Case 3:17-cv-05659-WHA Document 267 Filed 11/27/18 Page 1 of 18
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`IRELL & MANELLA LLP
`Jonathan S. Kagan (SBN 166039)
`jkagan@irell.com
`Alan Heinrich (SBN 212782)
`aheinrich@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,
`)
`Case No. 3:17-cv-05659-WHA
`)
`JUNIPER NETWORKS, INC.’S MOTION
`Plaintiff,
`)
`IN LIMINE NO. 4 TO EXCLUDE
`)
`EVIDENCE AND ARGUMENT
`)
`ON NON-INFRINGING ALTERNATIVES
`)
`)
`)
`Date:
`December 4, 2018
`)
`Time:
`9:00 a.m.
`)
`Courtroom: Courtroom 12, 19th Floor
`Hon. William Alsup
`)
`Before:
`
`vs.
`
`JUNIPER NETWORKS, INC., a Delaware
`Corporation,
`
`Defendant.
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`JUNIPER’S MIL NO. 4 TO EXCLUDE EVIDENCE
`AND ARGUMENT ON NON-INFRINGING ALTERNATIVES
`(Case No. 3:17-cv-05659-WHA
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`Case 3:17-cv-05659-WHA Document 267 Filed 11/27/18 Page 2 of 18
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`Juniper respectfully moves the Court for an order in limine precluding Finjan from presenting
`testimony from it technical expert, Dr. Eric Cole, on his purported “cost savings” analysis regarding
`the non-infringing alternative of re-processing files each time they are received, instead of storing
`security profiles. It has become clear that Dr. Cole’s cost-savings “analysis” is entirely unreliable,
`as he has now conceded that he did not actually perform a complete analysis of non-infringing
`
`alternatives—he even failed to review the underlying invoices on which his entire “cost savings”
`analysis is premised.
`I.
`BACKGROUND
`Finjan’s damages expert, Mr. Arst, bases his damages opinion on a “cost savings” analysis.
`Ex. 17 (Arst Dep.) at 44:20-21. Specifically, Mr. Arst understood that Juniper’s “next best
`alternative to infringing Claim 10” would have involved the re-processing of files, which would
`require “increased sandboxing.” Id. at 106:14-107:1. Mr. Arst further testified that “[m]y
`understanding is that Juniper would incur incremental sandboxing costs, and Dr. Cole analyzed those
`costs and provided me with his opinion about how much higher Juniper’s cost would have been
`absent the alleged infringement, and that’s what I relied on for purposes of my opinion.” Id. at
`108:2-7. Mr. Arst testified that he adopted Dr. Cole’s supposed cost savings analysis wholesale as
`an input to his analysis. Id.
`The problem for Mr. Arst (and Finjan) is that Dr. Cole has now admitted that he never
`actually evaluated whether the “re-processing” concept was Juniper’s next best non-infringing
`alternative:
`Q. Is it your opinion that reprocessing the files would have been Juniper’s next best
`alternative to infringing Claim 10 of the ’494 patent?
`A. I would have to do additional analysis. It was just sort of asked -- and you ask
`could I think a noninfringing alternative. And that was one, but that wasn’t a direct
`task that I wrote a full report on. So I would have to go back and perform analysis
`of whether that was really the best, but I know that was one of the items that I came
`up with or that was discussed.
`Ex. 15 (Cole Dep.) at 35:24-36:10 (emphasis added); see also id. at 48:7-49:7.
`Instead, it appears that Dr. Cole simply adopted a non-infringing option suggested by
`Finjan’s counsel, and purported to calculate the “cost savings” between that option and the alleged
`infringement, without ever determining whether it was really the “next-best” alternative. Dr. Cole’s
`
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`JUNIPER’S MIL NO. 4 TO EXCLUDE EVIDENCE
`AND ARGUMENT ON NON-INFRINGING ALTERNATIVES
`(Case No. 3:17-cv-05659-WHA
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`“cost savings” analysis is fairly simple: He opined that the extra costs associated with “increased
`sandboxing” (i.e., dynamic analysis) could be calculated by multiplying Juniper’s entire Amazon
`Web Services (“AWS”) costs by 359-419 (i.e., the number of extra seconds it takes to dynamically
`process a single file as opposed to doing a hash lookup of the security profile):
`Q.· So it’s your position that if you wanted to figure out how much extra Juniper
`would have to pay for this noninfringing alternative that you’re proposing that
`involves additional dynamic analysis processing, you could just take their AWS costs
`that have nothing to do with dynamic processing and multiply them by 359 [or
`419]? That’s your opinion?
