Case 3:17-cv-05659-WHA Document 408 Filed 03/28/19 Page 1 of 17
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`
`PAUL J. 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
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`PLAINTIFF FINJAN, INC.’S OPPOSITION
`TO DEFENDANT JUNIPER NETWORKS,
`INC.’S MOTION TO STRIKE THEORIES
`FROM FINJAN’S MOTION FOR SUMMARY
`JUDGMENT, AND MOTION TO AMEND
`
`Date: May 2, 2019
`Time: 8:00 a.m.
`Judge: Hon. William Alsup
`Courtroom:
`12, 19th Floor
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`
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`REDACTED VERSION OF DOCUMENT SOUGHT TO BE SEALED
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`PLAINTIFF FINJAN’S OPPOSITION TO DEFENDANT
`JUNIPER NETWORK’S MOTION TO STRIKE THEORIES
`FROM FINJAN’S MOTION FOR SUMMARY JUDGMENT
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`CASE NO. 3:17-cv-05659-WHA
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`Case 3:17-cv-05659-WHA Document 408 Filed 03/28/19 Page 2 of 17
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`TABLE OF CONTENTS
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`Page
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`I. 
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`II. 
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`INTRODUCTION ....................................................................................................................... 1 
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`BACKGROUND ......................................................................................................................... 2 
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`III. 
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`ARGUMENT ............................................................................................................................... 4 
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`A. 
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`B. 
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`Juniper’s Motion is Procedurally Improper ..................................................................... 4 
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`Finjan Disclosed its Infringement Contentions ................................................................ 5 
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`1. 
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`2. 
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`3. 
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`4. 
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`5. 
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`6. 
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`Finjan Disclosed an HTTP Function as a “first function.” .................................. 6 
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`Finjan’s Infringement Contentions Disclose Juniper’s Use of a “Verdict”
`Engine as a Security Computer in Juniper’s Sky ATP Products. ........................ 9 
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`Finjan’s Infringement Contentions Disclose Juniper’s Use of Whitelisting as a
`“Second Function” in Juniper’s Sky ATP Products. ......................................... 10 
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`Finjan’s Infringement Contentions Disclose Juniper’s Use of SmartCore as a
`“Content Processor” and “Chain Heuristics” in Juniper’s ATP Appliance
`Products.............................................................................................................. 11 
`
`Finjan’s Infringement Contentions Disclose Juniper’s Use of “Clean” and
`“End” Operations as a “Second Function” in Juniper’s ATP Appliance
`Products.............................................................................................................. 12 
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`Finjan’s Infringement Contentions Allege Infringement of the Content
`Processor Limitation Under the Doctrine of Equivalents. ................................. 13 
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`IV. 
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`CONCLUSION .......................................................................................................................... 14 
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`PLAINTIFF FINJAN’S OPPOSITION TO DEFENDANT
`JUNIPER NETWORK’S MOTION TO STRIKE THEORIES
`FROM FINJAN’S MOTION FOR SUMMARY JUDGMENT
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`CASE NO. 3:17-cv-05659-WHA
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`Case 3:17-cv-05659-WHA Document 408 Filed 03/28/19 Page 3 of 17
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`TABLE OF AUTHORITIES
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`
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`Page(s)
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`Federal Cases
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`CreAgri, Inc. v. Pinnaclife Inc.,
`No. 11-cv-06635-LHK, 2012 WL 5389775 (N.D. Cal. Nov. 2, 2012) .............................................. 5
`
`Network Caching Tech. Corp. v. Novell, Inc.,
`No. C-01-2079 VRW, 2003 WL 21699799 (N.D. Cal. Mar. 21, 2003) ............................................ 6
`
`Renesas Tech. Corp. v. Nanya Tech. Corp.,
`No. C03-05709JFHRL, 2004 WL 2600466 (N.D. Cal. Nov. 10, 2004) ............................................ 6
`
`ii
`PLAINTIFF FINJAN’S OPPOSITION TO DEFENDANT
`JUNIPER NETWORK’S MOTION TO STRIKE THEORIES
`FROM FINJAN’S MOTION FOR SUMMARY JUDGMENT
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`CASE NO. 3:17-cv-05659-WHA
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`Case 3:17-cv-05659-WHA Document 408 Filed 03/28/19 Page 4 of 17
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`I.
