Case 3:17-cv-05659-WHA Document 329 Filed 12/14/18 Page 1 of 16
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`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE NORTHERN DISTRICT OF CALIFORNIA
`
`No. C 17-05659 WHA
`
`FINJAN, INC.,
`Plaintiff,
`
` v.
` JUNIPER NETWORKS, INC.,
`Defendant.
` /
`
`FINAL CHARGE TO THE JURY
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`For the Northern District of California
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`United States District Court
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`Case 3:17-cv-05659-WHA Document 329 Filed 12/14/18 Page 2 of 16
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`1.
`Members of the jury, now that you have heard all the evidence and arguments by
`counsel, it is my duty to instruct you on the law that applies to this case. A copy of these
`instructions will be available in the jury room for you to consult.
`It is your duty to find the facts from all the evidence in the case. To those facts, you
`must apply the law as I give it to you. You must follow the law as I give it to you whether you
`agree with it or not. You must not be influenced by any personal likes or dislikes, opinions,
`prejudices, or sympathy. That means that you must decide the case solely on the evidence
`before you. You will recall that you took an oath promising to do so at the beginning of the
`case. In following my instructions, you must follow all of them and not single out some and
`ignore others; they are all equally important. You must not read into these instructions or into
`anything the Court may have said or done as suggesting what verdict you should return — that
`is a matter entirely up to you.
`
`2.
`The evidence from which you are to decide what the facts are consists of:
`1.
`The sworn testimony of witnesses, on both direct and
`cross-examination, regardless of who called the witness;
`2.
`The exhibits which have been received into evidence;
`3.
`The sworn testimony of witnesses in depositions, read into
`evidence; and
`Any facts to which all the lawyers have stipulated here in the
`4.
`courtroom before you. You must treat any stipulated facts as having been
`conclusively proven.
`
`3.
`Evidence may be direct or circumstantial. Direct evidence is direct proof of a fact, such
`as testimony by a witness about what that witness personally saw or heard or did.
`Circumstantial evidence is proof of one or more facts from which you could find another fact.
`By way of example, if you wake up in the morning and see that the sidewalk is wet, you may
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`For the Northern District of California
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`United States District Court
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`Case 3:17-cv-05659-WHA Document 329 Filed 12/14/18 Page 3 of 16
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`find from that fact that it rained during the night. However, other evidence, such as a turned-on
`garden hose, may explain the presence of water on the sidewalk. Therefore, before you decide
`that a fact has been proved by circumstantial evidence, you must consider all the evidence in the
`light of reason, experience, and common sense. You should consider both kinds of evidence.
`The law makes no distinction between the weight to be given to either direct or circumstantial
`evidence. It is for you to decide how much weight to give to any evidence.
`4.
`In reaching your verdict, you may consider only the types of evidence I have described.
`Certain things are not evidence, and you may not consider them in deciding what the facts are.
`I will list them for you:
`Arguments and statements by lawyers are not evidence. The
`1.
`lawyers are not witnesses. What they have said in their opening statements,
`closing arguments and at other times is intended to help you interpret the
`evidence, but it is not evidence. If the facts as you remember them differ from
`the way the lawyers have stated them, your memory of them controls.
`2.
`A suggestion in a question by counsel or the Court is not
`evidence unless it is adopted by the answer. A question by itself is not
`evidence. Consider it only to the extent it is adopted by the answer.
`3.
`Objections by lawyers are not evidence. Lawyers have a duty to
`their clients to consider objecting when they believe a question is improper
`under the rules of evidence. You should not be influenced by any question,
`objection, or the Court’s ruling on it.
`4.
`Testimony or exhibits that have been excluded or stricken, or
`that you have been instructed to disregard, are not evidence and must not be
`considered. In addition, some testimony and exhibits have been received only
`for a limited purpose; where I have given a limiting instruction, you must
`follow it.
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`Case 3:17-cv-05659-WHA Document 329 Filed 12/14/18 Page 4 of 16
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`Anything you may have seen or heard when the Court was not
`5.
`in session is not evidence. You are to decide the case solely on the evidence
`received at the trial.
`
`Whether other evidence contradicted the witness’s testimony;
`The reasonableness of the witness’s testimony in light of all the
`
`5.
`In deciding the facts in this case, you may have to decide which testimony to believe and
`which testimony not to believe. You may believe everything a witness says, or part of it or
`none of it. In considering the testimony of any witness, you may take into account:
`1.
