Case 3:17-cv-05659-WHA Document 364-3 Filed 01/31/19 Page 1 of 20
`
`
`
`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 REPLY IN
`SUPPORT OF ITS RENEWED MOTION FOR
`JUDGMENT AS A MATTER OF LAW
`PURSUANT TO FED. R. CIV. P. 50(B);
`MOTION FOR NEW TRIAL UNDER FED. R.
`CIV. P. 59; AND MOTION FOR
`CERTIFICATION FOR IMMEDIATE
`APPEAL IN THE ALTERNATIVE
`
`Date:
`Time:
`Courtroom:
`Before:
`
`
`February 14, 2019
`8:00 am
`12, 19th Floor
`Hon. William Alsup
`
`REDACTED VERSION OF DOCUMENTS FILED UNDER SEAL
`
`
`
`
`FINJAN’S REPLY IN SUPPORT OF ITS RENEWED
`MOTION FOR JUDGMENT AS A MATTER OF LAW
`
`CASE NO. 17-cv-05659-WHA
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`

`

`Case 3:17-cv-05659-WHA Document 364-3 Filed 01/31/19 Page 2 of 20
`
`
`
`TABLE OF CONTENTS
`
`Page
`
`3.
`
`ARGUMENT ............................................................................................................................... 1
`A.
`Judgment As A Matter of Law (“JMOL”) of Infringement is Appropriate. ........................ 1
`1.
`Juniper Did Not Refute its Documents Showing it Infringes. .................................... 1
`2.
`Juniper’s Arguments are Factually and Legally Unsupported .................................... 2
`a.
`It is Undisputed that the ResultsDB is a Database under the Court’s
`Construction. ......................................................................................................3
`It is Undisputed that the ResultsDB has as Database Schema. ..........................3
`b.
`Finjan Objected To Juniper’s Improper “Database Schema” Construction. .............. 5
`a. Dr. Cole’s Opinion Was Credible Given Juniper’s Confidential and
`Technical Documents and Testimony. ...............................................................6
`In the Alternative to JMOL, a New Trial is Appropriate. .................................................... 6
`1. Dr. Rubin Improperly Argued Claim Construction. ................................................... 6
`2.
`Juniper Improperly Presented Evidence of Claim 1 to the Jury. ................................ 7
`Juniper Improperly Suppressed its Revenues Information .................................................. 8
`1.
`Juniper Misled the Court Regarding the Relevant Revenues ..................................... 8
`2.
`Juniper Also Misled the Court to Conceal its Discovery Violations. ....................... 11
`3.
`Juniper’s Expert Artificially Suppressed its Revenues. ............................................ 13
`Interlocutory Appeal .......................................................................................................... 14
`D.
`E. Request for Stay ................................................................................................................. 15
`CONCLUSION ........................................................................................................................... 15
`
`B.
`
`C.
`
`
`
`I.
`
`II.
`
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`i
`FINJAN’S REPLY IN SUPPORT OF ITS RENEWED
`MOTION FOR JUDGMENT AS A MATTER OF LAW
`
`CASE NO. 17-cv-05659-WHA
`
`

