Case 3:17-cv-05659-WHA Document 651 Filed 01/20/21 Page 1 of 28
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` Pages 1 - 28
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
`
`Before The Honorable William H. Alsup, Judge
`
`)
`FINJAN, INC.,
` )
` Plaintiff, )
` )
` VS. ) NO. C 17-05659 WHA
` )
`JUNIPER NETWORK, INC.,
`)
` )
` Defendant.
`)
` )
`
` San Francisco, California
` Thursday, January 7, 2021
`
`
`
`TRANSCRIPT OF TELEPHONIC PROCEEDINGS
`
`
`
`
`APPEARANCES BY TELEPHONE:
`
`For Plaintiff:
` FISH & RICHARDSON PC
` 12860 El Camino Real - Suite 400
` San Diego, California 92130
` BY: JUANITA R. BROOKS, ATTORNEY AT LAW
`
`
`For Defendant:
` IRELL & MANELLA LLP
` 1800 Avenue of the Stars - Suite 900
` Los Angeles, California 90067
` BY: JONATHAN S. KAGAN, ATTORNEY AT LAW
`
`
`
`
`
`Reported By: Jo Ann Bryce, CSR No. 3321, RMR, CRR, FCRR
` Official Reporter
`
`
`
` Pages 1 - 28
`
`UNITED STATES DISTRICT COURT
`
`NORTHERN DISTRICT OF CALIFORNIA
`
`Before The Honorable William H. Alsup, Judge
`
`)
`FINJAN, INC.,
` )
` Plaintiff, )
` )
` VS. ) NO. C 17-05659 WHA
` )
`JUNIPER NETWORK, INC.,
`)
` )
` Defendant.
`)
` )
`
` San Francisco, California
` Thursday, January 7, 2021
`
`
`
`TRANSCRIPT OF TELEPHONIC PROCEEDINGS
`
`
`
`
`APPEARANCES BY TELEPHONE:
`
`For Plaintiff:
` FISH & RICHARDSON PC
` 12860 El Camino Real - Suite 400
` San Diego, California 92130
` BY: JUANITA R. BROOKS, ATTORNEY AT LAW
`
`
`For Defendant:
` IRELL & MANELLA LLP
` 1800 Avenue of the Stars - Suite 900
` Los Angeles, California 90067
` BY: JONATHAN S. KAGAN, ATTORNEY AT LAW
`
`
`
`
`
`Reported By: Jo Ann Bryce, CSR No. 3321, RMR, CRR, FCRR
` Official Reporter
`
`
`
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`Thursday - January 7, 2021
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` 10:13 a.m.
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`P R O C E E D I N G S
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`---000---
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`THE CLERK: Calling Civil matter 17-5659, Finjan,
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`Incorporated, vs. Juniper Network, Incorporated.
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`Starting with plaintiffs, will counsel please state your
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`appearances.
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`MS. BROOKS: Good morning, Your Honor. Juanita Brooks
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`from Fish & Richardson on behalf of Finjan.
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`THE COURT: Welcome.
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`MR. KAGAN: Good morning, Your Honor. Jonathan Kagan
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`of Irell & Manella on behalf of Juniper Networks.
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`THE COURT: Welcome.
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`This is a motion for attorneys fees by Juniper. So I'm
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`familiar with everything in here, but take up to ten minutes to
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`make your argument. Juniper goes first.
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`MR. KAGAN: Okay. So, Your Honor, the standard for
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`attorneys' fees that we're dealing with, I just want to make
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`clear because there was a lot of cases cited, comes from the
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`2014 Octane Fitness case; and the test is does this case stand
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`out from others with respect to the strength of the case and
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`was it litigated in an unreasonable manner. These are not --
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`you do not need to meet both of these standards. It can be
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`under either of these standards is how a case can be
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`extraordinary, and in this case we feel there's evidence to
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`support both.
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`The other just legal issue to put on the table is the
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`Court does not need to conduct an issue-by-issue analysis of
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`the extraordinary nature of the case. It's an overall
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`evaluation that the Court does to determine whether it's
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`extraordinary. So it doesn't need to say "This patent is
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`extraordinary. This patent is not."
