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`Case 3:17-cv-05659-WHA Document 277 Filed 11/28/18 Page 1 of 61
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`PAUL J. 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.
`
`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.
`
`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE NORTHERN DISTRICT OF CALIFORNIA
`
`SAN FRANCISCO DIVISION
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`
`
`Case No.: 3:17-cv-05659-WHA
`
`JOINT [PROPOSED] JURY
`INSTRUCTIONS
`
`
`Trial Date: December 10, 2018
`Time:
` 7:30 a.m.
` Courtroom 12 – 19th Floor
`Place:
`Judge:
` Hon. William Alsup
`
`
`REDACTED VERSION OF DOCUMENT SOUGHT TO BE SEALED
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`
`FINJAN, INC.,
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`Plaintiff,
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`v.
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`JUNIPER NETWORKS, INC.,
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`Defendant.
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`

`

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`Case 3:17-cv-05659-WHA Document 277 Filed 11/28/18 Page 2 of 61
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`PRELIMINARY JURY INSTRUCTIONS
`PRELIMINARY JURY INSTRUCTIONS
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`Case 3:17-cv-05659-WHA Document 277 Filed 11/28/18 Page 3 of 61
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`STIPULATED INSTRUCTION NO. 1. RE WHAT A PATENT IS AND HOW ONE IS
`OBTAINED
`This case involves a dispute relating to a United States patent. Before summarizing the
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`positions of the parties and the legal issues involved in the dispute, let me take a moment to
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`explain what a patent is and how one is obtained.
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`Patents are granted by the United States Patent and Trademark Office (sometimes called
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`“the PTO”). A valid United States patent gives the patent holder the right to prevent others from
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`making, using, offering to sell, or selling the patented invention within the United States, or from
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`importing it into the United States, during the term of the patent without the patent holder’s
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`permission. A violation of the patent holder’s rights is called infringement. The patent holder
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`may try to enforce a patent against persons believed to be infringers by means of a lawsuit filed in
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`federal court.
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`To obtain a patent one must file an application with the PTO. The process of obtaining a
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`patent is called patent prosecution. The PTO is an agency of the federal government and employs
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`trained patent examiners who review applications for patents. The application includes what is
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`called a “specification,” which must contain a written description of the claimed invention telling
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`what the invention is, how it works, how to make it and how to use it so others skilled in the field
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`will know how to make or use it. The specification concludes with one or more numbered
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`sentences. These are the patent “claims.” When the patent is eventually granted by the PTO, the
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`claims define the boundaries of its protection and give notice to the public of those boundaries.
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`After the applicant files the application, a PTO patent examiner reviews the patent
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`application to determine whether the claims are patentable and whether the specification
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`adequately describes the invention claimed. In examining a patent application, the patent
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`examiner reviews information about the state of the technology at the time the application was
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`filed. As part of that effort, the patent examiner searches for and reviews information that is
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`publicly available, submitted by the applicant, or both. That information is called “prior art.”
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`Prior art is defined by law, and I will give you at a later time specific instructions as to what
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`constitutes prior art. However, in general, prior art includes things that existed before the claimed
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`Case 3:17-cv-05659-WHA Document 277 Filed 11/28/18 Page 4 of 61
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`invention, that were publicly known, or used in a publicly accessible way in this country, or that
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`were patented or described in a publication in any country. The patent examiner considers,
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`among other things, whether each claim defines an invention that is new, useful, and not obvious
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`in view of the prior art. A patent lists the prior art that the examiner considered; this list is called
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`the “cited references.”
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`After the prior art search and examination of the application, the patent examiner then
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`informs the applicant in writing what the examiner has found and whether any claim is patentable,
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`and thus will be “allowed.” This writing from the patent examiner is called an “office action.” If
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`the examiner rejects the claims, the applicant has an opportunity to respond and sometimes
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`changes the claims or submits new claims. This process, which takes place only between the
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`examiner and the patent applicant, may go back and forth for some time until the examiner is
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`satisfied that the application and claims meet the requirements for a patent. Sometimes, patents
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`are issued after appeals with the PTO or to a court. The papers generated during this time of
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`communicating back and forth between the patent examiner and the applicant make up what is
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`called the “prosecution history.” All of this material becomes available to the public no later than
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`the date when the patent issues.