`A.· Once again, at the time of the report, we were only provided the Amazon Web
`Services.· So from an estimate perspective, based on what we’ve discussed, that
`would give a basis of estimate for the cost savings.
`
`Ex. 15 (Cole Dep.) at 167:12-23(emphasis added); see also id. at 166:13-22. Dr. Cole provides no
`rational explanation as to why multiplying Juniper’s entire AWS invoices—which he admits do not
`reflect dynamic processing costs and which include charges related to numerous products that have
`nothing to do with Sky ATP—by the number of seconds it takes to sandbox a single file could
`possibly reflect the costs associated with implementing the proposed non-infringing alternative.
`II.
`ARGUMENT
`Dr. Cole’s “cost savings” analysis for the “increased sandboxing” alternative should be
`excluded under Rule 702, as well as Rules 402 and 403.
`A.
`Dr. Cole’s “Cost Savings” Analysis Is Unreliable.
`Dr. Cole admitted at his deposition that “[i]dentifying, analyzing and critiquing
`noninfringing alternatives was not part of [his] report” and that he had not done a complete and
`thorough analysis of the non-infringing alternatives that might have been available to Juniper.
`Ex. 15 (Cole Dep.) at 44:19-21 and 36:22-37:9 (“Q. Is it fair to say, at the time you submitted your
`report, you did not do a complete and thorough analysis of all noninfringing alternatives that might
`have been available to Juniper? A. That was something that we’ve discussed on the phone and I
`gave some opinions, but it wasn’t a direct task, to look at every and all to come up with a complete
`list . . . .”). In fact, Dr. Cole could not even remember if the proposed alternative of re-processing
`files each time they are received by Sky ATP (i.e., “increased sandboxing”) was an idea that he came
`up with, or if it was an idea that was suggested to him by Finjan’s attorneys:
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`JUNIPER’S MIL NO. 4 TO EXCLUDE EVIDENCE
`AND ARGUMENT ON NON-INFRINGING ALTERNATIVES
`(Case No. 3:17-cv-05659-WHA
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`Q. . . .So is the concept of reprocessing files as opposed to storing results in a
`database, is that an alternative that you came up with?
`A. Once again, I don’t remember. I know it was discussed on the call. I don’t
`remember if they asked me and I came up with that or if they suggested it and
`asked my opinion or if I read that in Dr. Rubin’s report.
`Q. When you say “they,” who are you talking about?
`A. That would be the damages expert and the attorneys that were on that call.
`
`Ex. 15 (Cole Dep.) at 32:10-21; see also id. at 37:7-15 (emphasis added).
`Given that Dr. Cole admits that he did not actually do his own analysis of non-infringing
`alternatives—and his inability to recall if he even came up with his own proposed non-infringing
`alternative—the inescapable conclusion is that he is nothing more than a “highly qualified puppet”
`and his opinions on non-infringing alternatives do not reflect his own reasoned views of the case.
`DataQuill Ltd. v. Handspring, Inc., 2003 WL 737785, at *4 (N.D. Ill. 2003) (“We doubt the value
`to the trier of fact of a hired expert’s opinion when the party hiring him has put words in his mouth-
`or in this case, in his report-leaving him, in essence, a highly qualified puppet.”). In such instances,
`where “opinions expressed in an expert report are not the opinions of the expert, the expert will not
`be able to satisfy the requirements of Fed. R. Evid. 702 and Daubert that the report be based on the
`expert’s own valid reasoning and methodology.” Trigon Ins. Co. v. U.S., 204 F.R.D. 277, 294 (E.D.
