Case 3:17-cv-05659-WHA Document 412-19 Filed 03/29/19 Page 1 of 4
`Case 3:17-cv-05659-WHA Document 412-19 Filed 03/29/19 Page 1 of 4
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`EXHIBIT 17
`EXHIBIT 17
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`Case 3:17-cv-05659-WHA Document 412-19 Filed 03/29/19 Page 2 of 4
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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.
` KEVIN X WANG, ESQ.
`
` Volume 5
` Pages 1 - 981
`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
` Friday, December 14, 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
`
` 835
`
`PROCEEDINGS
`Friday - December 14, 2018 7:22 a.m.
`P R O C E E D I N G S
`---000---
`(Proceedings were heard out of the presence of the jury:)
`THE COURT: Okay. Let's get started.
`Okay. First we'll consider Rule 50 motions. We've
`considered your written material so the oral part will be
`brief. Let's hear first from the defendant.
`MR. HEINRICH: Good morning, Your Honor. Alan
`Heinrich.
`THE COURT: One issue at a time. So what's your first
`
`issue?
`
`MR. HEINRICH: So we move for JMOL on damages. We
`think it's clear from plaintiff's submission that they're
`intent on violating the law. They're going to get up here in a
`few minutes and they're going to present the jury with a
`damages theory that the Federal Circuit rejected in Finjan v.
`Blue Coat.
`They're going to argue to the jury that the jury should
`award a royalty based on a per-user or per-scan rate that's
`based on nothing more than what Finjan's CEO testified Finjan
`would like to get. It's contrary to law.
`THE COURT: Okay. All right.
`All right. Let's hear from the other side.
`MR. ANDRE: Good morning, Your Honor. Paul Andre for
`
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`I N D E X
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`Friday, December 14, 2018 - Volume 5
`
` PAGE VOL.
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`845
`Charging Conference
`864
`Defense Rests
`887
`Plaintiff Rests Rebuttal Case
`898
`Jury Instructions
`907
`Closing Argument by Mr. Andre
`927
`Closing Argument by Mr. Kagan
`954
`Rebuttal Argument by Mr. Andre
`961
`Final Jury Instructions
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`DEFENDANT'S WITNESSES PAGE VOL.
`
`ORSO, ALESSANDRO (IN REBUTTAL)
`(SWORN)
`Direct Examination by Mr. Hannah
`Cross-Examination by Mr. Heinrich
`Redirect Examination by Mr. Hannah
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`5
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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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`105
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`875
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`5
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`5
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`5
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`Case 3:17-cv-05659-WHA Document 412-19 Filed 03/29/19 Page 3 of 4
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`CLOSING ARGUMENT / KAGAN
` 929
`MR. KAGAN: Okay. So the question here is not just
`does Juniper use a database? But what does it store in a
`database? And what does it mean to be a database within the
`meaning of this claim?
`What we need to do, what has to happen for purposes of
`Claim 10 is there has to be a security profile that is stored
`in a database. And the security profile has to include a list
`of suspicious operations. It's not just having a database, not
`just using a database, but storing a security profile in a
`database.
`And, furthermore, not just any database. When Finjan's
`lawyer got up here they said it's just a plain old ordinary
`database, just got it out of the IBM Computer Dictionary;
`there's nothing special about it.
`I don't know if I'd say there's something special or not
`special about the database, but it's a particular type of
`database. It is a database that is organized according to a
`database schema to serve one or more applications.
`And that's a very important definition. This is an agreed
`definition. Why do you think Juniper would agree to this
`definition? We know what type of database it is we are using
`to store our security profiles, and we know whether or not they
`have a schema. We're happy with this construction. That's why
`we agreed to it.
`What Finjan is trying to do is play word games. And we'll
`
`CLOSING ARGUMENT / KAGAN
` 931
`in a database with a schema doesn't exist in Juniper's product.
`And the reason it doesn't exist is because Juniper's
`product, the Sky ATP, is fundamentally different. It does not
`use security profiles in the way that the patent contemplates.
