Case 3:17-cv-05659-WHA Document 301 Filed 12/06/18 Page 1 of 5
`
`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE NORTHERN DISTRICT OF CALIFORNIA
`
`FINJAN, INC.,
`Plaintiff,
`
` v.
` JUNIPER NETWORK, INC.,
`Defendant.
` /
`
`No. 17-05659 WHA
`
`FINAL PRETRIAL ORDER
`
`FOR GOOD CAUSE and after a final pretrial conference, the following constitutes the
`final pretrial order and rulings on motions in limine:
`This case shall go to a JURY TRIAL on DECEMBER 10, at 7:30 A.M., and shall
`1.
`continue until completed on the schedule discussed at the conference. This order hereby
`ADOPTS defendant Juniper Network, Inc.’s position regarding the factual issues to be tried (Dkt.
`No. 262 at 7–8) except to the extent modified by orders in limine. This final pretrial order
`supersedes the complaint and answer with respect to Claim 10 of the United States Patent No.
`8,677,494 (“the ’494 Patent”) except to the extent it does not reach the issues of prosecution
`laches, inequitable conduct, and unclean hands.
`Rulings on the motions in limine were made on the record at the pretrial
`2.
`conference and are summarized later in this order.
`3.
`Except for good cause, each party is limited to the witnesses and exhibits
`disclosed in the joint proposed pretrial order less any excluded or limited by orders in limine.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`For the Northern District of California
`
`United States District Court
`
`

`

`Case 3:17-cv-05659-WHA Document 301 Filed 12/06/18 Page 2 of 5
`
`Materials or witnesses used solely for impeachment need not be disclosed and may be used,
`subject to the Federal Rules of Evidence.
`4.
`The stipulations of facts set forth in the joint proposed pretrial order are
`approved and binding on all parties. As the parties further stipulated to during the final pretrial
`conference, the Court will decide the issue of Section 101 invalidity.
`5.
`A jury of EIGHT PERSONS shall be used.
`Each side shall have SIX-AND-A-HALF HOURS to examine witnesses (including
`6.
`direct examination, cross-examination, re-direct examination, re-cross examination, etc.). Each
`side shall also have THIRTY MINUTES to present opening statements. Time allocated for closing
`arguments shall not count against these limits. If one side runs out of time despite being
`efficient, non-duplicative, and non-argumentative in the use of the allotted time, and it would be
`a miscarriage of justice to hold that side to these limits, then more time will be allotted.
`The parties shall follow the Court’s current Guidelines for Trial and
`7.
`Final Pretrial Conference in Civil Jury Cases, separately provided and available on the Internet
`at http://www.cand.uscourts.gov, which guidelines are incorporated as part of this order.
`8.
`Beginning the day after jury selection, each side shall maintain a rolling, written
`list of the next seven or fewer witnesses it intends to call at trial. The list may be updated and
`shall be delivered to all counsel and to chambers by 5:00 p.m. each day. Witnesses need not be
`called in the sequence indicated but they must be on the most-current rolling list. Absent very
`good cause, a witness may be called only if they have been on the proponent’s most-current list
`for at least 38 (not 48) hours. The seven-name limit and 38-hour leadtime may be changed if
`both sides agree in writing.
`9.
`Each side shall please provide the Court a binder of their top ten documents by
`DECEMBER 10 AT 7:30 A.M.
`10.
`The testimony of plaintiff Finjan, Inc.’s damages expert Kevin Arst is
`EXCLUDED IN ITS ENTIRETY. Finjan shall file a succinct formal offer of proof for its damages
`claim by DECEMBER 7 AT 5:00 P.M.
`*************************
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`2
`
`For the Northern District of California
`
`United States District Court
`
`