`

`Case 3:17-cv-05659-WHA Document 364-3 Filed 01/31/19 Page 3 of 20
`
`
`
`Federal Cases
`
`
`
`TABLE OF AUTHORITIES
`
`
`
`Page(s)
`
`ADC Telecomm’ns, Inc. v. Switchcraft, Inc.,
`281 F. App’x 989 (Fed. Cir. 2008) ................................................................................................... 10
`
`Brooke Group Ltd. v. Brown & Williamson Tobacco Corp.,
`509 U.S. 209 (1993) ............................................................................................................................ 4
`
`Core Wireless Licensing S.A.R.L. v. Apple Inc.,
`No. 15-cv-05008 NC, 2016 WL 6427850 (N.D. Cal. Oct. 31, 2016) ................................................. 1
`
`Ericsson, Inc. v. D-Link Sys., Inc.,
`773 F.3d 1201 (Fed. Cir. 2014)......................................................................................................... 14
`
`Finjan, Inc. v. Secure Computing,
`626 F.3d 1197 (Fed. Cir. 2010)................................................................................................... 13, 14
`
`Galen v. Cnty. of L.A.,
`477 F.3d 652 (9th Cir. 2007) .............................................................................................................. 1
`
`Golight, Inc. v. Wal-Mart Stores, Inc.,
`355 F.3d 1327 (Fed. Cir. 2004)......................................................................................................... 14
`
`Hern v. Intermedics, Inc.,
`210 F.3d 383 (9th Cir. 2000) .............................................................................................................. 8
`
`Molski v. M.J. Cable, Inc.,
`481 F.3d 724 (9th Cir. 2007) ............................................................................................................ 10
`
`Nazomi Commc’ns, Inc. v. Nokia Corp.,
`739 F.3d 1339 (Fed. Cir. 2014)......................................................................................................... 14
`
`Promega Corp. v. Life Techs. Corp.,
`875 F.3d 651 (Fed. Cir. 2017)........................................................................................................... 15
`
`Reese v. BP Exploration (Alaska) Inc.,
`643 F.3d 681 (9th Cir. 2011) ............................................................................................................ 14
`
`Rite-Hite Corp. v. Kelley Co.,
`56 F.3d 1538 (Fed. Cir. 1995)........................................................................................................... 14
`
`Rollins v. Dignity Health,
`No. 13-cv-01450-TEH, 2014 WL 6693891 (N.D. Cal. Nov. 26, 2014) ........................................... 15
`
`Steering Comm. v. U.S.,
`6 F.3d 572 (9th Cir. 1993) ................................................................................................................ 15
`ii
`FINJAN’S REPLY IN SUPPORT OF ITS RENEWED
`MOTION FOR JUDGMENT AS A MATTER OF LAW
`
`CASE NO. 17-cv-05659-WHA
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`

`

`Case 3:17-cv-05659-WHA Document 364-3 Filed 01/31/19 Page 4 of 20
`
`
`Telemac Cellular Corp. v. Topp Telecom, Inc.,
`247 F.3d 1316 (Fed. Cir. 2001)......................................................................................................... 14
`
`
`
`Transocean Offshore Deepwater Drilling, Inc. v. Maersk Drilling USA, Inc.,
`699 F.3d 1340 (Fed. Cir. 2012)......................................................................................................... 10
`
`Two-Way Media Ltd. v. Comcast Cable Commc’ns, LLC,
`874 F.3d 1329 (Fed. Cir. 2017), cert. denied, 139 S. Ct. 378 (2018) ................................................. 7
`
`Union Carbide Chems. & Plastics Tech. Corp. v. Shell Oil Co.,
`308 F.3d 1167 (Fed. Cir. 2002)......................................................................................................... 10
`
`Union Carbide Corp. v. Am. Can Co.,
`724 F.2d 1567 (Fed. Cir. 1984)........................................................................................................... 1
`
`Versata Software, Inc. v. SAP Am., Inc.,
`717 F.3d 1255 (Fed. Cir. 2013)......................................................................................................... 14
`
`Volterra Semiconductor Corp. v. Primarion, Inc.,
`799 F. Supp. 2d 1092 (N.D. Cal. 2011) .............................................................................................. 4
`
`Statutes
`
`35 U.S.C. § 103 ......................................................................................................................................... 7
`
`35 U.S.C. §§ 271 and 284 ....................................................................................................................... 13
`
`Other Authorities
`
`Fed. R. Civ. P. 26(b)(1)........................................................................................................................... 12
`
`
`
`iii
`FINJAN’S REPLY IN SUPPORT OF ITS RENEWED
`MOTION FOR JUDGMENT AS A MATTER OF LAW
`
`CASE NO. 17-cv-05659-WHA
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`

