Case 3:17-cv-05659-WHA Document 281 Filed 11/30/18 Page 1 of 39
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` Pages 1 - 38
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`BEFORE THE HONORABLE WILLIAM H. ALSUP, JUDGE
`
`FINJAN, INC., )
` )
` Plaintiff, )
` )
` VS. ) NO. C 17-5659 WHA
` )
`JUNIPER NETWORKS, INC., )
` ) San Francisco, California
` Defendant. )
` )
`___________________________________)
`
` Thursday, November 29, 2018
`
`TRANSCRIPT OF PROCEEDINGS
`
`APPEARANCES:
`
`For Plaintiff:
` KRAMER LEVIN NAFTALIS & FRANKEL, LLP
` 990 Marsh Road
` Menlo Park, California 94025
` BY: PAUL ANDRE, ESQ.
` LISA KOBIALKA, ESQ.
` HANNAH LEE, ESQ.
` YURIDIA CAIRE, ESQ.
` KRISTOPHER B. KASTENS, ESQ.
`
`For Defendant:
`
` IRELL & MANELLA, LLP
` 840 Newport Center Drive
` Suite 400
` Newport Beach, California 92660
` BY: REBECCA L. CARSON, ESQ.
`
`
`Reported By: BELLE BALL, CSR 8785, CRR, RDR
` Official Reporter, U.S. District Court
`
`(Appearances continued, next page)
`
`
`
` Pages 1 - 38
`
`UNITED STATES DISTRICT COURT
`
`NORTHERN DISTRICT OF CALIFORNIA
`
`BEFORE THE HONORABLE WILLIAM H. ALSUP, JUDGE
`
`FINJAN, INC., )
` )
` Plaintiff, )
` )
` VS. ) NO. C 17-5659 WHA
` )
`JUNIPER NETWORKS, INC., )
` ) San Francisco, California
` Defendant. )
` )
`___________________________________)
`
` Thursday, November 29, 2018
`
`TRANSCRIPT OF PROCEEDINGS
`
`APPEARANCES:
`
`For Plaintiff:
` KRAMER LEVIN NAFTALIS & FRANKEL, LLP
` 990 Marsh Road
` Menlo Park, California 94025
` BY: PAUL ANDRE, ESQ.
` LISA KOBIALKA, ESQ.
` HANNAH LEE, ESQ.
` YURIDIA CAIRE, ESQ.
` KRISTOPHER B. KASTENS, ESQ.
`
`For Defendant:
`
` IRELL & MANELLA, LLP
` 840 Newport Center Drive
` Suite 400
` Newport Beach, California 92660
` BY: REBECCA L. CARSON, ESQ.
`
`
`Reported By: BELLE BALL, CSR 8785, CRR, RDR
` Official Reporter, U.S. District Court
`
`(Appearances continued, next page)
`
`
`
`Case 3:17-cv-05659-WHA Document 281 Filed 11/30/18 Page 2 of 39
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`APPEARANCES, CONTINUED:
`
`For Defendant:
` IRELL & MANELLA, LLP
` 1800 Avenue of the Stars
` Suite 900
` Los Angeles, California 90024
` BY: CASEY M. CURRAN, ESQ.
` JONATHAN S. KAGAN, ESQ.
`
`
`
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`Thursday - November 29, 2018
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` 9:55 a.m.
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`P R O C E E D I N G S
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`THE COURT: Now we go to Finjan versus Juniper.
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`THE CLERK: Calling Civil Action 17-5659. Finjan,
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`Inc. versus Juniper Networks, Inc.
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`Counsel, please step forward and state your appearances
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`for the record.
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`MR. ANDRE: Good morning, Your Honor, Paul Andre for
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`Finjan.
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`And Your Honor, for your trivia question, was it Abraham
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`Lincoln?
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`THE COURT: Negative.
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`MR. ANDRE: Okay. Point deducted.
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`MS. KOBIALKA: Good morning, Your Honor. Lisa
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`Kobialka from Kramer Levin.
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`MS. LEE: Good morning, Your Honor. Hannah Lee from
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`Kramer Levin, representing the plaintiff Finjan.
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`MS. KOBIALKA: And Ms. Lee and I will be taking the
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`lead on the arguments, but we have our colleagues Mr. Kris
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`Kastens --
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`MR. KASTENS: Good morning, Your Honor.
