Case 3:17-cv-05659-WHA Document 322 Filed 12/13/18 Page 1 of 9
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`
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`PAUL ANDRE (State Bar No. 196585)
`pandre@kramerlevin.com
`LISA KOBIALKA (State Bar No. 191404)
`lkobialka@kramerlevin.com
`JAMES HANNAH (State Bar No. 237978)
`jhannah@kramerlevin.com
`KRISTOPHER KASTENS (State Bar No. 254797)
`kkastens@kramerlevin.com
`KRAMER LEVIN NAFTALIS & FRANKEL LLP
`990 Marsh Road
`Menlo Park, CA 94025
`Telephone: (650) 752-1700
`Facsimile: (650) 752-1800
`
`Attorneys for Plaintiff
`FINJAN, INC.
`
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE NORTHERN DISTRICT OF CALIFORNIA
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`SAN FRANCISCO DIVISION
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`FINJAN, INC., a Delaware Corporation,
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`Plaintiff,
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`v.
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`JUNIPER NETWORKS, INC., a Delaware
`Corporation,
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`Defendant.
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`
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`Case No.: 3:17-cv-05659-WHA
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`PLAINTIFF FINJAN, INC.’S MOTION FOR
`JUDGMENT AS A MATTER OF LAW AT
`THE CLOSE OF DEFENDANT’S CASE
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`FINJAN’S MOTION FOR JUDGMENT AS A MATTER
`OF LAW AT THE CLOSE OF DEFENDANT’S CASE
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`CASE NO. 3:17-cv-05659-WHA
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`Case 3:17-cv-05659-WHA Document 322 Filed 12/13/18 Page 2 of 9
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`TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
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`NOTICE OF MOTION AND MOTION
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`NOTICE IS HEREBY GIVEN that as soon as the matter may be heard by the Court, Finjan,
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`Inc. (“Finjan”) will and hereby does move the Court for an order granting judgment as a matter of law.
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`This Motion is based on this Notice of Motion, the Memorandum of Points and Authorities, the trial
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`record, the pleadings and papers on file, and any evidence and argument presented to the Court.
`I.
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`INTRODUCTION AND RELIEF REQUESTED
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`Pursuant to the Federal Rule of Civil Procedure 50(a), Finjan moves for judgment as a matter
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`of law (“JMOL”) in Finjan’s favor as to Defendant Juniper Network, Inc.’s (“Juniper’s”) claims for
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`non-infringement, invalidity challenges under 35 U.S.C. § 101 (“Section 101”), and infirm damages
`rebuttal.1 Juniper has failed to present legally sufficient evidence that would allow a reasonable
`factfinder to conclude that Juniper’s accused (1) SRX Gateways with SkyATP and (2) Sky ATP by
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`itself do not infringe Claim 10 of the ‘494 Patent (“Claim 10”). Finjan also moves for judgment as a
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`matter of law as to no patent invalidity of Claim 10 pursuant to Section 101 because Juniper has not
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`shown by clear and convincing evidence that Claim 10 is invalid. Finally, to ensure a complete
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`reservation of rights, Finjan addresses the insufficiencies of the evidence for Juniper’s damages
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`rebuttal.
`II.
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`LEGAL STANDARD
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`A court may grant judgment as a matter of law when “a party has been fully heard on an issue
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`during a jury trial and the court finds that a reasonable jury would not have a legally sufficient
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`evidentiary basis to find for the party on that issue . . . .” Fed. R. Civ. P. 50(a)(1); MediaTek Inc. v.
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`Freescale Semiconductor, Inc., No. 11-CV-5341 YGR, 2014 WL 4643947, at *1 (N.D. Cal. Sept. 17,
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`2014) (granting motion for judgment of matter of law under Rule 50(a) of direct infringement). Finjan
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`presented legally sufficient evidence at trial such that no reasonable jury could find that Juniper’s
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`1 Finjan is making this Motion pursuant to the Court’s deadline set forth on December 13, 2018, which
`required Finjan to make this motion before Juniper closed its case. Given the timing of this filing,
`Finjan reserves all rights to address issues that may arise once Juniper closes its case.
`1
`FINJAN’S MOTION FOR JUDGMENT AS A MATTER
`OF LAW AT THE CLOSE OF DEFENDANT’S CASE
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`CASE NO. 3:17-cv-05659-WHA
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`Case 3:17-cv-05659-WHA Document 322 Filed 12/13/18 Page 3 of 9
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`accused systems do not infringe Claim 10 of the ‘494 Patent and that Claim 10 is invalid under Section
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`101.