`

`Case 3:17-cv-05659-WHA Document 364-3 Filed 01/31/19 Page 5 of 20
`
`
`
`I.
`
`ARGUMENT
`
`
`
`A.
`
`Judgment As A Matter of Law (“JMOL”) of Infringement is Appropriate.
`
`1.
`Juniper Did Not Refute its Documents Showing it Infringes.
`Finjan presented unrefuted evidence that Juniper’s accused products (“Juniper’s Products”)
`
`include a “database” under the agreed construction of the Court, and, as such, no reasonable jury could
`
`have found that those products do not infringe. See Dkt. 353 (“Mtn.”) at 5-7. Juniper’s documents
`
`explicitly say that the ResultsDB is a database and that it has a schema. See id. at 6-7. That Dr. Rubin,
`
`Juniper’s non-infringement expert, makes bald assertions without relevant evidentiary support that the
`
`ResultsDB does not contain a schema, does not create a material dispute of fact. Core Wireless
`
`Licensing S.A.R.L. v. Apple Inc., No. 15-cv-05008 NC, 2016 WL 6427850, at *1 (N.D. Cal. Oct. 31,
`
`2016)(citing Galen v. Cnty. of L.A., 477 F.3d 652, 658 (9th Cir. 2007))(“Bald assertions that genuine
`
`issues of material fact exist are insufficient.”); see also Union Carbide Corp. v. Am. Can Co., 724 F.2d
`
`1567, 1572 (Fed. Cir. 1984)(no issue of material fact where expert’s affidavit “expressed no more than
`
`an unsupported conclusory opinion which ignored, rather than conflicted with, the evidence of
`
`record.”).
`
`Juniper cites the few documents Dr. Rubin used for his opinion. But these third party
`
`documents are tangential to Juniper’s internal documents which actually describe how Juniper’s
`
`Products work. First, Juniper claims that Amazon’s “Frequently Asked Questions” for the DynamoDB
`
`was evidence that the ResultsDB database was “schema-less.” Dkt. 360 (“Opp.”) at 5. However, this
`
`third party document does not describe the ResultsDB that Juniper implemented that was presented at
`
`trial as having a schema. It only describes the DynamoDB, a single isolated component of ResultsDB,
`
`which Amazon permits users like Juniper to modify. In fact, Juniper did modify it for its own purposes
`to have a schema, as stated in Juniper’s documents. Motion, Ex. 3,1 Trial Ex. 94 at JNPR-
`FNJN_29018_00963213 (“It is difficult to find one database that could satisfy many different storage
`
`needs in one shot, especially if needs are very different … So we built a hybrid solution on top of
`
`
`1 All citations herein to “Motion, Ex. __” are to exhibits to the Declaration of Kristopher Kastens in
`Support of Finjan’s Motion, Docket No. 353-1. All citations herein to “Reply, Ex. __” are to exhibits
`to the Declaration of Kristopher Kastens in Support of Finjan’s Reply filed herewith.
`1
`FINJAN’S REPLY IN SUPPORT OF ITS RENEWED JMOL
`
`CASE NO. 17-cv-05659-WHA
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`

