Case 3:17-cv-05659-WHA Document 365-4 Filed 01/31/19 Page 1 of 16
`Case 3:17-cv-05659-WHA Document 365-4 Filed 01/31/19 Page 1 of 16
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`EXHIBIT 3
`EXHIBIT 3
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`Case 3:17-cv-05659-WHA Document 365-4 Filed 01/31/19 Page 2 of 16
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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.
`
` 4
`
`PROCEEDINGS
`Monday - December 10, 2018 7:32 a.m.
`P R O C E E D I N G S
`---000---
`THE COURT: Good morning. We're here for trial.
`We'll get started.
`THE CLERK: Calling Civil Case Number 17-5659, Finjan,
`Inc. versus Juniper Networks.
`Will counsel please step forward and state your
`appearances for the record.
`MR. ANDRE: Good morning, Your Honor. Paul Andre
`Andre for Finjan. And with me today is Lisa Kobialka, James
`Hannah, and Cristina Martinez.
`THE COURT: Welcome to all of you.
`MR. KAGAN: Good morning, Your Honor. Jonathan Kagan,
`of Irell & Manella, for defendant Juniper Networks. With me at
`counsel table today are Rebecca Carson.
`MS. CARSON: Good morning.
`MR. KAGAN: Alan Heinrich.
`MR. HEINRICH: Good morning.
`MR. KAGAN: Josh Glucoft, and Casey Curran.
`MS. CURRAN: Good morning.
`THE COURT: Okay. I guess with all the lawyers here
`this case must be worth millions of dollars. That's the way a
`jury is going to see it. Always works that way.
`All right. We're here for trial. We're going to call the
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` Volume 1
` Pages 1 - 197
`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
` Monday, December 10, 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
`
`I N D E X
`
`
`Monday, December 10, 2018 - Volume 1
`
` PAGE VOL.
`Jury Voir Dire
`28
`1
`Preliminary Jury Instructions
`150
`1
`Opening Statement by Mr. Andre
`155
`1
`Opening Statement by Mr. Kagan
`173
`1
`
`
`PLAINTIFF'S WITNESSES PAGE VOL.
`
`BIMS, HARRY
`(SWORN)
`Direct Examination by Mr. Andre
`
`
`192
`193
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`1
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`Case 3:17-cv-05659-WHA Document 365-4 Filed 01/31/19 Page 3 of 16
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`PROCEEDINGS
` 6
`MR. ANDRE: Your Honor, we're not asking for damages
`based on SRX alone. Just the opposite. We actually -- at the
`pretrial conference you ordered the defendants to produce a
`witness on the late-disclosed spreadsheet, the 17,000-page
`spreadsheet. And they represented they were just adding one
`column to their spreadsheet they produced back in April, you'll
`recall.
`Turns out that one column, or maybe two columns, had
`60,000 rows that we found out as we took the deposition on
`Friday afternoon.
`THE COURT: Wait. Wait. You're saying in addition
`to -- in addition to one new column, which was previously
`blank, they added 60,000 new rows?
`MR. ANDRE: Yeah. The original spreadsheet had
`30,000 --
`THE COURT: Is that true?
`MR. HEINRICH: No, Your Honor.
`THE COURT: He said it's not true.
`MR. ANDRE: Well, we asked at deposition -- the
`original deposition spreadsheet had 30,000 rows; the new one
`had 90,000. Now, my math --
`THE COURT: What do you say to that?
`MR. HEINRICH: So, it's not correct --
`THE COURT: Anytime a lawyer starts with "so," that
`means they are in trouble.
`
`PROCEEDINGS
` 8
`number of 1.8 million. And no one knows how they got to
`1.8 million. And we figured it out at this deposition.
`They had their expert write a piece of software, some
`script, to run a program to gin up this $1.8 million revenue
`based on average cost and expectation and whatnot.
`We've never been provided that piece of software or script
`to test it on our own and see even what it was about. But
`their witnesses or fact witnesses could not re-create that
`number.
