Case 3:17-cv-05659-WHA Document 263 Filed 11/27/18 Page 1 of 11
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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)
`ccurran@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
`
`NORTHERN DISTRICT OF CALIFORNIA
`
`SAN FRANCISCO DIVISION
`
`FINJAN, INC., a Delaware Corporation,,
`
`Plaintiff,
`
`v.
`
`JUNIPER NETWORKS, INC., a Delaware
`Corporation,
`
`Defendant.
`
`Case No. 3:17-cv-05659-WHA
`
`JUNIPER NETWORKS, INC.’S MOTION
`IN LIMINE NO. 1 TO EXCLUDE
`EVIDENCE AND ARGUMENT
`REGARDING CYPHORT AND THE ATP
`APPLIANCE PRODUCT
`
`December 4, 2018
`Date:
`9:00 a.m.
`Time:
`Courtroom: Courtroom 12, 19th Floor
`Before:
`Hon. William Alsup
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`10607541
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`JUNIPER’S MIL NO. 1 TO EXCLUDE EVIDENCE AND
`ARGUMENT REGARDING CYPHORT
`(Case No. 3:17-cv-05659-WHA)
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`Case 3:17-cv-05659-WHA Document 263 Filed 11/27/18 Page 2 of 11
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`MEMORANDUM OF POINTS AND AUTHORITIES
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`Defendant Juniper Networks, Inc. (“Juniper”) hereby moves the Court for an order in limine
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`precluding Plaintiff Finjan, Inc. (“Finjan”) from presenting evidence or argument regarding Cyphort
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`Inc. (“Cyphort”) and its Advanced Threat Prevention Application (“ATP Appliance”). The grounds
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`for relief are that such argument and evidence is irrelevant and would be prejudicial, confusing and
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`misleading. Fed. R. Evid. 402, 403.
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`The Cyphort ATP Appliance is not an accused product for purposes of the upcoming trial.
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`Indeed, this Court already expressly excluded it from the early summary judgment motion
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`procedure that identified the issues for trial. Dkt. No. 85 (granting Finjan leave to amend its
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`Complaint to add the ATP Appliance under the condition that “ATP Appliance remains excluded
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`from the first round of the early summary judgment procedure”). Notwithstanding the Court’s
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`ruling, Finjan and its experts have repeatedly attempted to inject Juniper’s November 2017
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`acquisition of Cyphort and the ATP Appliance into the upcoming trial. For example, Finjan’s
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`damages expert, Kevin Arst, and technical expert, Dr. Eric Cole, offer a variety of conclusory
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`assertions to the effect that “Juniper made a strategic decision to purchase Cyphort,” Ex. 1 at 10;
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`Ex. 2 at 24, and that through the Cyphort acquisition Juniper purportedly “realized technical and
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`economic benefits.” Ex. 2 at 23. Such argument and evidence is inadmissible for at least the
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`following reasons.
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`First, the Cyphort acquisition and ATP Appliance are inadmissible because they are
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`irrelevant. See Fed. R. Evid. 401 (“Evidence is relevant if: (a) it has any tendency to make a fact
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`more or less probable than it would be without the evidence; and (b) the fact is of consequence in
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`determining the action”); Fed. R. Evid. 402 (“Evidence which is not relevant is not admissible.”).
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`Juniper’s November 2017 acquisition of Cyphort and Cyphort’s ATP Appliance have no bearing
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`whatsoever on the issues for the upcoming trial: subject matter eligibility under 35 U.S.C. § 101,
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`whether Juniper infringes the accused products, and any calculation of damages. Notably, Finjan’s
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`own damages expert analyzes damages based on a hypothetical negotiation “in the period leading
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`up to October 2015,” more than two years before the Cyphort acquisition. Ex. 2 at 29; see, e.g.,
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`Toshiba Corp. v. Imation Corp., No. 09-cv-305-slc, 2013 U.S. Dist. LEXIS 42662, at *16 (W.D.
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`10607541
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`JUNIPER’S MIL NO. 1 TO EXCLUDE EVIDENCE AND
`ARGUMENT REGARDING CYPHORT
`(Case No. 3:17-cv-05659-WHA)
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`Case 3:17-cv-05659-WHA Document 263 Filed 11/27/18 Page 3 of 11
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`Wis. Mar. 26, 2013) (granting motion in limine to exclude evidence relating to non-accused products
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`because it is irrelevant); Digital Reg. of Texas LLC v. Adobe Sys., Inc., 2014 WL 4090550, *5 (N.D.
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`Cal. 2014) (granting motion in limine excluding evidence of non-accused product).