`

`Case 3:17-cv-05659-WHA Document 364-3 Filed 01/31/19 Page 6 of 20
`
`
`
`
`
`AWS existing storage services.”). Juniper’s documents, which Dr. Rubin did not explain and Juniper
`ignores entirely, proves that Juniper engineered the ResultsDB to include enforcing a schema on the
`
`data. Motion, Ex. 7, Trial Ex. 65 at JNPR-FNJN_29030_00553974 (describing how (i) the ResultsDB
`
`includes a “Schema Validation in ResultsDB,” and (ii)“[t]he format of the JSON data for records
`
`stored in the ResultsDB adhere to a strict schema.”). Juniper had no actual evidence that these
`
`databases it implemented were “schema-less.” This point was undisputed, even with the cross
`
`examination of Dr. Rubin, who was unable to identify a single Juniper document that describes the
`
`ResultsDB (or any of its sub-components) as “schema-less.” Motion, Ex. 1, Trial Tr. at 785:22-786:7.
`
`Juniper never addresses in its Opposition the fact that Amazon’s “DynamoDB” requires a database
`
`schema in the form of a “key schema” that allows it to access stored data. Id., Trial Tr. at 786:10-15
`
`(Dr. Rubin agreeing that DynamoDB has a “key schema”).
`
`Juniper’s other third party document from the internet Engineering Task Force generally
`
`described JSON as a “text format,” and not a database schema. Like the Amazon document, however,
`this document does not describe how Juniper actually used JSON for a schema to implement the
`
`database at issue in its Products. Reply, Ex. 1, Trial Ex. 1248. Moreover, it is undisputed based on
`
`Juniper’s internal confidential documents that JSON can define a schema setting forth the structure of
`
`data being stored in a database. Mtn. at 6; Motion, Ex. 7, Trial Ex. 65 at JNPR-
`
`FNJN_29030_00553974 (describing how “[t]he format of the JSON data for records stored in the
`
`ResultsDB adhere to a strict schema.”); Motion, Ex. 1, Trial Tr. at 765:24-766:13, 783:7-784:15 (Dr.
`
`Rubin admitting that ResultsDB include data formatted using a JSON Schema). In fact, Juniper has no
`
`supporting rationale for why data stored as “text,” such as possible with a JSON schema, cannot be a
`
`database. Thus, Juniper has not identified any evidence that refutes Juniper’s confidential technical
`
`descriptions of how its Products operate.
`
`2.
`Juniper’s Arguments are Factually and Legally Unsupported
`Juniper, through Dr. Rubin, presented only two non-infringement arguments: (1) that the
`
`ResultsDB was actually three separate storage components and (2) the ResultsDB does not have a
`
`database schema. See generally, Opp. at 4-11. Neither argument is legally or factually supported.
`
`2
`FINJAN’S REPLY IN SUPPORT OF ITS RENEWED JMOL
`
`CASE NO. 17-cv-05659-WHA
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`

`

`Case 3:17-cv-05659-WHA Document 364-3 Filed 01/31/19 Page 7 of 20
`
`
`
`
`
`a.
`
`It is Undisputed that the ResultsDB is a Database under the Court’s
`Construction.
`Dr. Cole explained each of Juniper’s components, supporting his analysis and opinion with
`
`Juniper’s confidential and technical documents. Motion, Ex. 1, Trial Tr. at 449:5-25; Motion, Ex. 3,
`
`Trial Ex. 94 at JNPR-FNJN_29018_00963213 (“we built a hybrid solution on top of AWS existing
`
`storage services.”). He explained Juniper’s ResultsDB in the manner as Juniper did in its confidential
`
`technical documents. Id. In fact, Dr. Cole used Juniper’s documents that explained how Juniper built
`
`a database out of generic components. Motion, Ex. 1, Trial Tr. at 449:5-25; Motion, Ex. 3, Trial Ex.
`
`94 at JNPR-FNJN_29018_00963213. These documents established that Juniper’s ResultsDB at issue
`
`is more than just an “API.” Opp. at 6-7. As Juniper described in its documents, there is a “ResultsDB
`
`API,” which is separate from Juniper’s ResultsDB database at issue and serves as the software
`
`interface for interacting with the ResultsDB data. Motion, Ex. 1, Trial Tr. at 440:14-17; Reply, Ex. 2,
`
`Trial Ex. 1179 at 10. Juniper does not deny that its documents identified the ResultsDB database—
`
`which is the collection of stored data—as separate from the “ResultsDB API” which acts as the
`
`interface to this data. Reply, Ex. 2, Trial Ex. 1179 at 10.
`
`Juniper’s claim that the ResultsDB is not a “database” because its components access this same
`
`data for separate purposes is improper because it ignores the Court’s construction. Opp. at 7; Motion,
`
`Ex. 1, Trial Tr. at 759:2-19. The Court’s construction of database does not require “components,” so
`
`Juniper’s arguments about what components store the data or how these components access data is
`
`irrelevant. The undisputed evidence is that the data in the ResultsDB is interrelated because it stores
`
`the results of the malware analysis of the samples. See Mtn. at 8:11-24. Thus, ResultsDB is a
`
`“database.”
`
`b.
`It is Undisputed that the ResultsDB has as Database Schema.
`Juniper’s arguments regarding a schema-less database are contrary to the Court’s construction
`
`and all of the evidence describing how Juniper’s Products are structured and operate. Opp. at 3. For
`
`example, Dr. Rubin’s opinion that there was no “database schema” was legally improper because to
`
`support such a position, he had to insert limitations that are not present in the claim or the Court’s
`
`construction of “database.” For example, Dr. Rubin testified that“[s]o a database schema is a very
`
`specific thing. . . If you're going to have a schema in a database, you have to figure out what all those
`3
`FINJAN’S REPLY IN SUPPORT OF ITS RENEWED JMOL
`
`CASE NO. 17-cv-05659-WHA
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`

