Case 3:18-cv-02621-WHO Document 255 Filed 01/17/20 Page 1 of 39
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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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`CHECK POINT SOFTWARE
`TECHNOLOGIES, INC., et al.,
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`Case No. 18-cv-02621-WHO
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`
`ORDER GRANTING IN PART
`MOTION TO STRIKE SECOND
`AMENDED CONTENTIONS;
`GRANTING IN PART MOTIONS TO
`SEAL
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`Defendants.
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`Re: Dkt. Nos. 212, 213, 223, 229, 231, 234,
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`241
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`
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`I began the hearing on defendants Check Point Software Technologies, Inc. and Check
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`Point Software Technologies Ltd. (collectively “Check Point”) motion to strike plaintiff Finjan,
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`Inc.’s (“Finjan”) infringement contentions for the third time by hoisting onto the bench the six
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`bankers’ boxes of documents that had been filed to litigate the motion. See Defendants’ Motion
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`to Enforce Court Order and Strike Second Amended Infringement Contentions (“MTS SAIC”)
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`[Dkt. No. 213]. Finjan’s second amended infringement contentions (“SAICs”) amount to 5,135
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`charts, totaling to over 185,000 pages. This remarkably unreasonable filing hardly clarified
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`Finjan’s infringement theories.
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`I could not have resolved the propriety of the infringement contentions if I spent a month
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`doing nothing else. The absurdity of the Finjan’s SAICs was underscored by its response to the
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`tentative ruling I posted one day prior to the hearing. After issuing two detailed orders striking
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`Finjan’s contentions and spending weeks to unravel the parties’ positions as expressed in the
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`briefing, my tentative was almost totally against Finjan. At the start of the hearing, Finjan
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`abandoned its positions in response to much of the tentative. That may have been strategic, but it
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`left me wondering why it made the abandoned contentions in the first place.
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`Locating the basis that Finjan asserts is contained for the infringement contentions is akin
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`to going on an unsatisfying treasure hunt—you start with an appendix, move to a chart, and then
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`look to pages in the chart that are supposed to contain the treasure, but instead refer to a totally
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`different product. As explained below, I am ruling against Finjan on most of the remaining issues
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`that were briefed.
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`In normal litigation, that would be that. I would issue an order resolving the issues and the
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`parties would move to the next stage in the case. But this is abnormal. I do not pretend that I
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`reviewed all of Finjan’s 5,135 charts. Nor do I intend to waste more time parsing through this
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`mess contention by contention without briefing. I will not assume that none of the unbriefed
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`contentions pass muster, even though Finjan’s two strongest contentions failed (I asked Finjan in
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`the tentative to identify its two strongest contentions that clearly specify how the cited source code
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`shows that the accused products infringe a particular patent, and I will discuss in this Order why
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`even those lacked merit).
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`Check Point argues that the SAICs should be struck for six reasons (hereinafter “Issues 1-
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`6”). For the reasons provided below, I strike with prejudice all contentions identified by Check
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`Point under Issues 1, 2, 3, and 5. I will appoint a master pursuant to Federal Rule of Civil
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`Procedure 53 to determine if the other 69 combination charts should also be struck for failure to
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`adequately identify and explain combinations, as argued in Check Point’s Appendix C and
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`Finjan’s Rebuttal Appendix C. See infra Section I.C (discussing Issue 3). The master shall also
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`determine if the entirety of the SAICs should be struck for inadequate source code citation
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`explanations, as argued in Check Point’s Appendix A, Finjan’s Rebuttal Appendix A, and Check
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`Point’s Reply Appendix. See infra Section I.F (discussing Issue 6).1
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`Finjan shall pay the master’s fees and costs. The master shall have the power to
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`1 As a general matter, just because a contention crosses one of the issue hurdles, it does not
`necessarily mean that it is sufficiently alleged because it could fail to cross another issue hurdle. I
`emphasize this because Finjan repeatedly argues that providing source code citations is enough to
`amount to a sufficiently alleged infringement contention. That is just one hurdle; whether that
`source code citation is then adequately explained and connected to the claim limitation is another
`hurdle that it must cross as well.