`So not only do we have a lot of additional information on
`the spreadsheet that was produced very late in the case, then
`they used that spreadsheet, without us having access to it, to
`write a piece of software to gin up a number of $1.8 million,
`to sandbag us with our damages expert.
`We went in --
`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?
`MR. ANDRE: It wouldn't, Your Honor. We're not saying
`that. The 7.2 and the 15.9, the 23 million total, it would
`be -- still our number would be high. But the numbers we had
`in the original spreadsheets, you couldn't even decipher the
`23 million. The number we had in the original spreadsheet was
`several-hundred million. So our 60 to 70 million wasn't
`outrageous when you looked at the several-hundred million.
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`PROCEEDINGS
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`jury in in 30 minutes, get started. I want you to know, the
`way I run the courtroom, we don't dawdle.
`So what issues do you want to take up before we bring in
`the potential jury?
`MR. KAGAN: Your Honor, the first issue that the
`defendant would like to raise regards to insufficiency or lack
`of sufficiency of the offer of proof that Your Honor ordered to
`be served at 5 o'clock on Friday.
`The offer of proof was -- Mr. Heinrich can go into more
`detail on this, but the offer of proof, which was on damages,
`failed to include certain items such as the amount of damages
`that Finjan is seeking in this case.
`And, in addition, it included reference to evidence that
`they were going to introduce to support its damages claim that
`this Court expressly ordered excluded by the Daubert motion.
`So, for example, they are seeking, as evidence to support
`their damages claim, revenues for the SRX device by itself,
`which this Court has already ordered is not an accused product
`in this case.
`So what they've done is continued to advance a defunct
`theory to support damages. And they're still trying to hide
`the ball in terms of what damages they're actually seeking and
`what the basis is for the damages claim, which is why we
`requested the offer of proof in the first place.
`THE COURT: Okay. What do you say?
`
`PROCEEDINGS
` 7
`MR. HEINRICH: No, Your Honor.
`THE COURT: I've learned that the hard way. That
`means they don't want to give you a direct answer.
`Give me a direct answer. Is it true that there are more
`rows or not?
`MR. HEINRICH: No.
`THE COURT: He says no.
`All right. What else do you want to say?
`MR. ANDRE: We then talked to their witness and said,
`Tell us the revenues for the SRX and Sky ATP combined, both the
`ones you give away for free and ones you charge a license for.
`And she created two spreadsheets. One was the price of
`$15.9 million for those two combined. The other was
`7.2 million.
`The 7.2 was when they went back and tried to recalculate
`the free versions of the Sky ATP with SRX, the sales of SRX for
`7.2 million. So roughly over $23 million in revenue of
`spreadsheets that their witness created. They say that that is
`SRX by itself.
`We have the spreadsheets. We have the exhibits. And it
`says "Sky ATP and SRX." And that's the best that she could do.
`They said, well, she couldn't verify the accuracy of that
`information on their own spreadsheets. I'm like, well, she's a
`30(b)(6) witness. I don't know what else to do here.
`We found out that they have been advancing a total revenue
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`Case 3:17-cv-05659-WHA Document 365-4 Filed 01/31/19 Page 4 of 16
`
`PROCEEDINGS
` 10
`those devices, and we extracted financial information.
`And what we included in that financial information was
`information on the shipments that those units that were
`actually used in combination with Sky ATP were included in.
`So, for example, the customer orders 200 SRX devices. We're
`able to determine that only one of those devices was ever used
`in combination with Sky ATP.
`What they did is they included the entire revenues from
`those 200 devices to come up with their 7.2 million. They were
`manipulating the spreadsheet in a way that ignored the 120
`units that were actually used and, instead, included the
`revenues for all of the SRXs included together in the same
`shipment.
`And that's exactly the problem that -- I mean, it's the
`same problem that the Court resolved in the Daubert ruling,
`which is that they can't include revenues for SRX devices alone
`that were never used in combination with Sky ATP.
`That's just one example. The fundamental problem here is
`that their offer of proof confirms that they don't have a
`legally viable damages opinion. They say, oh, well, we can put
`on evidence of an $8 per user license.