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`The fact that the PTO grants a patent does not necessarily mean that any invention
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`claimed in the patent, in fact, deserves the protection of a patent. For example, the PTO may not
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`have had available to it all the information that will be presented to you. A person accused of
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`infringement has the right to argue here in federal court that a claimed invention in the patent is
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`invalid because it does not meet the requirements for a patent.
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`
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`N.D. Cal. Model Patent Jury Instructions A.1, Rev. Aug. 2017 (updated Jan. 2018).
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`Case 3:17-cv-05659-WHA Document 277 Filed 11/28/18 Page 5 of 61
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`STIPULATED INSTRUCTION NO. 2. RE PATENT AT ISSUE
`[The court should show the jury the patent at issue and point out the parts including the
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`specification, drawings and claims including the claims at issue.]
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`You have been given the patent at issue: U.S. Patent Number 8,677,494. The drawings of
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`the patent are included on pages 7-16 of the patent. The specification consists of columns 1
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`through 21 at line 17. The patent claims are listed from column 21, line 18 through the end of
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`column 22. The only claim that is at issue in this trial is claim 10.
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`N.D. Cal. Model Patent Jury Instructions A.2, Rev. Aug. 2017 (updated Jan. 2018).
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`Case 3:17-cv-05659-WHA Document 277 Filed 11/28/18 Page 6 of 61
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`DISPUTED INSTRUCTION NO. 3 RE SUMMARY OF CONTENTIONS
`OFFERED BY FINJAN
`To help you follow the evidence, I will now give you a summary of the positions of the
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`parties.
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`The parties in this case are Finjan, Inc. (“Finjan”) and Juniper Networks Inc. (“Juniper”).
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`The case involves United States Patent No(s). [ ], obtained by [inventor], and transferred by
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`[inventor] to [patent holder]. This trial involves one patent, number 8,677,494. For convenience,
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`the parties and I will often refer to this patent by the last three numbers of the patent, namely, as
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`“the ’494 Patent.”
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`Finjan filed suit in this Court seeking money damages from Juniper for allegedly
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`infringing the ‘494 Patent by making, using, selling, and offering for sale [in/into/within] the
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`United States products that Finjan argues are covered by claim 10 of the ‘494 Patent. Claim 10
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`may be referred to as the “Asserted Claim” in this case.
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`The products that are alleged to infringe the Asserted Claim are Juniper’s SRX Gateway
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`Products with Sky ATP and Sky ATP by itself.
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`Juniper denies that it has infringed the Asserted Claim. Juniper also argues that the
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`Asserted Claim is invalid and that Finjan never gave Juniper notice of its infringement of the ‘494
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`Patent. I will instruct you later as to the ways in which a patent may be invalid. In general,
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`however, a patent is invalid if it is not new or is obvious in view of the state of the art at the
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`relevant time, or if the description in the patent does not meet certain requirements. [Add other
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`defenses, if applicable.]
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`Your job will be to decide whether or not the Asserted Claim has been infringed and
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`whether or not those claims are invalid. For purposes of this case for infringement, you will only
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`need to determine whether Juniper’s SRX Gateway Products with Sky ATP and/or Sky ATP by
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`itself satisfies the “database” limitation of the claims. Similarly, for purposes of invalidity, you
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`will only need to determine whether Claim 10 contains an inventive concept. If you decide that
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`Claim 10 is infringed and valid, you will then need to decide any money damages to be awarded
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`to Finjan to compensate it for the infringement.
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`Case 3:17-cv-05659-WHA Document 277 Filed 11/28/18 Page 7 of 61
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`Authorities
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`Minks v. Polaris Indus., Inc., 546 F.3d 1364, 1376 (Fed. Cir. 2008); SRI Int'l, Inc. v. Adv. Tech.
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`Labs., Inc., 127 F.3d 1462, 1470 (Fed. Cir. 1997); Gart v. Logitech, Inc., 254 F.3d 1334, 1345–46
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`(Fed.Cir.2001) (internal citation omitted)”); U.S. Philips Corp. v. Iwasaki Elec. Co., 505 F.3d
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`1371, 1375 (Fed. Cir. 2007); Mformation Techs., Inc. v. Research in Motion Ltd., 830 F. Supp. 2d
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`815, 837 (N.D. Cal. 2011); Semiconductor Energy Lab. Co. v. Chi Mei Optoelectronics Corp.,
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`531 F. Supp. 2d 1084, 1114 (N.D. Cal. 2007); Mosaid Techs. Inc. v. Samsung Elecs. Co., 362 F.