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`MS. KOBIALKA: -- and Yuridia Caire as well.
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`THE COURT: Thank you.
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`Over here?
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`MS. CARSON: Good morning, Your Honor. Rebecca
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`Carson of Irell & Manella on behalf of Juniper Networks.
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`MS. CURRAN: Casey Curran on behalf of Juniper
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`Networks.
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`MR. KAGAN: And Jonathan Kagan of Irell & Manella on
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`behalf of Juniper Networks.
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`And given the interest of time, we are going to try to
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`consolidate things with Ms. Carson. The whack-a-mole.
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`THE COURT: All right. The answer is President John
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`Garfield, who was a mathematics professor, teacher, in Ohio.
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`And you'll have to look up all the other details. He was
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`assassinated shortly after taking office.
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`All right. So we're going to first take up the issue of
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`the expert report for the plaintiff's case, since that expert
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`would go first.
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`I've got a little more than 30 minutes. So you get to go
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`first since -- you want to knock that one out, so go ahead.
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`What's your best point?
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`MS. CARSON: Your Honor, our damages analysis is
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`simply not the product of reliable principles or methods. As
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`an initial matter it doesn't pass the reality test. Finjan is
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`asking for a royalty of 60 to $70 million on accused revenues
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`of $1.8 million.
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`Now --
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`THE COURT: By the way, I want to stop and say that
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`the order that I will get out at the end will be made publicly
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`available with all the numbers, including the 1.8 and all
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`these other numbers. I don't think there's enough of a
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`justification to keep any of that from the public.
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`I'll keep it under wraps for one week, if you want to take
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`a writ to the Court of Appeals to see if you can keep it under
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`wraps. But the idea that you could keep these numbers secret
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`is not good. This is not a strong enough case for secrecy. So
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`be thinking about that as we go along here.
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`But that has nothing do with the merits. All right.
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`MS. CARSON: Understood, Your Honor.
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`THE COURT: What's your -- okay. But- --
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`MS. CARSON: Mr. Arst does not present any rationale
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`for why Juniper would be willing to pay 60 to $70 million on
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`its economic benefit of $1.8 million.
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`THE COURT: Here's the way I understand it. This is
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`your opportunity to fix what's in my mind.
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`So we've got the hardware part and we've got the software
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`part of the accused, and the -- something called SRX is the
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`hardware.
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`Right?
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`MS. CARSON: Correct, Your Honor.
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`THE COURT: And then there is something called Sky --
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`MS. CARSON: Sky ATP.
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`THE COURT: -- that is the procedures that run by the
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`software. And under claim 10, as it was presented to me in
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`all that work that we went through once before, the theory was
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`that it was a combination of Sky and SRX that met all of the
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`various steps that were required -- there were about four
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`steps -- to constitute infringement.
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`And I ruled in favor of Finjan on everything, except one
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`issue I thought was not clear-cut enough for summary judgment.
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`So that's one of the issues that's going to go to trial, is
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`that claim limitation.
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`So I was somewhat surprised to learn that the theory is
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`not -- is that: Yes, we're trying to recover on the ones where
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`it is Sky plus SRX, but that turns out to be tiny, and that now
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`the theory is that the SRX, alone, which has a much bigger --
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`because it's a piece of hardware that's usable for other
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`things. I'm inclined to say that will be thrown into the trash
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`heap of history. Because that is a trick on the judge, a trick
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`on Juniper, and not rational.
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`I'm sorry I'm getting upset about this, but this is why
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`patent cases have such a bad name.
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`So really, you're the one that has to defend it. I have
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`gone through in great detail. My tentative view is to toss
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`that completely out.
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`So you get to go. Your turn.
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`MS. KOBIALKA: The only party saying that only SRX by
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`itself infringes claim 10 is Juniper (Indicating). We've not
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`said that. We've said it is SRX, with Sky ATP on it, that's
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`one infringement -- that's one system.
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`THE COURT: That's not -- your guy's using numbers
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`that are SRX only.
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`MS. KOBIALKA: Well, that's actually not correct.
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`THE COURT: Well, then, we've been bamboozled.
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`MS. KOBIALKA: Yes.
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`THE COURT: We have been bamboozled by Juniper.
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`MS. KOBIALKA: Yes. Absolutely.
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`THE COURT: Then explain to me how we got bamboozled.
