Case 3:17-cv-05659-WHA Document 338 Filed 12/17/18 Page 1 of 218
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` Volume 4
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` Pages 615 - 831
`
`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
`
`BEFORE THE HONORABLE WILLIAM H. ALSUP, JUDGE
`
`)
`FINJAN, INC.,
` )
` Plaintiff, )
` )
` VS. ) No. C 17-5659 WHA
` )
`JUNIPER NETWORKS, INC.,
`)
` )
` Defendant.
`)
` ) San Francisco, California
` Thursday, December 13, 2018
`
`
`TRANSCRIPT OF PROCEEDINGS
`
`
`APPEARANCES:
`
`For Plaintiff: KRAMER, LEVIN, NAFTALIS & FRANKEL LLP
` 990 Marsh Road
` Menlo Park, California 94025
` BY: PAUL J. ANDRE, ESQ.
` LISA KOBIALKA, ESQ.
` JAMES HANNAH, ESQ.
` KRISTOPHER B. KASTENS, ESQ.
`
` KRAMER LEVIN NAFTALIS AND FRANKEL LLP
` 1177 Avenue of the Americas
` New York, New York 10036
` BY: CRISTINA LYNN MARTINEZ, ESQ.
`
`
`(Appearances continued on next page)
`
`
`
`
`Reported By: Katherine Powell Sullivan, CSR No. 5812, RMR, CRR
` Jo Ann Bryce, CSR No. 3321, RMR, CRR
` Official Reporters
`
`
`
` Volume 4
`
` Pages 615 - 831
`
`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.,
`)
` )
` Defendant.
`)
` ) San Francisco, California
` Thursday, December 13, 2018
`
`
`TRANSCRIPT OF PROCEEDINGS
`
`
`APPEARANCES:
`
`For Plaintiff: KRAMER, LEVIN, NAFTALIS & FRANKEL LLP
` 990 Marsh Road
` Menlo Park, California 94025
` BY: PAUL J. ANDRE, ESQ.
` LISA KOBIALKA, ESQ.
` JAMES HANNAH, ESQ.
` KRISTOPHER B. KASTENS, ESQ.
`
` KRAMER LEVIN NAFTALIS AND FRANKEL LLP
` 1177 Avenue of the Americas
` New York, New York 10036
` BY: CRISTINA LYNN MARTINEZ, ESQ.
`
`
`(Appearances continued on next page)
`
`
`
`
`Reported By: Katherine Powell Sullivan, CSR No. 5812, RMR, CRR
` Jo Ann Bryce, CSR No. 3321, RMR, CRR
` Official Reporters
`
`
`
`Case 3:17-cv-05659-WHA Document 338 Filed 12/17/18 Page 2 of 218
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`APPEARANCES (CONTINUED):
`
`For Defendant: IRELL & MANELLA LLP
` 1800 Avenue of the Stars, Suite 900
` Los Angeles, California 90067-4276
` BY: JONATHAN S. KAGAN, ESQ.
` ALAN J. HEINRICH, ESQ.
` JOSHUA GLUCOFT, ESQ.
` CASEY CURRAN, ESQ.
`
` IRELL & MANELLA LLP
` 840 Newport Center Drive, Suite 400
` Newport Beach, California 92660
` BY: REBECCA CARSON, ESQ.
` KEVIN X. WANG, ESQ.
`
`
`
`Case 3:17-cv-05659-WHA Document 338 Filed 12/17/18 Page 3 of 218
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`I N D E X
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`642
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`643
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`Thursday, December 13, 2018 - Volume 4
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` PAGE VOL.
`Plaintiff Rests
`643
`4
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`PLAINTIFF'S WITNESSES PAGE VOL.
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`ICASIANO, ALEX
`By Videotaped Deposition
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`GUPTA, SHELLY
`By Videotaped Deposition
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`DEFENDANT'S WITNESSES PAGE VOL.
