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`Exhibit 2
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`Case 3:17-cv-05659-WHA Document 358-2 Filed 01/24/19 Page 2 of 28
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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.
`
`
` Volume 2
` Pages 198 - 397
`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
` Tuesday, December 11, 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.
`
` 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
`
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`TRIAL EXHIBITS IDEN EVID VOL.
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`I N D E X
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`Tuesday, December 11, 2018 - Volume 2
`
`PLAINTIFF'S WITNESSES PAGE VOL.
`
`BIMS, HARRY (RECALLED)
`(PREVIOUSLY SWORN)
`Direct Examination resumed by Mr. Andre
`Cross-Examination by Mr. Kagan
`Redirect Examination by Mr. Andre
`
`HARTSTEIN, PHILIP
`(SWORN)
`Direct Examination by Ms. Kobialka
`Cross-Examination by Ms. Carson
`Redirect Examination by Ms. Kobialka
`
`KROLL, DAVID
`(SWORN)
`Direct Examination by Mr. Hannah
`Cross-Examination by Mr. Heinrich
`Redirect Examination by Mr. Hannah
`
`NAGARAJAN, CHANDRA
`By Videotaped Deposition
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`COLE, ERIC
`(SWORN)
`Direct Examination by Mr. Andre
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`Case 3:17-cv-05659-WHA Document 358-2 Filed 01/24/19 Page 3 of 28
`
`HARTSTEIN - DIRECT / KOBIALKA
` 259
`business, which we call CybeRisk, and our mobile security
`business, which we call Finjan Mobile.
`Q. And could you just tell, what is the name of that
`Finjan Mobile product that you have?
`A. So the Finjan Mobile product we call VitalSecurity, and it
`had several generations, Generation 2, Gen3, Gen4. And today
`just recently, within the last several months, it's actually
`been rebranded to Invincibull, I-N-V-I-N-C-I-B-U-L-L.
`Q. So the last three letters are like the word "bull"?
`A. Yes, right. That's a play on words, Invincibull.
`Q. Okay. So just at a high level, what technologies in
`Invincibull that is offered to customers?
`A. So Finjan fundamentally believes that what it invented
`changed the way enterprise security is managed and is thought
`of today, and the idea behind Finjan Mobile's product is that
`we could take that very complex technology previously only
`available to enterprises and that we could translate that into
`a consumer-tangible format; for example, that you could use on
`a mobile phone or on a laptop.
`So it uses a lot of the same technologies where a lot of
`folks don't know what happens when you click go or send on your
`phone or when you make a request to the Internet or when you're
`connected to wifi at Starbucks.
`So what we have brought to the mobile device is that same
`level of scanning where you may want to go out to a website but
`
`HARTSTEIN - DIRECT / KOBIALKA
` 261
`phone's operating system is. So if you have an Android phone,
`you would be going to the Google Play Store. If you had an
`Apple iPhone, you would be going to the Apple App Store.
`Q.
`I'd like you to take a look at what we've marked as Trial
`Exhibit 372, and it may also be in your book there. Could you
`just briefly describe what this is?
`A. Yeah. That is basically the bibliographical information
`that you would see when you go to the Google Play Store. It
`has a description of the product. You can see the logo. You
`can see the name. And in that description you also see the
`'494 patent listed.
`MS. KOBIALKA: Your Honor, at this time I'd like to
`move and publish Exhibit 372.
`MS. CARSON: Your Honor, we object to the admission of
`this as hearsay and lack of foundation.
`THE COURT: I'm sorry. You object to 372 on what
`ground?
`MS. CARSON: Hearsay and lack of foundation.
`THE COURT: May I see the exhibit, please?
`(Pause in proceedings.)
`THE COURT: I ask you, do you know what this document
`
`is?
`
`THE WITNESS: It is -- I do know what it is, yes.
`THE COURT: All right. And how do you know that?
`Don't tell me what it is, but how do you come by that
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`HARTSTEIN - DIRECT / KOBIALKA
` 258
`develop technologies in cybersecurity. And, in fact, we also
`invested in a venture fund at the same time.
