Case 3:18-cv-02621-WHO Document 264-4 Filed 03/27/20 Page 1 of 19
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`Exhibit C
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`Case 3:18-cv-02621-WHO Document 264-4 Filed 03/27/20 Page 2 of 19
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
`
`BEFORE THE HONORABLE WILLIAM H. ORRICK
`
`)
`FINJAN, INC.
`)
`
` )
` Plaintiff, )
` )
` vs. ) No. C 18-2621 WHO
` )
`CHECK POINT SOFTWARE TECHNOLOGIES, )
`INC.
`)
` ) San Francisco, California
` Defendant. ) Wednesday
` ) February 13, 2019
`___________________________________) 2:00 p.m.
`
`
`TRANSCRIPT OF PROCEEDINGS
`
`APPEARANCES:
`
`For Plaintiff: KRAMER LEVIN NAFTALIS & FRANKEL LLP
` 990 Marsh Road
` Menlo Park, CA 94025
` BY: JAMES R. HANNAH, ESQ.
` KRISTOPHER BENJAMIN KASTENS, ESQ.
`
`
`
`For Defendant: ORRICK, HERRINGTON & SUTCLIFFE LLP
` 405 Howard Street
` San Francisco, CA 94105
` BY: CLEMENT S. ROBERTS, ESQ.
`
` ORRICK, HERRINGTON & SUTCLIFFE
` 1000 Marsh Road
` Menlo Park, California 94025
` BY: EVAN DAVID BREWER, ESQ.
`
`
`
`CRR, RMR, RPR
`Reported By: Debra L. Pas, CSRReported By: Debra L. Pas, CSRReported By: Debra L. Pas, CSRReported By: Debra L. Pas, CSR 11916 11916 11916 11916, , , , CRR, RMR, RPRCRR, RMR, RPRCRR, RMR, RPR
`
`
`
`
`
` Official Reporter - US District Court
` Computerized Transcription By Eclipse
`
` Debra L. Pas, CSR, RPR, RMR, CRR
` Official Reporter - U.S. District Court - San Francisco
` (415) 431-1477
`
`

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`Wednesday - February 13, 2019 2:14 p.m.
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`P R O C E E D I N G S
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`---000---
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`THE CLERK: Calling Civil Matter 18-2621, Finjan,
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`Incorporated versus Check Point Software Technologies,
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`Incorporated.
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`Counsel, please come forward and state your appearance.
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`MR. ROBERTS: Good morning, Your Honor. Clem Roberts
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`from Orrick Herrington for the defendant Check Point Software
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`Technologies.
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`MR. HANNAH: Good morning, Your Honor. James Hannah
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`on behalf of Finjan, and with me is Chris Kastens. He will be
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`handling the majority of the argument today.
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`THE COURT: Mr. Hannah, I've seen you before.
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`MR. HANNAH: Yes. Nice to see you, Your Honor.
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`THE COURT: Nice to see you. I hope that my comment
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`at the first case management session was passed on to you.
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`MR. HANNAH: It was, Your Honor. And I have to say
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`that at every subsequent trial I have made sure not to make any
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`assumptions any more and definitely took it to heart. So thank
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`you, your Honor.
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`THE COURT: All right. So let me tell you what I
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`think about the motion. I'm inclined to grant in almost all
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`ways the motion to strike.
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`Finjan needs to organize its infringement contentions by
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` Debra L. Pas, CSR, RPR, RMR, CRR
` Official Reporter - U.S. District Court - San Francisco
` (415) 431-1477
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`