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`Supp. 2d 526, 555–56 (D. N.J. 2005).
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`Federal Circuit Bar Association Model Patent Jury Instructions, July 2016, No. A.2.
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`Case 3:17-cv-05659-WHA Document 277 Filed 11/28/18 Page 8 of 61
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`DISPUTED INSTRUCTION NO. 3. RE SUMMARY OF CONTENTIONS
`OFFERED BY JUNIPER
`To help you follow the evidence, I will now give you a summary of the positions of the
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`parties.
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`The parties in this case are Finjan, Inc. (“Finjan”) and Juniper Networks, Inc. (“Juniper”).
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`The case involves United States Patent Number 8,677,494, obtained by Yigal Mordechai Edery,
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`Nirmrod Itzhak Vered, David R. Kroll, and Shlomo Touboul and transferred to Finjan. For
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`convenience, the parties and I will often refer to this patent by the last three numbers of its patent
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`number: the ’494 patent.
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`Finjan filed suit in this court seeking money damages from Juniper for allegedly
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`infringing the ’494 patent by making, using, selling, and offering for sale products that Finjan
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`argues are covered by claim 10 of the ’494 patent. The products that are alleged to infringe are
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`Juniper’s SRX Gateways used in combination with Sky ATP and Sky ATP alone.
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`Juniper denies that it has infringed claim 10 of the ’494 patent. Juniper also argues that
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`claim 10 of the ’494 patent is invalid. [Add other defenses, if applicable]. Invalidity is a defense
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`to infringement.
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`Juniper also argues that Finjan cannot recover damages because Finjan did not comply
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`with the Patent Act’s notice requirements before the patent expired. In particular, Juniper argues
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`that the Patent Act’s marking requirements apply to Finjan because it or its licensees sold
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`products that are covered by the ’494 Patent. Juniper further argues that Finjan has not met its
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`burden to show that it marked all or substantially all of the products it sold that are covered by
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`the ’494 Patent with the ’494 Patent and /or that it made reasonable efforts to ensure that its
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`licensees who sold products that are covered by the ’494 Patent marked those products with
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`the ’494 Patent. Juniper also argues that Finjan did not meet its burden to show that it provided
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`actual written notice to Juniper of Finjan’s belief that SRX Gateways used in combination with
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`Sky ATP and Sky ATP alone infringed the ’494 patent.
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`Your job will be to decide (1) whether claim 10 of the ’494 patent has been infringed,
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`(2) whether claim 10 of the ’494 patent is invalid, and (3) whether Finjan complied with the
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`Case 3:17-cv-05659-WHA Document 277 Filed 11/28/18 Page 9 of 61
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`notice requirements of the Patent Act before the patent expired. Only if you decide that claim 10
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`has been infringed, that claim 10 is not invalid, and that Finjan has complied with the notice
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`requirements of the Patent Act, you will then need to decide any money damages to be awarded
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`to Finjan to compensate it for the infringement.
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`You may hear evidence that Juniper has its own patent(s) or that Juniper improved on
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`the ’494 patent. While this evidence is relevant to some issues you will be asked to decide, a party
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`can still infringe even if it has its own patents in the same area. You will be instructed after trial
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`as to what, if any, relevance these facts have to the particular issues in this case. Meanwhile,
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`please keep an open mind.
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`Before you decide whether Juniper has infringed claim 10 of the patent or whether claim
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`10 is invalid, you will need to understand the patent claim. As I mentioned, patent claims are
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`numbered sentences at the end of the patent that describe the boundaries of the patent’s protection.
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`It is my job as judge to explain to you the meaning of any language in claim 10 that needs
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`interpretation.
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`I have already determined the meaning of certain terms of claim 10 of the ’494 patent.
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`You have been given a document reflecting those meanings. For a claim term for which I have
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`not provided a definition, you should apply the ordinary meaning. You are to apply my
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`definitions of these terms throughout this case. However, my interpretation of the language of
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`claim 10 should not be taken as an indication that I have a view regarding issues such as
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`infringement and invalidity. Those issues are yours to decide. I will provide you with more
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`detailed instructions on the meaning of claim 10 before you retire to deliberate your verdict.
