Case 3:17-cv-05659-WHA Document 355 Filed 01/11/19 Page 1 of 11
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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
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`FOR THE NORTHERN DISTRICT OF CALIFORNIA
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`SAN FRANCISCO DIVISION
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`FINJAN, INC., a Delaware Corporation,
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`
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`
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`Plaintiff,
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`v.
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`JUNIPER NETWORKS, INC., a Delaware
`Corporation,
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`Defendant.
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`Case No.: 3:17-cv-05659-WHA
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`PLAINTIFF FINJAN, INC.’S REPLY CLAIM
`CONSTRUCTION BRIEF FOR U.S. PATENT
`NO. 7,418,731
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`Date:
`Time:
`Courtroom:
`Before:
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`TBD
`8:00 a.m.
`Courtroom 12, 19th Floor
`Hon. William Alsup
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`CASE NO. 3:17-cv-05659-WHA
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`FINJAN’S REPLY CLAIM CONSTRUCTION
`BRIEF FOR U.S. PATENT NO. 7,418,731
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`Case 3:17-cv-05659-WHA Document 355 Filed 01/11/19 Page 2 of 11
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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
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`understand their meaning. Juniper’s proposed constructions, on the other hand, import limitations
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`from the specification. For the term “cache,” Juniper relies heavily on extrinsic evidence instead to
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`support its proposed construction, despite the fact that the extrinsic evidence conflicts with the use of
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`the term in U.S. Patent No. 7,418,731 (Dkt. No. 347-2, “the ‘731 Patent”). For the remainder of the
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`terms, Juniper is unable to identify any instance where the applicant acted as a lexicographer or clearly
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`disavowed claim scope, such that there is no basis to deviate from the plain and ordinary meaning of
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`the terms. Accordingly, the Court should adopt the plain and ordinary meaning of the terms at issue.
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`II.
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`ARGUMENT
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`Term 1.
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` “cache” (Claims 1, 17)
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`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.
`The Court should adopt the plain and ordinary meaning of “cache,” which as used throughout
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`the ‘731 Patent, describes “memory for storing data, at least temporarily.” Dkt. No. 347, Finjan’s
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`Opening Brief (“Opening Br.”) at 2-3. The plain and ordinary meaning applies to uses of the term
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`“cache” in various contexts, including when used for a “file cache,” a “security profile cache,” and a
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`“security policy cache,” which are all generally described as memory for storing data. Id. For
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`example, the ‘731 Patent describes how the “file cache” can store data in the form of files that are
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`retrieved from the Internet for later use. ‘731 Patent, at 4:18-19 (“storing the retrieved file within the
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`file cache”). The ‘731 Patent also describes a “security profile cache” that allows for the storage of
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`data in the form of security profiles that were generated for the files, so that these security profiles
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`could be reused for as long as necessary. Id. at 9:43-45 (“the gateway computer stores the
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`corresponding security profiles that it derived within its security profile cache.”). Finally, the ‘731
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`Patent describes how data in the form of policies can be stored in a “policy cache” so that it can be
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`FINJAN’S REPLY CLAIM CONSTRUCTION
`BRIEF FOR U.S. PATENT NO. 7,418,731
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`CASE NO. 3:17-cv-05659-WHA
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`Case 3:17-cv-05659-WHA Document 355 Filed 01/11/19 Page 3 of 11
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`retrieved to make policy decisions. Id. at 2:65-67 (“retrieving a security policy for the intranet
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`computer from a security policy cache …”). The ‘731 Patent contemplates storing information in a
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`cache for different lengths of time, including examples involving temporary storage with “purg[ing]”
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`of information periodically to save space, and other examples that are more permanent and do not
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`require periodic purging of data. Opening Br. at 3 (citing ‘731 Patent, at 8:17-19, 8:40-45). As such,
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`the plain of ordinary meaning of cache as “memory for storing data, at least temporarily” is consistent
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`with how the term is used throughout the specification of the ‘731 Patent.
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`Juniper’s proposed construction cannot be adopted because it conflicts with how the term is
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`used in the specification. Juniper’s claim that the plain and ordinary meaning of “cache” must be
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`limited to “high-speed memory used to temporarily store duplicated data for quick access” is incorrect.
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`The lack of support for Juniper’s proposed construction is made apparent by the fact that Juniper is
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`forced to rely primarily on extrinsic evidence in order to justify its proposed construction, which is at
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`odds with the disclosure of the ‘731 Patent. Dkt. No. 349, Juniper’s Reply Brief (“Resp.”) at 2-3.