`Va. 2001); Marbled Murrelet v. Pac. Lumber Co., 880 F. Supp. 1343, 1365 (N.D. Cal. 1995)
`(expert’s testimony lacked objectivity and credibility where it appeared to have been crafted by
`attorneys); Occulto v. Adamar of N.J., Inc., 125 F.R.D. 611, 616 (D.N.J.1989) (expert cannot simply
`be an alter ego of the attorney who will be trying the case). Dr. Cole should not be allowed to
`provide any testimony on non-infringing alternatives, which he did not analyze.
`Even if Dr. Cole had actually performed his own analysis, his estimate of the costs associated
`with the proposed “increased sandboxing” alternative is wholly unreliable. Dr. Cole’s analysis can
`be summarized in three steps: (1) he opines that subjecting each file to sandboxing would take Sky
`ATP 360-420 seconds; (2) he identifies Juniper’s AWS invoices as being indicative of Juniper’s
`current costs incurred by sandboxing; and (3) he concludes that Juniper’s AWS costs would increase
`by a factor of 359-419 because that is the difference in the time it takes to dynamically process a file
`(360-420 seconds) as opposed to doing a hash lookup (1 second) and thus Juniper would need 359-
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`JUNIPER’S MIL NO. 4 TO EXCLUDE EVIDENCE
`AND ARGUMENT ON NON-INFRINGING ALTERNATIVES
`(Case No. 3:17-cv-05659-WHA
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`419 times more servers in the hypothetical alternative. See Ex. 1 (Cole Rpt.) at ¶¶ 35-37.
`Dr. Cole’s analysis is not based in reality, much less supported by “sufficient facts or
`evidence” or the “product of reliable methods.” Dr. Cole provides no evidence as to how or why
`the number of seconds it takes to process a single file could possibly reflect the number of extra
`servers Juniper would need to process files in the proposed non-infringing alternative. Dr. Cole’s
`opinion contains no analysis of how much data usage is associated with one second of processing or
`whether Juniper’s servers are even operating at capacity such that additional servers would be
`needed. Ex. 15 (Cole Dep.) at 174:23-175:20. Instead, it appears that Dr. Cole merely assumed a
`linear relationship between processing time and data usage. Id. at 173:1-22. This is a textbook
`example of impermissible ipse dixit. GPNE Corp. v. Apple, Inc., 2014 WL 1494247, at *4 (N.D.
`Cal. Apr. 16, 2014) (“Significantly, ‘nothing in either Daubert or the Federal Rules of Evidence
`requires a district court to admit opinion evidence that is connected to existing data only by the ipse
`dixit of the expert. A court may conclude that there is simply too great an analytical gap between
`the data and the opinion proffered.’”).
`Further, Dr. Cole has now admitted that he relied on the wrong invoices to do his cost savings
`analysis. Dr. Cole concedes that Juniper
` not AWS servers to host sandboxing.
`See Ex. 1 (Cole Rpt.) at 37; Dkt. No. 228-6 (Icasiano Decl.) ¶¶ 5-6. He further admits (as he must)
`that Juniper’s AWS invoices do not actually reflect any costs associated with sandboxing. Ex. 15
`(Cole Dep.) at 146:4-12 (“Because the sandboxing is done by Joe Sandbox on separate servers, I
`would not expect that the Amazon AWS invoices would reflect the Joe Sandbox dynamic analysis.”).
`Thus, any analysis of cost savings based off the AWS necessarily uses an improper methodology,
`as the cost savings calculation is not linked to any actual costs. It is impossible for Dr. Cole to
`calculate how much of a cost savings Juniper could achieve if he does not even look at the documents
`showing the relevant costs.
`Dr. Cole attempts to disguise this fatal blunder by making the conclusory assertion that
`sandboxing costs would be the same regardless of whether they are hosted on AWS
` His
`only support for this assumption is his vague claims of “industry experience” and the fact that only
`the AWS invoices were made available to him. See Ex. 15 (Cole Dep.) at 147:14-148:12. Neither
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`experience nor convenience justifies such an analytical leap—and the facts in this case are directly
`contrary to Dr. Cole’s supposition.