`

`Case 3:17-cv-05659-WHA Document 364-3 Filed 01/31/19 Page 8 of 20
`
`
`
`
`
`fields are in advance… That’s a very strict structure for that database… In a database with a schema
`
`you can create a query exactly like the one I just described and immediately it will spit out all the
`
`students that meet that. That's very powerful. Okay? And that is why you have a schema in a
`
`database.” Motion, Ex. 1, Trial Tr. at 742:3-743:4. Juniper alleges that the jury could have accepted
`
`this testimony because Dr. Rubin asserted that spent a significant amount of time reviewing the source
`
`code for Juniper’s Products. Opp. at 2. That claim, however, rings hollow because Juniper was still
`required to provide a rationale for Dr. Rubin’s conclusion based on the evidence and the Court’s
`
`construction. See Volterra Semiconductor Corp. v. Primarion, Inc., 799 F. Supp. 2d 1092, 1098 (N.D.
`
`Cal. 2011) (“When an expert opinion is not supported by sufficient facts to validate it in the eyes of the
`
`law, or when indisputable record facts contradict or otherwise render the opinion unreasonable, it
`
`cannot support a jury's verdict.”)(quoting Brooke Group Ltd. v. Brown & Williamson Tobacco Corp.,
`
`509 U.S. 209, 242 (1993)).
`
`As explained above, Juniper did not refute its confidential technical documents proving that
`
`Juniper’s ResultsDB database has a schema. Dr. Rubin’s bald testimony that a “schema-less” database
`
`does not have “strict fields” is legally improper because it is contrary to Juniper’s confidential
`
`technical documents, which established that Juniper’s engineers modified Juniper’s ResultsDB to
`
`enforce strict fields through a JSON format. Motion, Ex. 7, Trial Ex. 65 at JNPR-
`
`FNJN_29030_00553974 (“The format of the JSON data for records stored in the ResultsDB adhere to
`
`a strict schema.”). Thus, Dr. Rubin’s opinion was unsupported and Juniper continues to ignore that
`
`Juniper’s ResultsDB has strict fields by enforcing that all data was stored according to a key schema.
`
`Motion, Ex. 1, Trial Tr. at 747:11-749:17, 786:10-787:24; id., Ex. 4, Trial Ex. 99 at 8 (describing how
`
`the ResultsDB source code at
`
` includes a function that will
`
`
`
`
`
`).
`
`Juniper also asserts that the jury could have credited Dr. Rubin’s testimony that there is no
`
`schema in the ResultsDB database because he alleged that it could not be quickly searched because
`
`data may be at different locations. Opp. at 4. Again, Juniper ignores (as did Dr. Rubin at trial), the
`
`unrefuted evidence from Juniper’s confidential technical documents that the database schema used in
`4
`FINJAN’S REPLY IN SUPPORT OF ITS RENEWED JMOL
`
`CASE NO. 17-cv-05659-WHA
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`

