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`Case 3:18-cv-02621-WHO Document 264-7 Filed 03/27/20 Page 2 of 65
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` Pages 1 - 63
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`BEFORE THE HONORABLE WILLIAM H. ORRICK, JUDGE
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`FINJAN, INC., )
` )
` Plaintiff, )
` )
` VS. ) NO. C 18-2621 WHO
` )
`CHECK POINT SOFTWARE TECHNOLOGIES, )
`INC., et al., )
` ) San Francisco, California
` Defendants. )
`___________________________________)
`
` Wednesday, December 4, 2019
`
`
`TRANSCRIPT OF PROCEEDINGS
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`APPEARANCES:
`
`For Plaintiff:
` KRAMER LEVIN NAFTALIS & FRANKEL, LLP
` 990 Marsh Road
` Menlo Park, California 94025
` BY: PAUL J. ANDRE, ESQ.
` KRISTOPHER B. KASTENS, ESQ.
`
`For Defendants:
` ORRICK HERRINGTON & SUTCLIFFE, LLP
` 405 Howard Street
` San Francisco, California 94105-2669
` BY: CLEMENT S. ROBERTS, ESQ.
` EVAN D. BREWER, ESQ
`
` ORRICK HERRINGTON & SUTCLIFFE, LLP
` 777 South Figueroa Street
` Suite 3200
` Los Angeles, California 90017
` BY: ALYSSA M. CARIDIS, ESQ.
`
`Reported By: BELLE BALL, CSR 8785, CRR, RDR
` Official Reporter, U.S. District Court
`
`
`(Appearances continued, next page)
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`
`
`
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`Case 3:18-cv-02621-WHO Document 264-7 Filed 03/27/20 Page 3 of 65
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`APPEARANCES, CONTINUED:
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`For Defendants:
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` ORRICK HERRINGTON & SUTCLIFFE, LLP
` 1000 Marsh Road
` Menlo Park, California 94025
` BY: VICKIE L. FEEMAN, ESQ.
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`Also Present:
` JULIA MAR-SPINOLA, Finjan
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`Wednesday - December 4, 2019
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` 2:46 p.m.
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`P R O C E E D I N G S
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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 appearances.
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`MR. ANDRE: Good afternoon, Your Honor. Paul Andre
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`for Finjan. With me today is Kris Kastens. And from Finjan,
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`Julia Mar-Spinola is sitting back there.
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`MR. ROBERTS: Good afternoon, Your Honor. Clem
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`Roberts from Orrick Herrington for the defendant. And we have
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`Alyssa Caridis, Vickie Feeman, and Evan Brewer.
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`THE COURT: So I've put up here five bankers' boxes
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`full of stuff that you filed.
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`How on earth do you think that a federal judge is going to
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`go through all of the paper? 5,135 charts? 185,000 pages?
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`What do you want me to do with all of this? This is nuts.
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`This is totally beyond the pale.
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`Your job is to make your clients' cases clear. And
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`digestible for people. I couldn't spend a month going through
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`this, and do nothing else, and understand a minute of what
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`you're trying to do. It's crazy.
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`And you're not -- nobody in this case is helping
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`themselves or their clients, particularly, in the way that this
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`is going out. It's really not.
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`So what do you want me to do with this, Mr. Andre? What's
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`the point of throwing all of this stuff at me?
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`Everything that I looked at as I went -- as I tried to
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`drill down on the few examples that are in the briefing --
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`because there can't be a lot of them, because there are 185,000
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`pages in the charts. But every one of them didn't check out,
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`as far as I could tell, for your client.
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`But I have a whole lot more that I have to do. And I
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`didn't get a ton of help on the other side, because there are
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`limitations in pages.
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`So what am I supposed do with this?
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`MR. ANDRE: Your Honor, I think -- first of all, I
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`apologize. It was not our intent for the Court to receive --
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`THE COURT: Well, who else is going to get it,
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`Mr. Andre?
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`MR. ANDRE: We served the charts on the defendant,
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`because that's what they asked for. We asked them on numerous
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`occasions: Can we group the charts? And they moved twice to
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`say we could not group. And we had to have every single
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`different product, and every single SKU, every version charted
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`to try to avoid the grouping issue.
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`When I got Your Honor's second order striking some of the
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`contentions, and giving us clear instructions as to what to do,
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`we took it to heart. And we talked to counsel (Indicating).
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`We said: Is there any way we can group these charts to make it
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`less burdensome? And it was -- to do so would be at our own
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`risk.
