Case 3:18-cv-02621-WHO Document 264-12 Filed 03/27/20 Page 1 of 23
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`Case 3:18-cv-02621-WHO Document 264-12 Filed 03/27/20 Page 2 of 23
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` Pages 1 - 22
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
`
`Before The Honorable William H. Orrick, Judge
`
`)
`FINJAN, INC.,
` )
` Plaintiff, )
` )
` VS. ) NO. C 18-02621-WHO
` )
`CHECK POINT SOFTWARE
`)
`TECHNOLOGIES, INC. and CHECK )
`POINT SOFTWARE TECHNOLOGIES, )
`LTD.,
`)
` )
` Defendants. )
` )
`
` San Francisco, California
` Wednesday, July 10, 2019
`
`
`TRANSCRIPT OF PROCEEDINGS
`
`
`APPEARANCES:
`
`For Plaintiff:
` KRAMER, LEVIN, NAFTALIS & FRANKEL LLP
` 990 Marsh Road
` Menlo Park, California 94025
` BY: LISA KOBIALKA, ATTORNEY AT LAW
` KRISTOPHER KASTENS, ATTORNEY AT LAW
` LINJUN XU, ATTORNEY AT LAW
`
`For Defendants:
` ORRICK, HERRINGTON & SUTCLIFFE LLP
` 777 South Figueroa Street - Suite 3200
` Los Angeles, California 90017
` BY: ALYSSA M. CARIDIS, ATTORNEY AT LAW
` CLEMENT S. ROBERTS, ATTORNEY AT LAW
` EVAN D. BREWER, ATTORNEY AT LAW
`
`
`
`Reported By: Marla F. Knox, RPR, CRR
` Official Reporter
`
`
`
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`Wednesday - July 10, 2019
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` 9:14 a.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 Checkpoint Software Technologies,
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`Incorporated, et al.
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`Counsel, please come forward and state your appearance.
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`MS. KOBIALKA: Good morning, Your Honor, Lisa Kobialka
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`on behalf of Finjan and I'm accompanied by Kris Kastens, my
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`partner, and Ms. Xu.
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`THE COURT: Good morning.
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`MR. ROBERTS: Good morning, Your Honor, Clement
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`Roberts on behalf of Checkpoint with Alyssa Caridis and Evan
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`Brewer.
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`THE COURT: All right. Good morning. Let me give you
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`my thoughts on these motions.
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`With respect to the motion to strike amended infringement
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`contentions, I'm inclined to grant regarding the Blade
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`Architecture which allegedly infringes the '968. I think
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`the -- it is necessary -- I asked before, and I really would
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`like to see a chart for each blade to clarify which blades
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`Finjan is accusing to specify the combinations when they exist
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`and how they infringe. So I'm going to give you the
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`opportunity to amend one more time and just be -- just make
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`this clear. This is the whole point of this exercise. So make
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`it clear.
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`I'm inclined to grant regarding -- with respect to the
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`'844, the instrumentalities other than the Endpoint Threat
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`Emulation, which is the only one that is mentioned in the chart
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`on that patent.
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`I would also grant regarding ThreatCloud because it is a
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`marketing term and not a product, and there is no argument on
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`that in the opposition. So I'm inclined to do that with
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`prejudice unless there is some reason not to do that.
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`With respect to the source code, I'm inclined also to
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`grant Check Point -- it's a -- source code is not easy for me
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`to understand and -- but Check Point says in its brief that
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`there was no code cited for 30 of the 52 accused
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`instrumentalities, and there wasn't a response to that in the
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`briefing that I saw. So if that's true, then I would grant
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`that with prejudice and only allow the contentions that are
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`listed in Check Point's Appendix 2 to continue.
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`With respect to the motion regarding the doctrine of
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`equivalence, I deny that. I think that's -- that is
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`sufficiently asserted. And I would also point out that Check
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`Point didn't object to the DOE the first time around.
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`With respect to the new instrumentalities that were not --
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`the alleged new instrumentalities that weren't initially
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`charted, I would grant with respect to that, that products not
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`in the initial contentions would be struck. And you would need
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`good cause in order to assert them again and not just throw
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`them into the case. And that includes all the products that
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`weren't mentioned and the so-called undefined functionalities
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`and marketing terms in Appendix 3.