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`There's two exceptions to that rule, neither of which
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`applies here, which is, one, if there is a partial victory, so
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`if we won on -- if we prevailed on some patents but not others,
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`it could allocate; or if the extraordinary nature of the case
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`is based solely on misconduct, which is not what -- we have a
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`lot of evidence showing that this case stands out from others
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`for reasons other than misconduct.
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`So the question is: Does this case stand out or not?
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`That's the threshold question. So this was a patent case
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`involving nine patents that Finjan asserted. Only one of those
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`patents was able to make it to trial. So eight of the nine
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`patents did not even make it to trial; and for the one patent
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`that made it to trial, by the time it got to the jury, there
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`was no possibility of any remedy for Finjan because the patents
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`had expired so there's no injunction possible and the Court had
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`ruled that Finjan was not entitled to damages even if they got
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`a jury verdict. Obviously the jury verdict went in Juniper's
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`favor.
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`So of the nine patents that Finjan asserted, they were
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`unable to get relief on any one of them even before reaching a
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`jury. So the question is: Does that stand out from other
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`cases?
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`It's difficult to imagine how you can argue it doesn't
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`stand out. Finjan is a professional plaintiff in patent cases.
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`Virtually all of their revenue comes from licensing patents and
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`litigating. If you look at their brief, they list all of their
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`accomplishments they've had in litigation. They've had
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`wonderful results.
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`This case has to stand out because if this case is the
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`norm for them, they cannot exist as a professional patent
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`plaintiff. If when they assert nine patents, they're not --
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`they can't get relief on even one even before getting to a
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`jury, they're out of business. So this is clearly a case that
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`stands out with regard to their litigation and, frankly, I
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`think most likely the litigation that this Court sees.
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`THE COURT: May I ask a question?
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`MR. KAGAN: Yes.
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`THE COURT: You say they were zero for nine. Were the
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`other -- how many of those were actually litigated and what
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`became of the ones that were not litigated? I remember the
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`ones that were litigated, but I know it wasn't all nine so tell
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`me what happened to the lineup of the patents.
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`MR. KAGAN: So there were several -- there were two
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`that were the subject of a summary judgment motion. Well,
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`there were two claims that were the subject of a summary
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`judgment motion. There was the '154 patent and the '780 patent
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`where Juniper prevailed on summary judgment. There was the
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`'494 patent that went to trial that was the subject of a trial;
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`and then Finjan in order to focus its appeal, voluntarily
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`dismissed with prejudice all of the other patents in order to
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`pursue its appeal on the patents that were litigated: The
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`'154, the '780, and the '494.
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`THE COURT: Okay. That comes back to me now. So
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`there were three that were litigated before me and that I made
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`rulings on, and then the other six were dismissed with
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`prejudice.
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`MR. KAGAN: Yes.
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`THE COURT: All right.
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`MR. KAGAN: And this was --
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`THE COURT: You know, I have this question for you,
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`though. In every case there's going to be a loser and a
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`winner, and are you saying that, "Okay. So Finjan gave it its
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`best college try and they lost"? But surely that can't be
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`enough to -- just because you lost doesn't mean that you --
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`it's an extraordinary case and you should pay the other side's
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`fees.
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`So help me -- and also I've got a related question. What
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`if I think there's only one aspect of the whole case that
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`troubles me and is extraordinary but the rest of it was just
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`routine patent shenanigans, patent lawyer shenanigans, and that
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`if forced to, I could find examples on the Juniper side where
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`you were unreasonable too? So what if I think it's only this
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`one thing that deserves, am I able to carve that out and say
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`"You've got to pay fees on that one bad chapter" or do I have
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`to give fees to the entire case?
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`MR. KAGAN: So what I would say, the way -- so I think
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`there's two conflicting -- let me answer the second question
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`first.
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`So I think there's two conflicting principles here. One
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`is that you're really supposed to just look at the whole case.
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`You're under no obligation to parse out individual parts of the
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`case, and that's fair. However, this is a discretionary
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`decision for the Court, and I do believe that it can be a
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`proper exercise of your discretion to award fees as you see
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`fit; and if you see unreasonable behavior on both sides or you
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`believe that Juniper took unreasonable positions, you know,
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`that's something that I think in your discretion you're allowed
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`to consider.