`

`Case 3:17-cv-05659-WHA Document 364-3 Filed 01/31/19 Page 9 of 20
`
`
`
`
`
`Juniper’s ResultsDB database stores data in defined locations. Opp. at 4; Motion, Ex. 7, Trial Ex. 65 at
`
`JNPR-FNJN_29030_00553974 (“The format of the JSON data for records stored in the ResultsDB
`
`adhere to a strict schema.
`
`
`
`). Given the actual evidence, as opposed to
`
`unsupported expert testimony, a reasonable jury could only have found for Finjan.
`Juniper’s claim that there is not a database schema because Dr. Cole testified generally that not
`all “schemas” are “database schemas” is a red herring because all of the specific schemas at issue at
`
`trial are used in a database. Dr. Rubin had no explanation for why Juniper’s JSON schema at issue at
`
`trial described in Juniper’s documents, was not a “database schema,” because even the JSON schema
`
`met his own requirement that it set forth where information was located. Motion, Ex. 7, Trial Ex. 65 at
`
`JNPR-FNJN_29030_00553974; id., Ex. 1, Trial Tr. at 764:20-765:3. Finally, Juniper admits that the
`
`MySQL database that is used in the ResultsDB has a schema, but argues that this does not prove
`
`infringement because this component does not store the list of suspicious computer operations. Opp. at
`
`10. As discussed above, Juniper ignores that the construction of “database” is that of “a collection of
`
`interrelated data,” and not separate components. At trial, the undisputed evidence was that Juniper’s
`
`MySQL, DynamoDB, and S3 all store “a collection of interrelated data.” Juniper did not dispute that
`
`the data stored in these components is a collection of interrelated data. See Mtn. at 8.
`3.
`Finjan Objected To Juniper’s Improper “Database Schema” Construction.
`Finjan timely objected several times to Juniper’s improper construction of the term “database
`
`schema,” including arguing that, in the event the Court offered a new construction, Juniper could not
`
`argue a new construction contrary to the Court’s construction. Finjan dedicated a motion in limine
`
`(“MIL”) on the issue, raised it in opposition to a MIL, and in the middle of trial, arguing that: (1)
`
`Juniper agreed to Finjan’s construction of “database schema” and thus waived any ability to argue
`
`another construction and (2) Juniper should not be permitted to argue claim construction during trial,
`
`as this was a legal issue for the Court. Dkt. 256, Finjan’s MIL No. 2 at 3-5 (motion to exclude
`
`improper testimony from Juniper’s expert on claim construction); Dkt. 268, Finjan’s Opp. to MIL No.
`
`5 at 1 (arguing that Juniper could not argue its improper construction of database schema); Dkt. 301 at
`
`3 (Court Order denying Finjan’s Motion in Limine); Dkt. 322 at 3 (Finjan raising issue in 50(a)
`
`5
`FINJAN’S REPLY IN SUPPORT OF ITS RENEWED JMOL
`
`CASE NO. 17-cv-05659-WHA
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`

`

`Case 3:17-cv-05659-WHA Document 364-3 Filed 01/31/19 Page 10 of 20
`
`
`
`
`
`briefing). Furthermore, Juniper’s citations to where Finjan “opposed” Juniper’s request for further
`
`claim construction does not support its position.
`
`a.
`
`Dr. Cole’s Opinion Was Credible Given Juniper’s Confidential and
`Technical Documents and Testimony.
`
`Dr. Cole credibly presented his analysis and opinions based on Juniper’s confidential technical
`
`documents that established Juniper’s infringement, unlike Dr. Rubin who did not use a comparable
`
`Juniper documents for his opinion. Opp. at 6-11. Thus, Juniper’s attempt to concoct a claim that Dr.
`
`Cole somehow tried to mislead the jury by claiming there was a schema in the ResultsDB allowing for
`
`quick look-up of data is not well taken. Id. at 10. Juniper’s specious argument conflicts with its
`
`expert’s testimony, who also agreed that a database schema is used for a quick identification of data in
`
`a database. Motion, Ex. 1, Trial Tr. at 742:3-743:4. Further, Juniper cites to bits of Dr. Cole’s quotes
`
`that do not support its argument and only made the same point that Dr. Rubin later made during his
`
`testimony—that a schema helps identify data. See Opp. at 10. Dr. Cole’s opinion was based on
`
`Juniper’s documents, unlike Dr. Rubin who cited nothing for his opinion that the ResultsDB was
`
`incapable of quickly identifying data. Motion, Ex. 1, Trial Tr. at 462:25-463:19; id., Ex. 7, Trial Ex.
`
`65 at JNPR-FNJN_29030_00553974 (“The format of the JSON data for records stored in the
`
`ResultsDB adhere to a strict schema.
`
`); id., Ex. 1, Trial Tr. at 742:3-743:4.
`
`
`
`Juniper’s claim that Dr. Cole incorrectly stated the ResultsDB allowed for quick lookup of data
`
`because only a “verdict” needed to be quickly identified, and not the “list of suspicious computer
`
`operations” is a red herring, as it does not refute Juniper’s document that it has a database schema.
`
`Juniper’s claim that Dr. Cole’s knowledge regarding on the paid versus unpaid version of Sky ATP is
`
`similarly irrelevant because Dr. Cole’s technical opinion was about the technology, not Juniper’s
`
`marketing and sales of its products. His technical opinion was based upon Juniper’s confidential and
`
`technical documents, not how Juniper packaged its products for sale.
`
`B.
`
`In the Alternative to JMOL, a New Trial is Appropriate.
`1.
`Dr. Rubin Improperly Argued Claim Construction.
`At minimum, Finjan is entitled to a new trial because as discussed above, the jury’s verdict was
`6
`FINJAN’S REPLY IN SUPPORT OF ITS RENEWED JMOL
`
`CASE NO. 17-cv-05659-WHA
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`