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`With respect to the -- the motion to strike the Xu
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`declaration, that would be granted because she obviously did
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`not have personal knowledge sufficient to write that
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`declaration. It is my assumption -- and I just want Ms. Xu to
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`clarify this for me -- that she did not look at the source code
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`outside of the repository. My assumption is what happened was
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`that she got information from the expert and put that in as the
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`large part of the basis of that declaration. That's
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`inappropriate. I'm not going to make a bigger deal of it than
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`that, but don't do that again. And -- but I just want to be
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`sure that that's the case. Because if it's not, then we have a
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`different issue.
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`And then, finally, Checkpoint's motion to amend the
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`invalidity contentions wasn't opposed, so that's granted.
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`So who wants to take that on or do you just want to accept
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`the tentative?
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`MR. KASTENS: Your Honor, Kristopher Kastens for
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`Finjan, Inc.
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`I'm just going to address the blades issue and
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`instrumentality that they keep raising. So I just want to
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`clarify something, Finjan's infringement contentions are in
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`line exactly with what we understood your order to be and the
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`Federal Circuit law. So Federal Circuit law says -- and
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`that's -- I'm citing a case in our brief, the Vasudevan
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`Software, Inc. -- that if you have a software package with
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`different functionality included in it and something can be
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`turned off and something can be turned on, doesn't matter so
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`long as it is included within the actual functionality. That's
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`why we originally grouped it as a single application. It is a
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`single application in our view. You receive it. You can turn
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`on and off functionality and use certain functionality.
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`Now what we have done -- we are not accusing every single
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`functionality within this software application. Within our
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`charts what we have done is divided up -- we have gone through
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`and for each element, we have divided it into separate
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`contentions related to specific technologies. Sometimes these
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`relate specifically to blades because sometimes they map
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`cleanly to blades. There is a whole bunch of stuff within the
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`functionality of the software package. They don't say it is
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`attributable to any product. They just say it is other code in
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`there. It is in this overall software application. They don't
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`say it is attributable to any actual blade. That's what we
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`submitted to you actually on Monday in supplemental briefing
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`which was their mapping of the -- of these products, these
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`blades, that they are calling them, which are actual
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`functionalities to the actual source code. It just shows you
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`it took 700 pages to map that out. It just shows you they are
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`parsing out one software application into multiple different
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`functionalities.
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`So mindful of your previous order to make this as clear as
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`possible, we have gone through; and we have specifically
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`identified functionality for each element. So what they say we
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`didn't cite source code for 30 of the 52 instrumentalities,
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`that is because they -- that's related to functionality in that
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`software application that is not part of our infringement
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`contentions. They are just calling those separate products
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`even though they are included within the one software
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`application.
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`If you have one software application and you and it has
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`three different functionalities, just because one of those
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`functionality is not accused, doesn't mean that functionality
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`is not within the product. I think that is the fundamental
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`dispute. That's all we are saying is that what we would like
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`to accuse is the actual application they distribute.
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`We have identified within that application the specific
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`functionality. I believe that was perfectly in line with what
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`your order requested. We grouped all the technology together
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`and did that. When they say 30 out of 52, that's what they are
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`talking about.
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`I also wanted to relate to this -- to the new products
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`that they are saying. Again, what they are saying is -- we
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`just said we are accusing this software application. And they
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`are saying, Oh, that software application has functionalities
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`that you didn't previously name in your infringement
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`contentions. We never denied that. Those functionalities were
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`not the basis of our infringement. We are still accusing that
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`software application. So that is really cutting to the quick
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`of it.
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`Regarding the undefined functionalities and terms, they
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`admit those aren't products. We are just -- they asked for
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`more specific information about how they infringe. So we went
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`through -- and we found technical information -- describing how
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`they actually infringe with these -- with using documents
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`describing -- in their source code describing how their
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`technology actually works, and they don't even deny that these
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`aren't products.
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`So, I mean, we are trying to do our best to give them the
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`most complete infringement contentions as possible. Any time
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`that we give them more details -- they ask for more details.
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`We give them more details. And they say that is an undefined
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`functionality. You can't bring that in. They don't even say
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`their products.
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`I think I would strenuously argue that should not be
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`subject to anything within the motion to strike. First of all,
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`they don't even deny that these aren't products even under
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`their definition of products which we again strenuously object
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`to because all the support says it is a single software
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`application. So that's how we addressed it within our
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`contentions and then within there -- to make sure that we were
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`perfectly clear -- we divided out the specific technologies,
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`some which directly map to blades and others which don't.