`III. ARGUMENT
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`A.
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`FINJAN IS ENTITLED TO JUDGMENT AS A MATTER OF LAW THAT
`JUNIPER INFRINGES CLAIM 10
`As a preliminary matter, the Court already found in summary judgment that Juniper infringes
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`every element of Claim 10 of the ‘494 Patent, except for the database element, which requires “a
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`database manager coupled with said Downloadable scanner, for storing the Downloadable security
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`profile data in a database.” Dkt. No. 185 4–18; ‘494 Patent, Claim 10. No reasonable jury could find
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`that (1) SRX Gateway and SkyATP and (2) SkyATP (the “Accused Products”) do not literally infringe
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`the “database” element of Claim 10 of the ‘494 Patent given the abundant evidence Finjan presented.
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`Fed. R. Civ. P. 50(a)(1)(a court may grant a motion for judgment as a matter of law (“JMOL”) against
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`a party on an issue where the party “has been fully heard on an issue during a jury trial and the court
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`finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on
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`that issue.”); Volterra Semiconductor Corp. v. Primarion, Inc., 799 F. Supp. 2d 1092, 1098 (N.D. Cal.
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`2011) (citing McGonigle v. Combs, 968 F.2d 810, 816 (9th Cir. 1992) (JMOL is properly granted
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`“when the evidence permits only one reasonable conclusion as to the verdict.”) (citation omitted)).
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`Finjan presented substantial evidence that the Accused Products include a ResultsDB, which is “a
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`collection of interrelated data organized according to a database schema to serve one or more
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`applications,” including through the testimony of its expert, Dr. Cole, whose opinions were based on
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`Juniper’s internal source code, internal confidential technical documents, marketing materials, and
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`testimony of Juniper’s key engineers. Dkt. 224 at 1.
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`Juniper failed to rebut Finjan’s uncontested evidence on whether the “database” element was
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`The ResultsDB Exists
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`1.
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`met. Nothing could be further from the truth, and Finjan showed numerous document establishing that
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`the ResultsDB is in fact very real, and used extensively by Juniper. Trial Tr. 440:18 - 444:4; Trial Ex.
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`78 @ FINJAN-JN 0044763 (Page 20); Trial Ex. 94 at JNPR-FNJN_29018_00963212 (Page 10),
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`FINJAN’S MOTION FOR JUDGMENT AS A MATTER
`OF LAW AT THE CLOSE OF DEFENDANT’S CASE
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`CASE NO. 3:17-cv-05659-WHA
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`Case 3:17-cv-05659-WHA Document 322 Filed 12/13/18 Page 4 of 9
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`JNPR-FNJN_29018_00963213 (Page 11); Trial Ex. 99 @ 115; Trial Ex 92 @ JNPR-
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`FNJN_29017_00553166 (Page 20) & JNPR-FNJN_29017_00553178 (Page 32); Ex 99 (Page 8).
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`Juniper’s expert, Dr. Rubin, said that there was no such thing as the ResultsDB, arguing that
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`Juniper’s employees did not know what they meant when they discussed a database. However, Dr.
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`Rubin failed to rebut Dr. Cole’s substantial evidence that it was a database, including numerous source
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`code citations. In fact, Dr. Rubin acknowledged that there was a database, including a collection of
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`interrelated data that was organized according to a schema. Dr. Rubin also completely ignored Dr.
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`Cole’s infringement allegations that the ResultsDB was the infringing database and denied its
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`existence.
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`Dr. Rubin’s testimony also conflicted with the parties’ agreed upon construction of “a
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`collection of interrelated data organized according to a database schema to serve one or more
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`applications,” which is focused on a “collection of data,” and would include all collections of data that
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`meet these requirements.
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`Based on this substantial evidence and the lack of evidence from Juniper, Finjan is entitled to
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`JMOL that SRX Gateway and SkyATP and SkyATP literally infringe Claim 10.
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`2.
`The ResultsDB Has a Database Schema
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`Juniper’s argument that the RDB schema cannot be a database schema, also defines all logic
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`and is unsupported by evidence. Finjan put in overwhelming evidence of this element through Dr.