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`Furthermore, it is notable that Juniper cannot rely on a single definition in support of its proposed
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`construction, but strings together a hodge-podge of different constructions in an attempt to import new
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`and unsupported limitations into the claims. For example, Juniper relies on some definitions that
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`compare a “cache” with other forms of memory, and describe the cache as being faster than these other
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`memory options. Id. However, the ‘731 Patent does not reference the cache as operating more quickly
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`in relation to other types of memory. At no point in the specification does the ‘731 Patent describe that
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`any of the caches used—“file cache,” “security profile cache,” or “policy cache,” —is serving as a
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`faster alternative to some other type of memory for storing these files. Instead, the ‘731 Patent
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`describes storing the files retrieved from the Internet in the file cache, storing the profiles generated in
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`the profile cache, and the policies used in a policy cache. Accordingly, to inject terms such as “high-
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`speed” and “quick access” is completely unsupported by anything in the specification.
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`Further, for these same reasons, the specification of the ‘731 Patent does not support that the
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`data stored in the cache is “duplicated data,” as the specification does not describe the caches storing
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`data in different types of memory on the system, i.e., data that is “duplicated.” Instead, Juniper
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`FINJAN’S REPLY CLAIM CONSTRUCTION
`BRIEF FOR U.S. PATENT NO. 7,418,731
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`CASE NO. 3:17-cv-05659-WHA
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`Case 3:17-cv-05659-WHA Document 355 Filed 01/11/19 Page 4 of 11
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`incorrectly argues that the following description of the ‘731 Patent describes “duplicated data”: “At
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`step 260 the gateway computer retrieves a security policy for the intranet client computer that
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`requested the web page at step 205.” Resp. at 6 n.3 (citing ‘731 Patent, at 9:55-57). However, this is
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`not a reference to data that is duplicated, but the data is simply being retrieved from the “policy cache”
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`so that it can be applied. As this limitation is unsupported by the specification, Juniper is therefore
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`once again forced to rely on importing limitations found in extrinsic evidence for its proposed
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`construction. Resp. at 2 (citing Dkt. No. 249-2, Declaration of Rebecca Carson (“Carson Decl.”), Ex.
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`1). However, again, nowhere in the specification does the ‘731 Patent describe the data being
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`“duplicated” on the system, and as such, Juniper’s proposed limitation should be rejected.
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`Juniper next argues that the PTAB’s adopted construction of the related term, “file cache,”
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`should be given no weight because the petitioner did not argue for another construction of the term.
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`Resp. at 3. Juniper’s suggestion that the PTAB would somehow construe a term in a way that is
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`inconsistent with the ‘731 Patent or how a person of ordinary skill in the art would understand the term
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`is unfounded. Id. That the PTAB readily accepted Finjan’s understanding of the term as the
`appropriate understanding of the term is evidence that it is an appropriate plain and ordinary meaning.1
`The PTAB includes those knowledgeable in the art, and they would not adopt a construction as the
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`meaning of the term if that understanding was not consistent with the plain and ordinary meaning of
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`the term.
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`Further, the portions of the specification which Finjan provide support a plain and ordinary
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`meaning that encompasses storing a file on a temporary and up to a permanent, or close to permanent,
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`basis. In particular, Finjan cited to portions of the intrinsic record that the “profile cache” can store a
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`security profile for a long as needed, and this cache does not require routine purging, and therefore is
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`not limited to “temporary” storage of data as suggested by Juniper. ‘731 Patent, at 8:41-43 (“the
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`security profile of the purged content need not be purged from security profile cache 150.”). Juniper’s
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`identification of other portions of the ‘731 Patent are not contrary to Finjan’s plain and ordinary
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`1 The PTAB adopted the same construction as Finjan, except the PTAB substituted “holding” for
`“storing” of the data. Dkt. No. 347-3, Declaration of Kristopher Kastens, Ex. 2 at 6. Finjan believes
`that both “storing” and “holding” are consistent with the plain and ordinary meaning of the term.
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`FINJAN’S REPLY CLAIM CONSTRUCTION
`BRIEF FOR U.S. PATENT NO. 7,418,731
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`CASE NO. 3:17-cv-05659-WHA
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`Case 3:17-cv-05659-WHA Document 355 Filed 01/11/19 Page 5 of 11
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`meaning of the term, as Finjan’s identification of the plain and ordinary meaning encompasses how
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`the term is used throughout the specification of the ‘731 Patent. This is consistent with embodiments
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`that the ‘731 Patent describes caches which are managed … “in order to appropriately purge items
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`from cache when cache memory is full and new items arrive for storage,” and also those, which as
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`described above, do not require “purging.” Juniper’s citation only demonstrates that the ‘731 Patent
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`contemplates that purging items from a cache is possible—not that it is required to do so. Resp. at 5
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`(citing ‘731 Patent, at 8:11-16). This is aligned with the plain and ordinary meaning proposed by
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`Finjan, which includes caches that are periodically purged, and those that are not.
