finjan claims that Dr. Rubin is relying on material from patent applications whose
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`authors “believed that [the cited] material was novel.” MIL3 at 5. Finjan is wrong. For example,
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`Dr. Rubin cites U.S. Patent Nos. 5,802,275 (“Blonder”) and 6,065,118 (“Bull”) to support his
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`opinion that it was well-known that one could use a “receiver” to “receive a Downloadable.” Ex.
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`18 (Rubin Report) ¶¶ 33-34. While Blonder and Bull use a receiver in the disclosed systems,
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`neither contends they invented this element—and it is hard to conceive how Finjan could argue
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`that the “receiver” element supplies the requisite “inventive concept.”3
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`Finjan additionally argues that the “jury will mistakenly believe that the bare fact that a
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`third-party, non-public, patent application contained language regarding the alleged new
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`3 See also Ex. 18 (Rubin Report) at ¶60 (citing U.S. Patent No. 5,623,600 to Ji for the idea
`that it was well-known to implement malware profiling at an intermediate network location, such
`as a network gateway or firewall, which is not a point of novelty for Ji);
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`10613111
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`- 5 -
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`JUNIPER’S OPPOSITION TO
`FINJAN’S MOTION IN LIMINE NO. 3
`(Case No. 3:17-cv-05659-WHA)
`
`
`
`

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`Case 3:17-cv-05659-WHA Document 257-2 Filed 11/27/18 Page 7 of 8
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`technologies would necessarily mean that the ‘494 Patent is not inventive.” MIL3 at 6. Finjan
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`cites no authority, however, supporting any material risk of “mistake,” and in any event, Dr. Rubin
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`never opines that one non-public reference “necessarily” leads to any conclusion; rather, he
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`supports his opinion by citation to the work of dozens of authors/researches to show what was
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`well known at the time as evidenced by those authors’/researchers’ contemporaneous writings.
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`Lastly, Finjan argues that Dr. Rubin opines that certain things were well known based only
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`on his experience and that, as a result, such opinions should be excluded because Finjan allegedly
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`had no opportunity to respond.4 See MIL3 at 6. Notably, however, the paragraphs of Dr. Rubin’s
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`report cited by Finjan (¶¶ 31, 35, and 46) are all topic sentences that come at the beginning of their
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`respective sections, so those opinions are not based solely on Dr. Rubin’s experience but rather are
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`supported by the numerous examples following immediately thereafter. In any event, Dr. Rubin
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`does not intend to present testimony regarding specific but uncited systems based only on his
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`personal experience, so Finjan’s motion on this issue is moot.
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`E.
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`Dr. Rubin’s § 101 Analysis Is Appropriate.
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`Finjan argues that Dr. Rubin should be precluded from providing testimony about whether
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`specific parts of claim elements were well understood, routine, or conventional, as opposed to the
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`whole element. MIL3 at 6-7. As an initial matter, Finjan’s characterization of Dr. Rubin’s
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`opinion is factually inaccurate. Dr. Rubin expressly directs his analysis to whether the claim
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`limitations as a whole—both individually and as an ordered combination—were conventional and
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`he does not limit his opinion to only specific sub-elements. See Ex. 18 (Rubin Report) at, e.g.,
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`¶¶ 26, 31, 35, 46. Indeed, Finjan seems to gloss over critical portions of Dr. Rubin’s testimony
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`that directly address Finjan’s alleged deficiencies. For example, Finjan argues that Dr. Rubin fails
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`to “look[] at entire claim[] elements” when Dr. Rubin allegedly “describe[es] scanners without
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`analysis of connection to a receiver” (Finjan MIL No. 3 at 7), but Finjan inexplicably ignores the
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`following opinion from Dr. Rubin that is directly on point:
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`It is further my opinion that there is nothing transformative or inventive about
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`4 Finjan’s argument that it had no opportunity to respond is incorrect because it was free to
`depose Dr. Rubin prior to submitting its expert rebuttal report. It was Finjan’s choice to delay
`deposing Dr. Rubin, so Finjan cannot now be heard to complain about any potential prejudice.
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`10613111
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`- 6 -
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`JUNIPER’S OPPOSITION TO
`FINJAN’S MOTION IN LIMINE NO. 3
`(Case No. 3:17-cv-05659-WHA)
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`Case 3:17-cv-05659-WHA Document 257-2 Filed 11/27/18 Page 8 of 8
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`combining the well-known components of a receiver and a scanner to perform the
`recited functions…. To the contrary, this is the usual and typical order for
`performing malware analysis (i.e., first the system receives the file, then it scans
`the file and generates the profile).
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`Ex. 18 (Rubin Report) at ¶ 45. Thus, Finjan’s argument that Dr. Rubin’s opinion is a “piecemeal
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`analysis” directed to less than the claim limitations as a whole is flatly wrong.
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`Even if Finjan were correct on the facts (which it is not), there is no legal support for its
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`position and there is nothing wrong with addressing both individual elements and the larger claim
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`elements. Finjan does not cite a single case in support of its contention that Dr. Rubin may not
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`provide testimony regarding specific portions of claim elements as part of his § 101 analysis.
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`MIL3 at 6-7. In fact, Dr. Rubin’s choice to support his opinions at times with a targeted analysis
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`of specific portions of the claim elements is proper and comports with how the Federal Circuit has
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`approached Alice Step 2. See, e.g., Electric Power Group, LLC v. Alstom S.A., 830 F.3d 1350,
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`1354-55 (Fed. Cir. 2016) (“When we turn to stage two of the Alice analysis and scrutinize the
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`claim elements more microscopically….”); Bascom Global Internet Services, Inc. v. AT&T
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`Mobility LLC, 827 F.3d 1341, 1350 (Fed. Cir. 2016) (“[A]n inventive concept can be found in the
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`non-conventional and non-generic arrangement of known, conventional pieces.”).5 If Finjan
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`believes Dr. Rubin’s analysis contains flaws or is incomplete, it is free to cross examine him.
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`Finjan also makes no effort to explain why Dr. Rubin’s analysis “would be confusing to
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`the jury and prejudicial to Finjan.” MIL3 at 7. Finjan’s unexplained allegations of confusion and
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`prejudice cannot outweigh the substantial probative value of Dr. Rubin’s targeted analysis.
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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.
`
`
`5 Indeed, even Step 1 of the Alice test may be informed by targeted analysis of specific portions of
`claim elements. See X One, Inc. v. Uber Techs., Inc., 239 F. Supp. 3d 1174, 1186 (N.D. Cal.
`2017) (“[T]he Court need not include every claim limitation in the ‘directed to’ inquiry.”).
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`10613111
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`- 7 -
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`JUNIPER’S OPPOSITION TO
`FINJAN’S MOTION IN LIMINE NO. 3
`(Case No. 3:17-cv-05659-WHA)
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`