`But all of those things, I think, are were very important
`to the business at that time.
`Q. So when I look on the timeline, it says "Finjan invests in
`innovation fund." Is that the investment you were just
`referring to?
`A. That's correct. So we invested in a venture fund. It's
`called Jerusalem Venture Partners. The fund is called Cyber
`Strategic Partners. We are a strategic partner in that
`investment fund.
`Q. And can you just name a couple of companies you
`co-invested in?
`A. So there are actually four strategic LPs. So finjan being
`one. A second would be Cisco, which is another large
`networking company. We also are invested alongside Alibaba who
`you may have heard of; and another media company, which is a
`Chinese media company called Qihoo 360. And that's spelled
`Q-I-H-O-O 360.
`Q. So now looking at the last entry on this timeline here
`that we have up, it says "Finjan launches new products and
`services." It looks like that's around that March 2015 time
`frame. Do you see that?
`A.
`I do see that. So when it expired in March, I think by
`June is when we had launched both our advisory services
`
` 260
`
`HARTSTEIN - DIRECT / KOBIALKA
`transparently in that process you may actually be using a
`technology like Finjan's where it would scan that before it
`would receive -- you would retrieve that information back to
`your mobile device.
`Q. For an earlier version of this mobile application, did
`Finjan identify the '494 patent in connection with it?
`A. We did. So specifically I mentioned VitalSecurity. It
`was in our Gen3 product that used the '494.
`Q. When was that released? What time frame?
`A. Well, we targeted the fourth quarter of 2016. I know we
`said October. It may have slipped into the early part of
`November, but sometime in the fourth quarter.
`Q. And did you indicate on your marketing materials that the
`mobile app actually utilized the '494 technology?
`A. Yes. So the '494 and some other patents. We did so in
`our marketing materials, on our website. If you were to, for
`example, go online to try and purchase the product, you would
`have also seen the designations of the various patents that the
`technology was using.
`Q. And you had mentioned you go online to purchase the
`products. Are you referring to the Apple iTunes or the
`Google Play Store?
`A. Right. Certainly. So, you know, just like you would --
`if you were going to download any app today, the vast majority
`of those apps are downloaded from the store for which your
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`Case 3:17-cv-05659-WHA Document 358-2 Filed 01/24/19 Page 4 of 28
`
` 263
`
`HARTSTEIN - DIRECT / KOBIALKA
`this to be in evidence with a caveat that not a word of this
`can be taken as true. It may be true. I don't know. But it
`is hearsay for that purpose.
`If it says "This is the best thing since sliced bread,"
`maybe it is and maybe it's not, but you cannot rely on this
`document for proof that it's good for anything.
`What you can rely upon this document for is that it is on
`the Internet and if you went there, you can see that the
`document -- that this item is for sale. That's legitimate, and
`for that purpose it is not hearsay. For that very limited
`purpose this can come in, but I'm going to tell you again,
`please do not rely upon this document for proof that anything
`in it is true. It's not allowable for that purpose.
`Everybody got that? Good.
`Received in evidence with that limitation.
`(Trial Exhibit 372 received in evidence)
`MS. KOBIALKA: Thank you, Your Honor.
`Q. So if we could look at the bottom of the page there, it
`says "2016, Finjan Mobile, Inc.," and it continues on and says
`"Finjan Mobile is a trademark of Finjan Mobile, Finjan, and
`VitalSecurity, and the trademarks of Finjan Holdings, Inc.,"
`and it lists a number of patents, and the last one it refers to
`8,677,494. Do you see that?
`A.
`I do, yes. That's what we refer to as the '494 patent.
`Q. And does Finjan make this representation regarding its
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`HARTSTEIN - DIRECT / KOBIALKA
`
` 262
`
`information?
`THE WITNESS: It appears to be the identical
`description of what I've experienced when you go online to
`purchase the product. This is what you would see as a
`consumer.
`THE COURT: Purchase what product?
`THE WITNESS: Our mobile security application, and in
`this case this is from one of two stores where you could buy
`it.
`
`THE COURT: What is the objection again?
`MS. CARSON: A hearsay objection, Your Honor.
