Case 3:17-cv-05659-WHA Document 479 Filed 05/16/19 Page 1 of 7
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`IRELL & MANELLA LLP
`Jonathan S. Kagan (SBN 166039)
`jkagan@irell.com
`Alan Heinrich (SBN 212782)
`aheinrich@irell.com
`Joshua Glucoft (SBN 301249)
`jglucoft@irell.com
`1800 Avenue of the Stars, Suite 900
`Los Angeles, California 90067-4276
`Telephone: (310) 277-1010
`Facsimile: (310) 203-7199
`
`Rebecca Carson (SBN 254105)
`rcarson@irell.com
`Ingrid Petersen (SBN 313927)
`ipetersen@irell.com
`Kevin Wang (SBN 318024)
`kwang@irell.com
`840 Newport Center Drive, Suite 400
`Newport Beach, California 92660-6324
`Telephone: (949) 760-0991
`Facsimile: (949) 760-5200
`
`Attorneys for Defendant
`JUNIPER NETWORKS, INC.
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`SAN FRANCISCO DIVISION
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`FINJAN, INC., a Delaware Corporation,
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`Plaintiff,
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`vs.
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`JUNIPER NETWORKS, INC., a Delaware
`Corporation,
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`Defendant.
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`Case No. 3:17-cv-05659-WHA
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`DEFENDANT JUNIPER NETWORKS,
`INC.’S REPLY TO FINJAN’S RESPONSE
`TO ORDER TO SHOW CAUSE
`
`
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`JUNIPER’S REPLY TO FINJAN’S RESPONSE
`TO ORDER TO SHOW CAUSE
`(Case No. 3:17-cv-05659-WHA)
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`IRELL & MANELLA LLP
`A Registered Limited Liability
`Law Partnership Including
`Professional Corporations
`
`10680017
`
`
`

`

`Case 3:17-cv-05659-WHA Document 479 Filed 05/16/19 Page 2 of 7
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`I.
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`INTRODUCTION
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`In its original summary judgment briefing, Finjan argued that the Court could and should
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`resolve Juniper’s alleged infringement of the ’154 Patent on summary judgment because “there is
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`no genuine dispute as to any material fact.” Dkt. 368-4 at 8. Now that Finjan has lost the dispositive
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`claim construction issue, however, it suddenly claims that there are myriad factual disputes making
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`summary judgment inappropriate. Finjan was right the first time.
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`Finjan’s attempt to manufacture 11th hour factual disputes fail because Finjan has not—and
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`cannot—identify any “modified content” within the meaning of the claim. Instead, Finjan attempts
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`to gin up new meanings of “modified content” that are completely divorced from the claim language
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`and the disclosures of the ’154 Patent. Moreover, Finjan’s allegation that Juniper somehow
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`sandbagged Finjan with a new construction is a desperate attempt at revisionist history. Indeed, it
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`was Finjan that sandbagged Juniper by departing from its infringement contentions and introducing
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`new theories for the first time on summary judgment (as detailed in Juniper’s motion to strike those
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`contentions). In short, Finjan has not identified a legitimate reason why the Court should not enter
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`summary judgment in Juniper’s favor on Claim 1 of the ’154 Patent given the Court’s construction
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`of “content processor.”
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`II.
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`ARGUMENT
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`A.
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`Finjan Has Not Raised A Genuine Factual Dispute That Would Preclude
`Summary Judgment In Juniper’s Favor.
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`1.
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`Finjan Has Not Identified Any Evidence That The Accused Products
`Process “Modified Content” Within The Meaning Of Claim 1.
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`As explained in the parties summary judgment papers, the accused Juniper products do not
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`process “modified content” as required by the ’154 Patent. Finjan’s initial response to this
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`undisputed fact was to try to read the “modified content” requirement out of its patent. Having failed
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`to convince the Court to do so, Finjan now tries to salvage its infringement case by redefining the
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`meaning of “modified content” to include “original content,” which was explicitly distinguished by
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`both this Court and the PTAB. Dkt. 459 at 7 (noting that “the substitute function exists only after
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`the original content is modified at the gateway computer”); Dkt. 390-19 at 9-10 (PTAB
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`distinguishing between “original,” “modified” and “dynamically generated” content). In particular,
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`IRELL & MANELLA LLP
`A Registered Limited Liability
`Law Partnership Including
`Professional Corporations
`
`10680017
`
`
`- 1 -
`
`JUNIPER’S REPLY TO FINJAN’S RESPONSE
`TO ORDER TO SHOW CAUSE
`(Case No. 3:17-cv-05659-WHA)
`
`