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`BUSHONG, MICHAEL
`(SWORN)
`Direct Examination by Ms. Carson
`Cross-Examination by Mr. Hannah
`Redirect Examination by Ms. Carson
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`RUBIN, AVIEL
`(SWORN)
`Direct Examination by Mr. Heinrich
`Cross-Examination by Mr. Andre
`Redirect Examination by Mr. Heinrich
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`UGONE, KEITH RAYMOND
`(SWORN)
`Direct Examination by Ms. Curran
`Cross-Examination by Ms. Kobialka
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`644
`645
`698
`709
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`4
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`4
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`4
`4
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`4
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`796
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`820
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`Case 3:17-cv-05659-WHA Document 338 Filed 12/17/18 Page 4 of 218
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`I N D E X
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` E X H I B I T S
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`TRIAL EXHIBITS IDEN EVID VOL.
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`58
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`182
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`1059
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`1070
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`1170
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`1241, Title Page & Table of Contents
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`1241, Page 39
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`1264
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`1347
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`1552
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`2197
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`763
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`685
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`727
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`720
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`690
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`751
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`682
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`4
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`4
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`4
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`4
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`4
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`Thursday - December 13, 2018
`
` 7:25 a.m.
`
`P R O C E E D I N G S
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`(The following proceedings were held in open court,
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`outside the presence of the jury:)
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`THE COURT: Okay. What can I do for the lawyers?
`
`MR. ANDRE: A couple of things, Your Honor. One is, I
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`hesitate to mention this, but I need the time. There is a
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`10-minute error in your calculation.
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`THE COURT: You're right. Tana told me that
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`yesterday. You have 10 extra minutes. I added it up wrong.
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`You have 10 more minutes than I had thought.
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`MR. ANDRE: That's golden for me right now.
`
`THE COURT: It is. Okay.
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`MR. ANDRE: Second thing, this is a procedural issue
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`as well. We're in the process of going through a redaction
`
`process of the transcript of the phone call.
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`We got the proposed redactions last night. We have some
`
`objections to the redactions. We can email you the copies or I
`
`have hard copies here you can take with you. I just -- my
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`handwritten notes are on it.
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`THE COURT: Redactions of the phone call?
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`MR. ANDRE: Yeah. About the joint defense --
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`THE COURT: It's all blacked out. I won't be able to
`
`tell what it is.
`
`MR. ANDRE: We have the unredacted version along with
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`
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`Case 3:17-cv-05659-WHA Document 338 Filed 12/17/18 Page 6 of 218
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`the redacted version.
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`THE COURT: Can you just tag the parts that you care
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`about?
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`MR. ANDRE: We did. It doesn't have to be today, Your
`
`Honor, because --
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`THE COURT: Well, it might have to be today. Give it
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`to me now, and I'll see what I can do.
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`MR. ANDRE: This is the copy that will go back to the
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`jury room. So I'm pretty sure that won't happen at least until
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`tomorrow and probably possibly even Monday.
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`THE COURT: All right. What else?
`
`MR. ANDRE: I believe Ms. Martinez has an issue about
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`noninfringing alternatives.
`
`MS. MARTINEZ: Good morning, Your Honor. We just have
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`an issue with some slides that were disclosed by Juniper for
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`Dr. Ugone and Dr. Rubin. They have information about
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`noninfringing alternatives, which we understood were withdrawn.
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`THE COURT: That's right.
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`MS. MARTINEZ: And I believe, Your Honor --
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`THE COURT: I thought you said that that wouldn't be
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`in the case.
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`MS. CURRAN: I think they're confusing the issue, Your
`
`Honor.
`
`As to Dr. Cole's noninfringing alternative, we filed a MIL
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`at the pretrial conference. My colleague, Ms. Carson, said we
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`
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`Case 3:17-cv-05659-WHA Document 338 Filed 12/17/18 Page 7 of 218
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`didn't need to get into it as long as they didn't plan to
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`introduce that testimony to him.