`As an initial matter, all of Dr. Cole’s assumptions about the AWS invoices are undermined
`by the fact that he did not even take the time to look at them. See Ex. 15 (Cole Dep) at 149:3-8 (“Q.
`Did you review Juniper’s AWS invoices? A.·I believe they were discussed on the phone call.
`Q.·Did you personally review them? A.·I would have to check, but I do not think that I
`did.”)(emphasis added). Indeed, Dr. Cole’s failure to review the very invoices that provide the crux
`of his cost savings analysis contaminates his entire opinion, as Dr. Cole himself admitted that he
`would need to review those invoices to determine if Juniper is even charged based on processing
`time. Id. at 154:9-21 (“I’d have to look at the invoices of Amazon in a lot more detail to answer”
`whether AWS charges based on processing time or data usage).
`Had Dr. Cole bothered to review the AWS invoices, moreover, he would have realized that
`they include charges for products other than Sky ATP, and thus (even if his “cost-savings” theory
`had merit, which it does not) it would be improper to multiply Juniper’s entire AWS costs by 359-
`419. Ex. 15 (Cole Dep.) at 151:14-17 (“Do you know whether Juniper uses AWS for any products
`other than Sky ATP? A. That was outside the scope of my analysis, so I don’t know.”). Nor did
`Dr. Cole make any effort to determine the AWS costs associated with file processing as opposed to
`storage in S3 or DynamoDB (storage which would no longer be needed in his alleged non-infringing
`alternative). Ex. 15 (Cole Dep.) at 162:7-14 (testifying that he believed Mr. Arst would have
`performed an analysis of the AWS invoices to determine which portions were associated with “static
`analysis or AV scanning as opposed to storing things in S3 or DynamoDB”).
`It is axiomatic that “when indisputable record facts contradict or otherwise render the
`opinion unreasonable, it cannot support a jury verdict.” Brooke Group Ltd. v. Brown & Williamson
`Tobacco Corp., 509 U.S. 209, 242 (1993); see also Homeland Housewares, LLC v. Whirlpool Corp.,
`865 F.3d 1372, 1378 (Fed. Cir. 2017) (“[W]e must disregard the testimony of an expert that is plainly
`inconsistent with the record, or based on an incorrect understanding of the claim[s].”). Here,
`Dr. Cole’s cost savings opinion is contradicted by the very invoices upon which it relies (the same
`invoices Dr. Cole failed to review). Accordingly, his analysis is not based on sufficient facts or
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`JUNIPER’S MIL NO. 4 TO EXCLUDE EVIDENCE
`AND ARGUMENT ON NON-INFRINGING ALTERNATIVES
`(Case No. 3:17-cv-05659-WHA
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`evidence, and the Court should exclude his cost savings opinion.
`B.
`Dr. Cole’s Testimony On Implementing A Non-Viable Alternative Is
`Irrelevant & Prejudicial.
`
`Because Dr. Cole admits that an analysis of Juniper’s next best non-infringing alternative
`“was not part of [his] report,” his testimony on this topic should also be excluded as irrelevant and
`prejudicial under Federal Rules of Evidence 402 and 403.
`Existence of a viable non-infringing alternative can be relevant to determining a reasonable
`royalty because “the market [would] not award [the patentee] a royalty for his [invention] divorced
`of all relation to a potential non-infringing alternative.” Riles v. Shell Expl. & Prod. Co., 298 F.3d
`1302, 1312 (Fed. Cir. 2002). For example, “when an infringer can easily design around a patent and
`replace its infringing goods with non-infringing goods, the hypothetical royalty rate for the product
`is typically low.” AstraZeneca AB v. Apotex Corp., 782 F.3d 1324, 1334-35 (Fed. Cir. 2015). That
`is because “there is little incentive in such a situation for the infringer to take a license rather than
`side-step the patent with a simple change in its technology.” Id.; see also Aqua Shield v. Inter Pool
`Cover Team, 774 F.3d 766, 770–71 (Fed. Cir. 2014) (“In hypothetical-negotiation terms, the core
`economic question is what the infringer, in a hypothetical pre-infringement negotiation under
`hypothetical conditions, would have anticipated the profit-making potential of use of the patented
`technology to be, compared to using non-infringing alternatives.”).