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`Case 3:17-cv-05659-WHA Document 479 Filed 05/16/19 Page 3 of 7
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`Finjan claims that the accused products process “modified content” because they process (1) content
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`that has been compromised by hackers at some point before it is requested by the client/end user,
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`(2) content that has been encrypted before it is sent from a server to the end user, (3) content that
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`has been compressed (e.g., in a zip file) before being sent to the end user, and (4) content that has
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`been “buffered and chunked” for purposes of processing it.
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`None of the categories of “content” identified by Finjan actually constitute “modified
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`content” within the meaning of the ’154 Patent. As the Court noted, the content processed by the
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`“content processor” includes a
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`“‘first function’ [that] clearly involves the ‘substitute function,’ which
`sends the content’s input to the security computer for inspection once
`invoked. According to the specification, the substitute function exists
`only after the original content is modified at the gateway computer
`(see, e.g., ’154 patent at 9:13-28). Accordingly, the claimed ‘content’
`necessarily refers to modified content.”
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`Dkt. 459 at 7 (citing Palo Alto Networks, Inc. v. Finjan, Inc., 752. F. App’x 1017, 1018 (Fed. Cir.
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`2018); Finjan, Inc. v. Cisco Systems, Inc., 2018 WL 3537142, at *20-23 (N.D. Cal. July 23, 2018)).
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`Indeed, the ’154 patent explains that “the present invention operates by replacing original function
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`calls with substitute function calls within the content, at a gateway computer, prior to the content
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`being received at the client computer.” ’154 Patent at 4:55-60.
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`Finjan has not alleged that any of the accused products process content that has been modified
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`by inserting a “substitute function” that sends the input to a security computer for inspection when
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`it is invoked. In fact, the accused products do no such thing. See Dkt. 468 (Juniper’s Response to
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`Order to Show Cause). Finjan’s theories regarding hacked, encrypted or compressed content involve
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`content that is altered or prepared at the server hosting that content before it is sent to the client and
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`before it even reaches the gateway. Thus, this type of content is the “original content,” not the
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`“modified content.” See Dkt. 390-19 at 9 (“First, there is the ‘original content’ that is scanned and
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`modified at the gateway computer.”) (emphasis added).
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`Finjan’s theory involving “buffered” or “chunked” content also fails because the content is
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`simply being broken into pieces for processing, not “modified.” Relatedly, Finjan argues that Sky
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`ATP and ATP Appliance receive “modified” content because the SRX or ATP Appliance collector
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`IRELL & MANELLA LLP
`A Registered Limited Liability
`Law Partnership Including
`Professional Corporations
`
`10680017
`
`
`- 2 -
`
`JUNIPER’S REPLY TO FINJAN’S RESPONSE
`TO ORDER TO SHOW CAUSE
`(Case No. 3:17-cv-05659-WHA)
`
`

`

`Case 3:17-cv-05659-WHA Document 479 Filed 05/16/19 Page 4 of 7
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`“replaces the get request with its own, and its own ip address.” Dkt. 474 at 6, 9. But the “get request”
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`and “ip address” are not even part of the “content” that Sky ATP or ATP Appliance processes, much
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`less a “substitute function” that would comprise “modified content” within the meaning of Claim 1.
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`Rather, this is simply location information that tells Sky ATP or ATP Appliance where to send the
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`results of the analysis. Finjan’s argument that the ATP Appliance processes “modified” content
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`because it processes the original content along with “metadata” similarly falls flat. Dkt. 474 at 8.
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`Creating “metadata” to help process a file does not constitute “modification” of the content of that
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`file because there is no alteration of the functions contained within the content. Rather, the metadata
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`simply adds information to aid in the processing of the original functions contained in the original
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`content.
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`Because Finjan has not and cannot identify any evidence that the accused products actually
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`process “modified content,” its new infringement theories fail as a matter of law and the Court should
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`entered summary judgment in favor of Juniper.
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`2.
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`Finjan Has Not Identified Any Evidence That The Content It Alleges Is
`“Modified” Would Satisfy The Other Claim Elements.
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`Even if the categories of content identified by Finjan could be considered “modified
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`content”—which they cannot—Finjan has not identified any infringement scenario involving that
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`content that would satisfy the other limitations of Claim 1. Indeed, Finjan presented an infringement
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`theory where the “first function” is an “http function” that uses a “URL” or “IP Address” as an input.
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`Dkt. 368-4 at 10, 16 and 20. Finjan offers no explanation for how the new “content” that it identifies
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`contains any alleged “first function” nor how it would meet the requirement that a “second function”
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`is invoked with the input only if the security computer indicates that it is safe. Indeed, to the extent
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`Finjan is now arguing that the SRX replaces the “get request” and “IP address,” then Finjan is
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`admitting that the “content” that it pointed to in its infringement theory never actually gets sent to
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`the “security computer” (i.e., Sky ATP or ATP Appliance). Nor does Finjan address the remainder
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`of Juniper’s non-infringement arguments, which are equally applicable to Finjan’s new theories.
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`Moreover, as the Court acknowledged in its Order, “Juniper makes a strong argument for the
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`proposition that the content processor resides on the client computer.” Dkt. 459 at n.2. There is no
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`IRELL & MANELLA LLP
`A Registered Limited Liability
`Law Partnership Including
`Professional Corporations
`
`10680017
`
`
`- 3 -
`
`JUNIPER’S REPLY TO FINJAN’S RESPONSE
`TO ORDER TO SHOW CAUSE
`(Case No. 3:17-cv-05659-WHA)
`
`

