Case 3:17-cv-05659-WHA Document 662 Filed 06/17/21 Page 1 of 14
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`Juanita R. Brooks (CA SBN 75934), brooks@fr.com
`Frank J. Albert (CA SBN 247741), albert@fr.com
`Oliver J. Richards (CA SBN 310972), ojr@fr.com
`FISH & RICHARDSON P.C.
`12860 El Camino Real, Suite 400
`San Diego, CA 92130
`Telephone: (858) 678-5070 / Fax: (858) 678-5099
`
`Robert Courtney (CA SBN 248392), courtney@fr.com
`FISH & RICHARDSON P.C.
`60 South Sixth Street, Suite 3200
`Minneapolis, MN 55402
`Tel: (612) 335-5070 / Fax: (612) 288-9696
`
`Attorneys for Plaintiff, FINJAN, INC.
`
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA, SAN FRANCISCO DIVISION
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`FINJAN, INC.,
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` Plaintiff,
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`v.
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`JUNIPER NETWORKS, INC.,
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` Defendant.
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`Case No. 3:17-cv-05659-WHA
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`FINJAN’S BRIEF RESPONDING TO
`JUNIPER’S SUBMISSION SEEKING
`EXPERT FEES AND TRAVEL EXPENSES
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`U.S. District Judge William H. Alsup
`Courtroom 12
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`Case No. 3:17-cv-05659-WHA
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`Case 3:17-cv-05659-WHA Document 662 Filed 06/17/21 Page 2 of 14
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`TABLE OF CONTENTS
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`Page(s)
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`ARGUMENT ................................................................................................................................ 1
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`I.
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`The Record Includes No Indications of Fraud or Abuse of the
`Judicial Process ..................................................................................................... 1
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`A.
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`B.
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`C.
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`D.
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`E.
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`F.
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`G.
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`Juniper’s Allegation of Fraud/Abuse of Process in
`Connection With Finjan’s Decision to Proceed to Trial on
`the ’494 Patent is Baseless ........................................................................ 2
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`Juniper’s Allegation of Fraud/Abuse of Process in
`Connection With Finjan’s Trial Presentation on ’494
`Damages is Baseless ................................................................................. 2
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`Juniper’s Allegation of Fraud/Abuse of Process in
`Connection With Presentation of Testimony About
`Finjan’s Licensing Practices is Baseless ................................................... 3
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`Juniper’s Allegation of Fraud/Abuse of Process in
`Connection With Finjan’s ’494 Liability Case is Baseless ....................... 3
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`Juniper’s Allegation of Fraud/Abuse of Process in
`Connection With Finjan’s Decision Not to Drop the ’780
`Patent After the First Showdown is Meritless........................................... 4
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`Juniper’s Allegation of Fraud/Abuse of Process in
`Connection With the Testimony of John Garland is
`Meritless .................................................................................................... 4
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`Juniper’s Allegation of Fraud/Abuse of Process in
`Connection With Finjan’s Accidental Misstatement About
`a Case’s Appellate History During an Oral Hearing is
`Meritless .................................................................................................... 5
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`II.
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`Even Considering Juniper’s Cited Incidents Together, There is
`No Support for Juniper’s Proposed Sanction or For a
`Fraud/Abuse of Process Determination ................................................................ 7
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`III.
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`Juniper’s Request for $1,425,659.24 is Unreasonable and
`Excessive ............................................................................................................... 9
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`IV.
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`Juniper’s Proposal is Procedurally Improper ........................................................ 9
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`V.
