Case 3:17-cv-05659-WHA Document 347 Filed 12/21/18 Page 1 of 9
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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.
`
`
`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE NORTHERN DISTRICT OF CALIFORNIA
`
`SAN FRANCISCO DIVISION
`
`FINJAN, INC., a Delaware Corporation,
`
`
`
`
`
`
`Plaintiff,
`
`v.
`
`
`JUNIPER NETWORKS, INC., a Delaware
`Corporation,
`
`
`Defendant.
`
`
`
`Case No.: 3:17-cv-05659-WHA
`
`PLAINTIFF FINJAN, INC.’S OPENING
`CLAIM CONSTRUCTION BRIEF FOR U.S.
`PATENT NO. 7,418,731
`
`Date:
`Time:
`Courtroom:
`Before:
`
`
`TBD
`8:00 a.m.
`Courtroom 12, 19th Floor
`Hon. William Alsup
`
`
`
`
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`FINJAN’S OPENING CLAIM CONSTRUCTION BRIEF
`FOR THE ‘731 PATENT
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`CASE NO. 3:17-cv-05659-WHA
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`Case 3:17-cv-05659-WHA Document 347 Filed 12/21/18 Page 2 of 9
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`I.
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`INTRODUCTION
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`The Court should adopt the plain and ordinary meaning for the terms “cache,” “future access”
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`and “restrictions” because those skilled in the art, the Court, and even laypersons can readily
`understand their meaning.1 Juniper’s proposed constructions, in contrast, improperly rewrite the claim
`limitations in a litigation-driven attempt to avoid infringement and include lengthy, unnecessary
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`constructions that will only serve to confuse the jury. Because there is no clear disavowal in the
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`intrinsic record that would give these terms a special meaning, there is no basis for the Court to stray
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`from the ordinary meanings of these terms.
`II.
`
`STATEMENT OF FACTS
`
`Finjan currently asserts seven patents against Juniper: U.S. Patent Nos. 6,154,844 (the “’844
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`Patent”), 8,677,494 (the “’494 Patent”), 6,804,780 (the “’780 Patent”), 8,141,154 (the “’154 Patent”),
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`7,418,731 (the “’731 Patent”), 7,613,926 (the “’926 Patent”), and 7,647,633 (the “’633 Patent”)
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`(collectively the “Patents-in-Suit”). Claim construction briefing regarding the ‘844, ‘633, ‘154, and
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`‘926 Patents have already been submitted by the parties for consideration. See Dkt. Nos. 176, 182,
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`187. Because the ‘731 Patent was recently added to the case, Finjan consented to Juniper’s request to
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`handle terms from this patent in a separate briefing schedule. In order to only submit ten terms to the
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`Court for construction, Juniper has dropped the following terms (which were subject to the first round
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`of claim construction briefing) in light of the terms being construed for the ‘731 Patent:
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`
`
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`
`
`
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`
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`‘926 Patent: “a transmitter coupled with said receiver, for transmitting the incoming
`Downloadable and a representation of the retrieved Downloadable security profile data to a
`destination computer, via a transport protocol transmission”
`
`‘154 Patent: “A content processor (i) for processing content received over a network the
`content including a call to a first function, and the call including an input, and (ii) for
`invoking a second function with the input, only if a security computer indicates that such
`invocation is safe
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`‘154 Patent: “invoking a second function with the input”
`
`
`1 This claim construction briefing relates to only the ‘731 Patent. The other patents at issue in the case
`have already been briefed for the Court’s consideration. See Dkt. Nos. 176, 182, 187.
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`Case 3:17-cv-05659-WHA Document 347 Filed 12/21/18 Page 3 of 9
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`
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`Compare Dkt. No. 115 (Joint Claim Construction and Pre-Hearing Statement) at 2, 4-5 with Dkt. No.
`224 (Supplemental Joint Claim Construction and Pre-Hearing Statement) at 7.
`
`
`Summary of the ‘731 Patent
`A.
`The ‘731 Patent describes systems and methods for multiple types of caches, which are used in
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`conjunction with a file scanner. Declaration of Kristopher Kastens (“Kastens Decl.”), Ex. 1 (‘731
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`Patent), Abstract. The ‘731 Patent describes a system that generally reduces latency, increases
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`efficiency, and decreases processing time associated with security scanning. Id.; id. at 1:64-67.