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`MS. KOBIALKA: They made the statement in their reply
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`brief that all we're asserting is SRX, itself. We've not
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`asserted that.
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`And throughout all of our pretrial filings which we've
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`filed and we have stipulated, the issues here in this case for
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`infringement -- and we are very specific -- is making, using,
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`selling, right, and offering for sale SRX with Sky ATP.
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`And then separately --
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`THE COURT: That's only $1.8 million worth, right
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`there.
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`MS. KOBIALKA: It's not. It's $142 million --
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`THE COURT: No, I'm telling you the numbers that they
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`have for SRX sold in combination with Sky ATP is $1.8 million,
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`base.
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`MS. KOBIALKA: And so now you're only looking at part
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`of the infringement case, which is just the selling. What
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`Case 3:17-cv-05659-WHA Document 281 Filed 11/30/18 Page 8 of 39
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`about they make, use, and offer for sale? There's lots of
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`benefits in connection with respect to that.
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`We dispute that it's 1.8 --
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`THE COURT: They don't make -- they don't offer --
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`they don't -- they're not selling anything that infringes
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`unless it has Sky ATP as part of it. It has to be Sky ATP in
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`there, or you lose. That was your whole theory. That's what
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`you convinced me on, the first time. Now you're coming up
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`with a new theory.
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`MS. KOBIALKA: That's incorrect. Let's look at the
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`statute separately. And I'm going to be very clear.
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`You're only looking at one component of the infringement
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`statute, which is selling. And they're saying: Okay, the
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`value of the selling that component of that infringement is
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`just worth -- they're claim egg it's 1.8. We're telling you
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`that's incorrect. There's 142 -- over 142 million -- close to
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`$143 million in sales in which this SRX is sold with Sky ATP.
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`It's sold. The complete system is sold.
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`Separate and apart from that, we have the fact that
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`Juniper makes and uses and offers for sale. And there's
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`significant benefits in connection with that infringement. And
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`that infringement goes to -- and that is detailed in great
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`detail both in Mr. Arst's report as well as Dr. Cole, includes
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`the fact that it's able to have the most up-to-date threat
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`intelligence.
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`So here you have this formerly router company that says:
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`I need to be relevant still in the marketplace, because routers
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`are being commoditized, by moving --
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`THE COURT: Well, offer for sale is not the same.
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`"Make, use or sell" is what the statute says.
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`MS. KOBIALKA: And "offer for sale."
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`THE COURT: Where does it say that?
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`MS. KOBIALKA: I believe it's in 271 --
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`THE COURT: Let's look that up right now.
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`That would be only for injunctive relief, in my opinion,
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`if -- an offer for sale. If it doesn't turn into a sale, how
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`can there be any damages?
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`MS. KOBIALKA: The benefits that Juniper gets for
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`making and using are significant to Juniper, in and of itself.
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`You can't just look at the revenues. And that's only a
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`component of the infringement here.
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`They, they build, they operate these systems. Dr. Cole's
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`explained that. And in fact, he cites to quite a few
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`documentation specific to Juniper, in which he says (As read):
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`"Showing that the results of Sky ATP are shared
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`throughout Juniper's threat-sharing ecosystem so its
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`threat intelligence is mostly up to date, once it's
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`identified, it's recorded in the look-up cache
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`(Phonetic) and widely propagated to stop similar
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`attacks in the future, the shared environment ensures
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`Case 3:17-cv-05659-WHA Document 281 Filed 11/30/18 Page 10 of 39
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`that everyone benefits from near-threat intelligence
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`in near real time."
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`So --
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`THE COURT: Let's break it down into pieces here. Do
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`you agree that the combination of sale of ATP -- I'm sorry,
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`Sky and SRX -- is that it -- Sky ATP plus SRX is 1.8 million?
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`MS. KOBIALKA: No.
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`THE COURT: You don't agree to that.
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`Is that what your position is?
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`MS. CARSON: Absolutely.
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`THE COURT: One of you is not telling me the truth.
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`Do you understand that, both?
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`What am I missing here? You heard what she said. What is
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`your response?
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`MS. CARSON: Your Honor, you're absolutely --
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`THE COURT: No, I'm not right about anything. Don't
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`say that I'm right about it. That's just a lawyer trick.
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`Tell me what you base your 1.8 million on.
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`MS. CARSON: The $1.8 million is based on the revenue
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`for Sky ATP as well as the revenue for the SRXs where there
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`was an enabled license for Sky ATP.