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`Conclusion .......................................................................................................... 10
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`Case 3:17-cv-05659-WHA Document 662 Filed 06/17/21 Page 3 of 14
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`Cases
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`TABLE OF AUTHORITIES
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`Page(s)
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`Amsted Indust., Inc. v. Buckeye Steel Castings Co.,
`23 F.3d 374 (Fed. Cir. 1994) ........................................................................................................ 1
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`Chambers v. NASCO,
`501 U.S. 32 (1991) ................................................................................................................... 1, 8
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`Kearney v. Salomon Smith Barney, Inc.,
`137 P.3d 914 (Cal. 2006) ............................................................................................................. 4
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`Lindemann Maschinenfabrik GmbH v. Am. Hoist & Derrick Co.,
`895 F.2d 1403 (Fed. Cir. 1990) .................................................................................................... 2
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`MarcTec, LLC v. Johnson & Johnson,
`664 F.3d 907 (Fed. Cir. 2012) ...................................................................................................... 1
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`Moser v. Bret Harte Union High Sch. Dist.,
`366 F. Supp. 2d 944 (E.D. Cal. 2005) .......................................................................................... 6
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`Novo Nordisk A/S v. Becton Dickinson & Co.,
`304 F.3d 1216 (Fed. Cir. 2002) .................................................................................................... 6
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`Novo Nordisk A/S v. Becton Dickinson & Co.,
`96 F. Supp. 2d 309 (S.D.N.Y. 2000), aff’d, 304 F.3d 1216 (Fed. Cir. 2002) .......................... 5, 6
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`Octane Fitness, LLC v. ICON Health & Fitness, Inc.,
`572 U.S. 545 (2014) ..................................................................................................................... 8
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`Oplus Technologies, Ltd. v. Vizio, Inc.,
`782 F.3d 1371 (Fed. Cir. 2015) ................................................................................................ 8, 9
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`Raniere v. Microsoft Corp.,
`No. 3:15-cv-0540-M, 2016 WL 4626584 (N.D. Tex. Sept. 2, 2016) ...................................... 7, 8
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`Smith v. LoanMe, Inc.,
`483 P.3d 869 (Cal. 2021) ............................................................................................................. 4
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`Statutes
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`Cal. Invasion of Privacy Act (Cal. Penal Code § 632)....................................................................... 4
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`Case 3:17-cv-05659-WHA Document 662 Filed 06/17/21 Page 4 of 14
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`Though styled as an “objection,” Juniper’s submission (D.I. 661) has little to do with the
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`Special Master’s report and recommendations (D.I. 658). Juniper seeks a windfall award of over
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`$1.4 million, mostly connected to expert witness fees but also covering travel expenses. In a
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`footnote, Juniper concedes that such expenses are “not compensable under § 285.” Juniper Br. 9
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`n.1 (quoting MarcTec, LLC v. Johnson & Johnson, 664 F.3d 907, 921 (Fed. Cir. 2012)). Thus
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`Juniper’s submission is at best tangential to the Court’s order on exceptionality under § 285, and to
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`the Special Master’s report. Its only real connection to those items is the report’s (proper) rejection
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`of Juniper’s attempt to have such non-compensable fees included in the recommended award. (See
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`D.I. 658 at 20 (describing non-recoverability of travel expenses and expert fees under § 285))
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`Juniper also leads its motion with a problematic assertion: that “the parties agree these
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`expenses [expert fees and travel] are awardable by the Court if its final award includes a finding of
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`bad faith.” Juniper Br. 1. That statement is severely incomplete. District courts’ inherent power
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`includes authority to award expert fees/travel expenses, but this is generally reserved for
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`circumstances of “bad faith and fraud on the court to the extent of defiling ‘the very temple of
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`justice.’” Amsted Indust., Inc. v. Buckeye Steel Castings Co., 23 F.3d 374, 379 (Fed. Cir. 1994)
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`(quoting Chambers v. NASCO, 501 U.S. 32, 46 (1991)). Finjan strongly opposes any suggestion
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`that there has been any bad faith, ever, in this case. That there has been bad faith to the Amsted
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`standard, as Juniper suggests, lacks any support in the record at all. The Court should reject
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`Juniper’s plea for still more money, with so little record support, so late in the case.
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` ARGUMENT
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`I. The Record Includes No Indications of Fraud or Abuse of the Judicial Process
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`The expert fees and travel expenses sought by Juniper are only awardable under the
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`Court’s inherent powers upon a “finding of fraud or abuse of the judicial process.” Amsted, 23
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`F.3d at 378. Though citing that standard, Juniper’s submission fails to apply it, as none of the
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`issues cited therein come anywhere near Amsted’s high standard.
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` Juniper cites seven incidents as purportedly supporting the award it seeks. None
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`embodies “fraud or abuse of the judicial process.”