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`the underlying instrumentalities to crystalize the contentions.
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`If the underlying instrumentalities infringe in combination,
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`the combination needs to be specified. Pinpoint citations need
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`to be specific, particularly to where and how each limitation
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`of each asserted claim is found within the accused
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`instrumentality.
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`It's not sufficient to cite multiple sets of source code
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`under each claim limitation without explanation. The public
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`information that's cited isn't sufficient to cure the problem.
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`And I don't think blaming Check Point is a useful way to
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`resolve this problem. If there was a problem in getting
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`technical documents, you shouldn't have waited until the last
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`two days before the deadline to serve contentions.
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`And I think, Mr. Hannah, we had something similar in
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`that -- the trial before. I think a similar kind of issue came
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`up.
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`In any event, regarding the open-ended contentions, Finjan
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`can't reserve any undisclosed theories of infringement. It
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`needs to cite the relevant source code to crystallize its
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`claims.
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`So as long as Finjan corrects all of those things and
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`identifies the source code properly, I'm not going to strike
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`any new instrumentalities. But everything has to be laid out
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`in a very clear manner, which it doesn't appear that it has
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`been.
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` Debra L. Pas, CSR, RPR, RMR, CRR
` Official Reporter - U.S. District Court - San Francisco
` (415) 431-1477
`
`

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`So I'm happy to hear argument with respect to that.
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`MR. KASTENS: Your Honor, I would just respectfully
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`request that we have an opportunity to depose their engineer,
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`who was the one who said that we didn't cite source code for
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`particular products. Our understanding is that we did cite
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`source code for the products and anything that we had accused.
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`So we would like to determine the basis that they made that
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`representation. A lot of his analysis was a black box where he
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`just said they didn't cite source code for these following
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`products without explaining.
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`I think as we tried to lay out in our brief, they have
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`usually just one directory for all the source code. They will
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`have one software package that they give to their customers.
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`The customers can then enable different features in that. They
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`call those different features products and they rely on a lot
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`of source code that is within the same directory and is not
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`labeled as being related to any product. So we would just ask
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`to have the opportunity to depose somebody, a 30(b)(6) witness,
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`regarding the structure of their source code and then we can
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`supplement within 45 days of that to address that.
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`THE COURT: Mr. Roberts.
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`MR. ROBERTS: Yeah. So this is difficult for me
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`because the -- we addressed this at the very beginning of the
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`case, and we said we would like contentions that give us the
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`theories of the case. Those are necessary, among other things,
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` Debra L. Pas, CSR, RPR, RMR, CRR
` Official Reporter - U.S. District Court - San Francisco
` (415) 431-1477
`
`

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`to prepare witnesses for deposition.
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`I mean, saying you get nothing from us in this giant
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`confusing mass and then we want to take the deposition where
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`you have no way to prepare the guy to even know what the
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`theories are, and then after I've taken your 30(b)(6)
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`witness -- which, by the way, they only said they wanted the
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`30(b)(6) for the first time yesterday. That was the very first
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`time. This is now February, where they served an email -- by
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`email, not even a notice -- where they said we want to take the
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`30(b)(6) depo.
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`So, I mean, on one hand, yeah, they ought to be able to
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`get some information about the products at some point, but the
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`initial contentions, what their theories are, I don't know that
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`they need to take the 30(b)(6) witness or the senior architect
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`in order to tell us what their infringement contentions are.
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`You always have good cause to amend if you disclose new things
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`afterwards.
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`But if they brought this case, they ought to be able to at
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`the outset say how we infringe and have some theory of it.
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`They've had months now with the source code. They asked to
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`come back and see the source code on a Friday. We said no
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`problem. Then they came in and they saw it again on Monday.
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`That was two weeks ago. Why are we now in February where all
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`of a sudden for the very first time, okay, now you got us. Now
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`we want to take a whole bunch of discovery before we tell you
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` Debra L. Pas, CSR, RPR, RMR, CRR
` Official Reporter - U.S. District Court - San Francisco
` (415) 431-1477
`
`