`That's -- they already floated that theory in another
`trial. The Federal Circuit vacated the jury verdict because
`the Federal Circuit said they just plucked that out of thin
`air.
`
`PROCEEDINGS
` 12
`MR. HEINRICH: If they don't have damages, then this
`whole case is moot. The patent is expired.
`THE COURT: Now that we have gotten this far, I'm not
`going to dismiss the jury.
`Look, I'm going to deny your motion. I'm going to explain
`why.
`It's not -- I want to tell Mr. Andre first, I have grave
`doubt that you're going to have a damages case after I hear it
`all. And I may have to direct a verdict against you on the
`issue of damages. I want to be very clear about that.
`Let's just start with one word: apportionment. All right.
`That right there may be a deal killer for you.
`But here's the problem: This is coming up to me out of
`left field by the defendant, and it's a problem that you caused
`by coming up with this last-minute spreadsheet that you
`yourself injected into it. So I allowed a deposition to try to
`cure your default with a last-minute disclosure.
`And then on Friday night -- this is Monday. I'm talking
`to the Court of Appeals now. This is Monday morning, at
`7:45 a.m. And -- on Friday -- is it Friday night? I think it
`was Friday night, Juniper filed this massive motion to knock
`out the entire damages case.
`I've done the best I can to assess it. I think there are
`a lot of good points in that motion. But is it good enough to
`say that they -- that I can cut them off at the knees now? No.
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`PROCEEDINGS
` 9
`But we're not arguing that now. We're arguing this offer
`of proof. And this offer of proof is we took the deposition on
`Friday. Their witness came up with a couple of spreadsheets.
`They're objecting to the spreadsheet, saying she could not test
`the authenticity -- couldn't say that she was -- it was
`accurate numbers. She just couldn't tell. So that was their
`30(b)(6) witness.
`That's what they are saying that we are now offering SRX
`by itself.
`THE COURT: What do you say to this?
`MR. HEINRICH: So many inaccuracies.
`I'm going to start with the 7.2 million. So we provided a
`wealth of information in that spreadsheet. We were able to
`determine that there were only 120 SRX devices that were used
`in combination with Sky ATP during the damages period.
`So what we did is we used the Juniper financial
`information to determine the price and the net sales of those
`120 --
`
`THE COURT: How do you know if it was used or not?
`MR. HEINRICH: Well, because that information is in
`the Cloud. We're able to determine which devices actually --
`it's called bootstrap to Sky ATP.
`So our fact -- our engineers were able to write a script
`that derived that information, what were the devices actually
`bootstrapping to Sky ATP. And we used the serial number for
`
`PROCEEDINGS
` 11
`THE COURT: Which trial was that?
`MR. HEINRICH: That was the Finjan v. Blue Coat trial.
`THE COURT: That verdict got reversed.
`MR. HEINRICH: That's correct. Now they say they want
`to do the same $8 per user license model again. They're also
`saying a 32-cent-per-scan license, where they've never actually
`done a per-scan license at all. It's just another number that
`was plucked out of thin air as well. It fails under Finjan v.
`Blue Coat.
`Evidence -- they have a starting point license of
`8 percent for hardware. But now they say they want to apply
`that to the revenues for the entire security division of
`Juniper, which not only includes SRX devices alone, but it also
`includes the site for ATP appliance, that the Court excluded,
`but they cite for revenues in their offer of proof as the basis
`for a damages claim. They're flouting the Court's orders.
`They're ignoring and flouting the Federal Circuit's rulings.
`And the problem here is that in a few moments we're going
`to have folks coming in here, taking time away from work, away
`from their family, and their offer of proof confirms that they
`don't have a damages case that would withstand a Rule 50(a)
`motion. That's the problem.
`THE COURT: Well, there are other issues to try.
`MR. HEINRICH: If they --
`THE COURT: There's infringement to try.