`The opportunity and ability of the witness to see or hear or
`know the things testified to;
`2.
`The witness’s memory;
`3.
`The witness’s manner while testifying;
`4.
`The witness’s interest in the outcome of the case and any bias or
`prejudice;
`5.
`6.
`evidence; and
`Any other factors that bear on believability.
`7.
`The weight of the evidence as to a fact does not necessarily depend on the number of
`witnesses who testify. Nor does it depend on which side called witnesses or produced evidence.
`You should base your decision on all of the evidence regardless of which party presented it.
`6.
`You are not required to decide any issue according to the testimony of a number of
`witnesses, which does not convince you, as against the testimony of a smaller number or other
`evidence, which is more convincing to you. The testimony of one witness worthy of belief is
`sufficient to prove any fact. This does not mean that you are free to disregard the testimony of
`any witness merely from caprice or prejudice, or from a desire to favor either side. It does
`mean that you must not decide anything by simply counting the number of witnesses who have
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`Case 3:17-cv-05659-WHA Document 329 Filed 12/14/18 Page 5 of 16
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`testified on the opposing sides. The test is not the number of witnesses but the convincing force
`of the evidence.
`
`7.
`A witness may be discredited or impeached by contradictory evidence or by evidence
`that, at some other time, the witness has said or done something or has failed to say or do
`something that is inconsistent with the witness’s present testimony. If you believe any witness
`has been impeached and thus discredited, you may give the testimony of that witness such
`credibility, if any, you think it deserves.
`
`8.
`Discrepancies in a witness’s testimony or between a witness’s testimony and that of
`other witnesses do not necessarily mean that such witness should be discredited. Inability to
`recall and innocent misrecollection are common. Two persons witnessing an incident or a
`transaction sometimes will see or hear it differently. Whether a discrepancy pertains to an
`important matter or only to something trivial should be considered by you.
`However, a witness willfully false in one part of his or her testimony is to be distrusted
`in others. You may reject the entire testimony of a witness who willfully has testified falsely on
`a material point, unless, from all the evidence, you believe that the probability of truth favors
`his or her testimony in other particulars.
`
`9.
`In determining what inferences to draw from evidence you may consider, among other
`things, a party’s failure to explain or deny such evidence.
`10.
`In this case, you have heard testimony that Scott Coonan recorded a phone call with
`John Garland while in North Carolina. As far as this case is concerned, there was nothing
`illegal about recording that phone call in that manner. Both parties to the call have accused
`each other of unethical behavior. You may take those allegations into account in determining
`the witnesses’ credibilities and/or what occurred during the phone call. Again, however, there
`was nothing illegal about the recording of the call itself.
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`Case 3:17-cv-05659-WHA Document 329 Filed 12/14/18 Page 6 of 16
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`11.
`You have heard testimony from witnesses referred to as “expert witnesses.” These are
`persons who, because of education or experience, are permitted to state opinions and the
`reasons for their opinions. Opinion testimony should be judged just like any other testimony.
`You may accept it or reject it, and give it as much weight as you think it deserves, considering
`the witness’s education and experience, the reasons given for the opinion, any bias of the
`witness, and all the other evidence in the case. If an expert witness was not present at the
`events in question, his or her opinion is necessarily based on an assumed set of circumstances.
`In evaluating the opinion during the trial, you should take into account the extent to which you
`do agree or do not agree with the circumstances assumed by the expert witness.
`12.
`In these instructions, I will often refer to a party’s “burden of proof.” Let me explain
`what that means. When a party has the burden of proof on any issue by a preponderance of the
`evidence, it means you must be persuaded by the evidence that the allegation is more probably
`true than not true. To put it differently, if you were to put the evidence favoring a plaintiff and
`the evidence favoring a defendant on opposite sides of a scale, the party with the burden of
`proof on the issue would have to make the scale tip somewhat toward its side. If the party fails
`to meet this burden, then the party with the burden of proof loses on that issue. Preponderance
`of the evidence basically means “more likely than not.”
`13.
`On any issue, if you find that plaintiff carried its burden of proof as to each element of a
`particular issue, your verdict should be for plaintiff on that issue. If you find that plaintiff did
`not carry its burden of proof as to each element, you must find against plaintiff on that issue.
`This same principle also applies to defendant on issues for which it has the burden of proof.
`14.