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`The case law is not so clear on this other than saying
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`it's a discretionary decision; but as an Article III judge, I
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`think those are the types of things that you would routinely
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`use to exercise discretion. So I think you have great latitude
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`on that.
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`THE COURT: All right. What is -- what if you --
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`looking at this entire record, what would you say -- just give
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`me one or two examples of where you think Finjan went way over
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`the line and it just spans out as a terrible abusive thing that
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`Finjan did.
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`MR. KAGAN: So one easy example is the damages case
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`for the '494 patent, which went to trial. What happened here,
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`as you may recall -- this is covered in the briefs, but I'll
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`just summarize it quickly -- what Finjan did was they had a
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`damages -- we moved for -- they moved for summary judgment on
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`the '494 patent. That was their strongest patent they said.
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`They accused certain products. We pointed out that they had
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`not -- they were not seeking damage on the SRX product as sold
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`by itself. It was only the SRX product when used in
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`combination with -- and this is their words -- the SRX used in
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`combination with Sky ATP and the Sky ATP product. That's what
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`the trial was supposed to be on.
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`Then when they submit their damages report -- and, by the
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`way, the total revenue for that was $1.8 million. That was the
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`total revenue.
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`When they submit their damages report, though, they
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`claim $142 million as a damages base because they now have a
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`theory, they've come up with an infringement theory where the
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`SRX when it's not used in combination with Sky ATP is an
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`infringing product.
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`So this is a brand new infringement theory. It's not even
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`advanced by their infringement expert. Their infringement
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`expert actually disavowed that theory. When we questioned him,
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`we said, "Are you -- have you looked at the SRX product by
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`itself?" He said, "No." This became the subject of a Daubert
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`motion and Your Honor excluded the theory.
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`And Finjan in their brief goes into a lot of -- they spent
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`a lot of time talking about why they believe that this theory
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`was meritorious. It doesn't matter whether or not this theory
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`was meritorious. It was an undisclosed theory, and on that
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`basis Your Honor issued a Daubert order and excluded the
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`expert's opinion.
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`THE COURT: Was that litigated in the Federal Circuit?
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`MR. KAGAN: Yes, it was.
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`THE COURT: What did the Federal Circuit say on that
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`Daubert ruling?
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`MR. KAGAN: The Federal Circuit -- it was a summary
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`affirmance. There was no opinion. It didn't even merit an
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`opinion but it was affirmed.
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`THE COURT: Hmm. Okay.
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`MR. KAGAN: So then what Finjan does is they don't
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`say -- so now they have no -- they have essentially no damages
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`case. So what they tell Your Honor is, "Well, we want the
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`opportunity to present a fact-based damages case. So you've
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`excluded our expert but allow us still to try to present a
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`fact-based damages case," and Your Honor allowed them to at
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`trial.
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`So they come to trial and they have their CEO testify, and
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`the CEO testifies -- when he testifies, he includes in his
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`royalty base the exact same information that Your Honor
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`excluded in the Daubert. He starts trying to talk about
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`numbers and damages that include this product by itself that
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`Your Honor said was out.
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`Then in addition what he does, is he talks about numbers
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`that he wants for a negotiation. He said, "Well, in a
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`negotiation with Juniper, this is what I want. This is what
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`I'm asking for." And, Your Honor, ultimately we objected.
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`Ultimately Your Honor excluded that testimony as well as
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`improper.
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`Some of his testimony in terms of what he was seeking had
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`actually been excluded in another case by the Federal Circuit.
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`The Federal Circuit -- he had this theory that they were
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`entitled to $8 per stand. That was just the number they came
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`up with. And he tried using the same number in another case
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`against another defendant. The Federal Circuit actually
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`reviewed that and said, "This number is pulled out of thin air.
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`You can't use that."
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`So Your Honor ultimately in the middle of the trial
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`removed the issue of damages and struck his testimony, took
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`damages away from the jury.
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`So, I mean, I think if you're looking for a single example
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`of the types of sort of shenanigans that were going on, that's
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`what's going on here. So we have this changing infringement
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`theory just to try to artificially boost damages, an
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`undisclosed theory that Your Honor strikes, and then they try
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`to end-run the ruling by sneaking it in a different way at
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`trial forcing Your Honor to again strike it and take the issue
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`from the jury.