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`Case 3:18-cv-02621-WHO Document 255 Filed 01/17/20 Page 3 of 39
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`recommend reallocating some or all of the fees to Check Point, and also to award attorney’s fees
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`to the prevailing party for the proceedings before her as a discovery sanction. While I suspect that
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`Finjan would be well advised to substantially reduce the size of its SAICs before the master
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`commences her review, I have not analyzed the issues not addressed in this Order and defer to the
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`master’s review of the issues before her.2
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`BACKGROUND
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`I.
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`FACTUAL BACKGROUND
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`A.
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`Narrowing Order
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`In September 2018, I received briefing from the parties on how to manage this litigation in
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`compliance with Federal Rule of Civil Procedure 1’s mandate of a “just, speedy, and inexpensive
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`determination of this action[.]” Order Re Case Narrowing and Infringement Contentions (the
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`“Narrowing Order”) [Dkt. No. 29]. I then ordered Finjan to serve its infringement contentions
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`under specifications that largely follow the provisions of this District’s Patent Local Rules as well
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`as the guidance provided in the since withdrawn 2013 Model Order from the Federal Circuit. See
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`Narrowing Order. Finjan was instructed to “include pinpoint source code citations . . .
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`accompanied by the document production required by Patent Local Rule 3-2” and to also:
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`(i) avoid open-ended citations to “exemplary” products and use of the
`terms “such as” and “for example”; (ii) set forth any infringement
`theories based on the doctrine of equivalents with limitation-by-
`limitation analyses; and (iii) for any indirect theories of infringement,
`identify the alleged direct infringement, the alleged acts of
`inducement or contribution to that infringement, and the relationship
`between them.
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`Id. at 2.
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`B.
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`Order on Infringement Contentions
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`On November 2, 2018, Finjan served its infringement contentions on Check Point, which
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`then moved to strike the infringement contentions, arguing that they violated my Narrowing Order
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`and the Patent Local Rules. See Check Point’s Motion to Enforce Court Order and Strike
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`2 At the end of this Order I rule on the motions to seal. I will give the parties five days to review
`this Order before issuing it publicly to ensure that I have redacted the appropriate information in it.
`If there is any other portion that should be redacted, the parties should file a declaration in five
`days explaining why good cause exists to redact it.
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`Infringement Contentions [Dkt. No. 55] 1-3, 15-24. I largely agreed that Finjan’s infringement
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`contentions failed to comply, and made several rulings that I summarize below. See Order
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`Granting Motion to Strike in Part; Granting Motions to Seal; Granting Motion to Amend Claim
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`Construction Schedule (the “IC Order”) [Dkt. No. 84].
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`1.
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`Grouping
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`First, I required Finjan to organize its infringement contentions by the underlying
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`instrumentalities rather than into five groups of products, because that would assist both the parties
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`and me in determining precisely how Check Point’s products do or do not infringe Finjan’s patents
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`as well as to aid Finjan’s efforts to provide specific source code citations. IC Order at 7. I ordered
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`that Finjan specify any combinations of the underlying instrumentalities that it believed were
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`infringing. Id. Although it might be true that Check Point sells its products to consumers in
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`bundles, I reasoned that separating out infringement contentions by the underlying
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`instrumentalities would be consistent with the purpose of Patent Local Rules because it would
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`make the litigation process more efficient and discovery more streamlined. Id.
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`2.
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`Pinpoint Source Code Citations
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`Second, I ordered Finjan to provide pinpoint source code citations that show “where and
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`how each limitation of each asserted claim is found within each Accused Instrumentality” as
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`required by the Patent Local Rules. IC Order at 12. In doing so, I rejected Finjan’s arguments
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`that its infringement contentions were sufficient to disclose its infringement theories because they
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`provided an overall infringement analysis that included both source code citations and public
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`information. Id. at 7-12. I noted that many of the same sets of source code within the same
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`product category were cited across different claims of different patents. Id.
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`3.