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`Case 3:17-cv-05659-WHA Document 662 Filed 06/17/21 Page 5 of 14
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`A. Juniper’s Allegation of Fraud/Abuse of Process in Connection With Finjan’s
`Decision to Proceed to Trial on the ’494 Patent is Baseless
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`First, Juniper complains that after the Daubert order in December 2018, Finjan failed to
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`“cut its losses” and “forego its baseless case regarding the ’494 Patent.” Juniper Br. 4–5.
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`Juniper’s suggestion that the decision to proceed to trial might show fraud or abuse of process is
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`incorrect as to both Finjan’s liability case and its damages case. As to liability, nothing in the
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`Daubert order suggested that Finjan’s technical allegations lacked merit. Although an adverse
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`damages decision may limit a case’s ultimate value, it does not on its own reduce a litigant’s right
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`to have triable liability claims heard by a jury. Cf. Lindemann Maschinenfabrik GmbH v. Am.
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`Hoist & Derrick Co., 895 F.2d 1403, 1406–07 (Fed. Cir. 1990). And as to damages, the following
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`sections describe how there was neither fraud nor abuse of process there, either.
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`B. Juniper’s Allegation of Fraud/Abuse of Process in Connection With Finjan’s
`Trial Presentation on ’494 Damages is Baseless
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`Next, Juniper claims that weaknesses in Finjan’s apportionment at trial amounted to fraud
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`or abuse of process. Juniper Br. 5. Not so. Finjan believed—in error, as it turned out—that its
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`trial case properly apportioned between patented and unpatented features. (See D.I. 336 at 212–13
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`(trial describing apportionment based on Juniper’s statements that “only 40 percent of [files] get
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`processed through the infringing components”); also see id. at 216 (“[THE COURT:] You have the
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`burden to apportion in some not just rational way, something that meets the standards of the Blue
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`Coat decision. MR. ANDRE: Your Honor, we will do so.”))
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`Of course, the Court disagreed with Mr. Andre and found Finjan’s presentation insufficient
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`as a matter of law (and subsequently exceptional under § 285).1 But the exchanges above
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`completely contradict Juniper’s allegation of fraud/abuse of process. Until the moment the Court
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`struck Finjan’s damages presentation at trial, Finjan believed it had carried out the task set by the
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`Court and the law: to present a triable apportionment. Finjan may have been wrong in that belief,
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`but in no sense was it proceeding in bad faith.
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`1 Finjan acknowledges that the § 285 Order is binding before this Court. Finjan reserves its right
`to seek appellate relief as to that Order’s legal holdings and factual determinations.
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`Case 3:17-cv-05659-WHA Document 662 Filed 06/17/21 Page 6 of 14
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`C. Juniper’s Allegation of Fraud/Abuse of Process in Connection With
`Presentation of Testimony About Finjan’s Licensing Practices is Baseless
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`Juniper next claims that an exchange surrounding a Finjan executive’s statement at trial
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`about “what [Finjan] would have sought from Juniper in negotiations” was evidence of fraud or
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`bad faith. Juniper Br. 5–6. Finjan’s trial counsel could have reasonably thought such a statement
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`was relevant to the royalty that the parties would have agreed to at a hypothetical negotiation.
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`(E.g.. D.I. 336 at 291 (trial counsel explaining that this testimony related to Finjan’s position
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`“going into the negotiations”)) The Court stated that the testimony was “irrelevant,” and struck it,
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`but there was no hint or suggestion of bad faith. (Id. (“I now see what you were getting at. I
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`didn’t see it at the time. . . . We’re going to exclude that evidence.”)) There is no suggestion
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`whatsoever that Finjan, once the Court ordered the material struck, sought to evade that order.
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`Rather, Finjan abided the Court’s clear evidentiary decision. Juniper’s citations to cases where
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`litigants refused to be guided by a Court’s orders are thus not on point.