`THE COURT: All right. The hearsay objection is not
`well taken because you're offering this to show that something
`is on the Internet for sale; is that it?
`MS. KOBIALKA: It's their product. Their product.
`That's how they sell their product.
`THE COURT: But it's to show that if you went online,
`this is what you would find?
`MS. KOBIALKA: Yes.
`THE COURT: Why would that be hearsay?
`MS. CARSON: Your Honor, they're also offering it for
`the statements that are made on the page.
`THE COURT: Well, all right. I will allow 372 in
`evidence with this caveat: All kinds of stuff is on the
`Internet. Whether it's true or not, who knows? I'm allowing
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`HARTSTEIN - DIRECT / KOBIALKA
`either there or it's not, and you can't -- I've heard that all
`the time, then it turns out not to be there. So, no.
`MS. KOBIALKA: Let me rephrase.
`THE COURT: Go a different way. You cannot go that
`
` 265
`
`way.
`
`MS. KOBIALKA: Your Honor, that was my -- I asked a
`bad question. Let me try that again.
`THE COURT: All right. You did. Okay.
`BY MS. KOBIALKA:
`Q. So in 2016, did Finjan list on its website the '494 patent
`in connection with its mobile app?
`A. We did, yes.
`Q. And was the same information that we've just seen in
`Exhibit 372 also on Finjan's website at that --
`THE COURT: Well, wait a minute. What same
`information? Are you talking about that marking point?
`MS. KOBIALKA: Yes.
`THE COURT: Or are you talking about all the greatest
`since sliced bread?
`MS. KOBIALKA: Just the marking component.
`THE COURT: All right. Limited to that, you may
`
`answer.
`
`THE WITNESS: Yes.
`BY MS. KOBIALKA:
`Q. And that was in the 2016 time frame?
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` 264
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`HARTSTEIN - DIRECT / KOBIALKA
`mobile app in terms of -- does it associate it with the '494
`patent?
`A. That's exactly what it does, is it says -- it uses the
`patented technology in our '494 patent.
`Q. Okay. Let's --
`THE COURT: Now, I want to clarify.
`Now for purposes of whether or not the public was on
`notice through this document that that product used the '494
`patent, you may consider it for that purpose. That's a
`legitimate purpose of using this evidence. That would be okay
`because that is an issue in the case for you, the jury, to
`decide, is whether or not the so-called marking issue is one
`that's going to go to the jury. So that evidence is
`permissible for that purpose.
`All right. Go ahead.
`MS. KOBIALKA: Thank you, Your Honor.
`Q.
`Is the same information available also on Finjan's
`website?
`A. Yes. I would expect that the same information would be
`available.
`THE COURT: Well, now, wait a minute. That's
`speculation, "I would expect."
`THE WITNESS: I'm sorry.
`THE COURT: That's no good. Any answer that starts
`that way is no good. You can't -- that's speculation. It's
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`Case 3:17-cv-05659-WHA Document 358-2 Filed 01/24/19 Page 5 of 28
`
`HARTSTEIN - DIRECT / KOBIALKA
` 267
`And then we also have a few licensees that we've, through
`our licensing agreements, have agreed to keep their names
`confidential so they would not be listed here.
`Q. What does Finjan do to keep itself informed of the
`security industry and what's happening?
`A. So, as I mentioned earlier, that is a challenge. It's a
`very dynamic industry. One of the things that we do is we read
`everything that we can get our hands on, publicly available
`information, market research.
`We get out of the office and we travel to industry
`conferences like RSA, which is a big event that happens here in
`San Francisco every year. There's other events like Black Hat
`and even some international events that we travel to.
`The idea is that the more that you can meet people and see
`these products in the market that the better abreast of how
`that technology is developing and being sold, and that's all
`very important to this business.
`Q. Okay. And how does Finjan approach its licensing part of
`its business?
`A. Oh, boy. So I think there's probably six things that I
`would tell you about how we do that. I'd probably break them
`into two categories. The first category would be how we
`identify a prospective licensee.
`Q. And maybe I can write some of this down.