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`So we had an entire trial on a patent where there was no
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`possibility of damages because of essentially the litigation
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`conduct of Finjan. Had they not tried to change their theory,
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`they could have tried to get the one -- whatever percentage of
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`the $1.8 million of damages they wanted, but that's not what
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`they did.
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`Another example relates to the '780 patent which has to do
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`with notice. The question was: Did they provide actual or
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`constructive notice to Juniper about this patent? They
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`actually had their head of licensing lie. They signed a false
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`interrogatory response where they said in a phone conversation
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`they had expressly talked about this with a representative from
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`Juniper. We deposed the guy. That's what he said.
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`Then we were ultimately able to go find a recording of the
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`conversation; and when we played the recording of the
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`conversation, there's absolutely no reference to this
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`whatsoever. It was made up. That was on actual notice for
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`that patent.
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`Then they also -- then there was an instance, and we cite
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`some of this in the briefing, where they said they'd given a
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`presentation to Juniper or to Cyphort, the predecessor of
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`Juniper, where they said they provided notice. And we had a
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`hearing on this, and Your Honor said, "Okay. Show me the
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`presentation. Show me where it says this product infringes the
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`'780 patent."
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`And they kept pointing to different pages, but every time
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`they could not come up with a single reference to that. They
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`talked about this patent being asserted against other people.
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`They talked about products. Not once was there any reference
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`to an accusation of infringement by Cyphort of the '780 patent.
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`We had a big hearing on that.
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`Then again on notice, they admitted -- Finjan admitted in
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`open court that notice. It was their burden under the
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`Arctic Cat case. Then they tried to recant that. They tried
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`to say, "Well, actually it's not our burden," again just trying
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`to walk back -- they're constantly trying to change their
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`position to suit, you know, the prevailing winds of the day.
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`Whatever the challenge is, they just take a different position
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`and it was not supported by the record.
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`And, again, I mean, Ms. Brooks -- you know, when I'm
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`talking about Finjan counsel, Ms. Brooks was not trial counsel.
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`I just want to make clear. They got rid of the counsel that
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`was trial so none of this is against her, but this is the
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`behavior that they engaged in at trial and before.
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`THE COURT: Okay.
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`All right. Let's hear from Ms. Brooks.
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`MS. BROOKS: Thank you very much, Your Honor. Juanita
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`Brooks on behalf of Finjan.
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`I'd like to start actually where counsel just left off
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`about the fact that we were not trial counsel, and that is
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`true, but in some ways I think that puts us in somewhat of an
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`advantage in that we weren't in the fray.
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`And as Your Honor pointed out, the nature of litigation is
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`it's adversarial. There's always a winner and there's always a
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`loser; and of course if you end up on the losing side, that
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`automatically means that you have to pay attorneys' fees, that
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`would be the end of the adversarial system that we have.
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`So we at Fish & Richardson were sort of not in the fray,
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`but we do have the record and so we can look at it and we can
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`look at it sort of in a very cold fashion rather than in a
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`passionate, heated fashion and see what is there.
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`And I'd like to start by also addressing we did,
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`Fish & Richardson, handled the appeal and counsel mentioned
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`that the appeal, quote, "didn't even merit an opinion."
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`I'd like to point Your Honor to a case that just came out
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`of the Federal Circuit two days ago, and it is the -- so we
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`don't have an actual Fed. Circuit cite yet, but it's
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`Innovation Sciences LLC -- Virginia Innovation Sciences, Inc.,
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`vs. Amazon, and the number is 2020-1639 decided on January 5th,
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`2021. Now, it is nonprecedential but it is very informative of
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`this issue as to the merits of the appeal.
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`This was an attorney fee issue, and what the court -- the
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`Federal Circuit went out of its way to say is that, and I'm
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`quoting now from page 6 of the opinion (reading):
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`"To the extent that the argument attempts to tie the
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`fact of an earlier Rule 36 affirmance without opinion to
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`the later imposition of sanctions by the district court,
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`we hasten to urge caution. We categorically reject the
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`implication of Amazon's argument that an affirmance by
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`this court under Federal Circuit Rule 36 provides any
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`information about whether a case was close, frivolous, or
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`noncontroversial."