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`You put the fear of God into us at the last hearing. I
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`wasn't here, unfortunately; I was overseas. I wish I would
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`have been here.
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`When I got your order, I was upset that we were not able
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`to satisfy Your Honor, and understand what we were trying to
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`get across here. I think this sometimes happens with engineers
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`who put this stuff together, they speak in a language that's
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`foreign to me; I'm not an engineer.
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`So, we went at a process over a two-week period where
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`Mr. Kastens, who is a computer scientist (Indicating), and a
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`team of young attorneys who didn't sleep put together charts
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`for the defendant, Check Point, to show them every single
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`combination of every single SKU number.
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`For example, if there was a Firewall 7300 series, the 7300
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`series has a 7302 and a 7304 and 7306. And it goes on and on,
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`based on the size of the box. We charted every single one of
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`those. Except doing it by the 7300 series. Mr. Kastens asked
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`me personally: Is there any way we can just group these?
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`I said I'm not going to roll the dice with Your Honor's
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`order. You were very clear about the grouping.
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`So we didn't intend defendants to file a motion with all
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`of the briefing that was provided. We tried to give
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`representative charts. And we just couldn't see eye to eye.
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`So, I do take responsibility in providing the defendants with
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`those 5,000 charts.
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`Because most of them were of one nature. There's
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`different appliances, different firewalls, and combinations.
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`But it was something that -- we didn't want to run afoul of the
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`Court's order, and we couldn't figure out a way to get on with
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`the defendant in this case. We've had numerous disputes with
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`the defendant in this case. We generally tend to get along
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`with -- we've had a trial in this court before, and we got
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`along quite nicely with the defendants. But for whatever
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`reason, that's what resulted.
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`Now, when we filed our opposition to this motion, I
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`imagine half those boxes are from us, because we responded to
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`their briefing. And their hundreds of exhibits they put in.
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`We matched them. We thought they were not representative. I
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`don't know what we could have done to take this away from
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`Your Honor. And I think this is one of the biggest issues --
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`the reason I'm here today. I want to talk about what did we do
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`wrong, take ownership of what we did do wrong. On your
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`tentative, we're going to stipulate to quite a bit of it,
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`because I went through and looked at it.
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`And I want to make sure that we understand what we can do
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`to, one, not have five bankers' boxes come up to the Court,
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`because I think that is a tremendous waste. And when I heard
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`about it, I knew your reaction was going to be exactly as it is
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`today, and I would take the brunt of it, even though it was an
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`opposition motion, but nonetheless, 5,000 charts.
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`That being said, with the charts we put in, there were no
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`complaints about grouping. We did solve that problem. We
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`didn't group anything. We put a chart in for every single
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`possible combination. I think there must be easier ways to do
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`it, but we couldn't figure out how to do it in this case.
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`With that being said, I apologize to the Court, if we
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`didn't solve the problem that you identified in a way that is
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`acceptable. But we did -- it wasn't for lack of effort. We
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`had a lot of people putting a lot of effort into it.
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`THE COURT: I can see the effort.
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`MR. ROBERTS: Your Honor, could I respond very
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`briefly to that?
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`THE COURT: You can respond. Let me just get my copy
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`of the tentative, because I want to -- let me just ask what
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`you're stipulating to, and then Mr. Roberts can --
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`MR. ANDRE: Okay. Can I hand up just handouts? It
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`might be easier for you to go through these.
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`THE COURT: Looks smaller than these five bankers'
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`boxes, so go ahead.
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`MR. ANDRE: This is a summary.
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`THE COURT: Okay. So you can't do this simply. So
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`let me get Mr. Roberts to --
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`MR. ROBERTS: All right. Two things. You don't have
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`any of the appliance charts. The only charts that you have are
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`the substantive charts. We didn't put any of the appliance
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`charts in.
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`So this thing about the appliance charts, that's not what
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`the bulk of the paper is. The bulk of the paper here is all of
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`the evidence that relates to the substantive contentions for
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`the network security Blades.
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`Number two, on the appliance charts -- and we put in this
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`correspondence Your Honor, before we brought this motion -- we
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`went to them -- and you have this. This is Exhibit E to the
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`Caridis declaration which has the meet-and-confer
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`correspondence.
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`And we say (As read):
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`"The SAICs include thousands of charts purportedly
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`directed to Check Point's appliances. From our
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`review, it does not appear that these charts have any
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`substantive differences...Please confirm whether
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`Finjan will select one (or a limited subset if..."