`I will now turn to the law that applies to this case. Here is a brief summary of the issues
`and defenses in this case. As you know, in this lawsuit Finjan seeks money damages from
`defendant Juniper for allegedly infringing Claim 10 of the ’494 patent. I will refer to Claim 10
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`Case 3:17-cv-05659-WHA Document 329 Filed 12/14/18 Page 7 of 16
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`as the “asserted claim” or “claimed invention.” You must assume that Claim 10 is valid. The
`products that Finjan contends infringe the asserted claim are Juniper’s (1) SRX Gateways used
`in combination with Sky ATP, and (2) Sky ATP alone. I will refer to these products as the
`“accused products.” For purposes of this case for infringement, you will only need to determine
`whether the accused products satisfy the last limitation of Claim 10.
`Juniper denies infringement. Juniper further argues that Finjan cannot recover damages
`because Finjan did not comply with the notice requirements under the Patent Act, which require
`that Finjan show that it gave Juniper either constructive or actual notice of infringement. If you
`find that notice was given, then any damages would be allowed after that date but not before.
`Your job is to decide whether (1) Juniper’s accused products infringe Claim 10, and (2)
`Finjan complied with the notice requirements under the Patent Act. In the event that you find
`that Claim 10 has been infringed and Finjan complied with the notice requirements, the issue of
`damages is no longer an issue you need to decide. Instead, the Court will decide the issue of
`damages. I will provide you with a special verdict form to help organize the questions you must
`address.
`
`15.
`As you know, the patent claims are the numbered paragraphs at the end of each patent.
`The claims are important because they specifically define the exclusive rights granted by the
`Patent Office. The figures and the specification in the rest of the patent provide a description
`and/or examples of the invention and provide a context for the claims but the claims define how
`broad or narrow the patent holder’s rights are. It is often the case that a patent specification and
`its figures disclose more than the specific matter claimed as an invention, so it is important to
`keep straight what the specification says versus what the claims say.
`16.
`I am required further to define the meaning of the claim terms in dispute. So, I have
`already determined the meaning of certain terms of Claim 10 of the ’494 patent. I am now
`going to instruct you on the meaning of some of the words and phrases in the asserted claim.
`You must accept and use this meaning in your deliberations.
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`Case 3:17-cv-05659-WHA Document 329 Filed 12/14/18 Page 8 of 16
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`Downloadable: The term “Downloadable” means an executable application program,
`which is downloaded from a source computer and run on the destination computer.
`Database manager: The term “database manager” means a program or programs that
`control a database so that the information it contains can be stored, retrieved, updated and
`sorted.
`
`List of suspicious computer operations: The term “list of suspicious computer
`operations” means list of computer operations in a received Downloadable that are deemed
`hostile or potentially hostile.
`Scanner: The term “scanner” means software that searches code to identify suspicious
`patterns or suspicious computer operations.
`Database: The term “database” means a collection of interrelated data organized
`according to a database schema to serve one or more applications.
`You must accept these definitions as established for purposes of your deliberations and
`verdict. You may, however, consider all of the evidence in the case as to whether or not these
`definitions have been satisfied except that if a witness based his view on meanings of the terms
`contrary to my stated definition, you should discount that part of his testimony accordingly.
`For a claim term for which I have not provided a definition, you should apply the
`ordinary meaning. You are to apply my definitions of these terms throughout this case.
`However, my interpretation of the language of asserted claim should not be taken as an
`indication that I have a view regarding issues such as infringement. Those issues are yours to
`decide.
`
`17.
`Finjan has the burden of proof on the issue of infringement. Finjan must persuade you
`that it is more likely than not that Juniper has infringed Claim 10.
`18.
`The first question on the special verdict form asks whether Finjan has proven by a
`preponderance of the evidence that Juniper’s accused products meet the last limitation of Claim
`10 of the ’494 patent, namely, the last limitation that reads “a database manager coupled with
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`Case 3:17-cv-05659-WHA Document 329 Filed 12/14/18 Page 9 of 16
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`said Downloadable scanner, for storing the Downloadable security profile data in a database.”
`The Court and the parties agree that all limitations of Claim 10 are met except the parties
`disagree whether the “database” limitation is met. You must decide whether the database
`limitation is met as that term is used in the claim.
`19.