`MS. KOBIALKA: I don't know if the Elmo is available,
`
`HARTSTEIN - DIRECT / KOBIALKA
` 269
`And the third would be, for example, whether or not the
`parties can agree on a timeline for which that licensing
`discussion should occur.
`Q. Did I capture that okay there?
`A. Yes.
`Q. Okay. So can you -- we went through the approach to
`licensing. What do you do next? What's the next step?
`A. Well, I mentioned we only have access to publicly
`available information so we're going to read whatever we can
`get access to. You know, we're going to pull market research.
`There's companies out there like IDC who covers the space, and
`that helps us understand what new products are on the market or
`in what volumes companies are selling those products.
`So we'll look at revenues; but we're also looking at the
`value that the technology actually brings to a company, and
`sometimes that's not directly reflected in the revenues.
`Q.
`I don't understand. What do you mean by that, the value
`is not reflected in the revenues?
`A.
`If we were having this conversation seven or eight years
`ago and I was looking at a company and I wanted to go, say, to
`their public filings, it would be very easy for me to look in
`there because they would make a disclosure and they would say,
`for example, "This much of our sales is in hardware." And that
`would be easy for me because then I could say, "Well, we take
`an 8 percent rate on your hardware sales."
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`HARTSTEIN - DIRECT / KOBIALKA
` 266
`A.
`(Witness examines document.) Both in the app store sales
`in the 2016 as well as on our website, yes.
`Q. Let's talk about licensing. Does Finjan have patent
`licenses?
`A. Yes. We have more than 20 licensees today.
`Q.
`I believe we have a slide of Finjan's licensees and
`technology partners. Could you just tell us a little bit about
`that?
`A. So in this list -- maybe I break it up for you a little
`bit. So, for example, in the bottom corner, a company called
`Avira, not only are they a licensee to Finjan's patents, but
`they're also a technology partner so they do a lot of the
`back-end technology provisioning for our mobile security
`product.
`Maybe to reference a few others, for example, on the other
`side, Trend Micro and Sophos are both companies that have
`licenses to Finjan's patents.
`We also are the beneficiary of cross-licenses back to
`Finjan Mobile, and that's because we all sell competing
`products in the marketplace.
`You may see some of our licensees that are more household
`names; for example, Microsoft and Symantec. There are several
`on there, for example, though, that unless you're in the
`security industry, you might not know; and those, for example,
`would be a FireEye or Proofpoint.
`
` 268
`
`HARTSTEIN - DIRECT / KOBIALKA
`if there's a switch.
`(Pause in proceedings.)
`THE COURT: Do you need to use the Elmo?
`MS. KOBIALKA: Yes.
`THE COURT: Tracy, can you help us turn the Elmo on?
`Is there a switch we need to use?
`MS. KOBIALKA: I'm on, Your Honor. Thank you.
`THE COURT: All right.
`BY MS. KOBIALKA:
`Q. Okay. I'm sorry, you were saying six things. Go ahead.
`A. So the first -- they are in two buckets. The first would
`be how do you identify a prospective licensee. So you're going
`to look at -- and number one is to try and identify a company
`by its size and maybe its market share. You're going to want
`to look for information about its revenues and value. You're
`also going to want to undertake some effort to determine the
`extent and the scope of use of your patented technologies that
`you can observe in their products.
`The second bucket would be more on the process of
`licensing, and number one there, first and foremost, is whether
`or not you are able to engage in good faith negotiations, and
`that's really key to this whole process.
`The second would be how flexible is a prospective
`licensee, are they willing to set up meetings with you and
`actually share information through that process.
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`Case 3:17-cv-05659-WHA Document 358-2 Filed 01/24/19 Page 6 of 28
`
` 315
`
`HARTSTEIN - CROSS / CARSON
`have 18 issued patents.
`Q.
`I'd like to play from your deposition on October 23rd,
`2018, in this matter, at page 27, lines 19 to 22.
`MS. KOBIALKA: Just let me find it.
`I'm sorry. Could you give me the citation again?
`MS. CARSON: Page 27, lines 19 to 22.
`THE COURT: Roll the tape.
`(Video played but not reported.)
