Case 3:17-cv-05659-WHA Document 656 Filed 02/10/21 Page 1 of 3
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`FINJAN, INC.,
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`Plaintiff,
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`v.
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`JUNIPER NETWORK, INC., et al.,
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`Defendants.
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`No. C 17-5659 WHA
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`ORDER DENYING MOTION TO
`SEAL DAUBERT ORDER
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`A Daubert order on the eve of a patent-infringement trial in December 2018 excluded
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`patent owner’s damages expert for reliance on a belated infringement theory but rejected the
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`challenge to defendants’ counter expert (Dkt. No. 283). A companion order denied Finjan’s
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`request to seal references to its patent valuation and licensing activity in the latter half of that
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`order (Dkt. No. 284). The Court of Appeals for the Federal Circuit vacated and remanded the
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`order for more particularized findings, specifically a conscientious balancing of the interests of
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`Finjan and its third-party negotiation partners against the public interest in disclosure. 826
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`Fed. App’x 928 (Fed. Cir. 2020). Finjan moves anew to seal the material. The third parties
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`have waived their interests, and Juniper has abandoned the Court to evaluate the matter alone.
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`The material will be disclosed. To begin, Finjan mistakenly cites Center for Auto Safety
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`v. Chrysler Group, LLC for the proposition that the “nondispositive” Daubert order might be
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`sealed merely for good, as opposed to compelling, cause. Not so. Were Finjan to read further
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`along it would have seen that our court of appeals explicitly rejected a mechanical
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`Case 3:17-cv-05659-WHA Document 656 Filed 02/10/21 Page 2 of 3
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`“dispositive” versus “nondispositive” distinction in deciding what level of scrutiny to impose
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`on sealing requests. Rather, the boundary between requiring compelling or good cause is
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`“whether the motion is more than tangentially related to the merits of a case.” Our court of
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`appeals specifically noted Daubert orders as “technically nondispositive” matters which
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`nonetheless “significantly affect the disposition of the issues in the case.” Indeed, the present
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`Daubert order on damages experts presaged Finjan’s ultimate failure on damages at trial (Dkt.
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`No. 393 at 6–8). Compelling reasons, which outweigh the public interest in disclosure, will be
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`required to seal the material at issue here. 809 F.3d 1092, 1096–1101 (9th Cir. 2016).
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`Finjan asserts that disclosure of its patent valuation and licensing negotiations will
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`compromise its leverage in future negotiations and dissuade future negotiants wary of
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`confidentiality concerns. Aside from the fact that no third-party has appeared to assert any
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`confidentiality interest, despite ample opportunity to do so, and even accepting that disclosure
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`may hamper future patent-licensing negotiations, Finjan has little (if any) right to bury its
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`patent-assertion activities from public scrutiny. As the undersigned recently explained:
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`The United States Supreme Court “has long recognized that the
`grant of a patent is a matte[r] involving public rights.” A patent is
`not a private agreement between private parties. Rather, as a
`creature of statute, the national government grants the patent in
`derogation of the usual free flow of goods and ideas.
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`*
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`*
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`*
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`Because [a patentee’s] rights flow directly from this government-
`conferred power to exclude, the public in turn has a strong interest
`in knowing the full extent of the terms and conditions involved in
`[the patentee’s] exercise of its patent rights and in seeing the extent
`to which [the patentee’s] exercise of the government grant affects
`commerce.
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`*
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`*
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`*
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`The impact of a patent on commerce is an important consideration
`of public interest. One consideration is the issue of marking by
`licensees. Another is recognition of the validity (or not) of the
`inventions. Another is in setting a reasonable royalty. In the latter
`context, patent holders tend to demand in litigation a vastly bloated
`figure in “reasonably royalties” compared to what they have
`earned in actual licenses of the same or comparable patents. There
`is a public need to police this litigation gimmick via more public
`access. We should never forget that every license has force and
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`Case 3:17-cv-05659-WHA Document 656 Filed 02/10/21 Page 3 of 3
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`effect only because, in the first place, a patent constitutes a public
`grant of exclusive rights.
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`Uniloc USA, Inc. v. Apple, Inc., No. C 18-00358 WHA, 2020 WL 7626518, at *1–2 (N.D. Cal.
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`Dec. 22, 2020) (citations omitted).
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`Finjan offers no compelling interest that outweighs the public’s own compelling interest
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`in disclosure. The motion is DENIED. This order shall be stayed until 28 days after all appeals
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`of this order are exhausted. The parties shall please advise the Court when this period has run
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`and remind the Court to effect the unsealing.
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`IT IS SO ORDERED.
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`Dated: February 10, 2021
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`WILLIAM ALSUP
`UNITED STATES DISTRICT JUDGE
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