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Case 3:17-cv-05659-WHA Document 44 Filed 03/07/18 Page 1 of 12
`Case 3:17-cv-05659-WHA Document 44 Filed 03/07/18 Page 1 of 12
`
`Pages 1 - 11
`
`UNITED STATES DISTRICT COURT
`
`NORTHERN DISTRICT OF CALIFORNIA
`
`Before The Honorable William H. Alsup, Judge
`
`Finjan, Inc.,
`
`Plaintiff,
`
`VS.
`
`NO. 17-CV-5659
`
`Juniper Network, Inc.,
`
`Defendant.
`
`San Francisco, California
`Thursday, February 22, 2018
`
`TRANSCRIPT OF PROCEEDINGS
`
`Official Reporter
`
`KRAMER LEVIN NAFTALIS & FRANKEL LUIP
`990 Marsh Road
`Menlo Park, CA
`
`APPEARANCES:
`
`For Plaintiff:
`
`For Defendant:
`
`94025
`
`Mr. Paul Andre
`Mr. Kristopher Kastens
`
`IRELL & MANELLA LLP
`840 Newport Center Drive, Suite 400
`Newport Beach, CA
`92660
`
`Ms. Rebecca Carson
`
`Reported By:
`
`Vicki Eastvold, RMR, CRR
`
`

`

`Thursday - February 22, 2018
`
`PROCEEDINGS
`
`---000---
`
`THE DEPUTY CLERK: Calling civil action 17-5659
`
`Finjan, Inc., versus Juniper Network,
`
`Inc.
`
`Counsel, please approach the podium and state your
`
`appearances for the record.
`
`MR. ANDRE: Morning, Your Honor.
`
`Paul Andre for
`
`plaintiff Finjan.
`
`Case 3:17-cv-05659-WHA Document 44 Filed 03/07/18 Page 2 of 12
`Case 3:17-cv-05659-WHA Document 44 Filed 03/07/18 Page 2 of 12
`
`is that right? Did I really say July 2?
`
`MS. CARSON: Good morning, Your Honor. Rebecca Carson
`
`for Juniper Networks.
`
`MR. KASTENS: Kristopher Kastens for Finjan.
`
`THE COURT: Unless you're about to tell me you've
`
`settled your case,
`
`I have a plan for your case. Are you ready?
`
`It's a two-part plan. First part is a normal schedule.
`
`Second
`
`is the shoot-out schedule. Are you ready?
`
`Any initial disclosures should have already been done, but
`
`I'll give you until February 28 to make sure you've done them
`
`correctly. Leave to add any new parties or pleading amendments
`
`must be received by May 31.
`
`Fact discovery cutoff will be
`
`March 29 next year. That will also be the date your expert
`
`report is due if you have the burden of proof on the issue.
`
`March 29 next year.
`
`The pre-trial conference would be
`
`June 6 -- D Day -- next year. Trial will be July 2.
`
`See,
`
`

`

`July 8 is what I meant. And that will be a jury trial.
`
`I'll refer you to Magistrate Judge -- hope she will accept
`
`this -- Susan van Keulen for settlement.
`
`And I will have to ask this question: These patent cases
`
`are so contentious and so unreasoned,
`
`the lawyers are so
`
`unreasonable in these cases that I normally keep all discovery
`
`disputes. But patent cases the lawyers can't agree on
`
`anything. However, if you promise me you will be reasonable on
`
`both sides and that there will be very few discovery disputes I
`
`will keep all discovery disputes.
`
`MS. CARSON: Your Honor, we intend to be reasonable.
`
`Assuming that the other party is reasonable, I think we can
`
`limit discovery motions.
`
`MR. ANDRE: Your Honor, we're very reasonable. We
`
`Case 3:17-cv-05659-WHA Document 44 Filed 03/07/18 Page 3 of 12
`Case 3:17-cv-05659-WHA Document 44 Filed 03/07/18 Page 3 of 12
`
`This is plenty of time.
`
`give up everything.
`
`THE COURT: All right.
`
`I'm giving -- I'm going to
`
`keep them for myself and see if it works. Okay.
`
`So that's the
`
`overall case schedule.
`
`Do you have any heartburn on this?
`
`MS. CARSON: Your Honor, one comment.
`
`The parties had
`
`actually worked together to come to an agreed schedule.
`
`THE COURT:
`
`I know.
`
`It was too leisurely.
`
`It would
`
`call for a trial in 2020. That would be the -- I won't even be
`
`alive probably in 2020.
`
`I've never set a case that far out in
`
`my entire career. You lawyers are going to have to get going.
`
`