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`Cole and his supporting documents. Trial Tr. 463:10-466:12; Ex 99 @ 8; Ex 399 @ JNPR-
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`FNJN_29032_00590607 (Page 36); Ex 65 @ JNPR-FNJN_29030_00553972 (Page 1), JNPR-
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`FNJN_29030_00553972; Ex 99 @ 78; Ex 99 @ 297. Dr. Rubin did not present arguments that
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`conflict with this, but instead made an arbitrary distinction between a JSON Schema and a Key
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`Schema, which he admitted were used in the ResultsDB, but he argues are not “database schemas.”
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`Dr. Rubin’s argument also conflicts with the parties’ agreed upon claim construction.
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`3
`FINJAN’S MOTION FOR JUDGMENT AS A MATTER
`OF LAW AT THE CLOSE OF DEFENDANT’S CASE
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`CASE NO. 3:17-cv-05659-WHA
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`Case 3:17-cv-05659-WHA Document 322 Filed 12/13/18 Page 5 of 9
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`B.
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`FINJAN IS ENTITLED TO JUDGMENT AS A MATTER OF LAW THAT THE
`‘494 PATENT IS VALID
`The Court should order a directed verdict in favor of Finjan on the issue of 35 U.S.C. § 101
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`because the ‘494 Patent is presumed valid and Juniper put on insufficient evidence to establish by clear
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`and convincing evidence that Claim 10 of the ‘494 Patent, either as individual elements or as an
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`ordered combination, was well-understood, routine, and conventional at the time of the invention. CLS
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`Bank Int’l v. Alice Corp. Pty. Ltd., 717 F.3d 1269, at 1304-05 (2013) (“Because we believe the
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`presumption of validity applies to all challenges to patentability, including those under Section 101 and
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`the exceptions thereto, we find that any attack on an issued patent based on a challenge to the
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`eligibility of the subject matter must be proven by clear and convincing evidence.”).
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`Juniper put on a de facto obviousness case (under 35 U.S.C. § 103) against Claim 10, relying
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`on prior art that Dr. Rubin did not even attempt to show was well known at the time. Juniper’s reliance
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`on concurrent patent applications and a few obscure research papers is insufficient as a matter of law
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`because “well-understood, routine, and conventional goes beyond what was simply known in the prior
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`art. The mere fact that something is disclosed in a piece of prior art, for example, does not mean it was
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`well-understood, routine, and conventional.” Berkheimer v. HP Inc., 881 F.3d 1360, 1369 (Fed. Cir.
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`2018); Exergen Corp. v. Kaz USA, Inc., 725 F. App’x 959, 965-66 (Fed. Cir. 2018) (“Something is not
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`well-understood, routine, and conventional merely because it is disclosed in a prior art reference.”);
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`Huawei Techs., Co. v. Samsung Elecs. Co., No. 16-cv-02787-WHO, 2018 WL 4904895, at *35 (N.D.
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`Cal. Sept. 25, 2018) (“But ‘[t]he mere fact that something is disclosed in a piece of prior art, for
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`example, does not mean it was well-understood, routine, and conventional.’”). Indeed, patent
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`applications are generally not well-understood, routine, and conventional at the time they are
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`filed. The same can be said of technical research papers. Juniper has the burden to prove by clear-
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`and-convincing evidence that Claim 10’s elements, both individually and as an ordered combination,
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`were well-understood, routine, and conventional at the time. Berkheimer v. HP Inc., 881 F.3d 1360,
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`1368 (Fed. Cir. 2018) (“The question of whether a claim element or combination of elements is well-
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`understood, routine and conventional to a skilled artisan in the relevant field is a question of fact. Any
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`fact, such as this one, that is pertinent to the invalidity conclusion must be proven by clear and
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`FINJAN’S MOTION FOR JUDGMENT AS A MATTER
`OF LAW AT THE CLOSE OF DEFENDANT’S CASE
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`CASE NO. 3:17-cv-05659-WHA
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`Case 3:17-cv-05659-WHA Document 322 Filed 12/13/18 Page 6 of 9
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`convincing evidence.”); Young v. Lumenis, Inc., 492 F.3d 1336, 1345 (Fed. Cir. 2007) (“Because a
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`patent is presumed to be valid, the evidentiary burden to show facts supporting a conclusion of
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`invalidity is one of clear and convincing evidence.”). Juniper failed to meet this burden.
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`Specifically, Dr. Rubin discussed only five references to support his argument. For all five
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`references, Dr. Rubin failed to do demonstrate that they were well-understood, routine, and
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`conventional as of November 1996. There was no evidence to support his conclusion.