`Here, Dr. Cole repeatedly testified that the alternative of reprocessing files would not have
`been a viable option for Juniper at the time of the hypothetical negotiation:
`Q. In your opinion, would reprocessing files, instead of storing the security profiles
`in a database, be a commercially viable alternative for Juniper at the time of the
`hypothetical negotiation in 2015?
`[A]. It could have been a noninfringing alternative, but I don’t believe it would be
`commercially viable because of the additional processing, the latency and other
`negative impacts, which is the reason why I believe that they chose to utilize the ’494
`technology, because of the huge benefits it provides.
`Ex. 15 (Cole Dep.) at 35:10-22 (objections omitted; emphasis added). Dr. Cole further testified:
`Q. Did you affirmatively tell Mr. Arst that reprocessing files, as opposed to storing
`the security profiles in a database, would have been a viable option for Juniper?
`[A]. Once again, I want to be careful, because you added the word “viable” in there.
`We -- we typically discuss noninfringing alternatives, and this was one of the
`noninfringing alternatives that I felt wasn’t viable because of the additional
`processing and the additional cost and the additional latency to the customers and
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`JUNIPER’S MIL NO. 4 TO EXCLUDE EVIDENCE
`AND ARGUMENT ON NON-INFRINGING ALTERNATIVES
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`Case 3:17-cv-05659-WHA Document 267 Filed 11/27/18 Page 8 of 18
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`many other factors.
`Ex. 15 (Cole Dep.) at 34:7-20 (objections omitted); see also id. at 31:1-5 (“Q. So is it your opinion
`that there are any viable noninfringing alternatives to Claim 10 of the ’494 patent? A. I do not
`believe there is any viable noninfringing alternatives.”).
`The ongoing “implementation” costs that Dr. Cole purports to calculate for an alternative
`that he concedes is not commercially viable are irrelevant to the hypothetical negotiation because
`Juniper would not consider any non-commercially viable alternatives. Indeed, in staging the
`hypothetical negotiation in past cases, this Court has properly included the following consideration:
`“to inform [the hypothetical licensor and licensee] of all reasonable non-infringing alternatives that
`would have been available in the absence of a license and, therefore, might have guided the
`negotiators, including their pros and cons . . . .” Oracle Am., Inc. v. Google Inc., 798 F. Supp. 2d
`1111, 1121 (N.D. Cal. 2011) (emphasis added); see also Microsoft Corp. v. Corel Corp., No. 5:15-
`CV-05836-EJD, 2017 WL 6492468, at *2 (N.D. Cal. Dec. 19, 2017) (excluding damages opinion
`on design around costs where the expert did not “explain why” the proposed alternative “would be
`an economically rational choice for [defendant] in a hypothetical licensing negotiation.”).
`Given Dr. Cole’s position that there are no viable alternatives, the proper way to calculate
`Juniper’s “cost savings” would have been to quantify the number of sales Juniper would have lost
`as a result of not offering Sky ATP. But Dr. Cole did not do this. Instead, he provides an artificially
`inflated “cost savings” estimate that is made up of fictional implementation costs for an alternative
`that Dr. Cole admits was not viable. Any marginal relevance of Dr. Cole’s analysis is most certainly
`outweighed by the dangers of confusing the issues, misleading the jury, and causing unfair prejudice
`to Juniper. Waymo LLC v. Uber Techs., Inc., 2017 WL 5148390, at *5 (N.D. Cal. Nov. 6, 2017)
`(“[The damages expert’s] ipse dixit and pseudo-‘analysis’ are nothing more than lawyer argument
`dressed up as expert opinion. His opinion will therefore also be excluded under FRE 403 because
`its danger of confusing the issues, misleading the jury, and causing unfair prejudice substantially
`outweighs the probative value of its lawyer argument.”).
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`Case 3:17-cv-05659-WHA Document 267 Filed 11/27/18 Page 9 of 18
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`
`
`Dated: November 19, 2018
`
`Respectfully submitted,
`
`IRELL & MANELLA LLP
`By: /s/ Rebecca L Carson
`Rebecca L. Carson
`Attorneys for Defendant
`JUNIPER NETWORKS, INC.