`

`MR. ANDRE: Your Honor, it's fine for plaintiff.
`
`Works for us.
`
`MS. CARSON: Your Honor, we think it's a little
`
`advanced given the number of patents at issue in the case and
`
`then --
`
`THE COURT:
`
`Too bad. You can do this. That's where
`
`the shoot-out comes in. Are you ready? The shoot-out is a
`
`great thing that I have come up with.
`
`It works as follows:
`
`How many claims are involved here?
`
`MR. ANDRE: We've agreed to limit it to 16 claims on
`
`the patents.
`
`Case 3:17-cv-05659-WHA Document 44 Filed 03/07/18 Page 4 of 12
`Case 3:17-cv-05659-WHA Document 44 Filed 03/07/18 Page 4 of 12
`
`So you both are going to cross-move for summary
`
`THE COURT: Sixteen from how many patents?
`
`MR. ANDRE: Eight patents.
`
`THE COURT:
`
`Is that right?
`
`MS. CARSON
`
`That's correct, Your Honor.
`
`THE COURT: Okay.
`
`So of the 16, each of you get to
`
`pick one. Plaintiff gets to pick your strongest claim and
`
`Juniper gets to pick the weakest of the claims. And then
`
`you're going to both make motions. We're going to each have
`
`discovery.
`
`I'11 give you reasonable discovery into those two.
`
`This is in addition to all the other discovery that's going on.
`
`But you get discovery into each of those two on kind of a
`
`compressed schedule. And if anybody stonewalls, believe me
`
`their motion won't get granted. You better cooperate on this
`
`discovery.
`
`

`

`Case 3:17-cv-05659-WHA Document 44 Filed 03/07/18 Page 5 of 12
`Case 3:17-cv-05659-WHA Document 44 Filed 03/07/18 Page 5 of 12
`
`judgment.
`
`It could turn out that -- it could turn out like in
`
`any summary judgment motion that there are fact issues that are
`
`impossible to resolve. But in the past it's quite clear that
`
`one side or the other is absolutely correct. What does that
`
`mean?
`
`It means that it either leads to an immediate
`
`preliminary injunction -- that would be bad for Juniper -- or,
`
`it leads to a sanctions motion against the plaintiff. Or it
`
`might even be a sanctions motion against the defendant.
`
`This is -- it just cuts to the heart of the case so
`
`quickly.
`
`I promise you by August of this year the case will be
`
`over because one of you -- I know these patent cases. They're
`
`very few where there's a fact issue; maybe one out of three.
`
`way off base, which was true in the last case that I did, or
`
`that the Juniper side is way off base.
`
`And there's nothing wrong with a preliminary injunction
`
`right off the bat.
`
`In fact, it would be a permanent injunction
`
`because it's the result of summary judgment if you in fact are
`
`infringing. You don't have to wait until the end of the case.
`
`Whamo,
`
`the product goes off the shelf.
`
`They withdrew eight -- eight - claims in seriatum.
`
`Two out of three it's quite clear that either the plaintiff is
`
`So this gets it done to one -- each side has one.
`
`Now here's the other trick I found in doing this. That as
`
`soon as the Juniper side decides, Oh, we're going to go with
`
`claim number eight on the XYZ patent, and you withdraw that
`
`patent.
`
`

`

`And finally -- this is how bad it was in the other case.
`
`I
`
`don't know if you're going to do that or not.
`
`So I'm going to give you two weeks from today to withdraw
`
`whatever you want. After that you're stuck with it.
`
`Sorry,
`
`Ms. -- not Ms. Juniper, but you're Ms. --
`
`MS. CARSON: Carson.
`
`THE COURT:
`
`How do you say it?
`
`MS. CARSON:
`
`"Carson."
`
`Case 3:17-cv-05659-WHA Document 44 Filed 03/07/18 Page 6 of 12
`Case 3:17-cv-05659-WHA Document 44 Filed 03/07/18 Page 6 of 12
`
`something else.
`
`THE COURT: Carson.
`
`I don't see you on here.
`
`It's
`
`not on my list.
`
`Is it on here? Maybe I got the wrong list.
`
`Anyway, Ms. Carson, if -- so after two weeks you can pick the
`
`weakest one they have. That's what I want you to do.
`
`Pick the
`
`weakest one they're asserting against you. And if it turns out
`
`you're just crystal clear on that one, even if you might lose
`
`on the other one, you're going to get sanctions against them if
`
`it warrants sanctions. And they will have to pay that right
`
`off the bat. Could be hundreds of thousands of dollars for
`
`having brought a bogus claim against Juniper.
`
`But if they win on theirs, it's injunction city.
`
`So this
`
`is why it's called a shoot-out.
`
`It's like the shoot-out at the
`
`OK Coral in Tombstone, Arizona. Where the lawyers go in there
`
`and they just shoot it out and one of them comes out alive.
`
`I shouldn't use that. That's a terrible example to use
`
`these days so I'm going to take that back. Maybe I'll call it
`
`