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`Case 3:17-cv-05659-WHA Document 365-4 Filed 01/31/19 Page 5 of 16
`
`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
`
`
`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
`
`COLE, ERIC
`(SWORN)
`Direct Examination by Mr. Andre
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`

`

`Case 3:17-cv-05659-WHA Document 365-4 Filed 01/31/19 Page 6 of 16
`
`COLE - DIRECT / ANDRE
` 379
`all of a sudden, when you put all those different operations
`together, you now can make a better verdict or determination of
`whether something is good or whether something is bad.
`And that's the general idea of the '494. It's going to go
`in and look at that downloadable and look for those suspicious
`operations. It's then going to build a security profile.
`Now, all of that analysis -- and I'm not sure if we'll get
`to it today, but definitely tomorrow I'll show you how all that
`works. That takes a long time. That takes a lot of work.
`So what we want to do -- and the innovative component of
`Finjan -- is once we do that analysis and we create that
`security profile, why don't we store it in the database?
`Why don't we put it in a database, so now if somebody else
`sees that piece of code, instead of doing all that analysis
`again, we just look it up in the database, determine a verdict,
`and make a determination.
`So that's really the whole idea of '494 is, let's take
`these downloadables that could be dangerous, let's look for
`suspicious operations and build that security profile, and
`let's store it within a database so we can do future lookups to
`allow more timely analysis.
`Q.
`If we look at Claim 10, and this is Exhibit 1, the '494
`patent, could you just -- I think you covered most of them, but
`to the extent -- you didn't cover anything, but could you just
`hit the highlights of Claim 10?
`
`COLE - DIRECT / ANDRE
` 381
`MR. KAGAN: That's good. Thank you.
`THE COURT: Since you don't have a microphone, just
`keep your voice up --
`THE WITNESS: Okay.
`THE COURT: -- so that everybody can hear you well.
`THE WITNESS: My mom can vouch for this: I'm never
`accused of being quiet. So we should be okay there.
`THE COURT: I can hear you fine.
`(Laughter)
`THE WITNESS: So, essentially, if you look at a
`corporate network, if you look at a network that you're going
`to want to protect, they go in and they break it down into what
`we call zones or layers.
`So if we go here, you would have over here what we call
`the Internet. This is where all your servers and information
`reside.
`Then, in most organizations, you're going to have
`something called a DMZ, a demilitarized zone. It comes from
`the military context. And this is where you have servers that
`are accessible from the Internet. Then, to protect your key
`resources, you're going to have an area that's called a
`middleware here that has servers. You're then going to have
`your private information. And then you're ultimately going to
`have the data that an attacker is going to want to compromise.
`So what I want to explain to you first is how traditional
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`COLE - DIRECT / ANDRE
` 378
`pretty simple in how they worked and operated. So the general
`method of security was what we call antivirus detection, where
`you would just look for a string that's unique to that
`downloadable.
`However, today's adversaries are much more clever.
`They're going to go in and they're always changing, they're
`always morphing. So just by looking for a specific signature,
`you might miss it.
`So what we need to do today -- and this is the innovative
`technology that was created by Finjan -- is they said, wait a
`second, what if we take this downloadable and we look at it, we
`do analysis to look for different suspicious operations, and
`then we utilize those different suspicious operations together
`in order to go in and determine whether something is malicious
`or not malicious.
`And the example I give is, if you go home tonight to your
`neighborhood and you see somebody running through your
`neighborhood, that's not necessarily good or bad. You might
`see somebody carrying a box. That's neither good nor bad. You
`might see somebody wearing a hat. That's not good or bad. Or
`you might go in and see a police car. Once again, not good or
`bad.
`
`But my question is this: What if you go home tonight and
`you see somebody running through your neighborhood wearing a
`ski mask, carrying a box, being chased by a police car? Now,
`
`COLE - DIRECT / ANDRE
` 380
`A. Sure. So if we go in -- as I mentioned, one of the big
`things here is a downloadable. So it's a system for managing
`downloadables. And then, as we mentioned, there's a scanner --
`my drawing skills are not that good.