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`As to Juniper's noninfringing alternatives, your Daubert
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`order expressly found that the disclosure of noninfringing
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`alternatives was timely. I have that here. I can pass it up
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`to you, if you like.
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`THE COURT: You said at the final pretrial conference
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`that if I excluded it to them, it would no longer be an issue
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`in the case. Now you're using some slick maneuver to say they
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`don't get to use it, but you get to use it.
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`What is it even relevant to?
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`MS. CURRAN: We think it's relevant to the
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`hypothetical negotiation here, right, would be constrained on
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`the amount Juniper would be willing to pay at the time of the
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`hypothetical negotiation, given they could design around the
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`patent.
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`THE COURT: Yeah, but they wanted to put it in for
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`that purpose; right? I think. I don't know. Seems like that
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`was part of their purpose.
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`MS. CURRAN: Part of their purpose for their
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`noninfringing alternative right was to show their cost savings
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`theory, but the cost savings theory had serious flaws. That's
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`why it was excluded by your opinion.
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`Their only objection to our noninfringing alternative --
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`THE COURT: All right. Here is the answer. Here is
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`
`
`Case 3:17-cv-05659-WHA Document 338 Filed 12/17/18 Page 8 of 218
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`the answer. If your side puts in anything on noninfringing
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`alternatives for that purpose, then I will give you extra time.
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`I will let you reopen your direct, your case, and you can put
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`in rebuttal information on noninfringing alternatives.
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`If you want to open that door, God bless you, you can.
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`But I'm telling you I feel I got flimflammed by Juniper on
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`this. You pulled a slick maneuver.
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`All right. That's going to be the ruling. So if you want
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`to go down that path, then they're going to get to have a
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`little bit of rebuttal on that. And you won't even -- and
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`they're just going -- it's going to be freewheeling. They get
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`to put their guy back up there and go to town on noninfringing
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`alternatives.
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`All right. What else do you have?
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`MR. KAGAN: Your Honor, we would --
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`THE COURT: I don't know why the lawyers would want to
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`get me that upset. I'm not upset. But why would you do that
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`to me? Why do the lawyers -- okay. I'm just thinking out
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`loud.
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`All right. What's your next point?
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`MR. KAGAN: Your Honor, we have one minor issue.
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`Mr. Garland testified yesterday in plaintiff's case-in-chief.
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`We're going to recall him --
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`THE COURT: Yes, you are.
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`MR. KAGAN: -- in our case-in-chief because there was
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`
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`Case 3:17-cv-05659-WHA Document 338 Filed 12/17/18 Page 9 of 218
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`an objection to beyond the scope.
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`We believe, when we look through the testimony, we can
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`actually just present Mr. Garland's testimony. We have about
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`one minute of deposition testimony which we could just present.
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`But we didn't designate it as deposition testimony.
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`THE COURT: If there's an objection, you have to do it
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`the hard way.
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`Is there an objection?
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`MR. ANDRE: I don't even know what it is, Your Honor.
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`I saw an email come in last night at 11:00 o'clock to that
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`nature. I have not had a chance to look at it.
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`THE COURT: Is he here, out there in the hall cooling
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`his heels?
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`MR. ANDRE: I don't know if he's there just yet.
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`He'll be here this morning. He canceled his flight, and he's
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`here.
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`THE COURT: Plan A is, he's going to be called live.
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`Plan B, if you two agree, will be you can substitute the
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`deposition. But I'm not going to say it's okay yet because,
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`no, it wasn't designated.
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`Anything else?
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`MR. ANDRE: That's it, Your Honor. We're going to be
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`playing a couple short depositions this morning, and then we'll
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`close our case.
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`THE COURT: All right. Do you have anything more?
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`
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`Case 3:17-cv-05659-WHA Document 338 Filed 12/17/18 Page 10 of 218
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`Because I have something important I want to bring up with you.
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`Do you have anything more?
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`MR. KAGAN: No, Your Honor.
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`MR. WANG: Your Honor, we actually do have objections
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`to Finjan's invalidity expert's demonstratives, if we can
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`address them.