`

`MR. ANDRE:
`
`It would be the Earps on this side.
`
`THE COURT:
`
`It's not going to be -- it's not going to
`
`be -- maybe shootout is the -- showdown. That's what it is.
`
`It's a showdown.
`
`Case 3:17-cv-05659-WHA Document 44 Filed 03/07/18 Page 7 of 12
`Case 3:17-cv-05659-WHA Document 44 Filed 03/07/18 Page 7 of 12
`
`built in there for each of you to have an extra week on
`
`All right.
`
`So I'm giving you two weeks from today to do
`
`the -- two weeks from today to do the withdrawal. And then
`
`after that you get to pick one on the -- two weeks -- so that
`
`would be -- I can't read very well anymore. What is two weeks
`
`and a day from now? March 8 is what day of the week?
`
`THE DEPUTY CLERK: Thursday.
`
`THE COURT: Okay.
`
`On March 9 by letter each of you
`
`have to notify the other one as to which one -- well,
`
`that's
`
`not quite fair to you because what if they withdraw the one you
`
`-- no.
`
`I'm going to give you two weeks after that.
`
`So it will
`
`be March 8 is two weeks from today. And it will be March --
`
`THE DEPUTY CLERK:
`
`22.
`
`THE COURT:
`
`-- 22 would be whenever you have to notify
`
`the other one as to which one of your going to be pursuing.
`
`And then the summary judgment motions on this have to be
`
`filed June 7.
`
`So you have a period of a few months in there to
`
`do your discovery, get your -- if I needed to give you some
`
`short continuances on that date I will. But then do it ona --
`
`we'll do these on a 49-day track so you'll have a chance to
`
`depose the experts on the other side.
`
`So there's one week
`
`

`

`opposition.
`
`So June
`
`-- 7 plus 49. What would that hearing date give
`
`me?
`
`49.
`
`It's probably around the end of July.
`
`THE DEPUTY CLERK:
`
`July 26, Your Honor.
`
`THE COURT:
`
`July 26. Okay.
`
`So on July 26 I
`
`Case 3:17-cv-05659-WHA Document 44 Filed 03/07/18 Page 8 of 12
`Case 3:17-cv-05659-WHA Document 44 Filed 03/07/18 Page 8 of 12
`
`So this gets to the heart of the matter so quickly and so
`
`anticipate that there will be banners in the sky for one side
`
`or the other as total victory is proclaimed. At least -- so on
`
`the other hand I could be wrong and it could turn out to be one
`
`of those cases where there's fact issues and I have to deny
`
`--
`
`But I'll tell you,
`
`I learn a lot about -- even if that's
`
`the way it is,
`
`I will learn a lot.
`
`It will be effectively a
`
`tutorial for me.
`
`So that's the way we're going to proceed.
`
`Go back and
`
`tell your clients that the day of reckoning is close at hand.
`
`All right.
`
`I'11 get out an order that -- be sure to read
`
`the order whenever it comes out on this summary procedure.
`
`And then we'll eventually get around to all the other
`
`claims in the case.
`
`So don't worry that there will be some --
`
`there will be other -- we'll deal with everything. But it may
`
`be that as the case goes along we have a permanent injunction
`
`against a product that's no longer being sold. That could
`
`happen. Or it could be Mr. Andre has to pay $300,000 in fees
`
`to the other side for bringing a frivolous claim. Or maybe you
`
`have to pay $300,000 to him because you picked a bad one.
`
`