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`INTRODUCTION
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`Defendant Juniper Network’s Motion to Strike Finjan’s Motion for Summary Judgment (Dkt.
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`No. 391, “Motion”) should not even be considered as it is procedurally improper and makes no sense
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`in light of the unorthodox case schedule. Juniper is seeking to strike a summary judgment, not
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`Finjan’s Infringement Contentions, suggesting that Finjan should have either (i) somehow had
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`Juniper’s confidential information when it served its March 2018 Infringement Contentions, which
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`Finjan could not have since Juniper produced such discovery recently in the past few months, and (ii)
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`sought to supplement its Infringement Contentions serially as discovery is continuing. That argument,
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`however, ignores the realities of this case and the “showdown” procedures. Discovery is still ongoing,
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`even today. Finjan should not be required (and is, in fact, not required) to seek to supplement its
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`Infringement Contentions every time new evidence during discovery is disclosed patent by patent,
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`particularly as the parties are addressing individual claims of Finjan’s Asserted Patents through
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`multiple “showdowns.” To do so is neither judicially efficient nor appropriate and motion practice
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`would be endless. Today, Finjan is still undertaking discovery into Juniper’s infringement of U.S.
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`Patent No. 8,141,154 (“the ‘154 Patent). Thus, Juniper’s Motion to strike Finjan’s infringement
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`positions and evidence, while discovery (and even claim construction) has yet to be completed, is
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`unsound in light of the Court’s case schedule addressing individual patent claims in separate
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`individual “showdowns.”
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`Moreover, there is nothing new in Finjan’s Motion for Summary Judgment. Juniper’s Motion
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`hinges on the untenable position that Finjan’s Motion for Summary Judgment does not use, word-for-
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`word, the same language in its Infringement Contentions. For example, Juniper argues that Finjan did
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`not disclose an “http” function as the “first function” in the claims, even though it concedes that
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`Finjan’s Infringement Contentions refers to the “http” function in connection with the “first function”
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`of the content processor. Thus, Juniper’s infirm argument amounts to Finjan never alleged
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`infringement based on the “http” function because the exact “http://” prefix was not used in the
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`Infringement Contentions, even though it agrees that Finjan identified the “http” function in its
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`1
`PLAINTIFF FINJAN’S OPPOSITION TO DEFENDANT
`JUNIPER NETWORK’S MOTION TO STRIKE THEORIES
`FROM FINJAN’S MOTION FOR SUMMARY JUDGMENT
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`Case 3:17-cv-05659-WHA Document 408 Filed 03/28/19 Page 5 of 17
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`Infringement Contentions. Because Finjan’s Motion for Summary Judgment conforms to the
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`infringement allegations in its Infringement Contentions, Juniper’s Motion should be denied.
`II.
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`BACKGROUND
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`The parties are currently in fact discovery for the case, and there is currently no cutoff date for
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`the end of fact discovery. Dkt. Nos. 35, 348. Furthermore, the parties have briefed claim construction
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`for terms for the ‘154 Patent, both in briefing according to the claim construction schedule (Dkt. Nos.
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`219, 35, 191, and 193), as well as in their respective briefs for the ’154 Patent (Dkt. Nos. 369 and
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`390). According to the showdown procedure established by the Court, the parties recently finished a
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`trial in December on a single asserted claim, with post-trial briefing on this trial completed in
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`February. The parties began the second showdown procedure on January 24, 2019, with opening
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`briefs file on February 14th, and oppositions briefs were filed on March 14th. Finjan elected and
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`briefed Claim 1 of the ‘154 Patent for this second round of the showdown procedure.
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`Juniper continues to provide new discovery in this case. First, it only made the source code for
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`the ATP Appliance accessible starting in December, as it was before loaded on the source code review
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`computer but was inaccessible because Juniper did not install the correct software to review the code.
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`Declaration of Kristopher Kastens in Support of Finjan’s Opposition to Juniper’s Motion to Strike
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`(“Kastens Decl.”) filed herewith, Ex. A at p. 1. Similarly, Juniper recently provided critical discovery
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`into its
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` despite Finjan requesting this information over a year ago. Id., Ex. C at
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`p. 10 (RFP No. 38); id., Ex. D at p. 6 (RFP Nos. 87-91).