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`Case 3:17-cv-05659-WHA Document 267 Filed 11/27/18 Page 10 of 18
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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.
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE NORTHERN DISTRICT OF CALIFORNIA
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`SAN FRANCISCO DIVISION
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`FINJAN, INC., a Delaware Corporation,
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`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’S MOTION
`IN LIMINE NO. 4 TO EXCLUDE
`EVIDENCE AND ARGUMENT
`REGARDING NON-INFRINGING
`ALTERNATIVES
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`December 4, 2018
`Date:
`9:00 a.m.
`Time:
`Courtroom: Courtroom 12, 19th Floor
`Before:
`Hon. William Alsup
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`HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY
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`UNREDACTED VERSION OF DOCUMENT SOUGHT TO BE SEALED
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`PLAINTIFF’S OPP. TO MOTION IN LIMINE NO. 4
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`CASE NO.: 3:17-cv-05659-WHA
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`REDACTED VERSION OF DOCUMENT SOUGHT TO BE SEALED
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`Case 3:17-cv-05659-WHA Document 267 Filed 11/27/18 Page 11 of 18
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`The Court should deny Juniper’s Motion in Limine No. 4 (“Motion”) for several reasons. First,
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`Dr. Cole’s opinions regarding an alternative to the infringing system are reliable because he analyzed
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`Juniper’s infringing products and, based on his extensive technical expertise, determined how Juniper
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`could re-engineer an alternative system to achieve the same technical results. His analysis included
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`generating a cost savings factor that quantified the savings Juniper achieved from its infringement.
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`Any arguments that Juniper makes to exclude Dr. Cole’s opinions are based on new positions and
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`questionable information produced for the first time after service of Dr. Cole’s report. Just three weeks
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`ago after the service of Dr. Cole’s expert report, Juniper identified purported non-infringing
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`alternatives and related documents for the first time in the case that should have been produced well
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`before expert discovery. Juniper’s arguments that Dr. Cole should have considered this dubious
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`material that Juniper only presented after Dr. Cole served his expert report is nonsensical and should
`be disregarded.1 Second, Dr. Cole’s opinions are not prejudicial because they are based upon
`Juniper’s documents produced during fact discovery and are probative of the value of the patented
`technology and options available to Juniper had it not chosen to infringe. Third, Juniper’s Motion in
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`limine, is, in fact, an untimely Daubert motion directed to the non-infringing alternative opinions of
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`Dr. Cole, Finjan’s technical expert. Motion at 2-4, citing Rule 702 and Daubert case law. Juniper’s
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`Motion violates the Court’s Order, which directed Juniper to file its Daubert motion several weeks
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`ago. Juniper never requested leave to file another belated Daubert motion. Dkt. No. 215.
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`BACKGROUND
`In his expert report, Dr. Cole provided an extensive infringement analysis, explained how
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`Juniper and its customers enjoyed many technical and economic benefits from Juniper’s infringement,
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`and identified a technologically comparable system that does not include the infringing database
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`element required by the ‘494 Patent. Dkt. No. 228-7, Expert Report of Kevin M. Arst (“Arst Rpt.”) at
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`23-27, 30-32, 49; see also Dkt. No. 238-6, Expert Report of Dr. Eric Cole (“Cole Rpt.”) at ¶¶ 25-37.
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`1 Finjan’s Motion in Limine No. 1 provides details regarding the information disclosed after Finjan’s
`service of opening expert reports. Juniper should not be allowed to rely on or present information
`regarding alleged alternatives, including iWeb costs or related information from Mr. Icasiano or Ms.
`Tenorio.
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`PLAINTIFF’S OPP. TO MOTION IN LIMINE NO. 4
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`CASE NO.: 3:17-cv-05659-WHA
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`Case 3:17-cv-05659-WHA Document 267 Filed 11/27/18 Page 12 of 18
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`Dr. Cole based his opinion on numerous technical documents, the source code for the accused
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`products, the testimony of Juniper’s engineers, and his own extensive expertise in the computer
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`industry. See Cole Rpt. at ¶¶ 1-2 and Exhibit B. Dr. Cole identified how Juniper benefits from
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`generating a profile and storing the results in the infringing database. See, e.g., id. at ¶¶ 26-35. Dr.