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`what our theories are.
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`So on one hand, Your Honor, I'm reluctant to say no, but
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`on the other hand, I sort of feel like they ought to give us
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`their theories and then take the deposition so I can adequately
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`prepare the witness.
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`MR. KASTENS: Your Honor, I believe our theories are
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`what we -- our contentions for infringement are fully disclosed
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`within the charts. If you're interested in something that is a
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`little bit more digestible and easier to understand, I think we
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`can abide by that, but what our contentions are is fully laid
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`out.
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`In their briefing, t hey just -- they completely ignore,
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`you know, the public information that we do where it points to
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`what we're accusing and then we follow with source code
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`citations to address those.
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`And then, you know, for the source code citations I would
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`just like to comment that we do identify specific files and
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`line numbers within those files. A lot of time there is more
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`source code than multiple files that will enable certain
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`functionality or a component within the source code. So that's
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`why we would have had laid it out like that to address. I
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`don't think we did overarching source code citations.
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`I was at the case that you referenced for Mr. Hannah as
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`well. I think the issue was there that we would cite whole
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`source code directories. We have not done that. We have cited
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` Debra L. Pas, CSR, RPR, RMR, CRR
` Official Reporter - U.S. District Court - San Francisco
` (415) 431-1477
`
`

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`specific source code files and had some narrative to describe
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`what those files implement.
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`MR. ROBERTS: Can I respond to that as a factual
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`matter, because I think it would be helpful.
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`THE COURT: Sure.
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`MR. ROBERTS: This is their Exhibit F, if I could
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`hand this up.
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`THE COURT: Is this going to be meaningful to me,
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`Mr. Roberts?
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`MR. ROBERTS: I think so, I think so.
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`(Whereupon document was tendered to the Court.)
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`MR. ROBERTS: So this is not an example I've chosen.
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`This is the example they chose in their opposition brief about
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`what they did that they thought was really good. So this was
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`their cherry-picked example of the good job they did.
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`So if you turn to just page one, Your Honor, of Appendix
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`F-2, it lists by saying what the accused products are. And you
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`can see it says, this is the second paragraph:
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`"For purposes of this chart Endpoint Enterprise
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`products include the following subscription services
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`or products."
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`And then there is a big long list of products. "SandBlast
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`Agent package, Compliance package, Next Generation AV,
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`Protection package." A whole bunch of other things.
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`And then it says it includes the following blades. And
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` Debra L. Pas, CSR, RPR, RMR, CRR
` Official Reporter - U.S. District Court - San Francisco
` (415) 431-1477
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`there is one, two, three, four, five, six, seven, eight, nine,
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`ten -- 12, 13 blades.
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`And then it says, it also is accusing:
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`"The use of cloud services which provide threat
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`intelligence feeds to Endpoint Enterprise products" --
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`so now we have a category of technology -- "and a
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`download or browser protection feature or similar
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`feature which blocks files before they are downloaded
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`to the end-user computer."
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`And then below that it says:
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`"As identified and described element by element
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`below Endpoint Enterprise products individually or in
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`combination with Check Point's cloud services,
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`footnote two, infringe the following claims."
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`And the footnote says that the cloud services, which is an
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`entire other chart with another 50 products in it, is
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`incorporated entirely by reference into this.
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`So the point here, Your Honor, is that just at the
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`beginning what we have is an amalgamation of products and an
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`amalgamation of charts.
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`If you look at the -- I think it's GeoVector case that
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`Your Honor, I'm sure, is familiar with, in that case -- this is
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`the exact same thing, but it's worse because they are
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`amalgamating a huge amount of products.
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`Now, opposing counsel said, well, we gave them specific
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` Debra L. Pas, CSR, RPR, RMR, CRR
` Official Reporter - U.S. District Court - San Francisco
` (415) 431-1477
`
`

`

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`source code citations. If I could ask Your Honor to look down
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`in this, starting at -- I want to start at limitation B-1,
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`because this is the one that was used. This is Page 10 of this
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`first thing. This is "receiving by an inspector a
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`downloadable," starting on Page 10.
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`And then if you look down, the source code citations begin
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`on Page 19. And you will see the source code citations take up
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`19, 20, 21, 22, 23, 24, 25, 26 and half of 27.
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`And what they said in their brief, in their opposition, is
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`that if you turn to Page 25, in the middle of the page there is
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`a statement that says "This file implements a Chrome extension
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`manager" and it cites the file. And they say voila, pinpoint
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`source code citation.
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`What they've done is they have given me literally 90
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`citations and then in the brief they said, oh, you should have
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`known that this was the needle we were pointing at. But that's
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`impossible because, among other things, all 90 of these are
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`copied into every single limitation of every single claim,
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`including the one that they now point to.
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`So when opposing counsel says, we gave them very clear
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`descriptions of what the source code was, we weren't citing to
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`whole directories. They cited to 90 entire files and then they
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`cited those same 90 files for every limitation. There is no
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`way for me to know what they pointed to.
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`And how am I supposed to prepare Mr. Zegman. This is
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` Debra L. Pas, CSR, RPR, RMR, CRR
` Official Reporter - U.S. District Court - San Francisco
` (415) 431-1477
`
`