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`Finally, Finjan’s statements in the Blue Coat action are not contrary to the plain and ordinary
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`meaning Finjan proposes in this case. Resp. at 6. There, Finjan was merely describing that the cache
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`can be temporary storage which is consistent with the plain and ordinary construction of “memory for
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`storing data, at least temporarily.”
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`Accordingly, the Court should reject Juniper’s proposed construction which is based on
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`subjective terms and extrinsic evidence that contradicts the intrinsic record.
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`Term 2.
` “a file cache for storing files that have been scanned by the scanner
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`for future access” (Claim 1)
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`Finjan’s Proposed Construction
`No construction necessary – Plain and ordinary
`meaning.
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`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
`The only portion of this term that Juniper is actually seeking to construe is what “future access”
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`means in the context of the claims. However, “future access” is written in plain English and does not
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`require additional construction deviating from the plain and ordinary meaning. Opening Br. at 5. This
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`term is simply understood as something that can be accessed in the future, which is exactly also how
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`the term is used in the claims. ‘731 Patent, Claims 1, 17.
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`Juniper’s proposed construction takes these two basic words and rewrites them in a way that
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`deviates from the plain reading of the claim language and which excludes preferred embodiments from
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`the specification. Opening Br. at 5-6. Juniper does not dispute that its proposed construction is
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`Case 3:17-cv-05659-WHA Document 355 Filed 01/11/19 Page 6 of 11
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`contrary to the plain and ordinary meaning. But in an attempt to justify deviating from the plain and
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`ordinary meaning, Juniper claims that when Finjan included “files that have been scanned by the
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`scanner for future access”/“retrieved files” for “future access,” Finjan limited itself to a single type of
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`future access, namely “for use in response to subsequent requests by a client to an Internet server.”
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`However, the Court may not read in this new limitation based on the prosecution history because
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`Finjan made no clear and unmistakable disavowal of claim scope. Avid Tech., Inc. v. Harmonic, Inc.,
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`812 F.3d 1040, 1045-46 (Fed. Cir. 2016) (to limit the meaning of a claim term, the Court must find that
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`the statements are both “a clear and unambiguous” disavowal of claim scope); see also Thorner v.
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`Sony Computer Entm’t Am. LLC, 669 F.3d 1362, 1365–66 (Fed. Cir. 2012) (“There are only two
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`exceptions to [the] general rule [of ordinary meaning]: (1) when a patentee sets out a definition and
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`acts as his own lexicographer, or (2) when the patentee disavows the full scope of a claim term either
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`in the specification or during prosecution.”) (citation omitted). Instead, Finjan made the common
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`sense argument that the file is stored after it has been scanned for “future access” based on the plain
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`reading of the claims. See Dkt. No. 349-8, Carson Decl., Ex. 7 at 3, 13-14 (the file cache holds files
`that “have been scanned by the scanner for future access”) (emphasis added). As such, the
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`prosecution history does not support Juniper’s proposed construction.
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`Juniper also argues that Finjan is limited to single example of what “future access” could be,
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`otherwise the patent would be “invalid under the written description requirement and would be
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`contrary to Federal Circuit precedent.” Resp. at 7. This is wrong, and flips the concept of disclosing
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`example embodiments complete on its head. Finjan provided examples of what “future access” in the
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`specification means and these examples can be used to support claims that cover all types of future
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`access. Furthermore, the words “future access” are well-understood, and there are no issues with
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`written description or enablement, as there was in Wang Laboratories. Wang Labs., Inc. v. Am.
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`Online, Inc., 197 F.3d 1377, 1382 (Fed. Cir. 1999). In stark contrast to Wang Laboratories where the
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`applicant distinguished over prior art by characterizing its invention to be a character-based frame, the
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`applicant here only distinguished over Ji by stating that “the received files in Ji are not stored in a file
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`Case 3:17-cv-05659-WHA Document 355 Filed 01/11/19 Page 7 of 11
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`cache for future access,” not specifically stating how the file must be accessed. Dkt. No. 349-8,
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`Carson Decl., Ex. 7 at 14; Wang Labs., 197 F.3d at 1384.