`

`Case 3:17-cv-05659-WHA Document 364-3 Filed 01/31/19 Page 11 of 20
`
`
`
`
`
`against the great weight of evidence and given Juniper’s improper and prejudicial arguments at trial.
`
`Dr. Rubin’s improper testimony on the construction of “database schema” at trial was not “limited.”
`
`Opp. at 12. The core of Dr. Rubin’s opinion for non-infringement was based on his construction of
`
`“database schema” (which was not part of the Court’s construction), apparent from Juniper’s focus on
`
`this element during closing arguments. Reply, Ex. 3, Trial Tr. at 932:2-936:16. Cross-examination of
`
`an expert’s improper construction is not a remedy. Dr. Rubin should not have been permitted to raise
`
`his specific unsanctioned construction at all, as Finjan objected to such attempts both before and during
`
`trial, and permitting him to present it prejudiced Finjan and confused the jury. The Jury’s question
`
`requesting a dictionary definition of this term during its deliberation underscores the confusion it
`
`created. Dkt. 334 (asking for IBM Dictionary definition of “schema.”).
`2.
`Juniper engaged in unfair conduct when it compared Claim 1 of the ‘494 Patent to Claim 10,
`
`Juniper Improperly Presented Evidence of Claim 1 to the Jury.
`
`and implied that Claim 10 was not valid. Juniper’s claim that Claim 1 showed that the claim was
`
`“obvious” under 35 U.S.C. § 103 highlights how prejudicial Juniper’s presentation was, as Section 103
`
`is not an issue for determining inventiveness under Section 101. See Two-Way Media Ltd. v. Comcast
`
`Cable Commc’ns, LLC, 874 F.3d 1329, 1339–40 (Fed. Cir. 2017), cert. denied, 139 S. Ct. 378 (2018)
`
`(materials related to other tribunals’ evaluation of novelty and nonobviousness were not relevant to
`
`determining inventive concept). Further, this prejudicial material did not even need to be before the
`
`jury because Section 101 was not an issue for the jury to decide. Opp. at 13. There was nothing for
`
`the jury to do with this information except draw negative inferences about Claim 10 whiles deciding
`
`infringement.
`
`Juniper made no effort to avoid jury confusion or explain what the jury had to decide versus the
`
`issues before the Patent Trial and Appeal Board (“PTAB”). For example, Juniper did not limit its
`
`evidence regarding the inventiveness concept and instead presented the PTAB’s decision on Claim 1.
`
`Further, Dr. Rubin’s discussion of Claim 1 was not “directly responsive” to Dr. Cole’s testimony is
`
`disingenuous. Opp. at 14. Dr. Cole made no mention of Claim 1 when discussing the “highlights” or
`
`the “innovative component” on direct examination. Reply, Ex. 3, Trial Tr. at 379:10-380:11. It was
`
`not until his cross-examination, over Finjan’s objection to such questioning far outside the scope of his
`7
`FINJAN’S REPLY IN SUPPORT OF ITS RENEWED JMOL
`
`CASE NO. 17-cv-05659-WHA
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`