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`So in saying that the appeal didn't even merit an opinion,
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`this court just two days ago, the Federal Circuit, cautioned
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`that that says nothing as to the merits of the case or the
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`opinion.
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`So now let's go back and talk about what happened in
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`district court. Your Honor asked if you believe that there is
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`a part of the case that is above and beyond I think what you
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`characterized as the shenanigans that go on in patent cases,
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`which what is it, and counsel first went to the damages. So
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`I'd like to address that first, Your Honor.
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`Case 3:17-cv-05659-WHA Document 651 Filed 01/20/21 Page 14 of 28
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`And, again, I think we are at an advantage -- "we,"
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`Fish -- of not having been involved in the lower court case in
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`that -- or the district court case in that I think what
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`happened here is, to quote the movie that I like quite a bit,
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`we had a failure to communicate.
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`What Juniper counsel keeps saying is that Finjan changed
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`its damages model after realizing there was only going to be
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`$1.8 million in damages if they stuck with their original
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`model. Unfortunately, Finjan failed to adequately articulate
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`to Your Honor that, no, there had been no change. The model
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`was the model from the beginning.
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`From the beginning the technical expert, Dr. Cole, at
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`Docket 238-6, specifically said that he was only looking at SRX
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`models that are, quote, "capable of interacting with Sky ATP,"
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`unquote. So this whole idea that somehow Finjan reverted to an
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`SRX-only damages theory, never happened. It was always only
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`the SRX models capable of interacting with Sky ATP. So that
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`was the technical expert.
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`THE COURT: Wait a minute.
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`MS. BROOKS: Yes, Your Honor.
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`THE COURT: I've got to interrupt you here.
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`I remember -- I don't remember every detail now, but I do
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`remember this much, and that is when it came time for the
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`damages analysis, it turned out that the revenue -- I believe
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`you misspoke a minute ago. You said that the damages would
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`Case 3:17-cv-05659-WHA Document 651 Filed 01/20/21 Page 15 of 28
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`have been 1.8. I think it was the revenue on which you would
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`have calculated a smaller amount for damages. It turned out to
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`be vastly smaller than Finjan had hoped for, and that was when
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`we got a brand new infringement theory.
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`Now, you'll never convince me that it was -- it was not
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`disclosed, it was new, and that's why I threw it out. So
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`you'll never convince me that Finjan didn't make a -- what's
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`the word on the football field when you completely go in the
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`opposite direction? And that's what I believed then, that's
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`what I believe now, and you're just arguing against something
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`that I lived through. So I believe you're wrong on that. I
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`believe that Finjan did flip-flop and come up with a different
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`theory so that it could take advantage of a bigger revenue
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`base.
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`Okay. Go ahead. I interrupted you, but go ahead.
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`MS. BROOKS: Oh, no. Thank you, Your Honor. And of
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`course I welcome the Court's input.
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`And so certainly I'm not here trying to persuade
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`Your Honor that Your Honor was wrong. I am simply, though,
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`trying to cite to the record as we got it on appeal and what we
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`saw in there, and what we saw in there was Dr. Cole's expert
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`report where he talked about only SRX models that were capable
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`of interacting with Sky ATP, that that's all he considered.
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`And then the damages expert, Mr. Arst, took that opinion and
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`applied it only then to models that were capable of interacting
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`Case 3:17-cv-05659-WHA Document 651 Filed 01/20/21 Page 16 of 28
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`with Sky ATP, and that's at Docket 228-7 and specifically his
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`supplemental Exhibit 1.5.
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`Now, I know that I -- I know when I'm fighting an uphill
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`battle and this is not a hill that I want to die on so let me
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`just also answer Your Honor's other question, which is if you
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`find, for example, that you cannot be persuaded, that you
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`believe that Finjan absolutely changed its damages theory and
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`you think that that fact would cause this case to stand out on
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`that issue, you do have the discretion to simply carve out that
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`issue and ask Juniper to supply the Court with the numbers
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`that -- the fees that they ran up to defend on that particular
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`issue stand-alone. And so Your Honor certainly has the
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`discretion to do that.
