`
`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE NORTHERN DISTRICT OF CALIFORNIA
`
`FINJAN, INC.,
`Plaintiff,
`
` v.
`JUNIPER NETWORKS, INC.,
`Defendant.
` /
`
`No. C 17-05659 WHA
`
`ORDER RE REMAINING
`TRIABLE ISSUES
`
`The Court thanks both parties for their submissions regarding the identification of the
`remaining issues to be addressed at or before the October trial (Dkt. Nos. 476–77).
`Plaintiff Finjan, Inc. shall identify in writing the specific patents and claims it intends to
`assert against defendant Juniper Networks, Inc. by JUNE 6 AT NOON. Any claims not identified
`by that time will be deemed waived for purposes of the instant action. The parties should bear
`in mind that each side will be given 18 HOURS during trial. If Finjan later abandons or fails to
`pursue any of the asserted claims identified by June 6, its time at trial will be correspondingly
`reduced.
`With respect to motions for summary judgment, each side may bring up to TWO
`motions, with each motion abiding by the 25-page limit. If Finjan chooses to bring a motion for
`summary judgment on infringement, it is limited to move on one claim of one patent only. If
`Juniper chooses to bring a motion for summary judgment on the issue of notice, that motion will
`count towards one of the two motions it is currently entitled to bring.
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`For the Northern District of California
`
`United States District Court
`
`
`
`Case 3:17-cv-05659-WHA Document 487 Filed 05/23/19 Page 2 of 2
`
`In preparing the damages claim, the parties must designate damages on a patent-by-
`patent basis. With respect to the damages issue, the Court will use these numbers as a rule of
`thumb in determining whether this action is “exceptional” within the meaning of Section 285.
`That is, Finjan shall state the amount claimed, patent by patent, and Juniper shall state the
`amount it concedes would be due as damages in the event liability is established, patent by
`patent. If after trial and after all Rule 50 motions, Finjan recovers less than half of its claimed
`amount and recovers less than twice the amount of Juniper’s conceded amount, then the Court
`may presume that the maintenance of the infringement action on that patent qualifies as
`“extraordinary.” In the event that Finjan recovers more than half of its claimed damages and
`more than twice the conceded amount, then the Court may presume that Juniper must pay
`attorney’s fees associated with that patent. The foregoing will apply only to exceptional
`conduct with respect to damages.
`The start of trial will remain on October 21. To repeat, Finjan’s witness(es) with a trial
`conflict may appear by video. Counsel for Finjan are also free to explain to the jury that its
`witness(es) are unavailable due to another trial. All issues, including equitable claims, will be
`presented during this trial, subject to further order.
`The parties shall jointly submit in writing a proposed case schedule by JUNE 14 AT
`NOON that is fully consistent with the above. Do not try to enlarge the motion practice. Do not
`try to change the trial date.
`
`IT IS SO ORDERED.
`
`Dated: May 23, 2019.
`
`
`WILLIAM ALSUP
`UNITED STATES DISTRICT JUDGE
`
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`For the Northern District of California
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`United States District Court
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