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`N.D. Cal. Model Patent Jury Instructions A.3, Rev. Aug. 2017 (updated Jan. 2018)
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`Case 3:17-cv-05659-WHA Document 277 Filed 11/28/18 Page 10 of 61
`Yellow Highlight indicates changed or added language to a model instruction.
`Strikethrough indicates deleted language from model instruction.
`Optional instructions and basic changes such as inserting party name is not indicated.
`
`STIPULATED INSTRUCTION ON CLAIM CONSTRUCTIONS
`I have interpreted the meaning of the terms of Claim 10 as follows:
`
`
`Claim Term
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`“Downloadable”
`
`“database manager”
`
`Construction
`
`“an executable application program, which is downloaded
`from a source computer and run on the destination computer”
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`“a program or programs that control a database so that the
`information it contains can be stored, retrieved, updated and
`sorted”
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`“list of suspicious computer
`operations”
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`“list of computer operations in a received Downloadable that
`are deemed hostile or potentially hostile”
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`“scanner”
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`“software that searches code to identify suspicious patterns or
`suspicious computer operations”
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`DISPUTED INSTRUCTION ON CLAIM CONSTRUCTIONS OFFERED BY FINJAN
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`Claim Term
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`Construction
`
`“database”
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`“a collection of interrelated data organized according to a
`database schema to serve one or more applications”
`
`
`DISPUTED INSTRUCTION ON CLAIM CONSTRUCTIONS OFFERED BY
`JUNIPER
`
`Claim Term
`
`“database”
`
`Construction
`
`“a collection of interrelated data organized according to a
`database schema to serve one or more applications”
`The court will provide further construction after the trial.
`
`9
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`

`

`Case 3:17-cv-05659-WHA Document 277 Filed 11/28/18 Page 11 of 61
`Yellow Highlight indicates changed or added language to a model instruction.
`Strikethrough indicates deleted language from model instruction.
`Optional instructions and basic changes such as inserting party name is not indicated.
`
`STIPULATED INSTRUCTION NO. 4. RE BURDEN OF PROOF
`
`In these instructions, I will often refer to a party’s burden of proof. I will be discussing
`
`two different burdens of proof. The first is known as a burden of proof by a preponderance of the
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`evidence. When a party has the burden of proof on any issue by a preponderance of the evidence,
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`it means you must be persuaded by the evidence that the issue is more probably true than not true.
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`To put it differently, if you were to put the evidence favoring plaintiff and the evidence favoring
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`defendant on opposite sides of a scale, the party with the burden of proof on the issue would have
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`to make the scale tip somewhat toward its side. If the party fails to meet this burden, then the
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`party with the burden of proof loses on that issue. Preponderance of the evidence basically means
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`“more likely than not.”
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`The second burden of proof involved in this case is known as a burden of proof by clear
`
`and convincing evidence. When a party has the burden of proving any issue by clear and
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`convincing evidence, it means you must be persuaded by the evidence that the contention is
`
`highly probable. Such evidence requires a higher standard of proof than proof by a preponderance
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`of the evidence.
`
`
`
`Authorities
`
`See Oracle America, Inc. v. Google, Inc., No. 10-cv-03561-WHA (May 15, 2012) (final charge to
`
`jury and special verdict form); Conceptus, Inc. v. Hologic, Inc., No. 9-cv-02280-WHA (Oct. 14,
`
`2011) (final charge to the jury); Geo M. Martin Company v. Alliance Machine Systems Intl., No.
`
`C 07-00692-WHA (Oct. 2, 2008) (final charge to jury and special verdict form).
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`10
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`

`Case 3:17-cv-05659-WHA Document 277 Filed 11/28/18 Page 12 of 61
`Yellow Highlight indicates changed or added language to a model instruction.
`Strikethrough indicates deleted language from model instruction.
`Optional instructions and basic changes such as inserting party name is not indicated.
`
`DISPUTED INSTRUCTION NO. 5 RE OUTLINE OF TRIAL OFFERED BY FINJAN
`The trial will now begin. First, each side may make an opening statement. An opening
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`statement is not evidence. It is simply an outline to help you understand what that party expects
`
`the evidence will show.