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`THE COURT: I thought the case was virtually over. Is
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`this one of your -- what invalidity expert?
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`MR. WANG: This is their rebuttal expert to the 101
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`issues.
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`THE COURT: Well, when is that going to be presented?
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`MR. WANG: Right after our -- when we close our
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`case-in-chief.
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`THE COURT: You mean when the jury is deliberating or
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`something?
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`MR. ANDRE: Your Honor, they are intending to put
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`forward a 101 defense with their expert, Dr. Rubin.
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`THE COURT: Yeah.
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`MR. ANDRE: We had put a rebuttal expert in. I
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`thought that went away because of Your Honor's ruling. But
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`they intend to do it, so Dr. Orso is sitting back there in the
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`courtroom. He's been cooling his heels, waiting to go on the
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`stand for rebuttal to Dr. Rubin's 101 issue.
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`THE COURT: What if you run out of time?
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`MR. ANDRE: We're going to be okay on time, Your
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`
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`Case 3:17-cv-05659-WHA Document 338 Filed 12/17/18 Page 11 of 218
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`PROCEEDINGS
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`Honor. We do pretty quick crosses. We won't spend a lot of
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`time.
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`time?
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`THE COURT: But on your direct, what if you run out of
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`MR. ANDRE: We won't.
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`THE COURT: All right. Well, is this when the jury is
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`deliberating?
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`MR. ANDRE: No, no.
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`THE COURT: This is while the jury is here?
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`MR. ANDRE: I guess.
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`I thought this was going to be something you were going to
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`take up outside the presence of the jury. And on a 101 issue,
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`kind of like -- we'd mentioned Judge Freeman had done this.
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`She had held a bench trial on 101 after the jury verdict came
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`back. And we thought that's what you were going to do.
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`But with Dr. Rubin, they've -- they've put --
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`THE COURT: If the jury is going to hear it for them,
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`they get to hear it for you if you still have time.
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`All right. I don't want to go into those objections now.
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`MR. WANG: Yes, Your Honor.
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`THE COURT: We'll get to it in due course.
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`Look, I want to give you a heads-up on -- and get an
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`advance -- I want to focus now on the rule. I know you haven't
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`closed your case out, but you're virtually there.
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`And we have 20 minutes now, and I want to hear the Rule 50
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`motion, or at least a preview of it, because I may grant it on
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`the issue of damages.
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`So who's going to argue that?
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`MR. KAGAN: Your Honor, I can address the overview of
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`the motion.
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`THE COURT: All right. What is it going to be?
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`MR. KAGAN: So there's a number of issues. One is
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`there's no allocation --
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`THE COURT: Apportionment.
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`MR. KAGAN: -- apportionment between the infringing
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`and noninfringing -- or the value of the infringing, alleged
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`infringing technology to the overall benefit of the accused
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`products.
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`So there's two issues. One is, there is SRX. And second
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`is, there's Sky ATP. So they need to say this portion of Sky
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`ATP's sales or its success is attributable to the infringing --
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`to the alleged infringement.
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`They have to put on testimony, competent testimony, to
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`indicate how they can apportion that. They have not done that.
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`The same thing goes with SRX. And remember all the -- and
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`this -- there's no question the SRX has noninfringing uses.
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`99 percent of the SRXs sold are not even capable of being used
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`with the Sky ATP software.
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`THE COURT: Well, they would be if you flipped the
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`switch. But isn't there a router function that's built in
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`
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`Case 3:17-cv-05659-WHA Document 338 Filed 12/17/18 Page 13 of 218
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`there too?
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`MR. KAGAN: Yes, there is, Your Honor.
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`THE COURT: And wasn't there a router before they ever
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`had SRX? In other words, Juniper -- this is the most recent
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`router, but they had routers before they had SRX.
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`MR. KAGAN: That's correct, Your Honor. So the SRXs
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`that are currently being sold -- so if somebody buys or uses
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`for free that Sky ATP functionality, that doesn't mean that's
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`the only thing they're using it for. They're also using that
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`device that still has all the other functionality.