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`Specifically, the ‘731 Patent generally describes a computer gateway for an intranet of
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`computers. ‘731 Patent, Abstract. This system can include a file cache that stores files for future
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`access and a security profile cache that stores security profiles. Id. Security profiles contained in the
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`security cache can contain a variety of information, including for example computer commands that a
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`file is programmed to perform which may be considered a security risk to the network. Id. at 9:30-40.
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`Such systems may also contain security policy caches, which store security policies for an intranet of
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`computers. Id. By storing information in cache, the system is capable of retrieving a variety of
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`information for future use which significantly improves the efficiency of the system.
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`III. ARGUMENT
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`Term 1.
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`
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`“cache” (Claims 1, 17)
`
`Juniper’s Proposed Construction
`Finjan’s Proposed Construction
`high-speed memory used to temporarily store
`No construction necessary – Plain and ordinary
`duplicated data for quick access
`meaning.
`No construction is necessary for the term “cache” because the term is readily understood in the
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`context of the claims and the specification of the ‘731 Patent as having its plain and ordinary meaning,
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`which generally means “memory for storing data, at least temporarily.” Aventis Pharms. Inc. v. Amino
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`Chems. Ltd., 715 F.3d 1363, 1373 (Fed. Cir. 2013) (presumption that plain and ordinary meaning
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`applies). The term “cache” appears in multiple contexts in the ‘731 Patent, including as a “file cache,”
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`a “security profile cache,” and a “security policy cache.” See, e.g., ‘731 Patent at Abstract. Applying
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`the plain and ordinary meaning of the term as “memory for storing data, at least temporarily” is
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`consistent with how the term is used in the specification and claims, as any mention of “cache” is for
`2
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`Case 3:17-cv-05659-WHA Document 347 Filed 12/21/18 Page 4 of 9
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`“storing” different types of files or policies. See id. (“a file cache for storing files, a security profile
`cache for storing security profiles for files, and a security policy cache for storing security policies”)
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`(emphasis added). Further, this understanding of the plain and ordinary meaning is consistent with
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`how the PTAB construed the related term, “file cache.” See Kastens Decl., Ex. 2 (Decision Denying
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`Institution) at 6 (construing “file cache” as “a memory for holding a file, at least temporarily.”). As
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`such, this understanding should be applied.
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`Furthermore, the ‘731 Patent describes how different types of data can be stored in a cache and
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`how this data can be stored for different lengths of time and for different purposes. In a first example,
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`the ‘731 Patent describes how the files that are stored in the “web cache,” can be stored temporarily
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`and periodically deleted to free up space for more files. ‘731 Patent, 8:17-19 (“Typically, web cache
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`160 is the cache that fills up, since web objects such as applets and multimedia files tend to be very
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`large.”). In another example, the ‘731 Patent describes how information in the “security profile cache”
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`can be stored on a permanent, or close to permanent basis, even when the file the stored security
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`profile correlates to has been removed from the file cache. Id. at 8:40-45 (“It may be appreciated that
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`although web content is purged from cache 160 in order to free up memory, the security profile of the
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`purged content need not be purged from security profile cache 150. In such a case, if the purged web
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`content is subsequently re-cached and has not changed, then code scanner 140 need not re-scan the
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`content.”). As shown, the ‘731 Patent describes these different caches as being memory for storing
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`various types of data which can be used for a variety of purposes and stored for different lengths of
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`time.
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`The Court should reject Juniper’s proposed construction because it will not offer any
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`clarification to the jury and imports limitations that have no intrinsic support. Specifically, Juniper’s
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`proposed construction is rife with irrelevant terms, such as “high-speed,” “duplicated data,” and “quick
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`access.” First, none of these terms are found in the specification or claims of the ‘731 Patent as
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`describing a “cache.” As a whole, it is confusing what Juniper purports each of these terms mean, and
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`the relevant claims of the ‘731 Patent (Claims 1 and 17) already state that content in certain caches is
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`“for future access.” Juniper’s proposed construction also clashes with examples in the specification of
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`Case 3:17-cv-05659-WHA Document 347 Filed 12/21/18 Page 5 of 9
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`the ‘731 Patent, which describes caches where the content is not required to be stored “temporarily,”
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`but that they will maintain data for future use. Id. at 8:40-43 (“It may be appreciated that although web
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`content is purged from cache 160 in order to free up memory, the security profile of the purged content
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`need not be purged from security profile cache 150.”). Similarly, the term “duplicated data” conflicts
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`with the specification, as it includes a “policy cache,” which is not described as including “duplicated
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`data,” but just the data for the security policy. Id. at 8:48-50 (“Security policies are typically specified
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`by a system administrator and, as such, security policy cache 170 is controlled by the system
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`administrator.”). Furthermore, the terms “high-speed” and “quick-access” should not be required
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`because the specification does not state that the caches used are limited to high-speed or quick-access
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`use. As such, Juniper’s proposed construction further confuses the claims by adding this additional
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`language.