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`Regarding the ThreatCloud, I don't know -- my
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`understanding is that we may have addressed it. I know we
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`addressed it in previous briefing. I mean, I don't understand
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`why they would say it is a marketing term. They have data
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`sheets on it to say it is a product. We have looked at source
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`code and cited source code for the product. How can you say it
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`is a marketing term when we have cited source code for it? I
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`don't think they deny we cited source code. What are we
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`pointing to if it is not a product? I have a real hard time
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`grappling with the whole rationale where they can just say
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`anything we point to is a marketing term; therefore, strike it
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`when we are pointing to source code.
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`We have been as explicit as possible throughout this
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`process that our contentions are limited to what we have within
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`our charts. So if we really cited nothing but a marketing term
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`and -- which in our charts -- be that as it may -- that would
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`be difficult, but we have cited source code for an actual,
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`real-life product. So, I mean, I think that's what we would
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`just say. Like, no, we actually have a --
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`THE COURT: So I guess, Mr. Kastens, one of the things
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`I'm wondering is whether you are telling me that you have
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`really done all you possibly can and what you have provided is
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`it as far as you are concerned; that you couldn't do what I
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`suggested, for example, with the Blade Architecture and do it
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`blade by blade and lay things out; that you couldn't respond
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`specifically to the -- what you think Check Point already knows
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`and is sort of playing games with you a little bit and just
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`say, no, we are not going after this, this, this and this. Be
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`absolutely explicit and answer all those -- don't you think you
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`could do that?
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`MR. KASTENS: Your Honor, I think as far as -- we
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`viewed their request that we were to -- that the grouping of
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`these products as a pure formality. We argued -- we met and
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`conferred with them. We go, Look, if you are saying these
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`should be in separate charts for each blade, we will do it. We
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`can do that easily. We offered that three separate times to
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`them, and they never responded to that.
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`So that is not to say that we can't divide up the charts.
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`It just made a whole lot of sense -- since it is actually one
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`software package, it makes a whole heck of a lot more sense to
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`put it in one chart. It is a matter of form over substance.
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`Furthermore, given that they finally -- after requiring a
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`motion to compel, a response -- have told us what source --
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`what they say what source code goes with what products took 700
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`pages by the way -- we finally have their position on what they
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`say what source code goes with what products. That may be a
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`basis also to further provide information.
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`I mean, we have -- I think you may remember the last time
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`we were in front of you, that we felt that would be information
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`that would be easy to provide. We asked interrogatory on it.
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`That was supposed to be answered before we supplemented our
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`infringement contentions. They refused to answer it. Then we
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`required a motion to compel. Then they extended their time to
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`respond. So we only got it last week, and we submitted it to
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`you. And I think if you take a look at that, you will see they
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`will cite four directories for what they say is -- of source
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`code for what they say is a product; and then immediately after
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`that, they will cite literally, five, six pages of directories
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`and say this is just other code relied on by this product; but
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`it is not part of the product itself.
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`THE COURT: All right.
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`MR. KASTENS: So -- yeah, so, you know, I think that
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`once again goes back to -- I mean, a bit of the games that they
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`are playing. As far as dividing up charts and it being
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`absolutely specific to what blade we -- we are talking about at
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`a specific point, we can do that and we have offered to do
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`that.
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`THE COURT: It's -- you have experience with me. I'm
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`like a second grader when it comes to this. It has to be
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`really clear to me that what you are doing is clear to
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`everybody else, and I'm -- I take the bar low.
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`MR. KASTENS: Your Honor --
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`THE COURT: So that's what I'm looking for. Let me
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`hear from Mr. Roberts.
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`MR. ROBERTS: Yes. So to start with the last point,
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`their offer to divide them up into separate charts was said We
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`will take the exact same information and put that into separate
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`charts if that will resolve the issue. There are lots of
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`issues that we brought to the Court's attention. We were not
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`able to accept that compromise. I will also note that the
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`Court ordered them to do that. The offer that, Hey, if we do
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`this one thing that the Court ordered us to do and we didn't
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`follow the Court's order on that rules out the entire issue was
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`not a particularly appealing offer.