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`So they need to get someone on the stand who can say, for
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`example, X percentage of the value is due to Sky ATP
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`functionality. And then they have to go even farther. What
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`percentage of that Sky ATP functionality is due to the alleged
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`infringement?
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`THE COURT: All right. I just want to focus on that.
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`I think that's a serious problem for the plaintiff. And
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`I'd like to hear what you say to that on both of those two
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`apportionment points.
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`MR. ANDRE: Your Honor, you'll be hearing the
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`deposition testimony of Alex Icasiano first thing this morning.
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`THE COURT: Who is he?
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`MR. ANDRE: He is the 30(b)(6) witness designated by
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`Juniper to talk exactly about this point, the apportionment;
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`what percentage of files the Sky ATP reviews, what percentage
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`
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`Case 3:17-cv-05659-WHA Document 338 Filed 12/17/18 Page 14 of 218
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`goes through the infringing functionality of being scanned
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`dynamically.
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`Now, the Sky ATP has, as Your Honor pointed out,
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`infringing and noninfringing functionality. Some of the
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`noninfringing functionality involves geo location, various
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`other things we would never accuse of infringing. Even the
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`antivirus lookup is noninfringing. But what is infringing is
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`when they get to the static scanning and the dynamic scanning.
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`So we have Mr. Icasiano, who ran a special report that
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`says -- he had a gentleman by the name of Curan to run a report
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`to obtain the number -- 40 percent of new samples submitted by
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`the customers are sent to dynamic analysis. This was limited
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`to the time period of January 2017 and before, the infringing
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`time period.
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`THE COURT: So what would that prove?
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`MR. ANDRE: That's your apportionment. That's the
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`infringing footprint. 40 percent of the scans done by Sky ATP
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`is infringing.
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`THE COURT: Well, let me give you a hypothetical.
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`Let's say that every single message that comes through the
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`router goes through Sky ATP. Your theory would then be a
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`hundred percent.
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`MR. ANDRE: No.
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`THE COURT: Why not?
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`MR. ANDRE: Because when a -- it's not going through
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`Case 3:17-cv-05659-WHA Document 338 Filed 12/17/18 Page 15 of 218
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`the -- and I'll correct Counsel. It's not a router. It's a
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`firewall. The SRX is a firewall. They have other routers out
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`there in the system.
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`SRX is a firewall that when a file comes to SRX, if it's
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`passed to Sky ATP, only 40 percent of those that are passed to
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`Sky ATP are infringing. That's what we're saying. That's the
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`apportionment.
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`We've taken it down to the exact incremental value, or
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`footprint of the invention it's called sometimes, of
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`40 percent.
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`THE COURT: I'm still not getting it. I want to -- I
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`want you to -- so let's say that -- just take a number. Let's
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`say that there are a thousand packets that reach the SRX. On
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`the data that you have, what percentage of those get sent to
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`Sky ATP?
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`MR. ANDRE: Some of them go right through the SRX and
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`never go to Sky ATP.
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`THE COURT: I know. So what percentage -- what is
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`what?
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`MR. ANDRE: If it goes through and determines it has
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`not seen it through its antivirus, that's not an apportionment
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`we're looking at. We're looking at the infringing
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`functionality --
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`THE COURT: No, no, no, no. Maybe I don't even
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`understand how it works, but I think I do.
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`Case 3:17-cv-05659-WHA Document 338 Filed 12/17/18 Page 16 of 218
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`When a packet comes from the Internet to the SRX -- and
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`let's assume it's a firewall for a moment -- does every single
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`packet go up to Sky ATP?
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`MR. ANDRE: I don't think so, no.
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`THE COURT: Well, what percentage do?
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`MR. ANDRE: We don't know that. They don't track
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`that.
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`THE COURT: Well, that's -- isn't that your burden?
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`MR. ANDRE: No, Your Honor. That's not our
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`apportionment.