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`Moreover, there is no disavowal of claim scope that would support Juniper’s proposed
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`construction and require deviating from the plain and ordinary meaning of the term “cache.” As a
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`threshold matter, in order to deviate from the plain meaning of the term, Juniper must demonstrate that
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`Finjan clearly and unambiguously limited the meaning of the claim term. Avid Tech., Inc. v.
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`Harmonic, Inc., 812 F.3d 1040, 1045-46 (Fed. Cir. 2016) (to limit the meaning of a claim term, the
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`Court must find that the statements are both “a clear and unambiguous” disavowal of claim scope); see
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`also Thorner v. Sony Computer Entm’t Am. LLC, 669 F.3d 1362, 1365–66 (Fed. Cir. 2012) (“There are
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`only two exceptions to [the] general rule [of ordinary meaning]: (1) when a patentee sets out a
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`definition and acts as his own lexicographer, or (2) when the patentee disavows the full scope of a
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`claim term either in the specification or during prosecution.”) (citation omitted). There is simply no
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`disavowal in the intrinsic record that would apply a special meaning to the word “cache.” As such,
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`“cache” should be given its plain and ordinary meaning which is memory for storing data, at least
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`temporarily.
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`Thus, because there is no support for Juniper’s proposed construction, it should be rejected.
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`Case 3:17-cv-05659-WHA Document 347 Filed 12/21/18 Page 6 of 9
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`Term 2.
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`
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`“a file cache for storing files that have been scanned by the scanner for
`future access” (Claim 1)
`
`Finjan’s Proposed Construction
`No construction necessary – Plain and ordinary
`meaning.
`
`Juniper’s Proposed Construction
`a file cache for storing files that have been
`scanned by the scanner for use in response to
`subsequent requests by a client to an Internet
`server
`While Juniper has identified the entirety of a claim limitation for construction, the only phrase
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`that Juniper actually seeks to construe is “future access.” The Court should adopt the plain and
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`ordinary meaning of this term since it is written in plain English. A person of ordinary skill in the art,
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`and laypersons, understand that “future access” means what it says, namely that something can be
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`accessed in the future. In the context of the phrase Juniper identifies, “future access” means that a file
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`that can be accessed in the future. ‘731 Patent, (Claim 1, 17.). There is no reason to add additional
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`verbiage when there is no ambiguity as to what “future access” means.
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`In its construction, Juniper deviates significantly from the claim language, offering a lengthy
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`and confusing construction that goes well beyond what is required from any plain reading of the claims
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`and exclude preferred embodiments from the specification. In particular, Juniper’s proposed
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`construction requires that files are stored “for use in response to subsequent requests by a client to an
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`Internet server.” However, there is no requirement in the claim that the file is used solely in response
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`to subsequent requests by a client. Indeed, the ‘731 Patent contemplates that the system can be used to
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`control content that is sent to computers outside of the Intranet. Id. at 10:25-29. This demonstrates
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`that files may be accessed in the future based on requests or responses from external computers to the
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`gateway, and is not restricted to requests sent by clients to the Internet. In addition, the ‘731 Patent
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`explains that “the gateway may receive a request for a web object without having received a request for
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`a web page that references it.” Id. at 10:64-66. This cuts directly against Juniper’s construction as the
`specification explains that is no requirement that a request be received at all in order for files to be
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`accessed. Thus, Juniper’s rewriting of the plain language of the claims excludes at least two preferred
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`embodiments which is contrary black letter law. Accent Packaging, Inc. v. Leggett & Platt, Inc., 707
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`Case 3:17-cv-05659-WHA Document 347 Filed 12/21/18 Page 7 of 9
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`F.3d 1318, 1326 (Fed. Cir. 2013) (“a claim interpretation that excludes a preferred embodiment from the
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`scope of the claim is rarely, if ever, correct.”) (citation omitted); Aventis, 715 F.3d at 1373.
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`Therefore, the Court reject Juniper’s proposed construction because “future access” is a basic
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`term that does not require further construction.
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`Term 3.