`

`cleanly instead of you all treating me like your early neutral
`
`evaluation judge and two years later I'm still trying to figure
`
`out which end is up.
`
`All right.
`
`I had one other question for you. What is the
`
`PTAB situation?
`
`In other words, of these 16 claims are any of
`
`them in the PTAB right now?
`
`MS. CARSON: Your Honor,
`
`they haven't yet told us the
`
`16 claims, so I'll leave that to Mr. Andre.
`
`THE COURT: Oh, really? That was a nice little slight
`
`of hand.
`
`How come you haven't told them?
`
`MR. ANDRE: We agree it would be 16 claims. We put
`
`that in the schedule that we proposed to the Court. But we can
`
`do that obviously earlier.
`
`THE COURT: Well,
`
`I think you should do it.
`
`I thought
`
`you should do that today.
`
`Can you do that today?
`
`MR. ANDRE:
`
`I can't do it off the top of my head, Your
`
`Case 3:17-cv-05659-WHA Document 44 Filed 03/07/18 Page 9 of 12
`Case 3:17-cv-05659-WHA Document 44 Filed 03/07/18 Page 9 of 12
`
`to withdraw any of
`
`THE COURT: Will you do it by tomorrow at noon?
`
`MR. ANDRE: Sixteen claims, we can do it by tomorrow
`
`THE COURT: Okay. 16 claims tomorrow at noon.
`
`MR. ANDRE:
`
`It was baked into the schedule.
`
`16
`
`THE COURT: Those will be the 16.
`
`Then I'm still
`
`giving you two weeks from today,
`
`I guess,
`
`

`

`10
`
`MR. ANDRE: Okay.
`
`THE COURT:
`
`Now you can't go -- once you limit it to
`
`16, and you withdraw one, you can't substitute some other one.
`
`You don't get to do that.
`
`So if you withdraw one,
`
`then you're
`
`down to 15.
`
`Case 3:17-cv-05659-WHA Document 44 Filed 03/07/18 Page 10 of 12
`Case 3:17-cv-05659-WHA Document 44 Filed 03/07/18 Page 10 of 12
`
`How many of these patents are still
`
`MR. ANDRE: Your Honor, as far as the PTAB situation
`
`goes,
`
`the patents that are involved in this case I think
`
`they've been subject to about 25 or 30 IPR petitions.
`
`Nothing's in the PTAB except for one. One of the patents --
`
`the patents have all survived multiple PTAB challenges. And so
`
`the claims that we'll select,
`
`there's a chance that one of the
`
`patents has been instituted but has not been final. And so
`
`that's the only patent that has anything that would be
`
`implicated in the shootout.
`
`THE COURT: Well, my thought is that that won't affect
`
`us. We'll just push ahead.
`
`If you pick one that's going to be
`
`at the PTAB or you pick one that's at the PTAB,
`
`I'm just going
`
`to ignore the PTAB and make my own decision.
`
`So unless you two
`
`could stipulate to something I might figure out a -- but the
`
`PTAB will not resolve any of these by August. Right?
`
`MS. CARSON: That's correct. There's also a number of
`
`recent proceedings that have been filed but not yet reached the
`
`institution decision phase by other defendants.
`
`THE COURT:
`
`

`

`Case 3:17-cv-05659-WHA Document 44 Filed 03/07/18 Page 11 of 12
`Case 3:17-cv-05659-WHA Document 44 Filed 03/07/18 Page 11 of 12
`
`11
`
`MR. ANDRE:
`
`I think five. Maybe four.
`
`Four or five
`
`of them.
`
`Some have died of natural causes; you know, natural
`
`death of time. But the PTAB petitions keep coming. Like we've
`
`faced like 60 or 70 of them at this time for these patents.
`
`And they keep getting denied or confirmed valid, but they keep
`
`coming nonetheless.
`
`MS. CARSON:
`
`A number of them are also expired or will
`
`expire soon.
`
`THE COURT: Well,
`
`that would mean that if Mr. Andre
`
`picked one that has expired as his best claim, he could not try
`
`to get an injunction. Obviously, he can't do that.
`
`So if you
`
`---000---
`
`want an injunction out of this process, you have to pick one
`
`that still has life in it come August. Okay.
`
`MR. ANDRE: That complicates things a bit. Could we
`
`get a --
`
`THE COURT:
`
`Up to you.
`
`I don't care which one you
`
`pick.
`
`I don't care which one you pick. You could just pick
`
`your strongest one.
`
`It may just be for damages purposes.
`
`That's okay. That's up to you.
`
`All right. That's all I can do for you today. Good luck
`
`to both sides.
`
`I'11 get an order out pretty soon.
`
`Thank you.
`
`MR. ANDRE:
`
`Thank you.
`
`MS. CARSON:
`
`Thank you, Your Honor.
`
`

`

`CERTIFICATE OF REPORTER
`
`I certify that the foregoing is a correct transcript
`
`from the record of proceedings in the above-entitled matter.
`
`DATE:
`
`Thursday, February 27, 2018.
`
`Case 3:17-cv-05659-WHA Document 44 Filed 03/07/18 Page 12 of 12
`Case 3:17-cv-05659-WHA Document 44 Filed 03/07/18 Page 12 of 12
`
`Vicki Eastvold, RMR, CRR, U.S. Court Reporter
`
`

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