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`We have an infringement theory of Sky ATP by itself, as
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`you know, without SRX. And we have Sky ATP with SRX. And so
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`if you look at just the Sky ATP functionality -- that's what
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`we're focusing on here, the Sky ATP by itself -- then every
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`file that comes into Sky ATP, into that ecosystem, 40 percent
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`of them will go through that infringing system that we have on
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`Claim 10. So we have an exact apportionment of Sky ATP.
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`Your Honor mentioned the Blue Coat case. And I said I
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`argued that case. What we said there was very similar. Went
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`up to the cloud, and we said there -- instead of Sky ATP, it
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`was DRTR. And we said everything that gets into DRTR, a
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`hundred percent of it would be infringing.
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`And the Federal Circuit said no, DRTR does other things.
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`You had to say which percentage went through the scanning. And
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`we didn't do that.
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`Case 3:17-cv-05659-WHA Document 338 Filed 12/17/18 Page 17 of 218
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`So now we've done it this time with Sky ATP. We're
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`telling this court what percentage of those packets that are
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`coming in are going through the scanning of dynamic scanning.
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`That's the last in the chain.
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`That's the reason we put that information up there about
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`starts off caching, antivirus, static, and then dynamic.
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`So dynamic is the last step in the chain. So when it gets
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`to dynamic, we know it's going through the infringing system.
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`THE COURT: How do we know that?
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`MR. ANDRE: Because that was the evidence we have in,
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`in the case, Dr. Cole.
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`THE COURT: I have a very related point. Claim 1 does
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`not infringe. It's invalid. And are you including things in
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`there that would violate Claim 1?
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`In other words, to my mind, it ought to be just those --
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`the difference between Claim 1 and Claim 10 is the data manager
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`and the scanner, I guess. Is that it?
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`By the way, I do want you to know, it never ceases to
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`amaze me what gets through the Patent Office. In light of what
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`was already known in the art here, that this could have gotten
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`through the Patent Office. It's a very thin case for validity.
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`I'm not saying it's invalid. Not yet. I might
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`eventually. But I'm telling you this -- but you've got to
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`apportion to the little thin sliver -- the thin sliver of an
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`idea of an invention here is where you've got to apportion to.
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`
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`Case 3:17-cv-05659-WHA Document 338 Filed 12/17/18 Page 18 of 218
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`You can't apportion to something that's only covered by
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`Claim 1.
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`MR. ANDRE: And, Your Honor, we're not. We're
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`actually going through the system of Claim 10.
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`Just for some context, last Thursday, before this trial
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`started, I was in D.C. arguing to the Federal Circuit on
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`Claim 1 and Claim 10. The Claim 10 has been through -- claimed
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`three IPRs.
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`We've had Palo Alto Networks, Symantec, Blue Coat,
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`everyone under the sun challenging the validity of this patent.
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`The IPR process is a very vigorous process, and they are
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`slanted in favor of the petitioner, against the patent owners,
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`as you're probably well aware of.
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`This claim has been held valid time and time again.
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`THE COURT: Well, how many times? My law clerk told
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`me just once.
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`MR. ANDRE: Three times.
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`THE COURT: Three times.
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`MR. ANDRE: And we just argued for the Federal Circuit
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`the one where we won on that. So we actually have three
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`different IPRs, two of them being consolidated, where Claim 10
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`has been found valid in two final written decisions; one
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`noninstitution.
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`So my point is --
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`THE COURT: Maybe a district judge is going to
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`
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`Case 3:17-cv-05659-WHA Document 338 Filed 12/17/18 Page 19 of 218
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`disagree. Maybe not. I don't know. I'm not going to reach
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`that yet.
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`But I will say this, I know enough about this area to say
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`this is a very minuscule improvement over the art, if there is
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`one. And so it may have scraped by, by the skin of its teeth,
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`as valid, but I don't -- I think you've got to somehow subtract
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`out of it the stuff that's covered only by Claim 1.
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`Have you done that?