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`D. Juniper’s Allegation of Fraud/Abuse of Process in Connection With Finjan’s
`’494 Liability Case is Baseless
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`Fourth, Juniper claims that because it prevailed on ’494 liability before the jury, Finjan
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`must have been committing a fraud on the court in pursuing the case. Juniper Br. 6. The record
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`has no support for that contention. That Finjan lost before the jury is not, without more, evidence
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`of fraud, or abuse of process. And though Juniper quotes extensively from the Court’s laudatory
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`statements concerning Juniper’s lawyer Mr. Kagan, such approbation is not evidence of fraud or
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`abuse of process either. It is a credit to Mr. Kagan that his closing argument was so compelling
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`that “the scales fell from [the Court’s] eyes” (D.I. 382 at 3:21–4:18), but that does not mean that
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`Finjan failed to present a triable liability case, and it certainly does not suggest that Finjan’s
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`liability case amounted to defilement of justice’s temple, as Juniper seems to contend. Indeed, on
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`summary judgment Juniper presented its various ’494 theories to the Court, and the Court found
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`liability triable. (D.I. 189) Had the Court believed then that Finjan’s case was nothing but
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`“smoke and mirrors,” it could have entered an order to show cause, as it did elsewhere in this case.
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`It did not do so. As to ’494 liability, the record here indicates that Finjan’s case was strong
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`enough to try, but not strong enough to win. That is not fraud, or abuse of process.
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`Case 3:17-cv-05659-WHA Document 662 Filed 06/17/21 Page 7 of 14
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`E. Juniper’s Allegation of Fraud/Abuse of Process in Connection With Finjan’s
`Decision Not to Drop the ’780 Patent After the First Showdown is Meritless
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`The Court has already held that Finjan should have dropped the ’780 Patent after the first
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`showdown. (D.I. 648 at 3) But even were bad judgment at play in the decision to continue
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`litigating, there is still no evidence of fraud or abuse of process. As its summary judgment papers
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`in the second showdown demonstrate, Finjan believed it still had a triable case under claim 9 of
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`the ’780 Patent against Juniper’s “ATP Appliance” product, and it submitted the basis for that case
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`in good faith to the Court and to Juniper. (See generally D.I. 392-4) Notably, the Court never
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`weighed the viability of the ATP Appliance infringement case, at all, and there is thus no basis on
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`which to find fraud or abuse of process there. The Court did determine that Finjan lacked a viable
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`damages case for ATP Appliance (D.I. 459 at 13–18)—and upon that determination Finjan
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`stopped litigating ATP Appliance. This sequence of events may be evidence of a weak case, or
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`even of questionable judgment in the case’s prosecution, but it is neither fraud nor abuse of the
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`judicial process.
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`F. Juniper’s Allegation of Fraud/Abuse of Process in Connection With the
`Testimony of John Garland is Meritless
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` Without naming him (or citing any contemporaneous evidence or orders), Juniper
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`proposes that there was bad faith/abuse of process surrounding the testimony of Finjan employee
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`John Garland, who handled pre-suit discussions between Finjan and Juniper. As the Court may
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`recall, in the run-up to the ’494 trial, Mr. Garland stated in deposition that he discussed the ’494
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`Patent as relating to Juniper’s “Sky ATP” product in a pre-suit teleconference. (D.I. 410-1 at
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`217:9–17) Finjan also served interrogatory responses making substantially the same contention.
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`(D.I. 113-2 at 5)
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`After the deposition was over, Juniper revealed that it had recorded the call with Mr.
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`Garland, without giving notice to Mr. Garland or anyone at Finjan. (See generally D.I. 156-4)
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`Recent authority confirms that Juniper’s conduct was a violation of the California Invasion of
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`Privacy Act (Cal. Penal Code § 632), as Finjan contended in previous submissions. (E.g., D.I.
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`156-4; D.I. 431-4 at 7 n.3) See Smith v. LoanMe, Inc., 483 P.3d 869, 881 (Cal. 2021); Kearney v.
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`Salomon Smith Barney, Inc., 137 P.3d 914, 933 et seq. (Cal. 2006). Questions about legality
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`Case 3:17-cv-05659-WHA Document 662 Filed 06/17/21 Page 8 of 14
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`aside, subsequent testimony from Mr. Garland, acknowledged that “Sky ATP” did not come up in
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`the call as relating to the’494 Patent.
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`Juniper proposes that this chain of events amounts to fraud or abuse of process by Finjan,
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`but the evidence does not even approach such a conclusion. There is no indication anywhere in
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`the record that either Finjan (or, indeed, Mr. Garland) actually knew that Mr. Garland’s personal
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`recollection was inaccurate until Juniper revealed its illegal recording. Nor has Juniper identified
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`a single piece of documentary evidence that might have caused Finjan to suspect Mr. Garland’s
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`testimony might have been inaccurate.2 Without any evidence at all of bad faith, Juniper cannot
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`hope to support its charges of fraud or abuse of process sufficient to warrant a sanction.