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`Finjan has argued that the Cyphort acquisition is relevant to the issue of notice, but that
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`argument has no merit. According to Finjan, it provided Cyphort with notice of Finjan’s belief
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`that the ATP Appliance infringes the ’494 Patent in 2015. But whether or not Finjan provided
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`Cyphort with notice regarding the ATP Appliance is irrelevant. The ATP Appliance is not an
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`accused product for the upcoming trial. 35 U.S.C. § 287 requires that notice be “an affirmative
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`communication of a specific charge of infringement by a specific accused product or device.”
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`U.S. Philips Corp. v. Iwasaki Elec. Co., 505 F.3d 1371, 1375 (Fed. Cir. 2007) (internal citations
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`omitted) (emphasis added). In any event, in 2015, Cyphort was an independent entity
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` and not part of Juniper. See Unicolors, Inc. v. Urban
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`Outfitters, No. CV 14-1029, 2015 WL 12758841, at *6 (C.D. Cal. Feb. 23, 2015) (granting motion
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`in limine excluding evidence related to third parties that allegedly infringed the asserted patents
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`because “evidence concerning these third parties not involved in this lawsuit is irrelevant and
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`prejudicial pursuant to FRE 402 and 403”).
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`Second, even if the Cyphort acquisition and ATP Appliance had some modicum of
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`relevance (they do not), such argument and evidence is inadmissible because it would cause unfair
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`prejudice, unduly expend time, and confuse and mislead the jury. Fed. R. Civ. P. 403. Critically,
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`argument and evidence regarding Finjan’s assertion that the ATP Appliance infringes would place
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`Juniper in an untenable and highly prejudicial situation where, without substantive rebuttal, the
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`jury will likely assume that the accusation has merit. But since the ATP Appliance is not at issue,
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`substantively rebutting the assertion that the ATP Appliance infringes would require a massive
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`sideshow—a mini-trial on exactly the issue that this Court already ordered would not be addressed
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`during this procedure (see Dkt. 85). Moreover, Juniper would be incredibly constrained in its
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`ability to attempt to rebut the allegation of infringement, given that (because the ATP Appliance
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`was already excluded from this phase of the case), neither of the parties’ experts conducted
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`infringement or non-infringement analyses in their reports, and this issue thus was not addressed at
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`10607541
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`JUNIPER’S MIL NO. 1 TO EXCLUDE EVIDENCE AND
`ARGUMENT REGARDING CYPHORT
`(Case No. 3:17-cv-05659-WHA)
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`Case 3:17-cv-05659-WHA Document 263 Filed 11/27/18 Page 4 of 11
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`expert depositions. Further, there is a significant risk the jury will conflate notice to Cyphort with
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`notice to Juniper, or Cyphort’s ATP Appliance with the similarly named “Sky ATP” that is at
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`issue—even though the products are completely distinct. In short, Finjan’s intent to introduce
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`evidence about the Cyphort acquisition and non-accused ATP Appliance is a situation rife with
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`prejudice and likelihood of jury confusion.
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`As numerous courts have recognized, the prejudicial and confusing impact of injecting
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`non-accused products into a trial outweighs any minimal relevance. See, e.g., Fresenius Med.
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`Care Holdings, Inc. v. Baxter Int’l, Inc., No. C 03-1431 SBA, 2006 U.S. Dist. LEXIS 41749, at
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`*10 (N.D. Cal. June 13, 2006) (granting motion in limine to exclude evidence and argument
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`regarding non-accused product being sold outside the United States as unduly confusing and time-
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`consuming); Jumpsport, Inc. v. Hedstrom Corp., No. C 04-0199 PJH, 2004 WL 2203556, at *2
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`(N.D. Cal. Sep. 29, 2004) (granting motion in limine to exclude evidence of non-accused products
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`because the products were not within the scope of the litigation); Multimedia Patent Tr. v. Apple
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`Inc., No. 10-CV-2618-H (KSC), 2012 WL 12868264, at *3 (S.D. Cal. Nov. 20, 2012) (holding
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`that defendants are “generally precluded from presenting evidence or argument related to the
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`unaccused products” at trial).
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`For the foregoing reasons, Juniper respectfully requests that the Court grant its motion in
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`limine precluding Finjan from presenting evidence or argument regarding Cyphort and its ATP
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`Appliance.
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`Dated: November 14, 2018
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`Respectfully submitted,
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`IRELL & MANELLA LLP
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`By: /s/ Rebecca Carson
`Rebecca L. Carson (SBN 254105)
`rcarson@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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`JUNIPER’S MIL NO. 1 TO EXCLUDE EVIDENCE AND
`ARGUMENT REGARDING CYPHORT
`(Case No. 3:17-cv-05659-WHA)
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`Case 3:17-cv-05659-WHA Document 263 Filed 11/27/18 Page 5 of 11
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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
`KRISTOPHER KASTENS (State Bar No. 254797)
`kkastens@kramerlevin.com
`KRAMER LEVIN NAFTALIS & FRANKEL LLP
`990 Marsh Road
`Menlo Park, CA 94025
`Telephone: (650) 752-1700
`Facsimile: (650) 752-1800
`
`Attorneys for Plaintiff
`FINJAN, INC.