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`Case 3:17-cv-05659-WHA Document 479 Filed 05/16/19 Page 5 of 7
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`dispute that the accused products are not “client/user computer,” and therefore fail to meet the
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`“content processor” limitation for this separate reason. As such, the accused products would still
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`not infringe Claim 1 of the ’154 Patent as a matter of law for the reasons set forth in Juniper’s
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`opposition, including because the alleged “content processor” is not located on a client/user
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`computer.
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`3.
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`Juniper Does Not Infringe Under the Doctrine of Equivalents.
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`Finjan also claims that Juniper infringes under the doctrine of equivalents (“DOE”), but fails
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`to show how the accused products perform the same function in the same way to obtain the same
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`result. First, Finjan claims that the accused products infringe under DOE because they process
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`content that was received from the internet that has been modified on the server. Yet, this is precisely
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`the “original content” described by the PTAB and fundamentally distinct from the claimed content,
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`which is the modified content that had an original function call replaced by a substitute function.
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`Indeed, the PTAB explained “[t]he claimed content cannot refer to the ‘original content’ that is
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`received by the gateway and over the Internet because that content, according to the Specification,
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`would be capable of generating the undetected dynamically generated malicious content from which
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`the client computer is to be protected.” Dkt. 390-19 at 10 (emphasis in original). Equivocating
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`between these distinct concepts is entirely improper. As such, Finjan’s new infringement scenario
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`does not perform the same function in the same way to obtain the same result. Moreover, Finjan’s
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`theory that simply processing original content could read on Claim 1 would undoubtedly ensnare
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`the prior art that is discussed in the ’154 Patent itself. ’154 Patent at 1:65-2:16 (discussing prior art
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`that performs behavioral analysis on original content at the gateway).
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`Second, Finjan alleges that the accused products “effectively modify the content so that
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`functions included in the content to obtain further content (e.g., denoted by an http:// command or
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`an iframe command) are replaced by functions which instead send the input to a security computer
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`so that the security computer can return an indicator whether it is safe to invoke a second function
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`with the input.” Dkt. 469-3 at 10. Yet, the only thing Finjan cites for support is its expert’s
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`declaration, which is an almost verbatim regurgitation of Finjan’s attorney arguments with literally
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`IRELL & MANELLA LLP
`A Registered Limited Liability
`Law Partnership Including
`Professional Corporations
`
`10680017
`
`
`- 4 -
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`JUNIPER’S REPLY TO FINJAN’S RESPONSE
`TO ORDER TO SHOW CAUSE
`(Case No. 3:17-cv-05659-WHA)
`
`