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`The presentation of evidence will then begin. Witnesses will take the witness stand and
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`the documents will be offered and admitted into evidence. There are two standards of proof that
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`you will apply to the evidence, depending on the issue you are deciding. On some issues, you
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`must decide whether something is more likely true than not. On other issues you must use a
`
`higher standard and decide whether it is highly probable that something is true.
`
`Finjan will present its evidence on its contention that Claim 10 of the ’494 Patent has been
`
`infringed by Juniper. These witnesses will be questioned by Finjan’s counsel in what is called
`
`direct examination. After the direct examination of a witness is completed, the opposing side has
`
`an opportunity to cross-examine the witness. Finally Finjan’s counsel has the opportunity to
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`question the witness one more time in what is called redirect examination. For purposes of
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`proving infringement, Finjan must persuade you that it is more likely than not that Juniper
`
`infringed Claim 10. For damages, Finjan must persuade you that it is more likely than not that
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`Finjan put Juniper on notice of the ‘494 Patent before January 29, 2017. Finjan will also present
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`evidence regarding the amount of damages that it should be awarded if Juniper is found to
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`infringe Claim 10.
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`After Finjan has presented its witnesses, Juniper will call its witnesses, who will also be
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`examined and subject to cross-examination and redirect. Juniper will present its evidence that
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`claim 10 of the ’494 patent is invalid. To prove invalidity of claim 10, Juniper must persuade you
`
`that it is highly probable that the claim is invalid. In addition to presenting its evidence of
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`invalidity, [alleged infringer] will put on evidence responding to [patent holder]’s infringement.
`
`Further, Juniper will respond to Finjan’s evidence regarding damages and notice.
`
`[Patent holder] will then return and will put on evidence responding to [alleged
`
`infringer]’s contention that the claims of the [ ] patent are invalid. [Patent holder] will also have
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`the option to put on what is referred to as “rebuttal” evidence to any evidence offered by [alleged
`
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`Case 3:17-cv-05659-WHA Document 277 Filed 11/28/18 Page 13 of 61
`Yellow Highlight indicates changed or added language to a model instruction.
`Strikethrough indicates deleted language from model instruction.
`Optional instructions and basic changes such as inserting party name is not indicated.
`
`infringer] of non-infringement. Finjan will then put on evidence responding to Juniper’s
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`contentions.
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`Finally, [alleged infringer] will have the option to put on “rebuttal” evidence to any
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`evidence offered by [patent holder] on the validity of [some] [the] claims of the [ ] patent.
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`Because the evidence is introduced piecemeal, you need to keep an open mind as the
`
`evidence comes in and wait for all the evidence before you make any decisions. In other words,
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`you should keep an open mind throughout the entire trial.
`
`The parties may present the testimony of a witness by reading from his or her deposition
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`transcript or playing a videotape of the witness’s deposition testimony. A deposition is the sworn
`
`testimony of a witness taken before trial and is entitled to the same consideration as if the witness
`
`had testified at trial.
`
`After the evidence has been presented, the attorneys will make closing arguments and I
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`will give you final instructions on the law that applies to the case. Closing arguments are not
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`evidence. After the closing arguments and instructions, you will then decide the case.
`
`
`
`Authorities
`
`Minks v. Polaris Indus., Inc., 546 F.3d 1364, 1376 (Fed. Cir. 2008); SRI Int'l, Inc. v. Adv. Tech.
`
`Labs., Inc., 127 F.3d 1462, 1470 (Fed. Cir. 1997); Gart v. Logitech, Inc., 254 F.3d 1334, 1345–46
`
`(Fed.Cir.2001) (internal citation omitted)”); U.S. Philips Corp. v. Iwasaki Elec. Co., 505 F.3d
`
`1371, 1375 (Fed. Cir. 2007); Mformation Techs., Inc. v. Research in Motion Ltd., 830 F. Supp. 2d
`
`815, 837 (N.D. Cal. 2011); Semiconductor Energy Lab. Co. v. Chi Mei Optoelectronics Corp.,
`
`531 F. Supp. 2d 1084, 1114 (N.D. Cal. 2007); Mosaid Techs. Inc. v. Samsung Elecs. Co., 362 F.