`
`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE NORTHERN DISTRICT OF CALIFORNIA
`
`SAN FRANCISCO DIVISION
`FINJAN, INC., a Delaware Corporation,
`Case No.: 3:17-cv-05659-WHA
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`Plaintiff,
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`v.
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`JUNIPER NETWORKS, INC., a Delaware
`Corporation,
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`Defendant.
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`PLAINTIFF’S FINJAN INC.’S
`OPPOSITION TO JUNIPER
`NETWORKS, INC.’S MOTION IN
`LIMINE NO. 1 TO EXCLUDE EVIDENCE
`AND ARGUMENT REGARDING
`CYPHORT AND THE ATP APPLIANCE
`PRODUCT
`
`December 4, 2018
`
`Date:
`9:00 a.m.
`Time:
`Courtroom: Courtroom 12, 19th Floor
`Before:
` Hon. William Alsup
`
`
`HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY
`UNREDACTED VERSION OF DOCUMENT SOUGHT TO BE SEALED
`
`CASE NO.: 3:17-cv-05659-WHA
`PLAINTIFF’S OPPOSITION TO JUNIPER’S MOTION
`IN LIMINE NO. 1 RE: CYPHORT AND THE ATP APPLIANCE
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`Case 3:17-cv-05659-WHA Document 263 Filed 11/27/18 Page 6 of 11
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`INTRODUCTION
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`Finjan, Inc. (“Finjan”) should be permitted to provide evidence related to Cyphort, Inc.
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`(“Cyphort”) and its acquisition by Juniper Networks, Inc.’s (“Juniper”) because this information is
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`relevant to the value of Sky ATP, Juniper’s notice and knowledge of the ‘494 Patent, and shows that
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`Finjan negotiates in good faith. First, Juniper has already indicated that crux of its damages case is
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`disputing the value of Sky ATP to Juniper. However, Juniper’s acquisition of Cyphort shows that
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`Juniper actually places a very high-value on being able to provide advanced anti-malware technology
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`to its customers. Next, Finjan and Cyphort’s multi-year licensing negotiations is relevant to Juniper’s
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`notice as the successor in interest of Cyphort, and to refute Juniper’s argument that and it was not
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`aware of the ‘494 Patent until Finjan filed its lawsuit. Finally, Finjan’s negotiations with Cyphort
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`establish that Finjan negotiates in a forthright manner when potential licensee enter in good faith into a
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`non-disclosure agreement (“NDA”).
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`ARGUMENT
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`A.
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`Cyphort Acquisition is Relevant to Damages because it Shows Juniper valued the
`Advanced Anti-Malware Technology
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`Despite all evidence to the contrary, Juniper is making its assertion that Sky ATP has very little
`value the lynchpin of its damages case. See, for example, Dkt. No. 229-61, Ugone Report at ¶ 107
`(alleging that Sky ATP was not relevant to the success of the SRX products because only a small
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`number of customers had configured their SRXs to work with Sky ATP). In reaching this conclusion,
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`Juniper first ignores that when it was actually developing Sky ATP, it believed that it needed the
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`advanced anti-malware protection provided by Sky ATP to avoid “commoditization” of Juniper’s
`products and services. Ex. 1,2 JNPR-FNJN_29002_00173278 at 83 (“Juniper Advanced Anti-Malware
`solution can differentiate Juniper from competitors and prevent Juniper’s products, solutions and
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`services from commoditization.”).
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`1 Dr. Ugone’s Report is attached as Exhibit 1 to Finjan’s Motion to Exclude.
`2 Unless otherwise noted, all exhibits are attached to the Declaration of Austin Manes in Support of
`Finjan’s Oppositions to Juniper’s Motions in Limine Nos. 1-3.
`1
`CASE NO.: 3:17-cv-05659-WHA
`PLAINTIFF’S OPPOSITION TO JUNIPER’S MOTION
`IN LIMINE NO. 1 RE: CYPHORT AND THE ATP APPLIANCE
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`Case 3:17-cv-05659-WHA Document 263 Filed 11/27/18 Page 7 of 11
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`Instead of focusing on this perceived need at the time of the hypothetical negotiation, Juniper
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`argues that its actual revenue for Sky ATP are low and that this feature of the SRX Gateways does not
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`derive additional value when it is provided for free with its SRX Gateways. Juniper’s acquisition of
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`Cyphort contradicts this narrative and establishes that Juniper placed great value on being able to
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`provide the advanced anti-malware provided in Sky ATP. In particular, Juniper’s acquisition of
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`Cyphort and its ATP Appliance shows the great value Juniper places on continuing to develop its
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`advanced anti-malware because Cyphort’s ATP Appliance product provides the same type of
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`protection as Sky ATP. In particular, the ATP Appliance protects against “unknown” and “zero-day”
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`malware like Sky ATP. Dkt. No. 228-7, Arst Report at p. 24 (“Additional evidence of the importance
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`of this technology is the fact that Juniper has devoted additional resources to increase its use. In fact,
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`Juniper made the strategic decision to purchase Cyphort to strengthen its focus in this area.”).