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`First, Dr. Rubin relied on Trial Exhibit 1070 (“Swimmer”) only for the fact that the Patent
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`Office relied on it to invalidate Claim 1, which is not at issue. Notably, the Patent Office found Claim
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`10 valid over Swimmer. Palo Alto Networks, Inc. and Blue Coat Systems LLC v. Finjan, Inc.,
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`IPR2016-00159, IPR2016-01174, paper 50 (PTAB, April 11, 2017) (finding claim 10 valid in view of
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`Swimmer). Dr. Rubin did not attempt to show that Swimmer, or the systems it discussed, were well-
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`understood, routine, and conventional at that time. In fact, Swimmer is a research paper that attempts
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`to show a new system. Dr. Rubin did not even attempt to establish that this paper was widely known
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`by November 1996, when Claim 10 was invented.
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`Next, Dr. Rubin relied on Trial Exhibit 1552 (“Chen”), which is a U.S. Patent that was filed
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`just one month before the invention date of Claim 10. Chen did not issue until 1999, four years after
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`Claim 10’s invention date. Chen expressly admits that there was a need for a new invention that could
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`detect unknown viruses beyond the typical signature scanning techniques that were well-known. See
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`Chen at 1:19-36 (“Since matching to known patterns is involved, the Signature Scan is virtually useless
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`against Viruses whose patterns have not been previously identified. Particularly, Signature Scanning
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`completely fails to detect new, unknown virus Strains, and does not adequately protect against
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`mutating viruses, which intentionally assume various shapes and forms upon replication. Additionally,
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`since executable files (e.g., those with extensions.exe or .com) are typically scanned, viruses which do
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`not reside in such files are not examined and therefore are not detected with Signature Scanning.”) and
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`at 1:6-2:12 (stating that traditional virus scanning is inadequate for treating macros with viruses).
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`Similarly, Dr. Rubin also relied on Trial Exhibit 2197 (“Virus Bulletin”) discloses traditional
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`signature scanning. It was undisputed at trial that signature scanning was the “old” technology at
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`5
`FINJAN’S MOTION FOR JUDGMENT AS A MATTER
`OF LAW AT THE CLOSE OF DEFENDANT’S CASE
`
`CASE NO. 3:17-cv-05659-WHA
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`Case 3:17-cv-05659-WHA Document 322 Filed 12/13/18 Page 7 of 9
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`issue. With respect to Trial Exhibit 1069 (“Stang”), Dr. Rubin did not even attempt to demonstrate that
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`was well known at the relevant time. This reference has nothing about generating security profiles.
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`Dr. Rubin relied on Trial Exhibit 1241 (“SQL for Dummies”). There was no evidence at trial,
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`however, of the use of database in a security context. Just identifying these references is insufficient as
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`a matter of law, and no reasonable jury could find for Juniper.
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`On cross-examination, Dr. Rubin admitted that Finjan’s invention as “impressive” and
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`inventive behavior-based technology. Dr. Rubin admitted that he approved the following quote of him
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`in an article from 1999: “‘Finjan’s use of sophisticated behavior-blocking technology to stop
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`malicious code is impressive,’ said Avi Rubin, Internet Security Expert, AT&T; Labs. ‘If a killer Y2K
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`Trojan strikes in a novel, deadly fashion, Finjan’s first-strike software is the most effective way to
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`avoid damage, short of permanently disconnecting computers from the network.’”. Given the
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`foregoing, no reasonable jury could find that Claim 10, which is presumed valid, is invalid under
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`Section 101. Young v. Lumenis, Inc., 492 F.3d 1336, 1345 (Fed. Cir. 2007) (“Because a patent is
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`presumed to be valid, the evidentiary burden to show facts supporting a conclusion of invalidity is one
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`of clear and convincing evidence.”).
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`As demonstrated on cross-examination of Dr. Rubin, the Patent Trial and Appeal Board
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`recently confirmed the inventiveness of the ‘494 Patent in numerous different inter partes review
`petitions filed by various defendants of Finjan.2 See Cisco Systems, Inc. v. Finjan, Inc., IPR2017-
`02155, paper 11 (PTAB, April 3, 2018) (denying institution on claim 10); Palo Alto Networks, Inc. and
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`Blue Coat Systems LLC v. Finjan, Inc., IPR2016-00159, IPR2016-01174, paper 50 (PTAB, April 11,
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`2017) (finding claim 10 valid in view of Swimmer); Blue Coat Systems, Inc. and Symantec v. Finjan,
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`Inc., IPR2015-01892, IPR2016-00890, paper 58 (PTAB, March 16, 2017)(finding claim 10 valid in
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`view of Swimmer); Symantec Corporation v. Finjan, Inc., IPR2015-01897, paper 7 (PTAB, February
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`26, 2016) (denying institution on claim 10); Sophos, Inc. v. Finjan, Inc., IPR2015-01022, paper 7
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`(PTAB, January 28, 2016) (denying institution on claim 10).