`

`Case 3:17-cv-05659-WHA Document 364-3 Filed 01/31/19 Page 12 of 20
`
`
`
`
`
`testimony, that Juniper’s counsel asked Dr. Cole about Claim 1 compared to Claim 10. Id. at 518:20-
`
`520:14.
`
`Finjan preserved its objections to the presentation of any evidence on invalidity issues, such as
`
`the IPR decision invalidating Claim 1, and filed a Motion in Limine to exclude this material. See Dkt.
`
`257, Finjan’s Motion in Limine No. 3; see also Reply, Ex. 3, Trial Tr. at 410:6-17 (Finjan’s counsel
`
`objecting to Juniper’s use of 101-related slides that Juniper bootstrapped to their damages rebuttal); id.
`
`at 511:9-24 (Finjan’s counsel objecting to questions to Dr. Cole regarding validity challenges in other
`
`Finjan cases in which he testified). Furthermore, Finjan objected to this material as irrelevant at trial.
`
`Id. at 519:2-6 (Finjan’s objection to comparison of claim 1 to claim 10 on Dr. Cole’s cross-
`
`examination); see also id. at 724:6-7, 726:2-3 (Finjan’s objection to prior art references being used to
`
`show lack of inventiveness). These were more than sufficient to preserve this issue. See Hern v.
`
`Intermedics, Inc., 210 F.3d 383 (9th Cir. 2000) (constant objections are not required because they
`
`could antagonize the jury) (citation omitted).
`C.
`Juniper Improperly Suppressed its Revenues Information
`1.
`Juniper Misled the Court Regarding the Relevant Revenues
`
`Juniper misrepresented revenues for Juniper’s Products as only $1.8 million, which is
`
`inconsistent with the trial record. Juniper’s corporate witness testified that revenues for Juniper’s
`
`Products totaled far more than $1.8 million and were has high as $23.1 million. Reply, Ex. 4, Ms.
`
`Gupta’s Trial Testimony at 51:11-53:08, confirming revenues of $7.2 million; id., at 69:04-71:22
`
`(confirming revenues of $15.9 million)); id., Reply, Exs., 5-6, Trial Exs. 490, 494; Mtn. at 18; Opp. at
`
`21-22. When Finjan raised on the first day of trial that revenues were as high as $23 million,
`
`according to Juniper’s witness testimony regarding the late-produced spreadsheets, the Court stated
`
`this new information, which was presented for the first time in Juniper’s rebuttal report, did not matter
`
`because it was still higher than Finjan’s reasonable royalty. Reply, Ex. 3, Trial Tr. at 7:9-9:9 (THE
`
`COURT: Well, but even if it was 7.2, your number was 70 million. You still came up with an
`
`astronomical number. So how would the 7.2 even get you close to 70 million?”). This was the Court’s
`
`position leading up to trial, where the Court relied upon the $1.8 million figure to limit Finjan’s
`
`reasonable royalty. See Dkt. 283, Daubert Order at 4 (“Finjan will thus be stuck with the $1.8 million
`8
`FINJAN’S REPLY IN SUPPORT OF ITS RENEWED JMOL
`
`CASE NO. 17-cv-05659-WHA
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`

`

`Case 3:17-cv-05659-WHA Document 364-3 Filed 01/31/19 Page 13 of 20
`
`
`
`
`
`base.”); Dkt. 300, Pretrial Hearing Tr. at 16 (the Court agreeing Finjan is “stuck with a $1.8 million
`
`base”). Contrary to Juniper, Finjan understood the Court’s Daubert ruling and rulings throughout trial,
`
`which, as set forth in Finjan’s Opening Brief, are contrary to the law because revenues do not limit the
`
`reasonable royalty.
`
`Given this record, Juniper’s assertion that the Court did not limit Finjan to Juniper’s $1.8
`
`million figure is wrong. Opp. at 21. Indeed, Juniper made effort to explain the difference between
`
`Juniper’s artificially low $1.8 million revenue figure and the total of over $23.1 million in revenues
`
`that Finjan presented at trial with Juniper’s corporate designee on Juniper’s revenues, as Juniper
`presented no