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`Juniper’s engineers established that the ATP Appliance fills the same role as Sky ATP, only instead of
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`being in the cloud the ATP Appliance allows a customer to host the processing locally on their own
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`network. In particular, the SRX Gateways send files to the ATP Appliances for analysis in the exact
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`same manner as they do for Sky ATP, and use the exact same code to send files and receive results as
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`it uses for files sent to Sky ATP. Ex. 2, Manthena Tr. at 50:14-21. Juniper’s engineers further
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`explained that Cyphort performs the same “advanced anti-malware” functionality as Sky ATP, stating
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`that the ATP Appliances “do something similar to SkyATP, in the sense that they also provide anti-
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`malware protection … one of the main differences is that they do it in a one physical box, hardware,
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`whereas SkyATP is a cloud solution.” Ex. 3, Tenorio Tr. at 188:4-20.
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`Juniper’s acquisition of the Cyphort for its ATP Appliance product line thereby shows the this
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`advanced anti-malware technology continued to be important to Juniper’s products through 2017 and
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`beyond, as Juniper paid millions of dollars to acquire Cyphort and expand its security portfolio to
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`include more advanced anti-malware solutions. In fact, Juniper’s acquisition evidences the high
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`premium that Juniper placed on expanding its advanced anti-malware technologies, as it paid at least
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`2
`CASE NO.: 3:17-cv-05659-WHA
`PLAINTIFF’S OPPOSITION TO JUNIPER’S MOTION
`IN LIMINE NO. 1 RE: CYPHORT AND THE ATP APPLIANCE
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`Case 3:17-cv-05659-WHA Document 263 Filed 11/27/18 Page 8 of 11
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`$33.5 million of cash for Cyphort, and likely provided a compensation much in excesses of this.3 Ex.
`4, FINJAN-JN 042683 at 692 (“the Company acquired 100% of Cyphort, Inc. (‘Cyphort’) for $33.5
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`million of cash.”).
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`3 The exact purchase price of Cyphort has currently not been disclosed to Finjan. However, Cyhort
`raised $53.7 million in venture capital and it is likely its purchase price was well north of what was
`paid in venture capital. Ex. 5, https://www.sdxcentral.com/articles/news/juniper-networks-acquires-
`security-firm-cyphort/2017/08/.
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`3
`CASE NO.: 3:17-cv-05659-WHA
`PLAINTIFF’S OPPOSITION TO JUNIPER’S MOTION
`IN LIMINE NO. 1 RE: CYPHORT AND THE ATP APPLIANCE
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`CASE NO.: 3:17-cv-05659-WHA
`PLAINTIFF’S OPPOSITION TO JUNIPER’S MOTION
`IN LIMINE NO. 1 RE: CYPHORT AND THE ATP APPLIANCE
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`CONCLUSION
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`For the reasons set forth above, Juniper’s Motion in Limine No. 1 should be denied with respect
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`to Finjan’s use of Juniper’s acquisition of Cyphort for the reasons set forth above.
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`5
`CASE NO.: 3:17-cv-05659-WHA
`PLAINTIFF’S OPPOSITION TO JUNIPER’S MOTION
`IN LIMINE NO. 1 RE: CYPHORT AND THE ATP APPLIANCE
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`Case 3:17-cv-05659-WHA Document 263 Filed 11/27/18 Page 11 of 11
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`Dated: November 23, 2018
`
`Respectfully submitted,
`
`By: /s/ Kristopher Kastens
`
`
`Paul J. Andre (State Bar No. 196585)
`Lisa Kobialka (State Bar No. 191404)
`James Hannah (State Bar No. 237978)
`Kristopher Kastens (State Bar No. 254797)
`KRAMER LEVIN NAFTALIS
`& FRANKEL LLP
`990 Marsh Road
`Menlo Park, CA 94025
`Telephone: (650) 752-1700
`Facsimile: (650) 752-1800
`pandre@kramerlevin.com
`lkobialka@kramerlevin.com
`jhannah@kramerlevin.com
`kkastens@kramerlevin.com
`
`Attorneys for Plaintiff
`FINJAN, INC.
`
`6
`CASE NO.: 3:17-cv-05659-WHA
`PLAINTIFF’S OPPOSITION TO JUNIPER’S MOTION
`IN LIMINE NO. 1 RE: CYPHORT AND THE ATP APPLIANCE
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