`To decide whether Juniper’s accused products infringe Claim 10, you must compare the
`product with the asserted claim and determine whether every requirement (or limitation) of the
`claim is included in that product. If so, Juniper’s products infringe that claim. If, however,
`Juniper’s products do not have every requirement in Claim 10, then Juniper’s products do not
`infringe that claim.
`
`20.
`In the event you determine there is no infringement, then there is nothing left for you to
`decide, as noted in the special verdict form. But if you find that there is infringement, then you
`must determine the notice issue.
`
`21.
`Finjan is not entitled to seek damages for infringement if it did not give notice of
`infringement of the ’494 patent. The second and third questions on the special verdict form
`address this issue. There are two ways Finjan, who bears the burden of proof, can show that it
`gave notice.
`
`22.
`The first way is to give constructive notice to the public in general by marking its
`products. Finjan can do this by placing on substantially all of the products it sold by itself and
`its ’494 licensees that included the patented invention either (1) the word “patent” or the
`abbreviation “pat.” with the patent number, or (2) “patent” or “pat.” and a free internet address
`where there is a posting that associates the product with the patent number.
`With respect to licensee products, Finjan bears the burden to prove that it is more likely
`than not that either (1) the products identified by Juniper do not practice the patented invention,
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`Case 3:17-cv-05659-WHA Document 329 Filed 12/14/18 Page 10 of 16
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`or (2) that it made reasonable efforts to ensure that these products were marked with the ’494
`patent.
`This type of marking notice is effective from the date Finjan and its ’494 licensees
`began to mark substantially all of their products that use the patented invention with the patent
`number. If Finjan and its ’494 licensees did not mark substantially all of their products that use
`the patented invention with the patent number, then Finjan did not provide notice in this way.
`23.
`A second way Finjan can provide notice is to affirmatively communicate to Juniper a
`specific charge that Juniper’s accused products infringe the ’494 patent. This actual notice is
`effective from the time it is given.
`
`24.
`When you begin your deliberations, you should elect one member of the jury as your
`foreperson. That person will preside over the deliberations and speak for you here in court.
`You will then discuss the case with your fellow jurors to reach agreement if you can do
`so. Your verdict as to each claim and as to damages, if any, must be unanimous. Each of you
`must decide the case for yourself, but you should do so only after you have considered all of the
`evidence, discussed it fully with the other jurors, and listened to the views of your fellow jurors.
`Do not be afraid to change your opinion if the discussion persuades you that you should.
`Do not come to a decision simply because other jurors think it is right. It is important that you
`attempt to reach a unanimous verdict but, of course, only if each of you can do so after having
`made your own conscientious decision. Do not change an honest belief about the weight and
`effect of the evidence simply to reach a verdict.
`25.
`Some of you have taken notes during the trial. Whether or not you took notes, you
`should rely on your own memory of what was said. Notes are only to assist your memory. You
`should not be overly influenced by the notes. When you go into the jury room, the Clerk will
`bring in to you the trial exhibits received into evidence to be available for your deliberations.
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`Case 3:17-cv-05659-WHA Document 329 Filed 12/14/18 Page 11 of 16
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`26.
`As I noted before the trial began, when you retire to the jury room to deliberate, you will
`have with you the following things:
`1.
`All of the exhibits received into evidence;
`2.
`A work copy of these jury instructions for each of you;
`3.
`A work copy of the verdict form for each of you; and
`4.
`An official verdict form.
`You do not have to discuss the questions in the strict sequence indicated in the special
`verdict form, but you must, by the end, answer them unanimously as indicated in the form.
`When you recess at the end of a day, please place your work materials in the brown
`envelope provided and cover up any easels containing your work notes so that if my staff needs
`to go into the jury room, they will not even inadvertently see any of your work in progress.
`27.
`A United States Marshal will be outside the jury-room door during your deliberations.
`If it becomes necessary during your deliberations to communicate with me, you may send a
`note through the marshal, signed by your foreperson, or by one or more members of the jury.
`No member of the jury should ever attempt to communicate with me except by a signed writing,
`and I will respond to the jury concerning the case only in writing or here in open court. If you
`send out a question, I will consult with the lawyers before answering it, which may take some
`time. You may continue your deliberations while waiting for the answer to any question.
`Remember that you are not to tell anyone — including me — how the jury stands, numerically
`or otherwise, until after you have reached a unanimous verdict or have been discharged. Do not
`disclose any vote count in any note to the Court.
`28.