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`THE COURT: You need to slow down a little bit,
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`Mister --
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`MR. ROBERTS: Yeah.
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`"Please confirm whether Finjan will select one (or a
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`limited subset if Finjan believes multiple are
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`necessary) per chart (sic) as exemplary, and withdraw
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`the remaining charts."
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`We have in every briefing suggested that you can use
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`exemplary charts, if you're alleging that the things are the
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`same. You have to say what they're exemplary, and can say why
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`they're the same.
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`This isn't about the grouping question. This is about
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`whether or not the appliances can be used as exemplary for
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`other appliances, when all they're pointing to is the CPU and
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`the memory of the appliance.
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`And we have said in multiple briefing that that can be the
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`same. And we said that in the meet-and-confer correspondence,
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`here. They declined. And we didn't put any of those charts
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`in.
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`As for the rest of the paper, what we did, Your Honor,
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`is -- what we tried do is we took 500 pages from among the
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`charts. We put that in. Then we put in a 50-page appendix
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`discussing the problems, to try to slim that down. And then we
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`did the 25 pages of briefing.
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`But I don't know how to -- leaving the appliance charts to
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`one side, I don't even know how to deal with that volume, and
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`put before the Court. If we didn't do that, they were going to
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`say: Well, you only gave us a couple of examples, and you
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`didn't prove your case that all of these things have problems
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`in them.
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`So, you know, I don't know how else to do it other than
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`pick 500 pages from among the hundreds of thousands we were
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`given, then do a slimmed-down appendix to index into it, and
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`then give you -- try to give you specific charts in the brief.
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`I mean, I was trying to step it down, to make it as streamlined
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`as possible.
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`THE COURT: All right.
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`So why don't you go ahead, Mr. Andre --
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`MR. ANDRE: Thank Your Honor.
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`On the slides, I -- I'm on Slide 2.
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`(Document displayed)
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`MR. ANDRE: I put in -- this is the Court's order
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`that I was not here for, that you said there were three issues
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`for our amended infringement contentions. One was grouping,
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`the two is source code citations, and three were new
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`instrumentalities. They were labeled (a), (b) and (d) in your
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`brief. (C) was a -- doctrine of equivalents, which was not an
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`issue.
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`So with respect -- go to Slide 3.
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`(Document displayed)
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`MR. ANDRE: With respect to grouping, you told us to
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`parse them out. That (As read):
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`"...every contention for every claim can be combined
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`with every contention for every other claim chart,
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`Finjan must state that. I strike these charts with
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`leave to amend."
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`We tried to interpret that in the broadest reasonable way,
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`just to make sure we didn't run afoul of the Court's order. We
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`understood the consequences.
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`And of the 5,000 charts, I think almost all but 100 --
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`some of them were on the appliances. I think it was 4,986 were
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`on the appliances. All the different combinations. What may
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`be in the boxes there, that's what I was talking about when I
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`said most of them were on appliances.
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`And we didn't want to -- we tried to tease out in the
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`grouping we did. And as a result, the grouping's not before
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`the Court today. Now, that's the good news. And that's
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`probably the only good news I have for you, is that that's not
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`before the Court.
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`The second issue that Your Honor brought up in your court
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`order is source code citations. And in this, there were 52
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`products that we had charted in our amended infringement
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`contentions. Check Point said 22 of them were fine. Cited for
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`every element. And it was fine. But 30 of them were not.
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`And your order said (As read):
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`"To the extent that any of the 30 of the accused
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`instrumentalities lack pinpoint citations, they are
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`struck, with prejudice. Where Finjan has used the
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`same source code for different things, it may
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`infringe -- its contentions to better explain why the
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`same source code is applied to wholly different
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`limitations."
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`So we looked at, first of all, that order. And
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`Check Point's Appendix 2, where they said here are the 22 --
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`and this is on Page 5 of the slides -- Here are the 22 products
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`and claims and patents that there is contentions for which
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`source code citations provided for each element.
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`So we're good on those 22. That's what we read the
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`admission by Check Point, and Your Honor's order, that you want
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`to look at the 30 that they said they were not source code
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`citations.
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`THE COURT: I was actually -- my memory was a little
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`different than that. My memory was that the 30 there was
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`nothing for, and then the focus was on whether the other 22
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`had -- were sufficiently --
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`MR. ANDRE: On the source code citation, what
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`Your Honor ordered, I quote it verbatim.