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`So it's the addition of Sky ATP revenues plus the revenues
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`for this -- SRX devices that were sold that enable the license.
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`That's $1.8 million.
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`THE COURT: All right. Hold that thought.
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`
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`Is that part right, where the -- using the word "license"
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`in there, is that correct, for the 1.8?
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`MS. KOBIALKA: No. They're talking about only when
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`it's activated. They're making this requirement that just
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`because the system can work and can infringe the claim, if the
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`Sky ATP's not activated, then that's --
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`THE COURT: So you're using this trick. So you have
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`a trick. You're saying that the embedded firmware inside the
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`SRX that has the capability of engaging with the Sky ATP, that
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`that, alone, would be enough to infringe.
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`Now, that's not the theory you had before. But -- but I
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`want you to know, I'd reject that theory. Because the
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`alternative uses, they're legitimate uses for the SRX.
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`Is that true or not?
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`MS. CARSON: Absolutely true.
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`THE COURT: And you sell them all the time, just like
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`you sell used tires all time. They have alternative uses.
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`They don't have to be used with the Sky ATP. And just because
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`they could be used, that is not good enough, under the Federal
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`Circuit law.
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`MS. KOBIALKA: But now you're talking about a use.
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`First of all -- let me back up. The claim is a system
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`claim. If someone sells you a system that satisfies all the
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`claim element, it infringes.
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`THE COURT: It does, but they're not selling you the
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`Case 3:17-cv-05659-WHA Document 281 Filed 11/30/18 Page 12 of 39
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`system unless you take a license. Unless you take the
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`license, the SRX, alone, does not and cannot infringe.
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`MS. KOBIALKA: And that is contrary to, then, the
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`determinations that the Federal Circuit made in Finjan v.
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`Secure Computing, which we have cited in our briefing, which
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`said it doesn't have to be activated; it doesn't have to be
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`turned on.
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`If you go and sell this entire system --
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`THE COURT: But the firmware that's inside the SRX is
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`not enough to do all those other steps. It still has to be
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`connected to the Sky ATP.
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`Is that part right?
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`MS. CARSON: Absolutely.
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`THE COURT: All right.
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`So what do you say to that?
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`MS. KOBIALKA: It's a system claim. If you're
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`selling the entire system that's able, that has all of those
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`elements, that's sufficient for sale.
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`For purposes of making and using, which is Juniper -- at
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`issue is Juniper that's doing that infringement -- there are
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`other considerations and there's additional value.
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`THE COURT: All right. Hang on one second.
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`I am so upset, that I have to step off the bench. Because
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`somebody is not telling me the truth here. And I'm going to go
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`take a short break, and I will come back in five minutes.
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`I don't want my court reporter to go away. I want to talk
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`to my law clerk for a minute.
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`(Recess taken from 10:08 a.m. to 10:13 a.m.)
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`THE COURT: Be seated, please.
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` Now, I'm of the view that the SRX is hardware that has
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`within it firmware, and that firmware, by itself, is enough to
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`interface with the Sky ATP. But the firmware, itself, will not
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`carry out any of those functions. The scanning function, for
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`example.
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`So selling the SRX with the firmware in there, it does
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`not, in itself, infringe. Because it's incapable of
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`infringing. It doesn't have those scanning steps and storage
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`steps, and -- so that's what this record shows.
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`Now, it is true that 271 says: Sell, offer to sell,
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`offers -- I'm sorry -- offer to sell, use. And I want to make
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`sure I understand what your argument is with respect to "offer
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`to sell."
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`By the way, the case in the Federal Circuit is not our
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`case. The Finjan case there was one where everything was
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`embedded in the product. And all you had to do was flip a
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`switch inside the product, and that would totally enable the
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`infringing product.
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`That is not our case. SRX does not have that ability.
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`What you have to do in our case is get a license. And it's the
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`license that adds all the extra layers of -- so that's
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`Case 3:17-cv-05659-WHA Document 281 Filed 11/30/18 Page 14 of 39
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`different than our case. That's my view.
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`Time is short. I'm going to give you one last opportunity
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`to persuade me to the contrary, and then we're going to move
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`on.
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`MS. KOBIALKA: So whatever you're looking at, these
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`revenues, you've got to keep in mind that Juniper does give
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`away Sky ATP for free. So there is definitely value. When
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`you're giving away something for free, it's not -- when you're
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`a for-profit company, it's not for no reason, whatsoever.