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`MR. ANDRE: Your Honor, Claim 10 is a system claim.
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`We've gone through and shown what part of the system -- what
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`part of files go through the system. This is not a small
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`improvement over the system. It was revolutionary at the time.
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`At the time it was.
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`THE COURT: Please. Come on.
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`MR. ANDRE: Your Honor, back in 1996, that's what the
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`Federal Circuit said.
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`THE COURT: I want to tell you a few things. Everyone
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`knows, who's done any coding, that if you go through a lot of
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`trouble to derive a number and there's even a small chance
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`you're ever going to need it again, you ought to save it rather
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`than require the computer to go through that stuff again. And
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`if you're going to save it, you need a data manager to be able
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`to recall it. Could be a simple thing.
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`You, yourself, said if there's a data manager, there's
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`going to be data. Well, it works the other way too. If
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`
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`Case 3:17-cv-05659-WHA Document 338 Filed 12/17/18 Page 20 of 218
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`there's going to be data, there's going to be a data manager.
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`MR. ANDRE: What the Federal Circuit has found to be
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`pioneering, and that was --
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`THE COURT: Is that their term?
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`MR. ANDRE: Their words.
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`THE COURT: The Federal Circuit said this thing was
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`pioneering?
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`MR. ANDRE: They said what was pioneering was the way
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`the --
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`THE COURT: They said Claim 10 was pioneering?
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`MR. ANDRE: They said the technology relating back to
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`these patents -- Claim 10 hasn't got through to that process
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`yet. I argued that Thursday.
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`The related patent had the downloadable security profile,
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`the DSP, same thing as this one, a related patent. They said
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`the way that Finjan came up with a system to generate profiles,
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`the scanning they did on antivirus was pioneering. That's
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`their words. That's the Federal Circuit.
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`So going back to 1996 --
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`THE COURT: Scanning is not the patent here. The
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`claim-in-suit is -- it has scanning as part of it, but the
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`particular method for scanning is not claimed.
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`MR. ANDRE: It is generating -- it is scanning and
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`generating a downloadable security profile that contains a list
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`of suspicious operations. That is common in probably eight to
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`ten of Finjan patents, that claim language. That concept --
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`THE COURT: It's known in the art to go through and
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`get all those codewords.
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`MR. ANDRE: It was not. Not in 1996. That's the
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`reason that we've survived numerous IPRs.
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`Finjan's patent portfolio had almost a hundred IPRs filed
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`against it. I think we've lost three claims so far, and
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`they're still on appeal.
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`This technology in 1996 was a paradigm shift. We have
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`publications that said it was -- they invented behavior-based
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`scanning. Now, before this, it was antivirus, it was
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`signature-based scanning.
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`THE COURT: You told me yourself, earlier, that the
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`sandbox idea was in the prior art.
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`MR. ANDRE: I didn't say that.
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`THE COURT: Was it? You're saying that Finjan
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`invented the sandbox idea?
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`MR. ANDRE: The idea of generating a downloadable
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`security profile with a list of suspicious operations was
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`invented by Finjan. That has been determined by numerous
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`courts, Patent Office, and the Federal Circuit.
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`We've had the '494 patent challenge on invalidity in this
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`district, from other judges, with juries. We've come out
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`alive. We've had posttrial motions. We've had IPRs. We've
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`had, now, a Federal Circuit argument last Thursday.
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`Case 3:17-cv-05659-WHA Document 338 Filed 12/17/18 Page 22 of 218
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`So I know your Honor may think that in hindsight it looks
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`not that great --
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`THE COURT: Well, no, it looks pretty good until you
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`realize how much of it was in the prior art. And then you've
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`got to ask, was it obvious over what was in the prior art? And
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`I'm telling you that I -- I don't know. I'd have to hear more
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`testimony, I think.
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`But this is -- but your guy got on the stand, Mr. Cole,
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`and he told the jury that -- and there were three things.
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`Ms. Carson did a good job on this. Everything that he said
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`was -- the best thing since sliced bread was in Claim 1.