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`Says to the extent 30 --
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`THE COURT: I saw your slide.
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`MR. ANDRE: Yeah.
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`THE COURT: But my memory's just different.
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`MR. ANDRE: So it was -- it was Appendix 2 to
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`Check Point's original motion that had ones that they were --
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`they were pinpoint. That's -- these are blocking a quote from
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`those. They said there was citations. You know, they had this
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`table (Indicating), you might remember.
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`THE COURT: Yeah.
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`MR. ANDRE: And in Appendix 2, they had list of
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`contentions for which source code citations provided fore each
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`element (Indicating). So --
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`THE COURT: Okay. Well, if I'm wrong, I'm sure
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`Mr. Roberts will let me know, too.
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`MR. ANDRE: He may -- in his briefing this time, that
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`was the case. But this was -- the briefing was focused on
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`these 30 for which they were not -- not every element was a
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`citation to, or no citations at all to the source code. The
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`30.
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`So we read the Court's order and their admissions that 22
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`of the products did have source code citations for each and
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`every element.
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`Now if you look at Page 6, we did look at the 30
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`instrumentalities that were struck, if there was no source
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`code. As Your Honor said, to the extent those 30 did not have
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`source code, they're struck.
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`We went back and looked, and it said if there was or was
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`not source code there. This was a diligent project we did to
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`say: What of these 30 instrumentalities had source code that
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`we thought was sufficient or not.
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`Twenty-seven of them -- now, my engineerings would
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`disagree with this, but 27 of them I said did not have source
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`code citation to satisfy me. Three of them we believe did have
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`source code citations that would be sufficient under the local
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`rules. And that is the Firewall, Anti-spam and Email Security,
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`and Capsule Cloud. And that was the subject of the brief they
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`filed for the second amended contentions.
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`For the firewall, we go to Page 7 of the slides.
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`(Document displayed)
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`MR. ANDRE: What we said was in our groupings before,
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`that the -- the threat emulation used these receivers in
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`combination.
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`And Your Honor noted that beside saying that the threat
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`emulation Blade's scanner combines with the receivers in the
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`other Blades, Finjan's chart does not adequately describe other
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`combination -- '494 patent, chart at 21. (As read)
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`"If every combination (sic) for every claim can be
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`combined with every combination -- contention for
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`every other claim in its chart, Finjan must state
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`that. I strike these charts with leave to amend."
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`So what we did there with the firewalls -- and they were
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`acting as receiver, we amended the contentions to make very
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`clear that the firewall also combined with the various threat
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`emulation. So we were given leave to amend; we did so.
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`We believe that the second amended infringement
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`contentions set out every combination of threat emulation and
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`firewall for every claim that the firewall receiver or contact
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`processor is accused in a -- separate charts. So we gave those
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`charts, those are the main charts that we provided.
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`Case 3:18-cv-02621-WHO Document 264-7 Filed 03/27/20 Page 16 of 65
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`So we think -- we identified the firewall earlier in the
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`amended infringement contentions. We were given leave to amend
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`to make it clear, and we believe we did so.
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`With the next product, the anti-spam and email on Slide 8,
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`this one is a little bit muddier, I'll be honest with
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`Your Honor. The Anti-Spam and Email Security was listed in
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`Finjan's cover pleadings as an accused product, both of them
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`separately as accused products.
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`But what we found out was the source code for the
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`antivirus and the anti-spam email are identical, because they
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`use the same software engine in both instrumentalities. They
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`differ in name because one's used protect against web threats,
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`and the other's used to protect against email threats. So what
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`we did in the charts for our second amended infringement
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`contention is we separate out those into two charts.
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`It's muddier, because although we claimed it in our cover
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`pleading that both infringe, in our first amended infringement
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`contentions, we combined them. So we separated those out. But
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`we think we gave adequate disclosure to provide Check Point
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`with notice.
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`And the third of the 30 on Page 9 of the slides is Capsule
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`Cloud. So, Finjan alleged in its amended infringement
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`contentions that Capsule Cloud is the cloud version of the
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`Blades. And then incorporated the charts from the Blades to
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`the Capsule Cloud. And you'll see that in the bottom
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`Case 3:18-cv-02621-WHO Document 264-7 Filed 03/27/20 Page 17 of 65
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`paragraph, it says (As read):
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`"...Capsule Cloud infringes for the same reasons as
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`set forth in Appendix A-1."
