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`I R E L L & M A N E L L A L L P
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`A REGISTERED LIMITED LIABILITY LAW PARTNERSHIP
`INCLUDING PROFESSIONAL CORPORATIONS
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`R C a r s o n @ i r e l l . c o m
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`Honorable William Alsup
`U.S. District Court Judge
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`May 13, 2019
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`Re: Dkt. No. 459, Finjan, Inc. v. Juniper Networks, Inc.,
`Case No. 3:17-cv-05659-WHA (N.D. Cal.)
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`
`Dear Judge Alsup:
`Given the Court’s recent construction of the term “content processor” in U.S. Patent
`No. 8,141,154 (“the ’154 Patent”), the Court should grant summary judgment of non-infringement
`with respect to all of the accused products (i.e., the SRX gateway, the Sky ATP cloud-based service,
`and the ATP Appliance) because there is no legitimate factual dispute regarding the operation of those
`products.
`In its May 8, 2019 Order On Second Round Of Early Motions For Summary Judgment And
`Motion To Strike And Order To Show Cause, the Court correctly construed the term “content
`processor” as a “processor that processes modified content.” Dkt. No. 459 at 11. The Court further
`noted that:
`
`Finjan offers no evidence that the accused products’ alleged content
`processor processes modified content. Rather, the current record shows
`that those products process only unmodified content. Specifically,
`Dr. Rubin, Juniper’s expert witness, affirmatively declared that “the
`accused products and the technology claimed . . . do not modify or
`‘instrument’ content; as a result, they all process unmodified content
`received from the web server” (Dkt. No. 390-1 ¶ 38; see also id. at
`¶¶ 28, 31, 34).
`Id. (alterations in original).
`The Court is correct that Finjan presented no evidence that the accused “content processors”
`process modified content. Finjan did not present this evidence because there is none. In fact, Finjan’s
`expert, Dr. Mitzenmacher, never opined that any of the accused “content processors” process
`modified content, nor does his declaration even use the term “modified” or any related term, such as
`“substitute,” “instrument,” “hook,” or “wrap”1 to describe the content processed by the “content
`processors.” See generally Dkt. No. 369-1 (Mitzenmacher Dec.). By contrast, Juniper’s expert
`provided affirmative testimony that the accused “content processors” do not process modified
`content, both in his rebuttal declaration (as identified by the Court in the quoted section above) and
`also throughout his deposition. See Ex. 1 (Rubin Depo. Tr.) at 121:24-122:2, 180:18-181:11, 208:9-
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`1 “Instrument,” “hook,” and “wrap” are terms of art related to the concept of substituting
`functions in source code and modifying content. See Dkt. No. 390-1 (Rubin Dec.) at ¶ 28; see also,
`e.g., IPR2019-00031, Exhibit 1004 (expert declaration) at ¶¶ 23-26 (discussing the terms
`“instrumenting,” “hooking,” and “wrapping”).
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`Case 3:17-cv-05659-WHA Document 468 Filed 05/13/19 Page 2 of 2
`I R E L L & M A N E L L A L L P
`
`A REGISTERED LIMITED LIABILITY LAW PARTNERSHIP
`INCLUDING PROFESSIONAL CORPORATIONS
`
`
`209:19 (Dr. Rubin uniformly testifying at his deposition that the accused “content processors” do not
`process modified content). Finjan did not attempt to contest any of this evidence either in its reply
`brief or in any of Dr. Mitzenmacher’s testimony, instead electing to base its infringement theory on a
`questionable claim construction issue. Having lost this dispositive issue, there is no basis for Finjan
`to continue litigating the ’154 Patent against Juniper.
`In sum, Finjan has never alleged an infringement theory in which the accused “content
`processors” process modified content. Nor could it, because Juniper’s accused “content processors”
`process only unmodified content—something Finjan knows full well given that Finjan has thoroughly
`examined Juniper’s source code. There is no legitimate factual dispute that Juniper’s accused
`“content processors” do not process modified content, so the Court should grant Juniper summary
`judgment of non-infringement of the ’154 Patent.
`Respectfully submitted,
`
` /s/ Rebecca L. Carson
`Rebecca L. Carson
`IRELL & MANELLA LLP
`Attorneys for Defendant
`Juniper Networks, Inc.
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