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`millions of lines of code; right? How am I supposed to prepare
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`anyone to testify about this stuff? Unless we have some
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`reasonably cognizable infringement theory, I don't know how I
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`prepare a witness.
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`MR. KASTENS: Can I respond, Your Honor?
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`THE COURT: Please. Because I don't know either.
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`MR. KASTENS: So, your Honor, what we've asked is
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`their -- what their witnesses already claim to know, which is
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`these products -- like, what we're contending in our products
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`mapped to, like, are within the source code directories. He's
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`already submitted a declaration saying, hey, what you've cited
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`don't correspond to what we're saying are these specific
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`products.
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`That's the deposition that we would take, is give us the
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`basis for why you're saying that. Because we spent a lot of
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`time to put these together and we've gone through the source
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`code, gone through the public documents. We organized it, how
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`they represent this stuff to their customers and it matches
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`with how it's organized within the source code.
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`So that's what we would request, is just the basis of
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`these tables that he puts in here where he says, oh, you don't
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`have these four things, but you have these five things, and he
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`doesn't actually say why. He just says that these aren't --
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`the source code for these aren't cited. That's it.
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`So I don't see why -- he's already declared that, so I
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` Debra L. Pas, CSR, RPR, RMR, CRR
` Official Reporter - U.S. District Court - San Francisco
` (415) 431-1477
`
`

`

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`don't see any reason that he wouldn't be able to explain how he
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`reached those conclusions in a deposition.
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`THE COURT: So the problem that I see with this --
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`and I'm not sure whether it's an actual problem or not, so you
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`have can tell me that -- is the cart before the horse problem.
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`You've got to lay out your contentions and, and it's not up to
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`Check Point to educate you in a way that will help you build
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`your case at the outset unless, you know, in the course of
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`discovery and for good cause and things could change.
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`So I am sympathetic to needing some sort of factual
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`background so that you can clarify your claims, but I'm not
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`interested in sort of substantive discovery. And I don't know
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`how to draw that line.
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`MR. ROBERTS: We gave them -- I mean, your Honor,
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`they have the code, which I believe a person of ordinary skill
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`in the art spending a bunch of time ought to be able to read.
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`We gave them all of the manuals for the product. There is a
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`thousand confidential documents that are on there that are
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`responsive. They have said, oh, we need more documents, but
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`they never said specifically what documents they need. Like, I
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`still don't know what additional documents they claim to need.
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`So I don't -- I mean, my problem is I worry that this is
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`all just a smoke screen. And the reason I have that concern is
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`that we see the same pattern in every Finjan case. We put in a
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`supplemental authority, the decision from Judge Tigar, they are
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` Debra L. Pas, CSR, RPR, RMR, CRR
` Official Reporter - U.S. District Court - San Francisco
` (415) 431-1477
`
`