`You have your security profile data here. And then,
`ultimately, you want to go in and store that information within
`a database.
`So that's really the components that we described:
`Receiving a downloadable, creating the security profile,
`storing it within a database so you can do quicker lookups for
`future downloadable analysis.
`Q. And, Dr. Cole, I'd like to have you explain to the jury
`how this can protect against the complex --
`MR. ANDRE: Your Honor, can I have Dr. Cole draw that
`on the board over on the easel?
`THE COURT: What did we agree on this? I said it was
`
`okay.
`
`MR. ANDRE: To draw on flip pads and easels, you said
`
`it was.
`
`THE COURT: Yeah, all right. Then, very well, we can
`do that. Where is the easel?
`MR. ANDRE: Right here. I've got an extra board.
`THE COURT: You can step down to assist the jury. But
`why don't you bring it closer to the jury box so the jury can
`actually see it better.
`
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`

`

`Case 3:17-cv-05659-WHA Document 365-4 Filed 01/31/19 Page 7 of 16
`
`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.
`
`I N D E X
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` 401
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` E X H I B I T S
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`TRIAL EXHIBITS IDEN EVID VOL.
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`
` Volume 3
` Pages 398 - 614
`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
` Wednesday, December 12, 2018
`
`
`TRANSCRIPT OF PROCEEDINGS
`
`
`APPEARANCES:
`
`For Plaintiff: KRAMER, LEVIN, NAFTALIS & FRANKEL LLP
` 990 Marsh Road
` Menlo Park, California 94025
` BY: PAUL J. ANDRE, ESQ.
` LISA KOBIALKA, ESQ.
` JAMES HANNAH, ESQ.
` KRISTOPHER B. KASTENS, ESQ.
`
` KRAMER LEVIN NAFTALIS AND FRANKEL LLP
` 1177 Avenue of the Americas
` New York, New York 10036
` BY: CRISTINA LYNN MARTINEZ, ESQ.
`
`
`(Appearances continued on next page)
`
`
`
`Reported By: Katherine Powell Sullivan, CSR No. 5812, RMR, CRR
` Jo Ann Bryce, CSR No. 3321, RMR, CRR
` Official Reporters
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`
`I N D E X
`
`
`Wednesday, December 12, 2018 - Volume 3
`
`PLAINTIFF'S WITNESSES PAGE VOL.
`
`COLE, ERIC (RECALLED)
`(PREVIOUSLY SWORN)
`Direct Examination resumed by Mr. Andre
`Cross-Examination by Ms. Carson
`Redirect Examination by Mr. Andre
`
`COONAN, SCOTT JAMES
`By Videotaped Deposition (not reported)
`
`GARLAND, JOHN
`(SWORN)
`Direct Examination by Ms. Kobialka
`Cross-Examination by Mr. Kagan
`Redirect Examination by Ms. Kobialka
`Recross-Examination by Mr. Kagan
`
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`

`

`Case 3:17-cv-05659-WHA Document 365-4 Filed 01/31/19 Page 8 of 16
`
`PROCEEDINGS
` 411
`to do is you don't want -- you're hoping that you don't even
`get to -- we don't even get to damages so you don't even have
`to put that part of your case on.
`So you want to now use that part of the report for -- and
`say he can use those demonstratives on some early report. I'm
`not going to let you do that.
`So if he testifies on damages, then he may attach -- he
`may use anything that was literally attached. That's okay.
`That's going to be the ground rule. That's what I said before.
`MR. ANDRE: And so, Your Honor, what he did was, on
`his 101 report, which they have the burden of proof, he didn't
`attach any demonstratives at all. But then on his
`noninfringement report and his damages report, he attached the
`101 slides from his first report.
`THE COURT: Well, he can use them on the damages part.
`MR. ANDRE: But 101 is -- that's --
`THE COURT: Look --
`MR. ANDRE: Okay.
`THE COURT: -- I'm not going to -- it's a big -- I
`hate to keep saying big-firm trick. I was with a big --
`listen, I know all the tricks. I was with a big firm. And I
`don't like them. And I didn't do them myself, but I know them
`when I see them. And we're not going to let you get away with
`that.