`You have been required to be here each day from 7:45 a.m. to 1:00 p.m. Now that you
`are going to begin your deliberations, however, you are free to modify this schedule within
`reason. For example, if you wish to continue deliberating in the afternoons after a reasonable
`lunch break, that is fine. The Court does, however, recommend that you continue to start your
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`Case 3:17-cv-05659-WHA Document 329 Filed 12/14/18 Page 12 of 16
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`deliberations by 8:00 a.m. If you do not reach a verdict by the end of today, then you will
`resume your deliberations on Monday and thereafter.
`It is very important that you let the Clerk know in advance what hours you will be
`deliberating so that the lawyers may be present in the courthouse at all times the jury is
`deliberating.
`
`29.
`You may only deliberate when all of you are together. This means, for instance, that in
`the mornings before everyone has arrived, or when someone steps out of the jury room to go to
`the restroom, you may not discuss the case. As well, the admonition that you are not to speak to
`anyone outside the jury room about this case still applies during your deliberation.
`30.
`After you have reached a unanimous agreement on a verdict, your foreperson will fill
`in, date, and sign the verdict form and advise the Court that you have reached a verdict.
`The foreperson should hold on to the filled-in verdict form and bring it into the courtroom when
`the jury returns the verdict. Thank you for your careful attention. The case is now in your
`hands. You may now retire to the jury room and begin your deliberations.
`
`Dated: December 14, 2018.
`
`
`WILLIAM ALSUP
`UNITED STATES DISTRICT JUDGE
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`Case 3:17-cv-05659-WHA Document 329 Filed 12/14/18 Page 13 of 16
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`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE NORTHERN DISTRICT OF CALIFORNIA
`
`FINJAN, INC.,
`Plaintiff,
`
` v.
` JUNIPER NETWORKS, INC.,
`Defendant.
` /
`
`No. C 17-05659 WHA
`
`SPECIAL VERDICT FORM
`
`When answering the following questions and filling out this special verdict form,
`please follow the directions provided throughout this special verdict form and the final charge
`to the jury. Your answer to each question must be unanimous.
`
`We, the jury, unanimously agree to the answers to the following questions as our
`verdict.
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`Case 3:17-cv-05659-WHA Document 329 Filed 12/14/18 Page 14 of 16
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`INFRINGEMENT?
`
`Has Finjan proven by a preponderance of the evidence that Juniper’s accused
`1.
`products meet the “database” limitation as that term is used in Claim 10 of the United States
`Patent No. 8,677,494?
`
`YES __________
`
`NO __________
`
`If you answer “Yes,” you will have found that Juniper’s accused products infringe
`Claim 10, and you should go to Question No. 2. If “No,” then you will have found that
`Juniper’s accused products do not infringe and you are done — go to the end, sign, and date
`the form.
`
`NOTICE?
`
`Has Finjan proven by a preponderance of the evidence that Finjan and its ’494
`2.
`licensees marked substantially all of their products covered by the ’494 patent and/or Finjan
`gave actual notice to Juniper that Juniper was infringing the ’494 patent through the accused
`products?
`
`YES __________
`
`NO __________
`
`If you answer “Yes,” then please answer the next question. If “No,” then Finjan is not
`entitled to damages and you are done — please skip to the end, sign, and date the form.
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`For the Northern District of California
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`United States District Court
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`2
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`

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`Case 3:17-cv-05659-WHA Document 329 Filed 12/14/18 Page 15 of 16
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`If you answered “Yes” to Question No. 2, please state the earliest date proven
`3.
`by Finjan by which such marking or actual notice occurred.
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`DATE: ______________________
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`If you answer “Yes” to both Question Nos. 1 and 2 and supply a date for Question No.
`3, then the issue of damages shall be for the judge. You need not concern yourself with that
`issue.
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`For the Northern District of California
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`United States District Court
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`3
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`Case 3:17-cv-05659-WHA Document 329 Filed 12/14/18 Page 16 of 16
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`You have now reached the end of the verdict form and should review it to ensure it
`accurately reflects your unanimous determinations. Your presiding juror should then sign and
`date the verdict form in the spaces below and notify the judge (through the court security
`officer) that you have reached a verdict. The presiding juror should place the verdict form in
`the envelope provided and bring it when the jury returns to the courtroom to deliver the verdict.
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`Dated: December ___, 2018.
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`
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`___________________________________
` PRESIDING JUROR
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`For the Northern District of California
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`United States District Court
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