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`And that is because of the information -- the most recent
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`threat information is coming into the databases that are at
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`issue here, and are constantly updating these databases. Which
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`gives Juniper the ability to say: We have the best, most
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`up-to-date new threat intelligence.
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`As Dr. Cole pointed out in his report, there's at least a
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`million new threats released into the wild every day. And to
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`ensure that you have the best threat intelligence available,
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`the best malware protection available, you want to make sure
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`that you're able and up to date in your particular database.
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`So there is a component of the revenues that they're
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`getting value out of from the selling side of it that is not
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`captured in whatever we determine the revenues are going to be
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`at issue here.
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`Separate and apart from that, you've got to value what
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`Juniper gets as a result of making, using this system, as well
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`Case 3:17-cv-05659-WHA Document 281 Filed 11/30/18 Page 15 of 39
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`as its ability to offer for sale. To be a competitive relevant
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`company in the marketplace.
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`Now, by virtue of using this system, which it does, it's
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`able to ensure that it has this best new up-to-date threat
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`intelligence. By virtue of having the database that is updated
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`constantly, they're able to ensure that they don't have to
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`spend as much of the processing expenses that they would have
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`to earn to grow if they didn't infringe. If they didn't have
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`the infringing database which is at issue here.
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`So there's significant value and benefits directed to
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`Juniper that's separate and apart from revenue. And that is
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`based on other components of the 271(a) statute regarding they
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`make, they use, as well as offering for sale.
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`And this is not -- this -- the amount of revenues we're
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`talking about is such a small component of this company that,
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`like I said, has now moved into security to become relevant,
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`having been a router company and turning to security to ensure
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`that into the future, it is worthwhile. And so the only way
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`they can do that is to make sure they have the best most
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`up-to-date threat intelligence to offer in the marketplace.
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`So those are among the key points. This is not a
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`methodology challenge. It's a factual dispute as to whether or
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`not they actually received those benefits.
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`THE COURT: It is a method issue, methodology.
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`What do you say to what I just heard?
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`Case 3:17-cv-05659-WHA Document 281 Filed 11/30/18 Page 16 of 39
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`MS. CARSON: So Your Honor, I think they're
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`deflecting from the issues here. Because the royalty that has
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`been proposed by both experts is based on the sales of the
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`products.
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`They can talk about threat intelligence sharing,
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`et cetera. As a factual matter, those things are limited to
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`customers who actually have signed up for a license. So it's
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`not Juniper's whole --
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`THE COURT: Is the license free?
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`MS. CARSON: So the license is free. But in order to
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`take advantage of it, the SRX customer has to register for an
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`account. They have to download a script to run Sky ATP, and
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`then they connect to Sky ATP.
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`There's no dispute that the code that is accused of
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`infringing is not part of the SRX device, as sold.
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`There's also no dispute that the number of customers --
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`THE COURT: What do you say to the argument that:
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`Look, it's an option that's out there, and -- well, first, is
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`this SRX usable for something other than Sky ATP?
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`MS. CARSON: Yes. Absolutely.
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`THE COURT: Give me an example.
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`MS. CARSON: So the most -- most important use case
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`for SRX is just as a router. It's a secure router. And so
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`that's how Juniper markets and sells it.
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`In that case, Sky ATP has no value, whatsoever, to the
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`Case 3:17-cv-05659-WHA Document 281 Filed 11/30/18 Page 17 of 39
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`device because it's not being used as a gateway. It's being
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`used as a router.
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`THE COURT: What percentage of SRX sales are as a
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`router?
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`MS. CARSON: I don't know the precise percentage, but
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`it's the majority of the sales.
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`And what we do know is that only 300 customers either
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`purchased a premium license for Sky ATP or registered and
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`configured their devices to use a free license. That's less
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`than 1 percent of the SRX devices that were sold during the
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`damages period.
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`THE COURT: The argument on the other side is that:
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`Okay, maybe some people bought this just as a stand-alone SRX,
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`but they bought it because they knew they would have the
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`option in the future to get the free license if they ever
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`decided they wanted it. And so that extra cachet what is made
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`the sale possible.
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`What do you say to that?
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`MS. CARSON: So there's absolutely no evidence of
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`that in the record. Mr. Arst admitted at his deposition that
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`he did not perform any analysis to determine how many people
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`purchased the SRX because of Sky ATP's availability.