`BY MS. CARSON:
`Q. Now, it's Finjan's position that not any one patent in its
`portfolio is any more valuable than another; right?
`A. That's how we describe it, yes.
`Q. And Finjan has never made any effort to determine whether
`or not, on an individual basis, one or more of its patents were
`worth more than others; correct?
`A. Finjan does not think about it that way, no.
`Q. Finjan has never made any such effort to determine whether
`or not an individual -- on an individual basis, one or more of
`its patents were worth more than others; correct?
`A.
`I would answer the same way. Finjan doesn't try to find
`value in one patent more than another.
`Q. Now, in your direct testimony you referred to a per-user
`rate for Finjan's patent portfolio; correct?
`A. Yes.
`Q. You don't have any licensees who have actually paid Finjan
`
`HARTSTEIN - CROSS / CARSON
` 317
`THE COURT: What?
`MS. KOBIALKA: This is a court -- she's reciting
`what's in a court ruling, another court finding.
`THE COURT: Look, that's too far. Okay. It could be
`some judge somewhere, somebody else in a different case with a
`different record made that finding. That's irrelevant -- well,
`it may be not irrelevant, but it is so unlikely to prove it
`because you're going to get your own record.
`You eight people are going to get a brand-new record right
`here, and that's what counts, not what some other lawyer failed
`to prove, what they're going to prove in this case or not prove
`in this case. So under Rule 403 that question is out, o-u-t.
`MS. CARSON: I'll move on, Your Honor. Thank you.
`THE COURT: Please, yes.
`BY MS. CARSON:
`Q. Now, to provide notice to the public about patents, a
`patentee and its licensees can mark their products with a
`patent number; correct?
`A.
`I'm not familiar enough with the legal standard to answer
`that.
`Q. You provided some testimony earlier about Finjan's marking
`of its products; correct?
`A.
`I did, yes.
`Q. Okay. And do you understand that one of the reasons that
`we have marking is to provide notice to the public of the
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`HARTSTEIN - CROSS / CARSON
`accused products; correct?
`A.
`I'm sorry, could you repeat the question?
`Q. You're not aware of any instance where Finjan proposed a
`royalty that exceeded 16 percent of revenues for the accused
`products; correct?
`A. As a proposal? No, I don't think so.
`Q. With regard to the '494 patent, you don't know if the
`accused Juniper products are hardware or software products;
`correct?
`A. Uhm, right. As I sit here, I don't know.
`Q. And you don't know what Juniper's revenues are on the
`products that Finjan has accused of infringing claim 10;
`correct?
`A. No.
`Q. And you're also not aware of any value that Finjan's
`patents provide to Juniper's products that are not accused in
`this case; correct?
`A.
`I don't believe so, no.
`Q. Now, the 8 and 16 percent royalty rates that we were just
`discussing, Finjan's starting points, that's for a portfolio
`license; correct?
`A. Yes. In general, they're all portfolio licenses.
`Q. And Finjan's patent portfolio has more than 50 issues and
`pending patents; correct?
`A. Well, we think about that in a revised number now. So we
`
` 316
`
`HARTSTEIN - CROSS / CARSON
`a per-user rate, correct?
`A.
`It does not show up in the license agreements, no.
`Q. So you don't have any licensees who have actually agreed
`to pay $8 per user for a license agreement; correct?
`A.
`I think that's correct.
`Q. Now, Finjan has proposed the $8-per-unit royalty rate in
`some of its past litigations; correct?
`A. Yes. I believe in at least two prior cases.
`Q. And you've testified in those trials on those cases about
`the $8-per-unit rate; correct?
`MS. KOBIALKA: Objection, Your Honor. I'm concerned
`this is going to open the door to some of their motions in
`limine and some of the issues that were raised.
`THE COURT: That's a legitimate point. I don't know
`where this is headed. It could turn out I have to strike some
`of the -- are you going to be violating one of the motions in
`limine?
`
`MS. CARSON: No, Your Honor, not that I'm aware of.
`THE COURT: I don't know where it's going. So if you
`want to take a chance, go ahead.