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`2 To the extent these were not presented yet, they will be with Finjan’s rebuttal expert, Dr. Orso.
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`FINJAN’S MOTION FOR JUDGMENT AS A MATTER
`OF LAW AT THE CLOSE OF DEFENDANT’S CASE
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`CASE NO. 3:17-cv-05659-WHA
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`Finally, two other Courts have already found that Claim 10 recites an inventive concept at Alice
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`Step 2. “As the ‘494 patent explains, at the time of invention, virus protection was localized and
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`reactive . . . and only checked to see if incoming files were known viruses.” Blue Coat, 2016 WL
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`7212322, at *11; Sophos, 244 F. Supp. 3d at 1061 (“This process is innovative because it allows a
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`malware detection program to detect new viruses . . . rather than identifying only known
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`viruses.”). Both of these Courts also found that the ordered combination of Claim 10’s elements
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`provided an inventive concept. Blue Coat, 2016 WL 7212322, at *11 (“the claims, taken as an ordered
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`combination, recite an inventive concept sufficient to render them patent eligible.”); Sophos, 244 F.
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`Supp. 3d at 1061 (“this arrangement represents a novel use of specific computer systems”). Indeed,
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`Finjan has been found to be the pioneer in behavior-based technology at the time Claim 10 was
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`invented. The Federal Circuit found Finjan was a pioneer in behavioral-based virus scanning at the
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`time, which was an improvement over the traditional signature based scanning that existed
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`prior. Finjan, Inc. v. Blue Coat Sys., Inc., 879 F.3d 1299, 1304
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`.
`‐06 (Fed. Cir. 2018)
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`JUNIPER FAILED TO REBUT DAMAGES
`C.
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`Juniper failed to present a rebuttal to damages with any evidence. First, Juniper did not present
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`any witnesses or evidence rebutting Finjan’s evidence of actual notice and constructive notice. Once
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`Finjan has demonstrated that it put Juniper on actual notice and that the products practicing the ‘494
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`Patent, namely Finjan’s mobile product, that were marked with the ‘494 Patent, Juniper had the burden
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`to rebut Finjan’s presentation regarding notice.
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`Second, Juniper did not present any evidence. Rather, Juniper’s expert merely referenced
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`exhibits and powerpoints, without identify any exhibits, which did not meet the requisite standards for
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`damages. Juniper, who relied on “comparable” licenses, failed to do the technical and economic
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`analysis required for such a comparison.
`IV. CONCLUSION
`For the foregoing reasons, the Court should grant Finjan’s motion for judgment as a matter of
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`law pursuant to Fed. R. Civ. P. 50(a).
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`7
`FINJAN’S MOTION FOR JUDGMENT AS A MATTER
`OF LAW AT THE CLOSE OF DEFENDANT’S CASE
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`CASE NO. 3:17-cv-05659-WHA
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`Case 3:17-cv-05659-WHA Document 322 Filed 12/13/18 Page 9 of 9
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`Dated: December 13, 2018
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`Respectfully submitted,
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`
`By: /s/ Paul J. Andre
`Paul J. Andre (State Bar No. 196585)
`Lisa Kobialka (State Bar No. 191404)
`James Hannah (State Bar No. 237978)
`Kristopher Kastens (State Bar No. 254797)
`KRAMER LEVIN NAFTALIS
` & FRANKEL LLP
`990 Marsh Road
`Menlo Park, CA 94025
`Telephone: (650) 752-1700
`Facsimile: (650) 752-1800
`pandre@kramerlevin.com
`lkobialka@kramerlevin.com
`jhannah@kramerlevin.com
`kkastens@kramerlevin.com
`
`Attorneys for Plaintiff
`FINJAN, INC.
`
`8
`FINJAN’S MOTION FOR JUDGMENT AS A MATTER
`OF LAW AT THE CLOSE OF DEFENDANT’S CASE
`
`CASE NO. 3:17-cv-05659-WHA
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