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`Finjan acknowledges and shares the Court’s understandable frustration when observing a
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`witness changing his testimony on an important fact. But the record strongly indicates this was an
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`error of recollection by a witness recalling events years prior, and not intentional deception.
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`Nothing about the situation warrants a sanction.
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`G. Juniper’s Allegation of Fraud/Abuse of Process in Connection With Finjan’s
`Accidental Misstatement About a Case’s Appellate History During an Oral
`Hearing is Meritless
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`Finally, Juniper points to the Court’s recollection that Finjan “perhaps not intentionally
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`[but] at least recklessly” misstated the appellate history of a certain district court decision. Juniper
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`Br. 7–8. Though Juniper does not cite the record, the incident arose at an oral hearing held in May
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`2019. (D.I. 457) At the hearing, Finjan’s trial counsel made reference to Novo Nordisk A/S v.
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`Becton Dickinson & Co., 96 F. Supp. 2d 309 (S.D.N.Y. 2000), aff’d, 304 F.3d 1216 (Fed. Cir.
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`2002), in a discussion on notice standards. (D.I. 457 at 10:7–24 (“It [Novo Nordisk] basically
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`talks about [whether] the notice requirement has been met and may be satisfied, quote, in the
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`context of the overall dealings between the parties.”)) Responding, Juniper’s counsel directed the
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`Court to a different Federal Circuit case. The Court asked both parties to clarify their citations:
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`THE COURT: Your decision . . . is which one again?
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`MS. CARSON [FOR JUNIPER]: The case is Amsted Industries
`versus Buckeye Steel. It is a Federal Circuit case, and it was cited
`on—
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`2 Finjan did not, of course, actually have Juniper’s illegal recording until its production.
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`Case 3:17-cv-05659-WHA Document 662 Filed 06/17/21 Page 9 of 14
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`THE COURT: Is Novo versus BD, is that Federal Circuit too?
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`MR. ANDRE [FOR FINJAN]: It was affirmed by the Federal Circuit
`too. That’s correct.
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`THE COURT: What you were citing to, was that language from the
`Court of Appeals or from the district court?
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`MR. ANDRE: It looks like it is from the district court I’m guessing
`the way it is cited here. We can pull it up real quick. We have a copy
`of it. It looks like it was from the district court. It may just have
`been—
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`(Id. at 11:17–12:6) At this point, the Court began a different line of discussion. (Id. at 12:7)
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`Mr. Andre’s statement that the Federal Circuit affirmed Novo Nordisk inaccurately
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`suggested that Novo Nordisk’s notice analysis had Federal Circuit approval. The Federal Circuit
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`did affirm Novo Nordisk, but its opinion did not discuss notice. Novo Nordisk A/S v. Becton
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`Dickinson & Co., 304 F.3d 1216 (Fed. Cir. 2002). When the Court pressed him on the appellate
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`history of Novo Nordisk, the transcript suggests Mr. Andre was not familiar with that history, and
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`inaccurately relied on the citation in his notes, after which the Court moved on. Certainly it is
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`incumbent on trial counsel to accurately represent any authorities cited to the Court, and Finjan
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`apologizes on Mr. Andre’s behalf for his misstatement, and for his failure to subsequently correct
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`it. Yet nothing about the exchange above suggests fraud or abuse of process by Finjan. It may
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`have been an unforced error by Finjan’s then-counsel, but at no point did Finjan set out to mislead
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`the Court or abuse the judicial system. Additionally, this was a one-off event, occurring over the
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`course of a lengthy oral hearing. Finjan is aware of no precedent, anywhere, suggesting that such
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`may be the basis of a fraud or abuse of process determination. Indeed, even Juniper’s own cited
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`authority limits a sanction to cases of “repeated mischaracterizations of the law.” Moser v. Bret
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`Harte Union High Sch. Dist., 366 F. Supp. 2d 944, 988 (E.D. Cal. 2005). Nothing in Moser, or in
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`any other authority known to Finjan, suggests that Mr. Andre’s misstatement might support the
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`sanction Juniper seeks.