`BY MS. CARSON:
`Q. There have been prior findings that there's no evidence
`that Finjan actually used an $8-per-unit royalty in a
`negotiation; right?
`MS. KOBIALKA: Objection, Your Honor.
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`

`Case 3:17-cv-05659-WHA Document 358-2 Filed 01/24/19 Page 7 of 28
`
` 319
`
`HARTSTEIN - CROSS / CARSON
`'494 patent? You can answer that yes or no.
`THE WITNESS: As I sit here, no.
`THE COURT: All right. Next question.
`BY MS. CARSON:
`Q. You don't believe that any of Finjan's licenses have
`marking provisions; correct?
`A. That is my understanding, that our agreements do not.
`Q. And, in fact, you're not aware of any efforts by Finjan to
`monitor whether its licensees are marking their products with
`Finjan's patents; correct?
`A. That is correct.
`Q.
`I want to turn back for a moment to some of your testimony
`about Finjan's licensing program.
`One of the alternate options you identified was a per-scan
`rate; correct?
`A. Yes.
`Q. You're not aware of any licensees who have agreed to a
`per-scan rate in any licenses that Finjan has; correct?
`A. Uhm, no, not that they've agreed to.
`Q. Now, another way that a patentee can provide notice is by
`giving actual notice to the accused infringer; correct?
`A. Again, I don't know the standard of what that is.
`Q. You don't know one way or another whether Finjan gave
`Juniper what you would refer to as a notice letter in this
`case; correct?
`
` 321
`
`HARTSTEIN - CROSS / CARSON
`Q.
`If you wanted to value Finjan's patent portfolio, you
`would probably seek assistance from an expert; correct?
`A. Uhm, I have not ever sought to seek Finjan's patent
`portfolio to be valued, so I don't know what I would do.
`Q.
`I'd like to read from your testimony from the
`November 18th, 2014, deposition in the matter involving a
`different defendant, Finjan v. Blue Coat.
`MS. CARSON: We don't have the video for this one, so
`I will read it into the record. It's at page --
`THE COURT: Wait, just a second.
`Does the other side have any issue?
`MS. KOBIALKA: What's the citation?
`MS. CARSON: So it's page 27, lines 16 to 24.
`MS. KOBIALKA: The November 2014?
`MS. CARSON: November 18th, 2014.
`THE COURT: Are you there?
`MS. KOBIALKA: I'm sorry, it's 27?
`MS. CARSON: Page 27, line 16 to 24.
`MS. KOBIALKA: That's fine.
`THE COURT: All right. Read the question exactly.
`Say question, read it, then say answer, read it. No fixing it
`up in any way.
`MS. CARSON: May I omit the objections?
`MS. KOBIALKA: That's fine, Your Honor.
`THE COURT: All right. Omit the objections.
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`HARTSTEIN - CROSS / CARSON
`
` 318
`
`patent?
`A. That's my limited understanding, yes.
`Q. Now, you mentioned earlier -- we've been talking about the
`fact that Finjan has entered into a number of patent licenses;
`correct?
`A. Yes. More than 20.
`Q. And it's fair to say that Finjan believes its licensees
`use its patents in their products; correct?
`A. Well, it's certainly used in the negotiations towards
`arriving at a license.
`Q. But Finjan believes that its licensees are actually using
`its patents in those products; correct?
`A. Yes, we believe that.
`Q. And you would suspect that Finjan's licensees' products
`are still being sold in the marketplace; correct?
`A. Uhm, yes, that's my personal understanding as well.
`Q. But you're not aware of any Finjan licensees that have
`marked their products with Finjan's patent numbers since the
`'494 patent issued in 2014; correct?
`A. Well, I would have to look at the Trustwave boxes. That's
`where I would go. I just don't know the answer.
`THE COURT: As you sit here right -- you're not
`answering the question.
`As you sit here right now, can you identify a single
`product by any of those licensees that bears the marking of the
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`HARTSTEIN - CROSS / CARSON
` 320
`A.
`I -- I don't know one way or another.
`Q. And you don't know whether Finjan ever provided Juniper
`with claim charts for the '494 patent prior to bringing its
`lawsuit; correct?