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`Open-Ended Contentions
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`Third, I held that Finjan’s infringement contentions impermissibly contained open-ended
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`citations to exemplary products in violation of the Narrowing Order. IC Order at 13-14. I found
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`that Finjan’s citation to numerous releases of Check Point’s products were ambiguous and that it
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`was unclear which releases applied to which products in the voluminous list cited by Finjan. Id.
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`Case 3:18-cv-02621-WHO Document 255 Filed 01/17/20 Page 5 of 39
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`4.
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`New Instrumentalities
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`Fourth, I found that Finjan failed to show good cause to accuse 16 new instrumentalities
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`not previously identified pursuant to the Narrowing Order. IC Order at 14. However, I permitted
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`Finjan to add these 16 new instrumentalities to its next set of contentions so long as it did so
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`“consistent with the order’s guidance.” Id. I granted Check Point’s motion to strike in part and
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`ordered Finjan to serve amended infringement contentions that were in accordance with my IC
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`Order, Narrowing Order, and the Patent Local Rules. Id. at 15.
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`C.
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`Order on Amended Infringement Contentions
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`Finjan then served its amended infringement contentions (“AICs”) and Check Point moved
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`to strike the AICs, arguing that they were deficient in largely the same ways as before. See
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`Defendants’ Motion to Strike Amended Infringement Contentions (“MTS AIC”) [Dkt. No. 126]. I
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`agreed and made several rulings that I summarize below.3 See Order Granting Motion to Strike
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`Infringement Contentions in Part (the “AIC Order”) [Dkt. No. 192].
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`1.
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`Grouping
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`First, Check Point argued that Finjan violated the directives in the IC Order by renaming
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`its “groups” of products as the instrumentalities themselves and then referring to the actual
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`products in the groups as “features.” MTS AIC at 15-18. It identified Finjan’s charts as
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`purporting to describe infringement theories on the following actual products:
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`• Network Security Products: IPS, Anti-Bot, Anti-Virus, Threat Emulation, Threat
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`Extraction.
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`• Endpoint Security: Threat Emulation, Threat Extraction, AntiPhishing (zero
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`phishing), Anti-Ransomware, Anti-Bot, Forensics, Anti-Exploit, Anti-Virus, Anti-
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`Malware, SmartEvent.
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`• ZoneAlarm: Advanced Firewall, OSFirewall, Threat Emulation, Browser
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`Protection.
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`• ThreatCloud: Threat Emulation.
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`3 I did deny Check Point’s motion to strike to the extent that it argued that Finjan’s doctrine of
`equivalents contentions fell short. AIC Order at 12.
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`Case 3:18-cv-02621-WHO Document 255 Filed 01/17/20 Page 6 of 39
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`• CloudGuard: CloudGuard SaaS.
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`• Sandblast Mobile.
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`Id. at 16-17. It asked that I strike the remaining contentions from the AICs. Id.
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`I found that Finjan failed to follow the IC Order requiring that it organize its infringement
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`contentions by the underlying instrumentalities that it was accusing. AIC Order at 7. Where
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`Finjan accused certain products of infringing in combination, it also failed to follow the IC Order
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`directing it to specify the combination. Id. I struck these charts with leave to amend to specify the
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`combination and describe how such a combination would infringe. Id. at 7-8.
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`2.
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`Pinpoint Source Code Citations
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`Second, Check Point argued that the AICs lacked source code citations for most accused
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`products and that any citations provided are inadequate and unexplained. MTS AIC at 19-22. It
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`contended that Finjan failed to provide any source code citations for 30 of the 52 accused
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`instrumentalities. Id. at 20; see Appendix 1 - Source Code Citations, attached to MTS AIC [Dkt.
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`No. 126-1] (hereinafter “Appendix 1”); Appendix 2 - List of Contentions for which Source Code
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`Citations Provided for Each Element [Dkt. No. 126-1] (hereinafter “Appendix 2”).