`It should have been on that opening report. Except if
`
`PROCEEDINGS
` 413
`to know how Your Honor handles Rule 50(a) motions. They'll be
`resting today --
`THE COURT: What is that? What do you mean by that?
`MR. HEINRICH: Our JMOL on the issues on which they
`have the burden after they've rested.
`THE COURT: I will hear what you have to say, but I
`can't guarantee you that I'm going to make a ruling. So you
`better be prepared to move very promptly with your case.
`It could be what I'm going to say is start -- I'm not
`going to let -- I will say this. The jury will not -- we will
`not waste their time.
`If there is, say, 30 minutes left in the day, you have to
`use that 30 minutes. And we might argue your motion later, but
`we're not going to -- you're not going to get away with the
`jury cools their heels while the lawyers drone on.
`MR. HEINRICH: We're absolutely ready to just proceed
`with our case. I just wanted to ask the Court about the
`Court's practice in terms of the process. When they rest,
`would you like to hear oral an motion?
`THE COURT: What I might say is all Rule 50 motions
`are deemed reserved until the jury goes home for the day or
`maybe until after the trial is over. We'll just have to see.
`But I will give you a chance, after the jury has gone home
`for the day, for sure, to make your main points. But it'll be
`like a 5-minute motion. It's not going to be lawyers drone on.
`
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`PROCEEDINGS
` 410
`MR. ANDRE: That's not correct, Your Honor. So, first
`
`of all --
`
`THE COURT: Give me one of the -- let's just take one.
`You say you've got 300. Give me your best example of something
`they want to use which was not in any way put into the report.
`MR. ANDRE: This was the -- they have several
`statements here. It says Claim 10 is not inventive. This is
`regarding 101. In their 101 report, they did not attach any
`demonstratives whatsoever, zero.
`So what they tried to do is bootstrap demonstratives into
`their rebuttal, the damages report. And Your Honor ruled on
`this already. I brought this up at the pretrial.
`And Your Honor said there's no way -- "You can only use
`demonstratives with the part of Dr. Rubin's testimony that ties
`exactly to where he disclosed it. You can't piggyback some
`later disclosure and then say, oh, well, the judge is going to
`let it in."
`THE COURT: Well, look. What he can -- if he attached
`it -- look, if -- he's wearing two hats here; right? He's got
`two reports?
`MR. GLUCOFT: Three reports, Your Honor.
`THE COURT: All right. When he is testifying on the
`part of his report to which those exhibits were attached, he
`can use those demonstratives.
`But, see, this is another big-firm trick. What you want
`
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`
`PROCEEDINGS
`he -- if we get to the damages part, whatever they were
`attached to, if he testifies on that segment, then in
`connection with that testimony he can use those exhibits.
`MR. ANDRE: And, Your Honor, with respect to the --
`the majority of the 149 pages of exhibits, they went through
`and took the prior art and excerpted pieces out of it. That
`was not in his report. And they say that you're --
`THE COURT: Well, if it's in his report, it's okay.
`MR. ANDRE: But the demonstrative is not in there.
`THE COURT: That's all right. I'm going to let them
`do that. If it's in the report, I think that's okay, unless
`there's -- if it's -- if it's something egregious like they've
`got a guy driving a stake through the heart of the vampire.
`(Laughter)
`MR. ANDRE: They have something similar to that.
`THE COURT: No, no. But if it's just quoting from a
`prior art, I'm going to let them do that.
`MR. ANDRE: Well, it is a -- it's just not quoting,
`it's characterizing as well. But, like I said, Your Honor,
`we'll cross --
`THE COURT: I think it's probably okay.
`MR. ANDRE: Well, okay. I've been heard.
`THE COURT: All right. You're done.
`Okay. Anything on your side?
`MR. HEINRICH: Yes. So two items. One is we wanted
`
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`

`

`Case 3:17-cv-05659-WHA Document 365-4 Filed 0