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`And I think the evidence that less than 1 percent of
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`people even signed up for this service, even though it's free,
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`suggests that that is not a factor that is driving the SRX
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`Case 3:17-cv-05659-WHA Document 281 Filed 11/30/18 Page 18 of 39
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`sales.
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`THE COURT: All right. Now we are going to change
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`subjects. We're going to go to your report. And --
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`MS. KOBIALKA: Your Honor, may I be heard? Because
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`there were a couple of things that are absolutely not
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`accurate.
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`THE COURT: Go ahead. I'll give you the last word.
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`Then we're going to move to the other motion.
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`Go ahead.
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`MS. KOBIALKA: Our royalty is not based on revenues.
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`Our royalty is based on cost saving. She said our -- both
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`experts' royalties are based on revenues.
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`We used revenues to determine an apportionment of the cost
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`savings to just U.S. But we didn't take a revenue number,
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`apportion that, and then apply a royalty rate. We looked at
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`cost savings that Juniper realizes as a result of the
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`significant benefits that it receives in connection with their
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`infringement. So that was just one quick point.
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`The second point she said is there's absolutely no
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`evidence in the record about SRX and the significant role it
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`plays in security. And I can tell you, starting on Page 19
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`through 23 of Mr. Arst's report, he quotes from their 10-K.
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`It says (As read):
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`"The SRX series of both physical and virtual dynamic
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`services gateways provides firewall VPN, performance
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`Case 3:17-cv-05659-WHA Document 281 Filed 11/30/18 Page 19 of 39
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`and scalability."
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` And he continues on, page after page, citing about how
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`the advanced malware protection in connection with SRX is so
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`important, and how their virtual SRX firewall delivers all
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`these various security features.
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`In their sheets (Indicating) that are also attached as
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`part of these motions, they talk throughout about how SRX
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`delivers a dynamic anti-malware solution that can adapt to an
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`ever-changing threat landscape.
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`So I want to be clear. There's a lot of evidence in the
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`record regarding what, in fact, SRX, and what the value is to
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`Juniper on it.
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`And I don't want to conflate making and using --
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`THE COURT: What you're saying, though, is that these
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`sales that would have been made as a router, somehow the fact
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`that they could get a license which would then infringe, that
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`that's enhancing the sales?
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`That, to me, is just illogical.
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`MS. KOBIALKA: So that is the sale -- selling
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`component. But keep in mind: Juniper is the infringer. They
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`make, they use, and offer for sale this system. And there's
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`significant benefits in connection with that.
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`Juniper doesn't pay itself for utilizing this very
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`valuable technology. So there's not a revenue --
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`(Simultaneous speakers)
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`Case 3:17-cv-05659-WHA Document 281 Filed 11/30/18 Page 20 of 39
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`THE COURT: Only one percent of their customers even
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`sign up for the license. And it's free. So it must be the
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`worst thing since sliced bread. It's not much of a patent, if
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`no one wants it.
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`MS. KOBIALKA: Well, obviously, we disagree.
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`THE COURT: One percent?
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`MS. KOBIALKA: Oh, no. Juniper, itself, went out
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`and acquired, for example, Cipher (Phonetic) for tens of
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`millions of dollars, if not $100 million, in order to get the
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`Sky ATP-type technology, to ensure that they have this
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`particular technology.
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`They might not be realizing the revenues at this point.
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`But they definitely see the value in this particular
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`technology.
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`And for --
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`THE COURT: All right, all right. You had your say.
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`I'm going to --
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`MS. KOBIALKA: All right.
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`THE COURT: We've got to move on.
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`MS. KOBIALKA: All right. I'll allow my colleague --
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`THE COURT: Now, the other one is yours. And my
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`initial question concerns the use by Juniper of a trick.
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`I hate to be so cynical about you patent lawyers. But you
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`patent lawyers are terrible -- no, I take back the word
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`"terrible."
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`Case 3:17-cv-05659-WHA Document 281 Filed 11/30/18 Page 21 of 39
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`It's a terrible process that I have to go through of --
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`you see how long this calendar was today. And yet, you think
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`that I have hours and hours of time to figure out who's telling
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`me the truth, when I don't. I don't have that much time.