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`So we had the exact same product. One is you buy and you
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`get a box, and the other you buy and it's in the cloud. And
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`you buy a service, essentially.
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`So what we said on Capsule Cloud was, and you can read it
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`in the slide, Capsule Cloud's exactly the same thing as blade,
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`it's just in the cloud. And therefore, we just incorporated by
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`reference the source code. Once again, maybe we should have
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`put source code in there, and not incorporate by reference.
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`So that is the reason we charted those three of the 30.
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`The other 27, there was -- like I said, my engineering team was
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`fighting me, but I said I -- it wasn't clear to me. I'm not an
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`engineer, so...
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`And then the last thing Your Honor talked about was new
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`instrumentalities. You noted in your order that (As read):
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`"Check Point replies that it has identified 13 new
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`products in the amended infringement contentions, in
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`addition to a larger number of unidentified (sic)
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`technologies and functionalities that pop up without
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`explanation in Finjan's charts."
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`And if you go to Slide 11, those are the new
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`instrumentalities that they put their briefing. None of these
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`instrumentalities or these new technologies are in the second
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`Case 3:18-cv-02621-WHO Document 264-7 Filed 03/27/20 Page 18 of 65
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`amended infringement contentions. We complied wholeheartedly
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`with the Court's order. So this is not really an issue for
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`these named instrumentalities.
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`Now, they've raised new issues. And this is where we'll
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`get to your tentative, and we'll be stipulating to some of the
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`tentative decisions, and contesting others.
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`So the tentative, we go to your -- the tentative issue
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`No. 1 that you identified.
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`So:
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`"Does Finjan continue to accuse products and theories
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`that were previously struck with prejudice in the AIC
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`Order because Finjan:
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`"did not cite any source code for those products;
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`"contentions were incomplete because Finjan provided
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`source code citations for some elements but not all
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`the elements;"
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`And:
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`"accused a marketing term and not a product?"
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`Now, the products that are accused, the theories were
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`these 30 products that you struck. And as I said, three of
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`them we believe --
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`THE COURT: All right, we've gone through them.
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`MR. ANDRE: Okay. So we're there. So, and like I
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`said, so that's not -- so that's the only issue now.
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`If you go to the next slide, Slide 13, as I said of the 30
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`Case 3:18-cv-02621-WHO Document 264-7 Filed 03/27/20 Page 19 of 65
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`instrumentalities, we just wanted to -- the (b) part of the
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`tentative is that -- did we have -- other than the 22, which we
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`give source code, if the Court's referring to -- in the
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`tentative you put in (As read):
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`"Other than the 30 instrumentalities struck because
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`no source code was cited..."
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`For relevance.
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`"...there are other contentions that were also struck
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`because Finjan did not give pinpoint citations to all
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`elements of the claim. But Check Point's examples
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`show that some code was cited. It was code from a
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`wholly different product. Finjan had access to
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`source code directory for each product..."
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`They gave a chart of products on Slide 13. And so we will
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`stipulate to the tentative with respect to those products.
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`That's what you mentioned in your order here. So that's one --
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`the tentative, we won't assert anything on those products for
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`those claims, as outlined in the table.
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`THE COURT: All right.
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`MR. ANDRE: Then Part (c), we stipulate to the
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`tentative, because we actually won that one. So we -- we like
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`that one.
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`THE COURT: Uh-huh.
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`MR. ANDRE: Tentative Issue No. 2 (As read):
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`"Does Finjan include new accusations including:
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`Case 3:18-cv-02621-WHO Document 264-7 Filed 03/27/20 Page 20 of 65
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`"New products;
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`"New claims;
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`"Or new combinations?"
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`And I want to go through each one of these. And we'll
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`stipulate to some of tentative.
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`If you go to Slide 15, these are new produced and patents
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`they listed. They said -- they have bullet points (As read):
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`"The AIC charts for the '494 patent did not include
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`contentions for..."
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`Various -- there's four bullet points there. This is in
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`their briefing, at Page 10. Two of them, they're highlighted.
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`You can see from the appendix, we did. And they stipulated to
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`it. We did give for the antivirus, on '633 on claim 8. So we
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`did give contentions that Check Point stipulated that we gave
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`source code citations for every element. And they did not
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`raise that during the second amendment.
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`Same is true with the '154 patent, claim 1, for threat
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`extraction.
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`So we stipulate to two of those, and two of them we
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`contest because they said we didn't -- we didn't provide them
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`in the amendment infringement contentions, but their Appendix 2
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`said we did. And I think that's dispositive of that.