`

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`on their third set of contentions and they still don't know
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`what they're talking about. And here we are, like, heading
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`into claim construction. I have to pick the five terms that
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`are most important to me and I don't even know what the
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`theories are. How am I supposed to pick those five terms and
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`then come to court and say, yeah, these are what the
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`constructions ought to be, because I don't even know.
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`THE COURT: Okay. So what's your proposal to help
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`get past this place, Mr. Roberts?
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`MR. ROBERTS: My proposal is that -- is exactly the
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`order that Your Honor read at the outset, which is that they
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`give us adequate infringement contentions that satisfy the
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`local rules in the ways that you said.
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`After that, if they want to take a deposition and they
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`believe that they have good cause to amend because now they
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`know something that they didn't know before, fine. Fine.
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`That's -- that's the way it's supposed to work.
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`They have had -- before doing their initial infringement
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`contentions in the case they had the source code. That's not
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`usually the case. Usually you have to do your infringement
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`contentions without the source code. But here we gave them all
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`of the source code. I gave them a list of products. I pointed
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`them to the price list on the website and said here are the
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`products. Here is what we think could possibly be at issue in
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`the case. That's not every product we made. But I said, here
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` Debra L. Pas, CSR, RPR, RMR, CRR
` Official Reporter - U.S. District Court - San Francisco
` (415) 431-1477
`
`

`

`Case 3:18-cv-02621-WHO Document 264-4 Filed 03/27/20 Page 14 of 19
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`is what we think are possibility at issue in the case.
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`I have been trying to help them in exactly this way. I
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`mean. not too much. We're opposing counsel, but I have been
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`trying to remove the excuse --
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`THE COURT: You have been very helpful throughout
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`this entire procedure.
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`MR. ROBERTS: I mean, I have been trying to remove
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`the excuses; right? I have been trying to say: Here, have the
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`source code. Take the time you need. Here is what we think is
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`at issue. If you disagree, if there are other things, let us
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`know.
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`So I have been trying to be favor about it, is what I
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`would say.
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`THE COURT: Mr. Kastens.
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`MR. KASTENS: Your Honor, I think what we're asking
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`for is pretty clear. We just -- we want a deposition where
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`their person will say, okay, here are -- what we say in
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`marketing are different products that we sell. And here in
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`this source code that's one folder where -- that is not labeled
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`by any of the products names that they sell, where the source
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`code is for those products. That shouldn't -- I mean, that
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`doesn't require anything regarding our contentions to identify.
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`He's already done that in his declaration.
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`He submitted a declaration which he said, you didn't
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`identify source code for these products. We think we did. So
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` Debra L. Pas, CSR, RPR, RMR, CRR
` Official Reporter - U.S. District Court - San Francisco
` (415) 431-1477
`
`

`

`Case 3:18-cv-02621-WHO Document 264-4 Filed 03/27/20 Page 15 of 19
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`he doesn't say why he says that. He just said we didn't. And
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`so we're just going to go through and have him explain, okay,
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`where are you saying the source code for this product is? You
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`know, it's -- you know, you say it wasn't cited in here. Can
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`you identify where it is?
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`THE COURT: Here is what we're going to do. I'm
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`going to stick with my tentative and have you amend in the best
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`way that you can given the information you have.
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`Then I want you to meet-and-confer with Mr. Roberts and
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`see whether you can agree on anything that will provide -- if
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`Mr. Roberts still claims that the contentions are insufficient,
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`what it is that can happen in order to get over the -- this
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`particular hurdle. If you're unsuccessful, then I want you to
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`send -- send me a five page joint letter and append to it the
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`questions that you would like to ask a 30(b)(6) witness. And
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`then -- or the places where you're in disagreement, and I'll
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`decide that.
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`MR. ROBERTS: Very good. May I address one final
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`point, Your Honor, which is for the products that were not
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`cited, meaning they provided no source code citations for them,
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`are those products in the case or not in the case? Can they
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`amend and accuse and expand and add a whole bunch of new
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`products to the case if they haven't given us any citations to
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`the source code here?
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`THE COURT: Well, you just told me you didn't know
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` Debra L. Pas, CSR, RPR, RMR, CRR
` Official Reporter - U.S. District Court - San Francisco
` (415) 431-1477
`
`