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`Case 3:17-cv-05659-WHA Document 479 Filed 05/16/19 Page 6 of 7
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`no evidence to support its claims. See Dkt. 469-6 at ¶ 111. As explained in Juniper’s letter to the
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`Court, no such evidence exists. See Dkt. 468.
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`4.
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`Finjan Does Not Have Cause to Supplement its Infringement
`Contentions.
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`Finjan does not have cause to supplement its infringement contentions based on its new
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`infringement theories because, as explained above, they are premised on an untenable, overly broad
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`interpretation of the content that is processed by the content processor. As such, these theories fail
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`as a matter of law and it would be futile for Finjan to amend its infringement contentions.
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`B.
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`Juniper Did Not Sandbag Finjan On The Construction Of “Content
`Processor.”
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`Alternatively, Finjan argues that it would be unfair to enter summary judgment in favor of
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`Juniper because Juniper allegedly “sandbagged” Finjan with its proposed construction of “content
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`processor.” Finjan’s complaint rings hollow.
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`As an initial matter, the need to clarify whether the content processed by the content
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`processor is “original content” or “modified content” was created by Finjan’s effort to introduce new
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`infringement theories, which it raised for the first time in its opening summary judgment brief. See
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`Dkt. 391 (Juniper’s Motion to Strike). Finjan’s new theories essentially amounted to accusing
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`conventional URL/IP filtering functionality and disregarding the core invention disclosed in the ’154
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`Patent—i.e., the use of a substitute function to verify safety before invoking an original function.
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`Thus, if any party was sandbagged, it was Juniper, not Finjan.
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`In any event, Finjan can hardly claim that it was ambushed with a “new” meaning of “content
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`processor,” given that every tribunal to consider this issue has found that the context of claim 1
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`makes clear that the “content” being processed is “modified content.” Finjan itself argued that that
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`“no claim construction was necessary” and the plain and ordinary meaning applied, and referenced
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`the IPR record in supporting its argument. See Dkt. 176 (Finjan’s Claim Construction Brief) at
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`17-18. As the Court noted in its Order, in the IPR proceedings the PTAB unambiguously explained
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`that the claimed content of claim 1 refers to “modified content.” See Dkt. 390-19 at 9-10. In
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`affirming the PTAB’s decision, the Federal Circuit explained that Claim 1 “recit[es] a system or
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`software program that executes a substitute function,” thus confirming that the “content” being
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`IRELL & MANELLA LLP
`A Registered Limited Liability
`Law Partnership Including
`Professional Corporations
`
`10680017
`
`
`- 5 -
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`JUNIPER’S REPLY TO FINJAN’S RESPONSE
`TO ORDER TO SHOW CAUSE
`(Case No. 3:17-cv-05659-WHA)
`
`

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`Case 3:17-cv-05659-WHA Document 479 Filed 05/16/19 Page 7 of 7
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`processed is modified content. Palo Alto Networks, Inc. v. Finjan, Inc., 752. F. App’x 1017, 1018
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`(Fed. Cir. 2018) (emphasis added). Similarly, Judge Freeman recently construed the term “first
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`function” to mean “substitute function” and “second function” as “original function, which is
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`different than the first function.” Finjan, Inc. v. Cisco Systems, Inc., 2018 WL 3537142, at *20-23
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`(N.D. Cal. July 23, 2018). Thus, Finjan’s suggestion that it could not have anticipated that the Court
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`would construe Claim 1 in a manner that is entirely consistent with these prior rulings is simply not
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`credible.
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`Moreover, Finjan was not prejudiced as it had has the opportunity to address Juniper’s
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`arguments in its reply brief, and did just that. Dkt. 414-3 (Finjan Reply) at 2-3. And, if Finjan
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`legitimately thought Juniper had raised improper arguments, it certainly could have sought
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`additional briefing and/or moved to strike Juniper’s arguments. But Finjan chose not to do so, as
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`any such effort would have merely highlighted Finjan’s changing infringement theories. Finjan’s
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`complaints are simply a pretext to divert this Court from the inevitable—and previously undisputed
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`material fact—that Juniper’s products simply do not infringe under the proper interpretation of
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`Claim 1 of the ’154 Patent. The Court should therefore enter judgment that the accused products do
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`not infringe Claim 1 of the ’154 Patent.
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`III. CONCLUSION
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`Finjan has not identified any evidence that the accused products process “modified content”
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`within the meaning of Claim 1 of the ’154 Patent. As Juniper detailed in its opposition to Finjan’s
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`motion for summary judgment, the accused products employ a fundamentally different approach to
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`malware analysis than the approach disclosed in the ’154 Patent. Dkt. 390 at 11-15. The Court
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`should reject Finjan’s desperate attempt to expand the meaning of “modified content” to include the
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`distinguishable “original content,” and enter summary judgment in favor of Juniper.
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`Dated: May 16, 2019
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`IRELL & MANELLA LLP
`A Registered Limited Liability
`Law Partnership Including
`Professional Corporations
`
`10680017
`
`
`Respectfully submitted,
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`IRELL & MANELLA LLP
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`By: /s/ Rebecca L. Carson
`Rebecca L. Carson
`Attorneys for Defendant
`Juniper Networks, Inc.
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`- 6 -
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`JUNIPER’S REPLY TO FINJAN’S RESPONSE
`TO ORDER TO SHOW CAUSE
`(Case No. 3:17-cv-05659-WHA)
`
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