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`
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`“storing the retrieved file within a file cache for future access” (Claim 17)
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`Finjan’s Proposed Construction
`No construction necessary – Plain and ordinary
`meaning.
`
`Juniper’s Proposed Construction
`storing the retrieved file within a file cache for
`use in response to subsequent requests by a
`client to an Internet server
`Similar to Term 2, Juniper identifies the entire claim limitation but really only seeks to change
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`“future access” into “use in response to subsequent requests by a client to an Internet server.” Again,
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`for the same reasons stated for Term 2—namely, that this term is written in plain English and that the
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`specification of the ‘731 Patent describes embodiments that are untethered to “subsequent requests by
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`a client to an Internet server”—there is no reason to deviate from the plain language of the term. As
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`such, “future access” in the context of the identified phrase is simply the ability to access a file in the
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`future.
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`Term 4.
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`
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`“the security policies each including a list of restrictions” (Claim 1)
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`Finjan’s Proposed Construction
`No construction necessary – Plain and ordinary
`meaning.
`
`Juniper’s Proposed Construction
`the security policies each including a list of
`operations or computer commands that are to
`be blocked
`For the final term, Juniper seeks to change the term “restrictions” in a claim limitation into
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`“operations or computer commands that are to be blocked.” “Restrictions” is a commonly understood
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`term, that is well-known to the Court and even lay persons, which means “limitations.” Accordingly,
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`“restrictions” does not require construction and should be given its plain and ordinary meaning because
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`it is clear on its face and there is no unmistakable disclaimer or disavowal by the patentee. Aventis,
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`715 F.3d at 1373 (presumption that plain and ordinary meaning applies); Thorner, 669 F.3d at 1365-
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`66.
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`Case 3:17-cv-05659-WHA Document 347 Filed 12/21/18 Page 8 of 9
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`Juniper’s construction should be rejected because it is at odds with the specification which
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`provides that “restrictions” are not limited to a list of operations or computer commands that are to be
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`blocked. Instead, the ‘731 Patent provides several examples for the types of restrictions that can be
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`used, such as restrictions “based on grouping of recipients” and restrictions based on “files that are
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`transmitted to intranet computers.” ‘731 Patent, Col. 3:51, Col. 10:43. In addition, the specification
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`sets forth several aspects of a security policy that include the corresponding restrictions, including
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`sending only a portion of the requested web page or allowing the intranet computer to decide whether
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`or not to trust the suspicious web page. Id. at Col. 10:15-21. Thus, Juniper’s attempt to restrict the
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`claims to exclude preferred embodiments should be ignored. See EPOS Techs. Ltd. v. Pegasus Techs.
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`Ltd., 766 F.3d 1338, 1343-44 (Fed. Cir. 2014) (cannot import limitations from specification); Accent
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`Packaging, 707 F.3d at 1326 (quoting On-Line Techs., Inc. v. Bodenseewerk Perkin-Elmer GmbH, 386
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`F.3d 1133, 1138 (Fed. Cir. 2004)) (“a claim interpretation that excludes a preferred embodiment from
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`the scope of the claim is rarely, if ever, correct.”).
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`Further, Juniper’s proposed construction also excludes embodiments where the policies include
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`a list of restrictions that are allowed, not blocked, based on whether the file itself was determined to be
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`malicious. Id. at Col. 9:61:67 (“based on the results of the analysis at step 265, whether or not to block
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`the web page from being transmitted to the requesting intranet computer, in order to protect the
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`intranet computer from potentially malicious software.”). In other words, these results include in the
`security policy a determination if certain files are “Potentially Malicious” and may be allowed or
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`blocked. ‘731 Patent, TABLE I; id. at 6:27-29 (“As can be seen from Table I, web page P and web
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`objects O1 and O4 are deemed potentially malicious. Web objects O2 and O3 are deemed safe.”). As
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`such, Juniper’s proposed construction improperly imports an embodiment, while excluding others
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`provided in the specification. See EPOS Techs., 766 F.3d at 1343-44; Accent Packaging, 707 F.3d at
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`1326.
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`Because Juniper’s construction reads out preferred embodiments and improperly imports
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`limitations without justification, it should be rejected.
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`Case 3:17-cv-05659-WHA Document 347 Filed 12/21/18 Page 9 of 9
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`IV. CONCLUSION
`As such, Finjan’s proposed constructions should be adopted.
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`
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`Dated: December 21, 2018
`
`
`
`Respectfully submitted,
`
`
`By: /s/ Kristopher Kastens
`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.
`
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