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` As I noted in the hearing on the MTS AIC, Finjan did not oppose this argument. See
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`Transcript of Proceedings held on July 10, 2019 [Dkt. No. 190] 3:12-17 (“Check Point says in its
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`brief that there was no code cited for 30 of the 52 accused instrumentalities, and there wasn’t a
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`response to that in the briefing that I saw. So if that’s true, then I would grant that with prejudice
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`and only allow the contentions that are listed in Check Point’s Appendix 2 to continue.”). I found
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`that Finjan had already been directed to provide pinpoint source code citations for each limitation
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`and held that “[t]o the extent any or all of the 30 of the accused instrumentalities lack pinpoint
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`citations, they are struck with prejudice.” AIC Order at 11. Where Finjan used the same source
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`code for different things, I allowed it to “amend its infringement contentions to better explain why
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`the same source code [] applies to wholly different limitations.” Id.
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`3.
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`New Instrumentalities
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`Third, without seeking leave or showing good cause, Finjan’s AICs expanded the scope of
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`the case by accusing products, functionalities and marketing terms not previously identified. AIC
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`Order at 12-14; see Appendix 3 - List of New Products Added to Finjan’s Amended Infringement
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`Contentions, attached to MTS AIC [Dkt. No. 126-1] (hereinafter “Appendix 3”). I noted that
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`although I previously let Finjan add new products to its ICs, I was not inclined to do so again.
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`AIC Order at 13. Accordingly, I struck all such new products and undefined instrumentalities. Id.
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`at 14 (“Any products not charted in the initial infringement contentions are struck without leave to
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`amend.”).
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`Altogether, I allowed Finjan limited leave to amend its infringement contentions “one last
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`time within fourteen days.” AIC Order at 18. I cautioned that “if any of its infringement
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`contentions remain deficient, they may not form the basis for relief in this action.” Id.
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`II.
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`PROCEDURAL BACKGROUND
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`Following the AIC Order, Check Point sent Finjan a 36-page letter explaining many
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`examples of the deficiencies in Finjan’s AICs. See Declaration of Alyssa Caridis In Support of
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`Defendants’ Motion to Enforce Court Order and Strike Second Amended Infringement
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`Contentions (“Caridis Decl.”), Ex. A (copy of letter from C. Roberts to P. Andre dated August 20,
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`2019) [Dkt. No. 212-7].
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`On August 26, 2019, Finjan served its SAICs, containing 5,135 claim charts and totaling
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`more than 185,000 pages. Caridis Decl., ¶ 2. On October 18, 2019, Check Point filed a motion to
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`strike the SAIC. See MTS SAIC. Finjan filed an opposition, which it later retracted for a
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`corrected opposition. See Corrected Plaintiff’s Opposition to Motion to Enforce Court Order and
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`Strike Second Amended Infringement Contentions (“Oppo.”) [Dkt. No. 232]. Check Point filed a
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`reply. See Defendants’ Reply In Support of Motion to Enforce Court Order and Strike Second
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`Amended Infringement Contentions (“Reply”) [Dkt. No. 235]. I heard oral argument on
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`December 4, 2019.
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`Patent Local Rule 3-1 requires:
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`LEGAL STANDARD
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`[A] party claiming patent infringement shall serve on all parties a ‘Disclosure of
`Asserted Claims and Infringement Contentions[]’ . . . [which] shall contain the
`following information:
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`(a) Each claim of each patent in suit that is allegedly infringed by each opposing
`party, including for each claim the applicable statutory subsections of 35 U.S.C. §
`271 asserted;
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`(b) Separately for each asserted claim, each accused apparatus, product, device,
`process, method, act, or other instrumentality (“Accused Instrumentality”) of each
`opposing party of which the party is aware. This identification shall be as specific
`as possible. Each product, device, and apparatus shall be identified by name or
`model number, if known. Each method or process shall be identified by name, if
`known, or by any product, device, or apparatus which, when used, allegedly results
`in the practice of the claimed method or process;
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`(c) A chart identifying specifically where each limitation of each asserted claim is
`found within each Accused Instrumentality, including for each limitation that such
`party contends is governed by 35 U.S.C. § 112(6), the identity of the structure(s),
`act(s), or material(s) in the Accused Instrumentality that performs the claimed
`function.
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`(d) For each claim which is alleged to have been indirectly infringed, an
`identification of any direct infringement and a description of the acts of the alleged
`indirect infringer that contribute to or are inducing that direct infringement. Insofar
`as alleged direct infringement is based on joint acts of multiple parties, the role of
`each such party in the direct infringement must be described.