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`Cole opines that without infringing Claim 10 of the ‘494 Patent, “if one of Juniper’s customers sees a
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`new virus in the morning, the virus will already be scanned by the afternoon, which could protect other
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`Juniper customer[s], while requiring very little additional processing for Juniper because it has already
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`performed the processing and saved the results.” Id. at ¶ 37. Dr. Cole further explains in that the
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`accused products are for detecting “sophisticated ‘zero-day’ and unknown threats.” Id. at ¶ 40; see
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`also Dkt. No. 98-12, FINJAN-JN 005438-42 at 5438 (“Juniper Networks® Sky Advanced Threat
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`Prevention provides advanced anti-malware and anti-ransomware protection against sophisticated
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`‘zero-day’ and unknown threats …”). Dr. Cole’s proposed alternative to the accused products would
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`still catch these “zero-day” threats—the purpose of the accused products—but Juniper would need to
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`spend more on processing because it would not save the results in a database. Dr. Cole opined that “if
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`Juniper was not able to leverage databases to store the sandbox results, in order to protect against the
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`threats in 2015, it would have to increase its capacity because each piece of malware would have to run
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`in a sandbox ….” Cole Rpt. at ¶ 37.
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`As described, Dr. Cole opined on an alternative solution that would achieve the same technical
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`results as the infringing system without the infringing database because it would be able to detect zero-
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`day malware without using a database but that alternative would require additional processing time,
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`roughly 359–419 seconds (referred to hereafter as the “cost-saving factor”). Id. at ¶¶ 35-37. Mr. Arst
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`then relies on Dr. Cole’s assessment of the “cost-savings factor” (i.e. the additional time to achieve the
`same protection and benefits without infringing) to value the patented technology.2 Juniper failed to
`identify any other competing alternatives during fact discovery. Declaration of Kristopher Kastens in
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`Support of Finjan’s Motions in Limine Nos. 1-4, Ex. 13 at 35; id., Ex. 14 at 12. In summary, Dr. Cole
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`provided the technical piece of the opinion and Mr. Arst applied that to perform his economic analysis
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`2 Additional details regarding Mr. Arst’s opinion is detailed in Finjan’s Opposition to Juniper’s
`Daubert Motion at Dkt. No. 238-4.
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`2
`PLAINTIFF’S OPP. TO MOTION IN LIMINE NO. 4
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`CASE NO.: 3:17-cv-05659-WHA
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`Case 3:17-cv-05659-WHA Document 267 Filed 11/27/18 Page 13 of 18
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`and valuation of the patented technology.3
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`A.
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`ARGUMENT
`Dr. Cole Provided an Alternative Without the Infringing Database to the Accused
`Products that Achieve the Same Technological Results
`Dr. Cole, a well-respected expert in the field of computer networks and computer security with
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`extensive knowledge and industry experience related to the patented technology, offered an opinion
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`regarding an alternative that Juniper could implement if it were not able to use Finjan’s patented
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`technology. Contrary to Juniper’s allegations, he did in fact identify and analyze the only “non-
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`infringing” alternative that existed in the case when he served his expert report, i.e. a system that
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`would need to scan each file as it was received in order to achieve detection of zero-day malware.
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`Cole Rpt. at ¶¶ 35-37. While Dr. Cole does not use the terminology “non-infringing” alternative in his
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`report, his opinion describes an alternative that provides the same technical benefits as the accused
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`products that does not have the infringing database. Id. To support his conclusion, Dr. Cole analyzed
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`thousands of Juniper’s technical and highly confidential documents, as well as reviewed source code,
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`such that he was able to provide a reliable opinion regarding an alternative that Juniper could have
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`implemented and still achieve these same “zero-day” protection results. Cole Rpt. at ¶¶ 1, 37-40 and
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`Exhibit B. In fact, Dr. Cole explicitly said that his proposed alternative of analyzing a file each time it
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`was seen would be