`It uses something completely different, called a verdict.
`Dr. Rubin testified to this. And I'll be going through it in
`detail later.
`But there's a reason that Juniper's product is different,
`is better, in Juniper's view. But it doesn't need to rely on a
`database with a schema, which may have been good technology
`back in 1996, when this patent claims priority, but it's not
`now, with modern schema-less databases.
`You saw this diagram when Dr. Rubin was testifying. This
`is the fundamental architecture of the Sky ATP. It shows where
`Juniper stores all of its data, including the security
`profiles. And there are three solutions that Juniper uses.
`They're at the bottom right.
`One is the Amazon DynamoDB. Some security profiles are
`stored there. One is the Amazon S3. Some security profiles
`are stored there. The third storage solution is called MySQL.
`And that's a database that we agree that that has a schema.
`But no security profiles are stored there.
`So Finjan has sort of a mix and match problem. They can
`find a database within the meaning of the claim, the definition
`of the construction, but they can't find any security profiles
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`CLOSING ARGUMENT / KAGAN
` 928
`less -- I said to you this case is going to come down to one
`issue in terms of the infringement case. That's: What is a
`database, and are we using that limitation?
`And the parties agree on that, but we disagree
`fundamentally on what that means.
`What Finjan has said when they've come up here and in
`opening statement, they have said that the only thing you need
`to determine is whether or not they, that's Juniper, used a
`database. That's it. That's all you need to determine.
`And that's been their philosophy. Come up here, show you
`a lot of documents that say Juniper uses a database, and that's
`all they need to do; they can walk away.
`Similar issue with some of the other words in this case.
`Schema. Come up, say, here, you're using a schema. That's it;
`we're done.
`It's actually much more complicated than that.
`This Court has given -- well, the claim itself has
`requirements for what is a database.
`Your Honor, I'm having a minor issue with the slides, if
`we can just take a moment.
`THE COURT: Sure.
`(Pause)
`MR. KAGAN: Thank you. Sorry about that, ladies and
`gentlemen.
`THE COURT: You've got Claim 10 on the screen.
`
`CLOSING ARGUMENT / KAGAN
` 930
`show you this. They're trying to take documents that have
`words, that have labels, and wave them around and say, here's
`the word "database," here's the word "schema," therefore,
`there's a database schema in a database that's used -- being
`used to store a security profile.
`And we will show you that that is absolutely not what is
`happening. And you don't have to take my word for it. In
`fact, you're not allowed to take my word for it. I'm going to
`show you the evidence, and I'm going to remind you of the
`things that were said and presented to you as evidence in this
`case.
`Finjan's lawyer showed you a chart with a bunch of check
`boxes. And there was one box not checked, to somehow suggest
`that in terms of their claim elements that we're really using a
`lot of the claim.
`That's not how patent infringement works. You remember
`the football example Dr. Rubin talked about where if you were
`to do that kind of a check mark, a football and a soccer ball
`can look very much alike because they share a lot of
`characteristics, but the key feature is different, so there's
`no infringement.
`That's what's going on here. The key issue, the whole
`point of novelty for their invention -- and I'll talk about
`this -- what made their invention get allowed you, the speed
`with which you can access the security profiles by putting them
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`Case 3:17-cv-05659-WHA Document 412-19 Filed 03/29/19 Page 4 of 4
`
` 933
`
`CLOSING ARGUMENT / KAGAN
`databases with a schema and databases without. And he
`explained to you, from his years of expertise, why these
`databases were schema-less.
`Part of his discussion was why you would want to use a
`database with a schema versus a database without a schema. And
`he explained that a database with a schema is extremely fast
`and efficient a query. You can get information very quickly
`out of that database.
`With a schema-less database, it's slow because you can't
`write these structured queries. That's what he described them.
`The SQL. Structured query language that makes the SQL
`database. These are fundamentally different databases, with
`the schema and without.