`A. Uhm, I don't know one way or another.
`Q. You never identified any specific accused products to
`Juniper during the presuit negotiations; correct?
`A.
`I did not, no.
`Q. Now, you provided some testimony today about the value of
`Finjan's patents; correct?
`A. Uhm, in the number of different contexts, yes.
`Q. But you would not consider yourself to be an expert in
`valuing patents; correct?
`A. No, I am not qualified for that.
`Q. And you don't have any formal training in the valuation of
`intellectual property; correct?
`A.
`I do not, no.
`Q. So you wouldn't consider yourself to be an expert in
`patent licensing issues; fair?
`A. Yeah, I think "expert" denotes something that I am not in
`this case.
`Q. And, in fact, you don't think you could competently value
`a patent portfolio; correct?
`A. Uhm, no, I don't think that would be something I would be
`very good at.
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`

`Case 3:17-cv-05659-WHA Document 358-2 Filed 01/24/19 Page 8 of 28
`
`HARTSTEIN - REDIRECT / KOBIALKA
` 323
`that would be relevant to anything the jury has got to decide.
`So let's move on.
`BY MS. CARSON:
`Q. Sir, your total compensation for that same year was over
`$1.9 million; correct?
`MS. KOBIALKA: Objection.
`THE COURT: What?
`MS. KOBIALKA: Objection, Your Honor. This goes to
`relevance as well.
`MS. CARSON: It goes to bias.
`THE COURT: What year are you talking about?
`MS. CARSON: 2017.
`THE COURT: Are we going to get into the -- how much
`your side gets paid when Mr. Big comes from Juniper? I don't
`think so.
`Let's pass it. Sustained.
`BY MS. CARSON:
`Q.
`It's fair to say, sir, that you have a personal interest
`in this litigation?
`A.
`I do own stock in Finjan and so, yes, on that basis I
`would benefit from the company's overall performance.
`MS. CARSON: Thank you, sir.
`No further questions.
`THE COURT: All right. Redirect.
`
`HARTSTEIN - REDIRECT / KOBIALKA
` 325
`now, in InvinciBull, we still charge for that. So it's not on
`scale yet.
`In fact, it costs us a lot more to operate that business
`unit, to make that technology available, than we recovered in
`revenues. So there's no profit.
`Q. But is the plan to eventually make a profit on the
`product?
`A. That is the idea for any product that a company invests
`in, yes.
`Q. And is Finjan still doing development and adding new
`features to its mobile app?
`A. Yes. I think this year we committed on the order of
`between $2 and a half and $3 million to invest in that
`business. And part of that is because, as your user base
`grows, you find more bugs, you find more people who want
`additional features and functionality.
`So we have decided to increase the pace at which we are
`developing into those application revisions.
`Q. Okay. Now, there was a lot of questions about patent
`portfolio, and I was hoping to maybe clear up some things.
`So Finjan, Inc., it has a patent portfolio. You recall
`there were questions about that?
`A. Finjan, Inc. has its own patent portfolio, yes.
`Q. And are all those patents based on technology that Finjan
`has developed over the years since 1996?
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`HARTSTEIN - CROSS / CARSON
` 322
`MS. CARSON: (As read:)
`"Q. So, therefore, if you wanted to value Finjan's patent
`portfolio, that would be a task that you would ask
`somebody else to do rather than yourself?
`"A. If I wanted to value Finjan's patent portfolio, I
`would -- I probably would seek assistance from an expert."
`THE COURT: All right. That's also testimony that you
`may consider as evidence in the case. Even though it was read
`by the lawyer, this is an exception.
`All right. Go ahead.
`BY MS. CARSON:
`Q. Now, sir, as a public company, Finjan has strict financial
`reporting requirements; correct?
`A. Yes. Those are obligated by the Securities and Exchange
`Commission.
`Q. And in 2017, Finjan Holdings' net income was just under
`$23 million; correct?
`A.
`I prefer to look at something, but I would take your
`assertion for that.
`Q. Does that sound about right that, in 2017, Finjan
`Holdings' net income was just under $23 million?
`MS. KOBIALKA: Obj