`

`Case 3:17-cv-05659-WHA Document 301 Filed 12/06/18 Page 3 of 5
`
`•
`
`RULINGS ON FINJAN’S MOTIONS IN LIMINE
`MIL NO. 1 RE LATE DISCLOSURES (DKT. NO. 255).
`The request to exclude Ms. Gupta as a witness is DENIED.
`The requests to exclude Mr. Icasiano as a witness, the reliance on iWeb invoices, and
`Dr. Rubin’s reliance on non-infringing alternatives are DENIED AS MOOT in light of the Daubert
`order.
`
`The Court DEFERS ruling on the request to exclude reliance on the spreadsheet
`containing the number of free Sky ATP users.
`The request to exclude demonstrative exhibits and opinions regarding Section 101
`invalidity issues in Dr. Rubin’s rebuttal report is DENIED AS MOOT in light of the parties’
`stipulation to have the Court decide the Section 101 issue.
`
`•
`
`MIL NO. 2 RE CLAIM CONSTRUCTION TESTIMONY (DKT. NO. 256).
`This motion is DENIED. If the witness’s testimony is contrary to the legal standard, the
`Court will give the jury curative instructions accordingly.
`
`•
`
`MIL NO. 3 RE PORTIONS OF DR. RUBIN’S TESTIMONY (DKT. NO. 257).
`The request to exclude mention of Claim 10 as abstract is GRANTED in light of the
`parties’ stipulation to have the Court decide the Section 101 issue.
`The request to exclude arguments regarding prosecution history is GRANTED IN PART.
`Juniper may not mention the prosecution history of the ’494 patent during opening statement.
`The Court defers ruling on whether or not Juniper may discuss the prosecution history in its
`case-in-chief or during cross-examination until the issue is teed up at trial.
`The request to exclude opinions regarding “opinions of anticipation and obviousness in
`guise of” damages or Section 101 analysis is DENIED AS MOOT in light of the discussion during
`the final pretrial conference.
`The request to exclude Dr. Rubin’s “reliance on documents or systems that do not
`establish that Claim 10 was ‘well-known, routine, and conventional’ ” is DENIED.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`3
`
`For the Northern District of California
`
`United States District Court
`
`

`

`Case 3:17-cv-05659-WHA Document 301 Filed 12/06/18 Page 4 of 5
`
`The Court DEFERS ruling on the request to exclude argument regarding piecemeal
`portions of claim elements.
`
`•
`
`MIL NO. 4 RE PREJUDICIAL INFORMATION (DKT. NO. 258).
`The request to exclude discussion of Juniper’s patent is GRANTED IN PART. Juniper
`may not mention its patents during opening statement. The Court defers ruling on whether or
`not Juniper may discuss its patents in its case-in-chief or during cross-examination until the
`issue is teed up at trial.
`The request to exclude discussion of co-pending lawsuits and pending PTAB
`proceedings is DENIED AS MOOT in light of the discussion during the final pretrial conference.
`The request to exclude discussion of pejorative terms is GRANTED IN PART. In
`describing Finjan and its business model, Juniper may not use the term “patent troll.” Juniper
`may, however, use the terms “patent assertion entity” and “non-practicing entity” — which the
`undersigned judge does not believe to be per se pejorative — sparingly.
`
`************************
`
`RULINGS ON JUNIPER’S MOTIONS IN LIMINE
`
`•
`
`MIL NO. 1 RE CYPHORT AND ATP APPLIANCE PRODUCT (DKT. NO. 263).
`Under FRE 403, the probative value of this evidence is substantially outweighed by the
`danger it would create of confusing the issues, misleading the jury, or wasting time. This
`motion is GRANTED.
`
`•
`
`MIL NO. 2 RE FINJAN’S PRIOR LITIGATION (DKT. NO. 265).
`This motion is GRANTED in light of the parties’ stipulation to have the Court decide the
`Section 101 issue.
`
`•
`
`MIL NO. 3 RE NOVEMBER 24, 2015 CALL (DKT. NO. 266).
`This motion is DENIED.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`4
`
`For the Northern District of California
`
`United States District Court
`
`

`

`Case 3:17-cv-05659-WHA Document 301 Filed 12/06/18 Page 5 of 5
`
`•
`
`MIL NO. 4 RE NON-INFRINGING ALTERNATIVES (DKT. NO. 267).
`This motion is DENIED AS MOOT in light of the Daubert order.
`
`•
`
`MIL NO. 5 RE ARGUMENTS CONTRARY TO EXISTING CLAIM CONSTRUCTIONS (DKT.
`NO. 268).
`The request to prevent Finjan from arguing that the Court’s construction of “database
`manager” necessarily or logically requires the existence of the claimed “database” is GRANTED.
`The request to prevent Finjan from arguing that a “database schema” is not a
`“description of a database to a database management system (DBMS) in the language provided
`by the DBMS” is DENIED.
`
`*
`*
`*
`Two caveats to the tentative rulings above: Any denial above does not mean that the
`evidence at issue in the motion is admitted — it must still be moved into evidence, subject to
`other possible objections, at trial. And, a grant of a motion in limine does not exclude the item
`at issue under any and all circumstances; the beneficiary of an order in limine may open the
`door to the disputed evidence, for example.
`
`IT IS SO ORDERED.
`
`Dated: December 6, 2018.
`
`
`WILLIAM ALSUP
`UNITED STATES DISTRICT JUDGE
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`For the Northern District of California
`
`United States District Court
`
`5
`
`