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`Case 3:17-cv-05659-WHA Document 662 Filed 06/17/21 Page 10 of 14
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`II. Even Considering Juniper’s Cited Incidents Together, There is No Support for
`Juniper’s Proposed Sanction or For a Fraud/Abuse of Process Determination
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`There is no merit in Juniper’s allegation that when one takes the seven allegations above
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`together, “there can be no legitimate questions that Finjan engaged in an extended pattern of bad
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`faith conduct throughout the litigation.” Juniper Br. 8. As the discussion above establishes, none
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`of the incidents are actually examples of bad faith, at all. Taking them together does not change
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`the picture. While the Court has held that some of the items above supported a determination of
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`exceptionality as to the ’494 and ’780 Patents, such is a far cry from finding actual fraud or abuse
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`of the judicial system. Finjan respectfully maintains that in this case, as in all its cases, its goal
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`and strategy is to try to win on the record and the law. Finjan condemns improper gamesmanship,
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`and rejects Juniper’s suggestion that Finjan ever proceeded in anything but good faith and a
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`reasonable belief that it could win.
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`None of the authority cited by Juniper suggests that a finding of fraud or abuse of process
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`might be warranted on these facts. Juniper relies heavily on Raniere v. Microsoft Corp., No. 3:15-
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`cv-0540-M, 2016 WL 4626584 (N.D. Tex. Sept. 2, 2016), but that case is completely off point. It
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`begins with a detailed description of misconduct by Mr. Raniere in two arenas. First, it describes
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`how Mr. Raniere’s claim to standing depended entirely on his ownership of the asserted patents,
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`which he was unable to establish. 2016 WL 4626584, at *2–4. But despite that fundamental
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`inability, Mr. Raniere engaged in a campaign of “delay and contumacious conduct” with no
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`apparent goal except to waste the energies of the court and the parties. Id. at *4. This included
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`Mr. Raniere repeatedly stating that he would produce documents to secure his case, and then not
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`doing so, as well as various settlement proceedings that never amounted to anything, as well as
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`knowing submission of false documentation at various points. Id. At the end, the court
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`determined that Mr. Raniere had been proceeding in bad faith since the complaint, and awarded
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`fees. Id. at *5.
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`Raniere bears almost no resemblance to this case. Unlike Mr. Raniere, Finjan at all points
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`diligently prosecuted its case, mustering evidence and authority as needed. Certainly there were
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`problems in Finjan’s case. It lost, and the Court held certain of its conduct exceptional under
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`§ 285. But nothing here suggests the kind of meritless and “deplorable” conduct that supported
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`the Raniere sanction.
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`The other authority cited by Juniper is similarly off point. Each such case is predicated on
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`a record of misconduct that goes vastly beyond anything on the record here. One case involved a
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`a claim construction order that left “no possible way for Newegg’s products to infringe,” yet the
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`plaintiff pressed on through expert discovery. AdjustaCam LLC v. Amazon.com, Inc., No. 6:10-
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`cv-00329-JRG, 2018 WL 1335308, at *2 (E.D. Tex. Mar. 15, 2018). The court there awarded
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`about $68,000 in fees, reasoning that AdjustaCam had “abused the judicial process.” Id. at *5.
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`AdjustaCam does not support Juniper at all here. As discussed above, after the Daubert order,
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`Finjan did not proceed with further damages expert practice relating to the ’494 Patent. And as to
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`the ’780 Patent, as discussed above unanswered questions remained as to at least the “ATP
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`Appliance” product. This is all in addition to the total absence of evidence, discussed above, that
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`anything Finjan did was either fraud or abuse of process.
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`Juniper’s citation to Chambers, 501 U.S. at 46, fails even more egregiously. There, the
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`record showed Mr. Chambers’ extensive efforts to avoid fulfilling the contract he had executed to
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`sell his television station to NASCO. This included “unethical” attempts to transfer the station
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`into a trust (ultimately unsuccessful), refusal to permit inspection of corporate records, “meritless
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`motions and pleadings and delaying actions,” an attempt to obtain FCC permission to relocate the
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`station (ultimately blocked), a frivolous appeal (ruled as such from the bench by the Court of
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`Appeals), and improper removal of all equipment from the station. 501 U.S. at 35–40. The record
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`here does not even come close to the conduct that supported sanctions in Chambers. As discussed
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`above, Finjan had good faith reasons for its conduct throughout the case, and at no point attempted
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`to waste Juniper’s energy or the Court’s.