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`Moreover, Juniper claims that its replacement of these two basic words with 13 words setting
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`forth a specific embodiment is “consistent with the purpose of the ‘731 Patent.” However, it is black
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`letter law that embodiments from the specification should not be imported into the claims. Teleflex,
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`Inc. v. Ficosa N. Am. Corp., 299 F.3d 1313, 1326 (Fed. Cir. 2002) (“As we have often stated, the
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`claims must be read in view of the specification … but limitations from the specification are not to be
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`read into the claims”) (citations omitted). There are numerous usages of “file cache” within the
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`specification that do not limit their storage only to be “in response to subsequent requests by a client to
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`an Internet server.” ‘731 Patent, at 2:1-57; 3:21-4:27 (providing multiple example embodiments not
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`requiring file to be served “in response to subsequent requests by a client to an Internet server.”).
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`Furthermore, Juniper’s construction still excludes preferred embodiments in the specification
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`from its construction. Opening Br. at 5-6; Resp. at 8. Juniper attempts to line up portions of the
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`specification to specific claims (Resp. at 8), arguing that certain sections of the specification should
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`only apply to certain claims. However, Juniper’s argument mischaracterizes the specification.
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`Specifically, the section describes a system that can look at both incoming and outgoing content, and
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`does not require that it be restricted to only looking at one or the other. ‘731 Patent, at 10:48-52
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`(“More generally, it may be appreciated that FIG. 1 and FIG. 3 may be combined to provide a system
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`in accordance with the present invention that controls bi-directional traffic; i.e., both incoming and
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`outgoing content.”). As such, this section should still be considered when interpreting the claims, as it
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`should not read out using the system for both purposes. For example, Column 10 lines 25-29 state: “In
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`an alternative embodiment the present invention can be used to control outgoing traffic; i.e., for
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`scanning outgoing web pages and web objects to control content that is sent from within an enterprise
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`intranet to computers outside of the intranet,” which shows that the files in the file cache are not only
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`limited to being accessed in the future based on requests or responses from external computers to the
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`gateway. Opening Br. at 5-6. Further, the specification states that a file does not always need to
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`requested by a user to a resource on the Internet, as suggested in Juniper’s proposed construction
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`Case 3:17-cv-05659-WHA Document 355 Filed 01/11/19 Page 8 of 11
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`because, “in some instances the gateway may receive a request for a web object without having
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`received a request for a web page that references it.” ‘731 Patent, at 10:64-66.
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`Finally, Juniper’s argument that its proposal is consistent with Finjan’s description of the ‘731
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`Patent is beside the point because Finjan did not state that was the only way the “file cache” operates.
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`Thus, because there has been no clear disavowal of the term “future access” and because Juniper’s
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`proposed construction excludes preferred embodiments, the Court should reject Juniper’s construction.
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`Term 3.
` “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.
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`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
`Juniper seeks only to construe the term “future access” in this claim limitation. For the same
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`reasons stated for Term 2, the term does not require further construction and there is no basis to deviate
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`from the plain and ordinary meaning of the term.
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`Term 4.
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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.
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`Juniper’s Proposed Construction
`the security policies each including a list of
`operations or computer commands that are to
`be blocked
`While Juniper has identified the entire claim limitation for construction, Juniper seeks to
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`replace the term “restrictions” with “operations or computer commands that are to be blocked,” despite
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`the fact that the term “restrictions” is a basic term that laypersons would understand to generally mean
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`“limitations.” This is consistent with how a person of ordinary skill in the art would understand the
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`term in view of the specification, which provides that the system places limitations on the files that are
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`allowed to enter a network. The specification of the ‘731 Patent includes numerous examples where “a
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`list of restrictions” are discussed and not limited beyond their plain and ordinary meaning of the term,
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`that of limitations on files that can be transmitted. ‘731 Patent, at 2:1-4:67. In one particular example,
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`the ‘731 Patent sets forth this plain and ordinary meaning, describing “the security policy defining
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`Case 3:17-cv-05659-WHA Document 355 Filed 01/11/19 Page 9 of 11
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`restrictions on files that can be transmitted to the intranet computer, and comparing the security profile
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`for the requested file vis a vis the security policy for the intranet computer, to determine whether
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`transmission of the requested file to the intranet computer is to be restricted.” ‘731 Patent, at 3:15-20.
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`As shown, “restriction” is just used in its ordinary manner and does not require construction beyond its
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`plain and ordinary meaning.