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`With respect to new claims, Slide 16. Finjan responded --
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`I mean, Check Point admitted that the amended infringement
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`contention charts included contentions for Endpoint Anti-Bot,
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`Case 3:18-cv-02621-WHO Document 264-7 Filed 03/27/20 Page 21 of 65
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`claim 10 and 14. You'll see that on the highlight on the
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`right. This is their Appendix 2. This is the chart of the
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`products they want to strike.
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`We stipulate to the three at the bottom of the chart. The
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`Network Threat Emulation, IPS, and Forensic. But we believe
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`that the Endpoint Anti-Bot was disclosed in the amended
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`infringement contentions. And they were -- further, they are
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`not new claims in our charts today.
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`So we will stipulate to the three, but the one we think we
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`did disclose in the amended infringement contentions, as
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`stipulated to by Check Point.
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`And then with respect to new combinations, that's Slide 17
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`and 18, Check Point provided the Court with another table. The
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`new combinations in the second amended infringement
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`contentions.
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`We will stipulate to most of them, but there's two of them
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`we believe we gave the combinations for in the amended
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`infringement contentions, and just carried them through to the
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`second amended infringement contentions.
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`The first, it's actually on the table, the third from the
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`bottom. The Network Threat Emulation and ThreatCloud
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`Emulation. On the '844 -- this is claim 1 of the '844.
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`You see there in the paragraph, it says (As read):
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`"...Threat Emulation technology in ThreatCloud. The
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`software that receives the downloadable..."
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`Case 3:18-cv-02621-WHO Document 264-7 Filed 03/27/20 Page 22 of 65
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`And shows that the Threat Emulation and ThreatCloud
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`Emulation were combined in the amended infringement
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`contentions.
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`And then on the second page of the slide, Slide 18, the
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`Endpoint Threat Emulation and ThreatCloud Emulation, again, we
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`believe we disclosed these. And this is a little bit more
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`attenuated, because in our contentions we defined what
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`ThreatCloud was. That's on the right.
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`It says (As read):
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`"ThreatCloud also includes emulation technology using
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`virtual machine sandboxes, which is sometimes also
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`called 'SandBlast Cloud.'"
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`So "SandBlast Cloud" is synonymous with "ThreatCloud."
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`And for this claim on the '633 patent, you see we did a
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`combination of the Endpoint Threat Emulation with sandbox
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`cloud. You see the sandbox cloud in the figure and also in the
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`text. Sandblast agent.
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`So we believe, going back to Slide 17, at least two of
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`these combinations we did disclose in our amended infringement
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`contentions. The rest, we'll stipulate to the tentative that
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`those are -- we will not have those.
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`That's with respect to Issue 2 of the tentative.
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`With respect to Issue 3, you asked if we adequately
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`identified and explained the accused combinations. And the (a)
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`section was about SmartEvent or Forensics. This is a
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`Case 3:18-cv-02621-WHO Document 264-7 Filed 03/27/20 Page 23 of 65
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`situation where when we go to Slide 20, our response is here.
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`Your Honor is correct, we only charted that for one
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`element. And we say it can be used in combination. In your
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`tentative, you say, well, therefore, you could use a multitude
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`of combinations.
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`What we had said in our briefing was there's actually
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`approximately 2,000 more charts, and we had to try to put them
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`into each combination. We thought we were being prudent where
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`we could, and just said essentially that these two
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`instrumentalities are charted for a single claim element -- the
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`database -- of these two patents.
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`The charts for the single element provided Check Point
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`with notice that when either of those instrumentalities were
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`sold with the network or end point security products, the
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`SmartEvent Forensic databases were also used to store the DSPs.
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`We didn't combine all the charts. We didn't. And if it's
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`-- we think we gave them notice. But Your Honor, if we didn't
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`follow Your Honor's order and give them explicitly the charts,
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`we'll live with the consequences of that.
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`But it is something we -- we do believe we were trying to
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`mitigate what we were doing with the appliances and doing
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`almost 5,000 charts, and not do another 2,000 with a single
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`element. We were just trying to be more prudent. And we
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`thought we were clear about notice. But if we weren't, we'll
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`live with the consequences there.
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`Case 3:18-cv-02621-WHO Document 264-7 Filed 03/27/20 Page 24 of 65
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`The tentative 3(b), it starts: The network firewall
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`practices and li
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