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`(e) Whether each limitation of each asserted claim is alleged to be literally present
`or present under the doctrine of equivalents in the Accused Instrumentality.
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`“The overriding principle of the Patent Local Rules is that they are designed [to] make the parties
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`more efficient, to streamline the litigation process, and to articulate with specificity the claims and
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`theory of a plaintiff’s infringement claims.” Bender v. Maxim Integrated Prods., No. 09-cv-
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`01152-SI, 2010 WL 1135762, at *2 (N.D. Cal. Mar. 22, 2010) (alteration in original) (internal
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`citation omitted). Patent Local Rule 3-1 is intended to require the plaintiff “to crystallize its
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`theories of the case early in the litigation and to adhere to those theories once disclosed.” Bender
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`v. Advanced Micro Devices, Inc., No. 09-cv-1149-EMC, 2010 WL 363341, at *1 (N.D. Cal. Feb.
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`1, 2010). It “takes the place of a series of interrogatories that defendants would likely have
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`propounded had the patent local rules not provided for streamlined discovery.” Network Caching
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`Tech., LLC v. Novell, Inc., No. 01-cv-2079-VRW, 2002 WL 32126128, at *4 (N.D. Cal. Aug. 13,
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`2002).
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`“[A]ll courts agree that the degree of specificity under Local Rule 3-1 must be sufficient to
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`provide reasonable notice to the defendant why the plaintiff believes it has a ‘reasonable chance of
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`proving infringement.’” Shared Memory Graphics LLC v. Apple, Inc., 812 F. Supp. 2d 1022,
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`1025 (N.D. Cal. 2010) (quoting View Eng’g, Inc. v. Robotic Vision Sys., Inc., 208 F.3d 981, 986
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`(Fed. Cir. 2000)). The local rules do not “require the disclosure of specific evidence nor do they
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`require a plaintiff to prove its infringement case . . . a patentee must nevertheless disclose what in
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`each accused instrumentality it contends practices each and every limitation of each asserted claim
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`to the extent appropriate information is reasonably available to it.” DCG Sys. v. Checkpoint
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`Techs., LLC, No. 11-cv-03792-PSG, 2012 WL 1309161, at *2 (N.D. Cal. Apr. 16, 2012).
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`DISCUSSION
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`I.
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`MOTION TO STRIKE SECOND AMENDED INFRINGEMENT CONTENTIONS
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`Check Point moves to strike the SAICs with prejudice because Finjan: “(1) accuses
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`products and theories struck with prejudice by the Court; (2) asserts new theories, claims, and
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`combinations; (3) continues to accuse combinations without explaining which parts of the
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`combination meet which limitation or how the combination of products act together to infringe;
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`(4) relies on new open-ended contentions and citations to the entire code base for accused
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`instrumentalities; (5) has not provided pinpoint source code citations for numerous contentions;
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`and (6) still fails to specify how Check Point’s products infringe Finjan’s patents.” MTS SAIC 1-
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`2 (emphasis in original).
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`I provided parties with a tentative ruling on each of these six issues and ordered Finjan to
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`identify two of its strongest contentions in response to Issue 6 that clearly specified how the cited
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`source code shows that the accused products infringe a particular patent. See Tentative Ruling
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`[Dkt. No. 242]. At the hearing, both parties presented arguments and, as indicated below, Finjan
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`stipulated to a number of my tentative rulings. I address each issue below.
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`A.
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`Issue 1: Finjan Continues to Accuse Products That Were Previously Struck
`with Prejudice
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`1.
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`Issue 1(a): The SAICs include products previously struck because
`Finjan did not provide source code citations in its AICs.
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`In Check Point’s previous motion to strike the AICs, it explained that Finjan failed to cite
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`any source code for 30 of the 52 accused instrumentalities. MTS AIC 20. Check Point
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`documented these 30 instrumentalities in Appendix 1 attached to its MTS AIC, which set forth
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`precisely where source code citations were provided and where they were missing. See Appendix
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`1 [Dkt. No. 126-1]; MTS SAIC 7. In my order striking the AICs, I held that “[t]o the extent that
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`any or all 30 of the accused instrumentalities lack pinpoint citations, they are struck with
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`prejudice.” AIC Order at 11. Check Point now argues that despite my order, Finjan’s SAICs
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`continue to accuse products that were previously struck with prejudice. MTS SAIC 7.