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`Claim 1 of the ‘154 Patent covers a system for protecting a computer from dynamically
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`generated malicious content using a content processor, a transmitter, and a receiver. The content
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`processor is capable of “(i) processing content received over a network, the content including a call to
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`a first function, and the call including input, and (ii) for invoking a second function with the input,
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`only if a security computer indicates that invocation is safe.”
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`Finjan’s Infringement Contentions for Claim 1 of the ‘154 Patent allege infringement based on
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`a number of different content processors, transmitters and receivers contained in Juniper’s SRX
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`PLAINTIFF FINJAN’S OPPOSITION TO DEFENDANT
`JUNIPER NETWORK’S MOTION TO STRIKE THEORIES
`FROM FINJAN’S MOTION FOR SUMMARY JUDGMENT
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`Case 3:17-cv-05659-WHA Document 408 Filed 03/28/19 Page 6 of 17
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`Gateway, Sky ATP and ATP Appliance Products (collectively “Accused Products”). Dkt. No. 391-3,
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`391-4, 391-5. Finjan’s Motion for Summary Judgment is laid out in a similar manner, where they
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`infringe for each of the SRX Gateway, Sky ATP, and ATP Appliance. Dkt. No. 368-4 at 4-6.
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`For example, Finjan asserted in its Motion the process of the SRX Gateways
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`. This is the exact process that was identified in Finjan’s Infringement
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`Contentions as meeting the claims elements of the ‘154 Patent. For example, in the explanation and
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`figure below, Finjan
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`Dkt. No. 391-3 at 4.
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`PLAINTIFF FINJAN’S OPPOSITION TO DEFENDANT
`JUNIPER NETWORK’S MOTION TO STRIKE THEORIES
`FROM FINJAN’S MOTION FOR SUMMARY JUDGMENT
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`Case 3:17-cv-05659-WHA Document 408 Filed 03/28/19 Page 7 of 17
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`Dkt. No. 391-3 at 5, 6.
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`Finally, Finjan identified in its infringement contentions that HTTP functions can be
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`III. ARGUMENT
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`A.
`Juniper’s Motion is Procedurally Improper
`Juniper’s Motion to Strike should be denied because recently discovered evidence, particularly
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`confidential discovery not accessible to Finjan, set forth in a Motion for Summary Judgment cannot be
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`stricken for lack of disclosure. Discovery is currently ongoing, such that it makes no sense that a party
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`would be precluded from using discovery after it has been produced. The point of discovery is to be
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`able to lead to the discovery of admissible evidence and use it for a case. Striking evidence based on
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`4
`PLAINTIFF FINJAN’S OPPOSITION TO DEFENDANT
`JUNIPER NETWORK’S MOTION TO STRIKE THEORIES
`FROM FINJAN’S MOTION FOR SUMMARY JUDGMENT
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`Case 3:17-cv-05659-WHA Document 408 Filed 03/28/19 Page 8 of 17
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`recently produced discovery, which come after preliminary infringement contentions, undermines the
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`purpose of discovery.
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`Discovery in the entire case for all the patents is ongoing as the parties have or are still in the
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`process of scheduling depositions and additional written discovery has been served during this period.
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`For example, some of the discovery specific to the ‘154 Patent was provided in December 2018 and
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`February 2019, after the completion of the first “showdown” trial. Juniper only made the source code
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`for the ATP Appliance accessible starting in December 2018, as Juniper had failed to provide the
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`correct software so such source code could be reviewed previously. Kastens Decl., Ex. A at p. 1
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`(source code was loaded on the source code review computer but was inaccessible because Juniper did
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`not install the correct software to review the code). Similarly, Juniper recently provided critical
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`discovery into its
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` despite Finjan requesting this information over a year ago.
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`Kastens Decl., Ex. B at p. 1; id., Ex. C at p. 10 (RFP No. 38), id., Ex. D at p. 6 (RFP Nos. 87-91).