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`Finally Oplus Technologies, Ltd. v. Vizio, Inc., 782 F.3d 1371 (Fed. Cir. 2015), did no than
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`address a district court’s failure to substantiate its decision, and implement the changes in
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`exceptionality standards in Octane Fitness, LLC v. ICON Health & Fitness, Inc., 572 U.S. 545
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`(2014), which had issued after the appealed-from order. Oplus Technologies did not actually order
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`that any fees or expenses be awarded, only that “the [district] court must articulate the reasons for
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`Case 3:17-cv-05659-WHA Document 662 Filed 06/17/21 Page 12 of 14
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`its fee decision,” which it had not previously done. 782 F.3d at 1375–76. In any event, Oplus
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`recounts in detail a series of misconduct not present here, including but not limited to “flout[ing]
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`standards of appropriate conduct and professional behavior” in amendments to the complaint,
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`“ignoring well-settled law” in transfer motion practice, “misus[ing] the discovery process to harass
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`Vizio by ignoring necessary discovery [and] flouting its own obligations,” and “presenting
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`contradictory expert evidence and infringement contentions as well as misrepresenting legal and
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`factual support.” Id. at 1372–73. The record here falls far short of such evidence. Juniper, unable
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`to show actual misconduct by Finjan, instead essentially argues that though Juniper won, it should
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`have won sooner. That is not a basis for finding fraud or abuse of process, and it is not a basis on
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`which to confer to Juniper an undeserved windfall of more than $1.4 million. The Court should
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`reject Juniper’s arguments in their entirety.
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`III.
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`Juniper’s Request for $1,425,659.24 is Unreasonable and Excessive
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`Juniper presented its plea for this windfall to the Special Master, who appropriately
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`rejected it. But before that rejection, Finjan tendered detailed evidence that Juniper spent
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`unreasonable amounts both as to expert fee and travel expenses. For the former, Finjan urged that
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`any award of expert fees should not exceed about $600,000, which was roughly the amount Finjan
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`had spent on experts. For travel, Finjan presented its trial counsel’s travel expenses, which were
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`about $80,000, and urged that any award of travel expenses should not exceed that amount. See
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`generally Juniper Ex. 2 (excerpting Finjan’s submission).
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`The Special Master did not resolve this aspect of the parties’ dispute, because he
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`determined (properly) that Juniper is not entitled to expert fees or travel expenses. Should the
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`Court overrule the Special Master (unwarranted, in Finjan’s view), it should either (1) limit the
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`award to the amounts Finjan spent, or (2) remand to the Special Master for computation of the
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`appropriate amount.
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`IV.
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`Juniper’s Proposal is Procedurally Improper
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`Finally, the gist of Juniper’s brief is to ask that the Court open a new front in this dispute:
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`an assessment of whether there was extreme bad faith or abuse of the judicial process in Finjan’s
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`prosecution of the ’494 and ’780 Patents sufficient to warrant an award of expert fees and travel
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`Case 3:17-cv-05659-WHA Document 662 Filed 06/17/21 Page 13 of 14
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`expenses. This was not something Juniper ever sought in its November motion on attorney fees.
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`(See generally D.I. 634 (never mentioning expert fees or travel expenses)) That was strictly a
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`§ 285 fees motion. Juniper never asked for a “bad faith” determination sufficient to reach expert
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`fees or travel expenses, and accordingly, the Court never performed that analysis—and, for the
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`reasons above, even had Juniper sought such a determination neither the record nor the law would
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`have supported it.
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`Juniper attempts to conceal the fact that this is a brand-new dispute by citing a line in its
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`§ 285 motion where it “requests that the Court rule on Juniper’s previously filed motion for
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`sanctions.” (Id. at 2) But a request for the Court to rule on a prior motion filed after the first
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`showdown is not the same as a brand-new request for an order, at the close of the case, finding
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`abuse of process and/or fraud