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`I would submit, however, Your Honor, that, once again,
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`because Finjan had a good faith belief that it wasn't changing
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`its damages theory, it was relying on Dr. Cole's report that
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`had always said what it said about Sky ATP -- SRX plus Sky ATP
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`and Mr. Arst's report that it always said SRX plus Sky ATP;
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`and, therefore, that doesn't make this case exceptional or even
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`that issue exceptional.
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`And I'll stop, Your Honor, and see if you have any
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`questions.
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`THE COURT: Well, I'm going to come back. I want you
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`to continue, but I want Mr. Kagan to respond to what I just
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`heard because it's important to me. I want to make sure I got
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`
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`Case 3:17-cv-05659-WHA Document 651 Filed 01/20/21 Page 17 of 28
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`the record correctly on whether or not there was a flip-flop.
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`Okay. You continue, Ms. Brooks.
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`MS. BROOKS: Thank you, Your Honor.
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`Going next to the argument by Mr. Kagan regarding whether
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`there was actual or constructive notice on the '780 patent, I
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`would refer Your Honor to page 20 of our brief that contains a
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`figure that was also submitted in our Blue brief to the
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`Federal Circuit, and what that figure is is what Finjan relied
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`on to show what it believed to be actual notice of the '780
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`patent to Juniper's predecessor Cyphort.
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`And if you look at the figure highlighted in yellow is the
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`'780 under Finjan patents. Yes, the party in that case was
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`Blue Coat and you see, again, below that another party called
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`Secure and again the '780; but underneath that, what Finjan has
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`written is (reading):
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`"Finjan has been awarded over $67 million in patent
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`enforcement while establishing royalty rates and that the
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`PTAB has denied 12 IPR petitions against Finjan."
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`The purpose of this presentation of Cyphort was a
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`discussion about licensing the portfolio of Finjan, and it was
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`Finjan's position that any patent that was listed in this
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`presentation put Cyphort on notice as to that patent and it's
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`Finjan's belief that Cyphort was infringing.
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`Now, Your Honor disagreed with that and said it has to be
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`more and Your Honor specifically actually said, "I want to see
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`
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`Case 3:17-cv-05659-WHA Document 651 Filed 01/20/21 Page 18 of 28
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`claim charts." Again, does that make Finjan's position
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`objectively unreasonable simply because, you know, Your Honor
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`had a different view? I would certainly hope not.
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`And the standard -- we agree that Octane Fitness applies
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`but Octane Fitness just doesn't simply use the word "stand
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`out." It talks about is the case objectively baseless and the
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`claims in an unreasonable manner, is it frivolous, was there
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`bad motivation. So there has to be something more than, "Oh,
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`this stands out for me." There has to be something more than
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`that the Court disagreed with Finjan or that a jury disagreed
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`with Finjan, and there is nothing more here.
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`And, in fact, I argued the appeal at the Federal Circuit
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`and they were very interested in this issue about where's the
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`line from not enough notice to enough notice. Is it claim
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`charts? And I believe they all agreed, no, it doesn't have to
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`go that far. But is it listing a patent the way we did here in
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`a presentation? Is that enough? And I had a very spirited
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`discussion on that.
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`And so clearly it's a good faith belief -- Finjan's belief
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`that it's enough. Your Honor felt it wasn't. The
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`Federal Circuit didn't speak to it one way or another because
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`they simply did a Rule 36 affirmance. But, again, is that
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`issue enough to have it stand out -- this case stand out and
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`make it an exceptional case where that issue in and of itself
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`is exceptional? I would say it isn't, Your Honor.
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`
`
`Case 3:17-cv-05659-WHA Document 651 Filed 01/20/21 Page 19 of 28
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`And the remaining issue --
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`THE COURT: Wait a minute.
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`MS. BROOKS: Yes, Your Honor, I'll stop.
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`THE COURT: Two points I want to ask you about on
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`that. One is that -- I'm vaguely remembering this part.
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`Blue Coat was not our defendant. Our defendant was Juniper.
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`So how can something that Blue Coat is infringing possibly put
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`Juniper on notice that it infringes?