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`Further, the unusual case schedule also makes Juniper’s Motion improper. Juniper cites no authority
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`to support its Motion seeking to strike infringement evidence (or even positions) from the entire case
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`prematurely in the middle of fact discovery. Thus, Juniper’s approach to handcuff Finjan to
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`infringement positions before any discovery is contrary to the law.
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`Juniper knew that discovery produced after Finjan’s March 2018 Infringement Contentions
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`would be the subject of Finjan’s Motion for Summary Judgment. Procedurally, it cannot be the case
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`that the summary judgment motion is limited based on March 2018 Infringement Contentions when
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`the bulk of discovery came thereafter and is still ongoing.
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`B.
`Finjan Disclosed its Infringement Contentions
`Juniper’s Motion should also be denied because Finjan’s Infringement Contentions identified
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`the products and processes accused of infringement in its Motion, and therefore Juniper had notice of
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`Finjan’s infringement claims and as required under the law. See CreAgri, Inc. v. Pinnaclife Inc., No.
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`11-cv-06635-LHK, 2012 WL 5389775, at *2 (N.D. Cal. Nov. 2, 2012) (“These rules do not, as is
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`PLAINTIFF FINJAN’S OPPOSITION TO DEFENDANT
`JUNIPER NETWORK’S MOTION TO STRIKE THEORIES
`FROM FINJAN’S MOTION FOR SUMMARY JUDGMENT
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`Case 3:17-cv-05659-WHA Document 408 Filed 03/28/19 Page 9 of 17
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`sometimes misunderstood, require the disclosure of specific evidence nor do they require a plaintiff to
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`prove its infringement case”) (internal quotations and citations omitted). The purpose of infringement
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`contentions is to “set forth ‘particular theories of infringement with sufficient specificity to provide
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`defendants’ with notice of infringement’ beyond the claim language itself.” Renesas Tech. Corp. v.
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`Nanya Tech. Corp., No. C03-05709JFHRL, 2004 WL 2600466, at *4 (N.D. Cal. Nov. 10, 2004)
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`(quoting Network Caching Tech. Corp. v. Novell, Inc., No. C-01-2079 VRW, 2003 WL 21699799, at
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`*4 (N.D. Cal. Mar. 21, 2003)). Finjan has done exactly that in this case, as set forth below.
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`1.
`Finjan Disclosed an HTTP Function as a “first function.”
`Finjan’s Motion for Summary Judgment and Infringement Contentions confirm that Juniper’s
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`Accused Products include a content processor for processing content received over a network where
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`the content includes a call to a first function, which includes an HTTP function which can also be
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`written “http://”. An HTTP function is the calling of the HTTP protocol to send or receive content on
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`the Internet, and is included in HTTP content that is received from a remote webserver. Finjan has
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`properly identified that a first function can be sending of HTTP content, as would be called using
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`“http://,” and therefore properly disclosed a first function being an HTTP function that takes an input
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`of a URL or a file. Declaration of Nenad Medvidović (“Medvidović Decl.”), ¶¶ 14-19.
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`In its Infringement Contentions, Finjan included a number of examples of functions that call
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`the HTTP function as a first function, all of which Juniper cites in its brief but ignores in its analysis.
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`14. This can be seen in the Wikipedia page for redirection, where a redirection to a URL would
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`involve the encoding the function of “http://” and the URL that the person is directed to.
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`. Medvidović Decl., ¶¶ 13,
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`6
`PLAINTIFF FINJAN’S OPPOSITION TO DEFENDANT
`JUNIPER NETWORK’S MOTION TO STRIKE THEORIES
`FROM FINJAN’S MOTION FOR SUMMARY JUDGMENT
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`Case 3:17-cv-05659-WHA Document 408 Filed 03/28/19 Page 10 of 17
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`See https://en.wikipedia.org/wiki/URL_redirection. Similarly, the reference to a “payload” function to
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`“download” a payload from a particular web source would also be through an HTTP function.
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`Medvidović Decl., ¶ 15. In this case, the HTTP function would identify a file to be downloaded to the
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`A comparison of excerpts from Finjan’s Motion for Summary Judgment and Infringement
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`Contentions further demonstrates that Finjan’s use of HTTP as a first function was disclosed in its
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`Infringement Contentions.