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`Everything. And that's all he focused on. It was so
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`misleading. I really feel like you tried to deceive the jury
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`on this.
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`All right. Here's my point: I'm going to listen to what
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`you have to say about apportionment, but I want you to be ready
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`to possibly -- as soon as the plaintiff's case is over, we'll
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`hear the Rule 50 on damages.
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`I may have to excuse the jury. And there's a chance --
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`I'm not going to say what -- maybe -- that we will exclude
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`damages. If I do that, then I'm going to take away some of
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`your time. If you're going to object to that, I'm going to
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`make -- we're just going to hear everything.
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`But there's no way that it would be fair for you -- if
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`we're going to take damages away on Rule 50, that you get all
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`
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`Case 3:17-cv-05659-WHA Document 338 Filed 12/17/18 Page 23 of 218
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`that extra time.
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`So you need to be able to tell me in a few minutes, before
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`I get into it, how much time you would give up. It would have
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`to be enough to make it worthwhile so that we would have a
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`fighting chance to end this case tomorrow.
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`I think the apportionment problem is severe here. It's
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`total greed, and it's an unwillingness to try to focus in on
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`what is the real invention here.
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`Now, you say it's a firewall.
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`You say it's a router.
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`MR. KAGAN: Your Honor, it is a -- it is a firewall,
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`but it has routing functions as well. The name SRX stands for
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`security, which is the firewall; R, router; and X, switch. It
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`all has functions built into one box.
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`THE COURT: Well, is that part of the record here?
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`MR. KAGAN: Yes, Your Honor, it is.
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`THE COURT: All right. I mean part of the record
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`before the jury.
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`MR. KAGAN: It will be when Mr. Bushong testifies
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`later today.
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`THE COURT: Well, but I can't take that into account
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`when I'm evaluating just the plaintiff's case.
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`MR. KAGAN: Your Honor, it is irrelevant for the
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`apportionment what you call the device. In other words, what
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`is -- what is clear is that it has mixed functionality.
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`MS. CARSON: And Trial Exhibit 345 actually contains
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`the functionality for the SRX. So it is part of the record
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`even though there hasn't been testimony on it. It's the sheet
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`for the SRX that shows all of the various functionality.
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`THE COURT: When we get to it, there are two levels of
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`apportionment that I am concerned about. One is the hardware.
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`And the hardware does have several functions, because -- here's
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`the simple way in which I'm looking at this. But before this
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`product ever got introduced, Juniper had long been in the
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`business of developing boxes that looked a lot like this and
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`did a lot of the same things.
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`But this box now has the additional protection against
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`malware, but it's still doing those earlier functions. There's
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`got to be some credit given for the fact that the -- some
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`apportionment for the fact that the box continues to do those
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`earlier functions. Now, I don't see where that's being taken
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`into account here, but maybe.
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`Second is that even for those files that get sent to the
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`Sky ATP, there are aspects of the Sky ATP that are unpatented
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`and there are aspects that are patented. And is that level
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`being apportioned?
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`You don't have an expert anymore. So I don't know how
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`you -- you know, you're going to have to show me -- the reason
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`you don't have an expert is you swung for the fences. And
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`you -- you didn't bother to do any of this before.
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`Case 3:17-cv-05659-WHA Document 338 Filed 12/17/18 Page 25 of 218
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`This is what's on my mind. And I'm giving you this
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`heads-up because it may go pretty fast. It could be motion
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`granted, case truncated, case goes to the jury.
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`Now, there's another thing I want to put you on notice of.
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`There's some chance, not as big a chance, that at the end of
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`your case I would grant a Rule 50 in your favor on
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`infringement, on the plaintiff's side, because, as I say all
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`this, I'm not too impressed with the defense on the issue of
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`infringement. But maybe I'm wrong.
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`Maybe when your expert gets up there I will -- and I have
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`to remember it's for the jury to decide, not for me to decide.
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`So the issue will be,
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