`What did Dr. Cole say about the schema-less databases? He
`says you go through the Amazon documents. And even though
`Amazon themselves say these databases are schema-less, there's
`still a schema.
`There's no evidence of that. The Amazon documents say the
`databases are schema-less. They do not have a database schema.
`The key value, which is the way of identifying the data,
`is there. But in terms of the database itself, do you remember
`Dr. Rubin drew the circles, and he said you can put whatever
`blobs of data you want, some big and some small? There's
`nothing about the structure of those databases that restricts
`the information that you could put in them.
`
`CLOSING ARGUMENT / KAGAN
` 935
`It's Dr. Cole's misunderstanding of Juniper's system that
`led him to this erroneous view. He's wrong. You do not need a
`database with a schema or structure to run Sky ATP because you
`don't need the security profile.
`The security profile is that big list of all the
`operations the computer does. That's not how Juniper's system
`works. All it does is look at a single number, a single
`integer. And that's why it can be stored in a schema-less
`database.
`Dr. Rubin explains in his testimony. He was asked:
`"Does the verdict contain or include a list of
`suspicious computer operations?"
`That's what the security profile is. Dr. Rubin said:
`"It's a simple number. It doesn't contain anything
`except that number."
`So what does Dr. Cole do? He's got a problem. He's
`trying to find a way of saying that what Juniper is actually
`using is a database with a schema to store these security
`profiles.
`You've got the Amazon documents saying these two databases
`don't have a schema. These two places where the security
`profiles are stored actually do not have a schema.
`So this is what he does. And this is exactly what I
`showed you in the opening. And I said I can't be a hundred
`percent sure this is going to come into evidence, but it did.
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`CLOSING ARGUMENT / KAGAN
` 932
`being stored in there.
`And they can find where the security profiles are being
`stored, which is DynamoDB and S3, but those don't have a schema
`and, therefore, don't qualify as databases under the Court's
`construction. That's why there can be no infringement in this
`case.
`Dr. Rubin testified in this case, and he testified, he
`said that he had experience with DynamoDB from his own work.
`He testified it's schema-less. We presented you -- he
`presented you with documents from Amazon itself explaining
`database. Dynamo database, DynamoDB is schema-less.
`What's the response from Finjan? Well, don't believe it
`because it's just an Amazon document.
`What motivation would Amazon have to falsely describe its
`database?
`Dr. Rubin testified from his own knowledge and experience
`that he knows that this does not have a schema, which is
`consistent with these documents.
`Amazon S3 was even less structured. The unstructured
`blogs. He and Dr. Rubin testified this does not have a schema.
`Do you remember he stood up here and he wrote on the easel
`with a pen? The Judge, I believe was standing over there.
`And he explained all about how schema-less databases work
`and how they can store large amounts of information. And
`they're simply not very efficient. The difference between
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`CLOSING ARGUMENT / KAGAN
` 934
`And do you remember Dr. Cole gave the example, he said,
`well, if you have a database with fields and you just leave one
`blank, that turns it into a schema-less database?
`Dr. Rubin explained why that's not true as well.
`The point is, when you look at the actual evidence from
`Amazon and from Dr. Rubin, who is extremely credible on this
`point, he explained why both Amazon DB and Amazon S3 are
`schema-less. And because they're schema-less, they cannot meet
`the construction, the agreed construction of the database in
`this case. And that is where the security profiles are stored.
`So that is what Finjan must show you, and they haven't done
`that.
`Dr. Cole tried to explain that there has to be a schema
`because the only way, according to Dr. Cole, Juniper's system
`can work is if there is structure and schema to that database
`so you can very quickly look up a hash, pull out the security
`profile and the verdict, and make a decision very, very
`quickly.
`And this is where Dr. Cole misunderstands how Juniper's
`system works. As Dr. Rubin explained, Juniper's system, Sky
`ATP, does not use the security profile to analyze files. It
`uses only the verdict. Remember the integer?
`And he said, so you don't need to have a database with a
`schema because you can very quickly pull out that integer so
`you can just put that in a schema-less database.
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