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`Motion for Summary Judgment
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`Infringement Contentions
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`7
`PLAINTIFF FINJAN’S OPPOSITION TO DEFENDANT
`JUNIPER NETWORK’S MOTION TO STRIKE THEORIES
`FROM FINJAN’S MOTION FOR SUMMARY JUDGMENT
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`8
`PLAINTIFF FINJAN’S OPPOSITION TO DEFENDANT
`JUNIPER NETWORK’S MOTION TO STRIKE THEORIES
`FROM FINJAN’S MOTION FOR SUMMARY JUDGMENT
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`Case 3:17-cv-05659-WHA Document 408 Filed 03/28/19 Page 12 of 17
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`Motion for Summary Judgment
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`Infringement Contentions
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`Dkt. No. 368-4 at 10 (emphasis added).
`Accordingly, Finjan disclosed the use of HTTP as a first function and it is not a new theory or
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`prejudicial to Juniper.
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`2.
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`Finjan’s Infringement Contentions Disclose Juniper’s Use of a “Verdict”
`Engine as a Security Computer in Juniper’s Sky ATP Products.
`Finjan’s Infringement Contentions disclose various security computers used in Juniper’s Sky
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`ATP Products including software engines.
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`9
`PLAINTIFF FINJAN’S OPPOSITION TO DEFENDANT
`JUNIPER NETWORK’S MOTION TO STRIKE THEORIES
`FROM FINJAN’S MOTION FOR SUMMARY JUDGMENT
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`CASE NO. 3:17-cv-05659-WHA
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`Case 3:17-cv-05659-WHA Document 408 Filed 03/28/19 Page 13 of 17
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`Accordingly, Finjan disclosed a verdict engine in its Infringement Contentions and there is no
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`prejudice to Juniper.
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`3.
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`Finjan’s Infringement Contentions Disclose Juniper’s Use of Whitelisting
`as a “Second Function” in Juniper’s Sky ATP Products.
`Finjan’s Infringement Contentions disclose use of Whitelisting as a “second function” in
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`Juniper’s Sky ATP Products. In particular, Finjan’s Infringement Contentions describe various
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`component of the Sky ATP Production, including inputs that can be sent to a second function:
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`Dkt. No. 391-4 at 3.
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`10
`PLAINTIFF FINJAN’S OPPOSITION TO DEFENDANT
`JUNIPER NETWORK’S MOTION TO STRIKE THEORIES
`FROM FINJAN’S MOTION FOR SUMMARY JUDGMENT
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`CASE NO. 3:17-cv-05659-WHA
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`Case 3:17-cv-05659-WHA Document 408 Filed 03/28/19 Page 14 of 17
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`Accordingly, Finjan disclosed a white listing as a second function in its Infringement
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`Contentions and there is no prejudice to Juniper.
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`4.
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`Finjan’s Infringement Contentions Disclose Juniper’s Use of SmartCore as
`a “Content Processor” and “Chain Heuristics” in Juniper’s ATP Appliance
`Products.
`Juniper’s Motion contentions that Finjan’s Infringement Contentions do not allege
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`infringement based on Juniper’s use of SmartCore as a “content processor” and “chain heuristics” as a
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`security computer is premised on misconstruing Finjan’s explicit disclosures.
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`As noted, this description does not include any statements about “collectors,” which were the
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`11
`PLAINTIFF FINJAN’S OPPOSITION TO DEFENDANT
`JUNIPER NETWORK’S MOTION TO STRIKE THEORIES
`FROM FINJAN’S MOTION FOR SUMMARY JUDGMENT
`
`CASE NO. 3:17-cv-05659-WHA
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`Case 3:17-cv-05659-WHA Document 408 Filed 03/28/19 Page 15 of 17
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`2.
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` ….” Dkt. No. 391-5 at 1-
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`. Accordingly,
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`Finjan disclosed an ATP Appliance, including SmartCore processor as a content processor and chain
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`heuristics as a security engine.
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`5.
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`Finjan’s Infringement Contentions Disclose Juniper’s Use of “Clean” and
`“End” Operations as a “Second Function” in Juniper’s ATP Appliance
`Products.
`Finjan’s Infringement Contentions disclose contentions that necessarily use of “clean” and
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`“END” operations as a “Second function in Juniper’s ATP Appliance Products.