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`Juniper’s proposed construction should be rejected because it improperly limits the scope of
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`“restrictions” to “a list of operations or computer commands that are to be blocked” and excludes
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`embodiments identified in the specification. Opening Br. at 7. Contrary to Juniper’s suggestion
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`otherwise, the claim only requires that the security policies each include a list of restrictions:
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`1. A computer gateway for an intranet of computers, comprising:
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`
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`a scanner for scanning incoming files from the Internet and deriving security profiles for
`the incoming files, wherein each of the security profiles comprises a list of computer
`commands that a corresponding one of the incoming files is programmed to perform;
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` a
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` file cache for storing files that have been scanned by the scanner for future access,
`wherein each of the stored files is indexed by a file identifier; and
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` a
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` security profile cache for storing the security profiles derived by the scanner, wherein
`each of the security profiles is indexed in the security profile cache by a file identifier
`associated with a corresponding file stored in the file cache; and
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` a
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` security policy cache for storing security policies for intranet computers within the
`intranet, the security policies each including a list of restrictions for files that are
`transmitted to a corresponding subset of the intranet computers.
`Resp. at 9; ‘731 Patent, Claim 1 (emphasis added).
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`Further, Juniper’s claim that “Finjan fails to cite to any embodiment that contemplates a
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`situation where the security policy of Claim 1 does not at least include the operations or computer
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`commands to be blocked” rings hollow. Resp. at 10. First, the specification gives examples where the
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`restriction are based on comparing the policy to the information in the security profile, which can
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`include information beyond the operations or commands performed, including descriptions of things
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`like whether the code is potentially malicious or what objects it references. ‘731 Patent, at 3:15-20
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`(describing embodiment where the profile is compared to the policy). This is shown in TABLE I,
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`BRIEF FOR U.S. PATENT NO. 7,418,731
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`CASE NO. 3:17-cv-05659-WHA
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`Case 3:17-cv-05659-WHA Document 355 Filed 01/11/19 Page 10 of 11
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`where specific files are given ratings such as “Potentially Malicious?” Juniper’s proposed construction
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`excludes other embodiments where blocking does not occur based on restrictions, such that Juniper’s
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`construction is flawed. As such, Juniper’s argument that only the “File System Commands,”
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`“Operating System Commands,” and “Network Commands” in Table I are compared to the security
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`policy is without basis, as multiple embodiments disclose comparing the profile to the policy, and do
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`not restrict the comparison to this specific information in the profile. Juniper cites no support from the
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`specification that the claims should be so limited.
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`Furthermore, Juniper’s attempt to read limitations into the claims is improper because the
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`patentee did not act as a lexicographer to specifically define “restrictions,” and accordingly, Juniper’s
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`claim that Column 3, lines 50-51, do not “provid[e] any insight or description of what the restrictions
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`are” only serves to demonstrate that the security policies do not need to include a list of operations or
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`computer commands that are to be blocked. Resp. at 10; see also ‘731 Patent, Col. 10, ll. 13-21.
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`Finally, Juniper’s argument that its proposed construction does not exclude preferred
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`embodiments and that the portions of the ‘731 Patent that Finjan cited in its Opening Brief somehow
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`support Juniper’s proposed construction is wrong. Resp. at 10. The ‘731 Patent merely states that
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`“[a]t step 265 the gateway computer analyzes the web page security profile vis a vis the client
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`computer security policy.” ‘731 Patent, at 9:61-62. This example does not describe any form of
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`blocking and in no way means that this is “comparing the list of computer commands or operations in
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`the security profile with the list of computer commands operations in the security policy to be blocked”
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`as Juniper claims. Resp. at 10. Rather, the results include a security policy a determination if certain
`files are “Potentially Malicious” and may be allowed or blocked. ‘731 Patent, TABLE I; id. at 6:27-29
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`(“As can be seen from Table I, web page P and web objects O1 and O4 are deemed potentially
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`malicious. Web objects O2 and O3 are deemed safe.”). As such, the security policy can include
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`information regarding what content would be safe.
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`Therefore, Juniper’s proposed construction should be rejected and the plain and ordinary
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`meaning should be adopted.
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`FINJAN’S REPLY CLAIM CONSTRUCTION
`BRIEF FOR U.S. PATENT NO. 7,418,731
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`Case 3:17-cv-05659-WHA Document 355 Filed 01/11/19 Page 11 of 11
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`III. CONCLUSION
`As such, Finjan’s proposed constructions should be adopted.
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`Dated: January 11, 2019
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`Respectfully submitted,
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`
`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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