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`Check Point uses three instrumentalities as examples: Network Firewall, Network Anti-
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`Spam & E-mail Security, and Capsule Cloud. It contends that these three instrumentalities were
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`struck with prejudice during the AIC round because Finjan did not provide any source code
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`citations. MTS SAIC 7. Yet Finjan’s SAICs includes these three products, and Check Point asks
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`that I make clear that those products are not part of this case. Id.4
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`At the hearing, Finjan stipulated to striking 27 of the accused instrumentalities, but still
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`argued that the three examples identified by Check Point should not be struck because pinpoint
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`citations were provided in the AICs. For the reasons explained below, all 30 instrumentalities
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`listed at the end of this section are struck with prejudice.
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`a.
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`Network Firewall
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`Finjan contends that it cited “the very same code that Check Point confirmed the Firewall
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`uses in its interrogatory responses.” Oppo. 4; see Declaration of Kristopher Kastens (“Kastens
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`Decl.”) [Dkt. No. 225-13] ¶ 3; see also id., Ex. 2 at 1, 5 (paper copy of Check Point’s
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`4 In addition to arguing that Finjan’s factual assertions about the three examples are false, Check
`Point also contends that Finjan should be barred from relitigating this matter. Reply 1. It points
`out that Finjan never responded to its representations made in Appendix 1 during the AIC round,
`nor included any argument disputing its accuracy, in either its opposition or supplemental briefing.
`Id. Finjan did not contest the accuracy of the Appendices in the last hearing. See Transcript of
`Proceedings held on July 10, 2019 [Dkt. No. 190] 2:13-17. Check Point asserts that Finjan’s
`attempt to seek reconsideration of the prior AIC Order should be rejected because it “submitted
`evidence about which products did not have pin citations, Finjan did not dispute that evidence, and
`the Court relied on that record in issuing its order.” Reply 1-2.
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`It is true that Check Point made the assertion in its AIC briefing and Appendices that there were
`30 instrumentalities that had no source code citations, and Finjan made no argument regarding the
`accuracy of that assertion. But I did not make a finding that those 30 instrumentalities were
`struck. There was no argument about the accuracy of that assertion. Instead, I held that “[t]o the
`extent any or all of the 30 of the accused instrumentalities lack pinpoint citations, they are struck
`with prejudice.” AIC Order at 11 (emphasis added). This question is not being “relitigated,” as
`Check Point phrases it. But for different reasons, all 30 instrumentalities are struck with
`prejudice.
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`Case 3:18-cv-02621-WHO Document 255 Filed 01/17/20 Page 11 of 39
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`Supplemental Response to Finjan’s Interrogatory No. 9, which has been designated as source
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`code) (hereinafter “Rog. 9”).5 As Check Point points out, this is false. Reply 2. Comparing the
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`source code cited by Finjan with Rog. 9 shows that Finjan did not cite any of the code categorized
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`as Network Firewall code. See Rog. 9 at 1-7. Finjan’s argument fails.
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`b.
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`Network Anti-Spam & E-mail Security
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`Finjan similarly argues that it cited to the same code that Check Point confirmed is used by
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`Anti-Spam. Oppo. 5. To support its argument, Finjan cites to the source code citations it provided
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`in its SAICs. See Declaration of Lisa Kobialka in Support of Plaintiff Finjan, Inc.’s Opposition to
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`Defendants’ Motion to Enforce Court Order and Strike Second Amended Infringement
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`Contentions (‘Kobialka Decl.”) [Dkt. No. 225-2] ¶ 14; see also id., Ex. 11 at 7 [Dkt. No. 223-11]
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`(copy of SAIC chart “Appendix A - Network Anti-Spam & E-mail Security” for the ‘494 Patent).