`
`Supp. 2d 526, 555–56 (D.N.J. 2005); Amsted Indus. Inc. v. Buckeye Steel Castings Co., 24 F.3d
`
`178, 184-187 (Fed. Cir. 1994); Apple, Inc. v. Samsung Elecs. Co., No. 11-CV-01846-LHK, 2013
`
`WL 5979832, at *1; Funai Elec. Co., Ltd. v. Daewoo Elecs. Corp., 616 F.3d 1357, 1373-74 (Fed.
`
`Cir. 2010); Gart v. Logitech, Inc., 254 F.3d 1334, 1345 (Fed. Cir. 2001); Lans v. Digital Equip.
`
`Corp., 252 F.3d 1320, 1327-28 (Fed. Cir. 2001); Crystal Semiconductor Corp. v. TriTech
`
`Microelecs. Int’l, Inc., 246 F.3d 1336, 1353 (Fed. Cir. 2001); Devices for Med., Inc. v. Boehl, 822
`
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`12
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`Case 3:17-cv-05659-WHA Document 277 Filed 11/28/18 Page 14 of 61
`Yellow Highlight indicates changed or added language to a model instruction.
`Strikethrough indicates deleted language from model instruction.
`Optional instructions and basic changes such as inserting party name is not indicated.
`
`F.2d 1062, 1066 (Fed. Cir. 1987); Articulate Sys., Inc. v. Apple Computer, Inc., 53 F. Supp. 2d 78,
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`81 (D. Mass. 1999); Lucent Techs., Inc. v. Gateway, Inc., 470 F. Supp. 2d 1180, 1186 (S.D. Cal.
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`2007);
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`
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`N.D. Cal. Model Patent Jury Instructions No. A.5, Rev. Aug. 2017 (updated Jan. 2018).
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`13
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`

`

`Case 3:17-cv-05659-WHA Document 277 Filed 11/28/18 Page 15 of 61
`Yellow Highlight indicates changed or added language to a model instruction.
`Strikethrough indicates deleted language from model instruction.
`Optional instructions and basic changes such as inserting party name is not indicated.
`
`DISPUTED INSTRUCTION NO. 5. RE OUTLINE OF TRIAL OFFERED BY
`JUNIPER
`The trial will now begin. First, each side may make an opening statement. An opening
`
`statement is not evidence. It is simply an outline to help you understand what that party expects
`
`the evidence will show.
`
`The presentation of evidence will then begin. Witnesses will take the witness stand and
`
`the documents will be offered and admitted into evidence. There are two standards of proof that
`
`you will apply to the evidence, depending on the issue you are deciding. On some issues, you
`
`must decide whether something is more likely true than not. On other issues you must use a
`
`higher standard and decide whether it is highly probable that something is true.
`
`Finjan will present its evidence on its contention that claim 10 of the ’494 patent has been
`
`infringed by Juniper. These witnesses will be questioned by Finjan’s counsel in what is called
`
`direct examination. After the direct examination of a witness is completed, the opposing side has
`
`an opportunity to cross-examine the witness. Finally Finjan’s counsel has the opportunity to
`
`question the witness one more time in what is called redirect examination. To prove infringement
`
`of claim 10, Finjan must persuade you that it is more likely than not that Juniper has infringed
`
`claim 10.
`
`Finjan will also present evidence that it complied with the notice requirements of the
`
`Patent Act. To prove that it complied with the notice requirements, Finjan must persuade you
`
`that it is more likely than not that Finjan provided constructive notice by marking substantially all
`
`of the products it made, offered for sale, or sold under the ’494 patent and that it made reasonable
`
`efforts to ensure that its licensees who made, offered for sale, or sold products under the ’494
`
`patent marked the products, or alternatively that it provided actual written notice to Juniper that it
`
`believed Juniper was infringing the ’494 patent through the SRX Gateways used in combination
`
`with Sky ATP and Sky ATP alone before January 29, 2017. Finjan will also present evidence
`
`regarding the amount of damages that it should be awarded if Juniper is found to infringe Claim
`
`10 and Finjan is found to have provided either constructive notice or actual written notice of
`
`the ’494 patent and the specific accused products.
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`Case 3:17-cv-05659-WHA Document 277 Filed 11/28/18 Page 16 of 61
`Yellow Highlight indicates changed or added language to a model instruction.
`Strikethrough indicates deleted language from model instruction.
`Optional instructions and