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`. Dkt. No. 368-4 at 19.
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`12
`PLAINTIFF FINJAN’S OPPOSITION TO DEFENDANT
`JUNIPER NETWORK’S MOTION TO STRIKE THEORIES
`FROM FINJAN’S MOTION FOR SUMMARY JUDGMENT
`
`CASE NO. 3:17-cv-05659-WHA
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`Case 3:17-cv-05659-WHA Document 408 Filed 03/28/19 Page 16 of 17
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`Accordingly, Finjan disclosed “clean” and “END” operations as a second function in its
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`Infringement Contentions and there is no prejudice to Juniper.
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`6.
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`Finjan’s Infringement Contentions Allege Infringement of the
`Content Processor Limitation Under the Doctrine of Equivalents.
`Finjan specifically include analysis under the Doctrine of Equivalents (“DOE”) for the content
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`processor, and particularly identifies the “verdict” as an aspect that is met under DOE. Dkt. No. 391-3
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`at 9-10. Juniper’s contention that the Finjan’s Motion for Summary Judgment presented a new DOE
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`contention is without merit, as Finjan specifically stated that the verdict met the requirement of the
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`indication. Finjan’s Infringement Contentions allege infringement of the “content processor” under
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`the DOE, including the requirement that the processor be capable of invoking a second function with
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`the input, only if a security computer indicates that invocation is safe. Id. Juniper’s primary
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`complaint centers on that Finjan does not specifically include the term “verdict” in its DOE analysis to
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`describe as what the security computer is returning to determine if the indication is “safe.” However,
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`Finjan specifically stated in other sections of its analysis that the indicator returned on whether the
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`content is safe is the same as a “verdict on the input.” Id. at 14.
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`explicitly used the term “verdict” for its DOE, as its DOE analysis directly related to the results from
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`. As such, it is immaterial whether Finjan
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`the security computer, i.e. the verdict.
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`Juniper’s argument that is prejudiced by Finjan’s DOE argument rings hollow. First, Finjan
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`included its DOE argument before Juniper even selected a construction for “safe.” Next, it is
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`prematurely based on claim construction which the Court has yet to rule on. In fact, Finjan would
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`have good cause to supplement its contentions anyway if Juniper’s proposed construction were to be
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`13
`PLAINTIFF FINJAN’S OPPOSITION TO DEFENDANT
`JUNIPER NETWORK’S MOTION TO STRIKE THEORIES
`FROM FINJAN’S MOTION FOR SUMMARY JUDGMENT
`
`CASE NO. 3:17-cv-05659-WHA
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`Case 3:17-cv-05659-WHA Document 408 Filed 03/28/19 Page 17 of 17
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`adopted. Additionally, Juniper’s allegation that Finjan’s DOE allegations are deficient should be
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`summarily dismissed as Juniper has had Finjan’s Infringement Contentions since June 2018 and never
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`once raised an issue regarding any purported deficiency regarding Finjan’s DOE allegations regarding
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`the content processor.
`IV. CONCLUSION
`For the foregoing reasons, respectfully requests that the Court deny Juniper’s Motion.
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`Dated: March 28, 2019
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`Respectfully submitted,
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`
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`
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`By: /s/ Kristopher Kastens
`Paul J. Andre (SBN 196585)
`Lisa Kobialka (SBN 191404)
`James Hannah (SBN 237978)
`Kristopher Kastens (SBN 254797)
`KRAMER LEVIN NAFTALIS
` & FRANKEL LLP
`990 Marsh Road
`Menlo Park, CA 94025
`Telephone: (650) 752-1700
`Facsimile: (650) 752-1800
`pandre@kramerlevin.com
`lkobialka@kramerlevin.com
`jhannah@kramerlevin.com
`kkastens@kramerlevin.com
`
`Attorneys for Plaintiff
`FINJAN, INC.
`
`14
`PLAINTIFF FINJAN’S OPPOSITION TO DEFENDANT
`JUNIPER NETWORK’S MOTION TO STRIKE THEORIES
`FROM FINJAN’S MOTION FOR SUMMARY JUDGMENT
`
`CASE NO. 3:17-cv-05659-WHA
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