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`But here's one thing that does seem clear-cut and works
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`against Juniper. And that is that you laid out non-infringing
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`alternatives in your expert report for the first time.
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`All right. Now, that might not have been so bad. But
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`they ask you an interrogatory. And you blew it off, and said:
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`Oh, we'll answer that at the time of our expert report.
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`Now, in my standing orders, I have a provision that deals
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`with that. Let's see if I can find it.
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`All right.
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`"Except for good cause..."
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`This is Paragraph 23.
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`"...no items shall be received as case-in-chief
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`evidence if its proponent should have produced it in
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`discovery but did not, regardless of whether any
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`discovery motion was made."
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`Now, they asked you for what your non-infringing
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`alternatives were, and you didn't tell them. And the first
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`time they learned about it was after all the discovery was
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`over, and it came out in your rebuttal report.
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`To me, that's not fair. And it violated my rule.
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`You get to explain yourself. Go ahead.
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`
`
`Case 3:17-cv-05659-WHA Document 281 Filed 11/30/18 Page 22 of 39
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`MS. CARSON: So, Your Honor, they propounded an
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`interrogatory asking for our position on non-infringing
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`alternatives.
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`And we provided them with high-level information that the
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`non-infringing alternatives included prior-art systems, as well
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`as modifications that Juniper and Deneers (Phonetic) could
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`reasonably make --
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`THE COURT: My law clerk told me you gave them
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`nothing. Now, maybe I'm wrong. Maybe I misunderstood her.
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`But she said: Nothing. You gave nothing.
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`Show me that interrogatory answer.
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`(Off-the-Record discussion between counsel)
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`MS. LEE: Your Honor --
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`THE COURT: Hand it up to me.
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`MS. LEE: Sure.
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`(Document handed up to the Court)
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`THE COURT: All right. Which part should I read?
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`Where does it say that?
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`MS. LEE: I believe the response is mainly on the
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`last page of the exhibit, which is --
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`THE COURT: Well, let me -- okay, Juniper
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`Incorporated, object, object, object. Specifically object,
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`generally object, specially -- more objections. Specifically
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`object, object. Premature. Object, object, object, object.
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`All right. Finally we get down to: Finjan's infringement
`
`
`
`Case 3:17-cv-05659-WHA Document 281 Filed 11/30/18 Page 23 of 39
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`contentions are indecipherable.
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`Well, I don't know what No. 10 said. You incorporate
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`No. 10 response, so I -- maybe that helps. But I -- I don't
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`have it right here.
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`Do you have it?
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`All right, here, the final paragraph says (As read):
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`"Additional non-infringing alternatives include, for
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`example, all analogous prior art, including all of
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`the prior art identified in Juniper's Patent Local
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`Rule 3 invalidity contentions, as well all the prior
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`art identified in any -- in invalidity contentions
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`served by third parties, defending against
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`allegations of infringement by Finjan of the claims
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`asserted."
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`So that's all the other cases, I guess, right? Is that
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`third parties? Is that what that means? Other cases? Or is
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`that third parties in this case?
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`MS. CARSON: That refers to other cases, Your Honor.
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`THE COURT: All right.
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`"...to Finjan related to...to the claims asserted...
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`Additional non-infringing alternatives include, for
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`example, systems and processes within the knowledge
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`or capabilities of Juniper or others in the
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`industry..."
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`That's very -- that's just saying anything -- we'll
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`
`
`Case 3:17-cv-05659-WHA Document 281 Filed 11/30/18 Page 24 of 39
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`exercise common sense.
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`All right. Were the other -- Interrogatory No. 10 any
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`more specific than this?
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`MS. LEE: Your Honor, we weren't able to find
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`anything that discerned the specific detail that we asked for
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`during discovery, that they put forward in the expert reports
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`for the first time.
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`MS. CARSON: So Your Honor, if I may speak to that,
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`Juniper served this interrogatory response.
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`The interrogatory response also notes that some of the
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`information related to non-infringing alternatives is the
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`subject of expert discovery, and would be disclosed during
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`expert discovery.
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`Finjan never --
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`THE COURT: That's -- you know, I practiced for 25
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`years before I got this job. And that's what they always try
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`to say.
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`And I always said: No, that's not right. You've got to
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`disclose it now so we can go take discovery on it.
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`You don't get to -- you don't get to kick the can down the
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`road until the time of the experts. You should have told them
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`then what your non-infringing alternativ
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