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`But the issue here is whether Finjan accused this product in its AICs, or whether it failed to
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`provide any source code citations for it in its AICs such that it was previously struck with
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`prejudice.
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`Even if I look at the source code citations Finjan provided for Network Anti-Spam in its
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`SAICs, Check Point points out that Finjan cited to code that provides services to the Anti-Spam
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`blade, but did not identify code that is part of that blade. Reply 3; see Rog. 9 at 44-45. As Check
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`Point argues, this is “not a small distinction” because “for example Google’s web servers provides
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`services to your Microsoft browser, but they are not part of your browser.” Reply 3.
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`c.
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`Capsule Cloud
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`Finjan argues that it provides pincites for Capsule Cloud by incorporating by reference the
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`citations for other instrumentalities because Capsule Cloud is just the cloud version of those
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`blades. Oppo. 4; see Kastens Decl., Ex. P at 1-4 [Dkt. No. 224-8] (copy of AIC chart “Appendix
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`A-6” for Capsule Cloud for the ‘494 Patent). Check Point responds that this argument is also false
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`because Finjan’s AICs did not cite to any Capsule Cloud code. Reply at 3, n.3 (citing to
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`5 As explained further in Section II of this opinion, a manual filing of this exhibit does not suffice.
`Check Point must e-file an electronic copy under seal so that it is properly part of the record of this
`case.
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`Case 3:18-cv-02621-WHO Document 255 Filed 01/17/20 Page 12 of 39
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`Declaration of Tamir Zegman In Support of Reply Brief to Strike Second Amended Infringement
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`Contentions [Dkt. No. 235-2] ¶ 11 (describing that there is a specific source code directory for
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`Capsule Cloud products but that Finjan’s AICs have never cited to any code in that directory)); see
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`also Rog. 9 at 735 (list of Capsule Cloud source code).
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`Even if Finjan was attempting to claim that non-Capsule Cloud code shows infringement,
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`it does not explain that theory and instead simply provides a one-sentence incorporation by
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`reference placeholder for Capsule Cloud. I expressly directed Finjan to “better explain why the
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`same source code [] applies” to different things. AIC Order at 11. This example shows that
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`Finjan has failed to do that as to Capsule Cloud.
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`Accordingly, the following 30 instrumentalities are struck with prejudice. Finjan
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`stipulated to striking 27 of them and its arguments as to the three products discussed above fail.
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`//
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`Case 3:18-cv-02621-WHO Document 255 Filed 01/17/20 Page 13 of 39
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`“Check Point Blade Architecture”
`1. Firewall
`2.
`IPSec VPN
`3.
`Identity Awareness
`4. Advanced Networking and Clustering
`5. Application Control
`6. URL Filtering
`7. Anti-Spam & E-mail Security
`8. Data Loss Prevention (DLP)
`9. Mobile Access Blade
`10. Network Policy Management
`11. Endpoint Policy Management
`12. Next-Generation SmartEvent
`13. Logging and Status
`14. Compliance
`15. SmartWorkflow
`16. SmartProvisiong
`17. Monitoring
`18. Management Portal
`19. User Directory
`Endpoint Security (Enterprise)
`20. SmartLog
`ZoneAlarm
`21. Two-Way Firewall
`22. Antivirus and Anti-spyware
`“ThreatCloud”
`23. IPS
`24. Anti-Bot
`25. Anti-Virus
`26. URL Filtering
`27. Application Control
`28. Private ThreatCloud
`“Capsule Cloud”
`29. No code cite. Only references “Check Point Blade Architecture” charts
`“Check Point Appliances”
`30. No code cite. Only references “Check Point Blade Architecture” charts
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`I strike these instrumentalities with prejudice because Finjan continues to cite unrelated
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`code by referring to directories that are not related to the accused product. Check Point provided
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`Finjan with its code for each accused product in Rog. 9 before Finjan served its AICs. It should
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`have been able to cite to the proper code for each accused product.
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`2.
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`Issue 1(b): The SAICs include contentions previously struck because
`Finjan provided pinpoint citations for only some elements of an
`asserted claim in its AICs.
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`Other than the 30 instrumentalities discussed above, there are contentions for some
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`products