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`I recognize I think somewhere along the line Juniper
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`acquired Blue Coat. Am I right about that? But that's still a
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`different company. So let me just pause there. What is your
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`answer to that?
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`MS. BROOKS: My answer is, Your Honor, that that's
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`absolutely right, Blue Coat was a different company. What
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`Finjan's position was, is that they marshaled the patents that
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`Finjan believed Cyphort, Juniper's predecessor -- so I'll just
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`call it Juniper -- that Finjan believed Juniper was infringing.
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`So they put them on a flyer, and this was in June of 2016, and
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`they showed Cyphort or Juniper it's history -- the history of
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`these particular patents and how they had successfully asserted
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`them against other companies in the past and had actually
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`obtained a significant amount of money from the enforcement of
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`those patents.
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`Finjan's position was that was sufficient to put Juniper
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`on notice of these particular patents that were listed: The
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`
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`Case 3:17-cv-05659-WHA Document 651 Filed 01/20/21 Page 20 of 28
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`'194, the '780, the '822, and then three others. Juniper said,
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`"No, it wasn't."
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`THE COURT: Of what? Did they refer to a Juniper
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`product and say, "Here's how the Juniper product infringes"?
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`What was the notice supposed -- is it just notice of the patent
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`and notice of the patent alone would be enough?
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`MS. BROOKS: No. They actually identified a product,
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`the Advanced Threat Defense Platform or the ATP. And, again,
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`this is all part of the large slide deck and Your Honor can see
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`it's at Docket 392-16, but it's also laid out on page 20 of our
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`brief.
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`And so is this one where reasonable minds can differ?
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`Absolutely. Your Honor clearly disagreed with Finjan's
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`position.
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`But that's not the question for fees. The question for
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`fees is was this objective -- was Finjan's position objectively
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`unreasonable such that this becomes an exceptional case, and I
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`would submit the fact that I could stand up there before three
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`Federal Circuit judges and we could have a very robust debate
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`about it and have questions about it shows that reasonable
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`minds can differ on this issue. And Finjan has every right to
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`try to make law in this area and get some clarification. Does
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`it have to be claim charts or is a presentation like this
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`enough?
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`And so the issue is were we objectively unreasonable or
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`
`
`Case 3:17-cv-05659-WHA Document 651 Filed 01/20/21 Page 21 of 28
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`somehow proceeding in bad faith, and clearly we were not.
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`THE COURT: Let me -- I've got one other question, and
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`then --
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`MS. BROOKS: Yes, Your Honor.
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`THE COURT: -- in 15 minutes I have another calendar
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`that I've got to go get ready for, but I had this question.
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`I do have a distinct memory of a declaration that your
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`side put in, somebody in the Finjan company, that said flat out
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`that particular patent had been discussed verbally with someone
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`from Juniper. And I don't remember if I actually made a ruling
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`at the time, but I remember thinking, "Okay. That's probably
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`enough to go to the jury that there was -- somebody's willing
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`to say under oath that they had that conversation."
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`And then it turned out a bit later in the case that there
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`was a recording made, I believe by somebody at Juniper, of that
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`very conversation and they transcribed it and it was not true.
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`It was not true that that patent was mentioned.
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`So I was very disturbed by that. I've got to tell you, I
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`came close to referring that to the U.S. Attorney but I did
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`not. But I want you to know this is the kind of stuff that
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`goes on in your patent cases -- in all patent cases where
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`somebody just says, "Oh, by the way, oh, yeah, I can say that.
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`That's the ticket. I told them about that. Yeah, it's verbal.
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`I told them." And it really does burn me up that that
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`happened. So I want to give you a fair chance to respond to
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`
`
`Case 3:17-cv-05659-WHA Document 651 Filed 01/20/21 Page 22 of 28
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`that point.
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`MS. BROOKS: Thank you, Your Honor.
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`So, again, in this instance I'm at a bit of a disadvantage
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`not having been trial counsel; and if Your Honor wants to pose
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`that question directly to trial counsel, Your Honor did
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`maintain jurisdiction over trial counsel when allowing them to
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`substitute out. You maintained jurisdiction over them for the
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`purpose of this type of a hearing.
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`But I would point out that my understanding is that th
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