`

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`what they had given you. So the answer is, if they give you --
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`if they can specify what this case is about and what they are
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`going after, that's okay this time around.
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`MR. ROBERTS: Okay.
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`THE COURT: Okay. So how quickly can you amend?
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`MR. KASTENS: Your Honor, we've served
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`interrogatories requesting that they, a couple weeks ago, match
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`the source code to the products that are accused in this case.
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`We can do it within 45 days of getting a response where we
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`could respond to that discovery, I believe.
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`MR. ROBERTS: That's extraordinary, because what he's
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`just saying is they can't even give infringement contentions
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`that meet the local rules or that satisfy the Court's order
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`until we answer discovery and map all of the code to all of the
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`products for them. That's extraordinary.
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`MR. KASTENS: We're just --
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`MR. ROBERTS: Why is it that -- I apologize. I don't
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`mean to interrupt you.
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`Why is it -- why is it that I have to do all of this work
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`for them before I even know what it is I'm accused of
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`infringing?
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`THE COURT: Well, you're in litigation. That's one
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`reason.
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`MR. KASTENS: I think he keeps kind of doing a straw
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`man argument of what I'm requesting.
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` Debra L. Pas, CSR, RPR, RMR, CRR
` Official Reporter - U.S. District Court - San Francisco
` (415) 431-1477
`
`

`

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`So they say they have these 40 -- they say they have these
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`different products, okay. What they are -- what we tried to
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`explain in our briefing is their source code directory where
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`they say are 40 products is one directory. None of them are
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`labeled as a specific product. We understand, based on the
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`functionality that they disclosed within their public
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`documents, that we've identified the source code corresponding
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`to those particular marketing names of their products, which
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`they are asking us to organize by.
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`So, but they -- all we're asking is you've said -- you've
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`already said that these source -- that you know which source
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`code matches up to allegedly which of these, you know,
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`different ways that you say that are products. So just give us
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`that information. That's all we ask for.
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`It's not asking for any analysis. It's just why are you
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`saying that this source code, which looks like it, provides the
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`functionality for this product that you market under this
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`marketing name, why are you saying that the source code doesn't
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`actually go to that product.
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`MR. ROBERTS: Right. Teach me how the source code
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`works.
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`Honor.
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`MR. KASTENS: That's not how what I'm asking, Your
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`THE COURT: All right. Mr. Roberts, what is your
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`proposal for how long Finjan gets? Because what I'm going to
`
` Debra L. Pas, CSR, RPR, RMR, CRR
` Official Reporter - U.S. District Court - San Francisco
` (415) 431-1477
`
`

`

`Case 3:18-cv-02621-WHO Document 264-4 Filed 03/27/20 Page 18 of 19
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`do is stop listening to both of you and send you out -- and
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`I'll send something out.
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`MR. ROBERTS: I don't have a problem with 45 days.
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`My only problem really is the calendar. And so what we had
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`done is submitted a motion suggesting that the claim
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`construction dates be pushed off.
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`So what I would propose is we actually just put a
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`tentative like pin, pause. If they need 45 days, that's fine.
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`But let's just push the dates off by 45 days so that we're not
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`trying to make decisions without the information.
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`THE COURT: I will grant that, that we're going to
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`get -- we've got to get over this hurdle. And I'm going to
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`force you over the hurdle one way or another.
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`MR. ROBERTS: Lovely.
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`THE COURT: Okay. Thanks for coming in.
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`MR. ROBERTS: Thanks so much.
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`MR. HANNAH: Thank you, Your Honor.
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`(Proceedings adjourned.)
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` Debra L. Pas, CSR, RPR, RMR, CRR
` Official Reporter - U.S. District Court - San Francisco
` (415) 431-1477
`
`

`

`Case 3:18-cv-02621-WHO Document 264-4 Filed 03/27/20 Page 19 of 19
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`CERTIFICATE OF OFFICIAL REPORTER
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`
`
`
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`I certify that the foregoing is a correct transcript from
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`the record of proceedings in the above-entitled matter.
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`
`
`
`
` __________________________________
`
`Debra L. Pas, CSR 11916, CRR, RMR, RPR
`
` Friday, March 1, 2019
`
`
`
` Debra L. Pas, CSR, RPR, RMR, CRR
` Official Reporter - U.S. District Court - San Francisco
` (415) 431-1477
`
`