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`I do want to correct the Court with respect to
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`ThreatCloud. I think what the Court said when they cite our
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`characterization -- in particular, they have cited code for
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`Threat Emulation, which is a product within the ThreatCloud
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`marketing term. So we are not asking that their allegation as
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`to Threat Emulation be struck; merely, the other products
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`within the ThreatCloud marketing term.
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`THE COURT: I meant to say that if I didn't say that.
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`MR. ROBERTS: No worries. I just wanted to respond to
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`what Counsel said we cited code for that product. The product
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`for which they cited code within the ThreatCloud marketing term
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`is Threat Emulation.
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`Your Honor, we put in as Appendix 1 -- and I have a
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`slightly easier one here if the Court wants to see it -- a
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`chart that shows for which claims and which products they cited
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`code and which ones they did not. So we went through and we
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`cited it. If these are just marketing terms, why have we --
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`you know, we cited code for them.
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`The issue with the marketing terms is generally they
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`haven't cited code for them. The other undefined
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`technologies -- the problem is they say: This technology or
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`that technology is not linked to an infringement contention.
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`It is not linked to a code citation. It is just a reference to
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`a technology without a code citation. It is to a specific
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`product.
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`It is not like there are code citations to free-floating
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`technologies. There are references to vague technologies and
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`citations to products. Never the twain shall meet.
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`When he said, Well, there are a whole lot of code sources
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`available that are not part of the product, that's true. For
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`example, there is an underlying operating system. And what
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`their interrogatory asked for was they said: Tell us all of
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`the code that is part of or used by a product. And the way we
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`interpreted that was we will give you the unique code that is
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`in each product, and then we will tell you everything else that
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`interacts with it because although these are individual
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`programs, discreet programs, they have a lot of interactions.
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`None of that code that does the interactions have they cited
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`anywhere in their infringement contentions. None of it. It is
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`not anywhere. There is no allegation that sort of operating
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`system level code shared by all the products constitutes an
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`infringing instrumentality. There is no allegation about that
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`anywhere in there. There wasn't in the first one, and there
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`isn't in this one.
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`I think I have addressed the important points. If the
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`Court has additional questions, I'm happy to answer them.
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`THE COURT: I don't. Mr. Kastens, do you have any
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`response?
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`MR. KASTENS: Your Honor, you should have a copy of
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`the source code exhibits. If you want to take a look at it, I
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`think it will show you that it looks like there has been
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`efforts made to like -- like, not represent in a manner that we
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`can technically make sense of what this application is. It is
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`a single application. We have accused it. That's what we are
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`accusing. That is what our contention is. I don't think there
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`is a factual record to say at this point in the contention
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`stage to deny that that's true. To the extent that they have
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`these certain definitions of what products are is completely
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`based on what they argue their products are using a super
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`narrow definition of what the code is for those products.
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`So what I would seek leave to do, Your Honor, is if you
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`Case 3:18-cv-02621-WHO Document 264-12 Filed 03/27/20 Page 15 of 23
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`believe that a -- the charts by blade are the proper way, that
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`we be allowed to go ahead and chart them using the blades. It
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`would just really just take a matter of just dividing up our
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`charts. We already have the charts divided up by blade. To
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`understand that, the actual underlying code, for example, on
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`some of these don't directly -- and some of the technologies
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`don't directly map to a particular -- they say they are part of
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`no products. I don't even know what to do in that instance if
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`you say something is part of no product even though it's an
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`application that is construed to the customers, and they only
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`say 5 percent of the code actually in that application is in
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`any sort of product. It is just -- it does not make sense and
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`defies belief on that -- so that's what they seem to be
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`attempting to do.
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`So I think we can -- based on what our previous
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`contentions are, we can divide them and specifically identify
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`the blades. And all the blades that we have identified within
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`our contentions regarding the actual functionality at issue
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`were identified in the letter -- were identified to them as
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`infringing products or was specifically related to source code
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`that was previously cited even if they weren't specifically
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`called out as that particular blade at that time. We cited
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`source code for the blade. We can much more easily do it now
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`that they have actually finally responded and said what source
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`code goes with what blade.
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`Case 3:18-cv-02621-WHO Document 264-12 Filed 03/27/20 Page 16 of 23
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`MR. ROBERTS: To respond to that last point, we have
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`been into this case now for almost a year. They have had the
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`source code almost that entire time, over ten months,
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`I believe, at this point. They asked us to do this mapping of
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`not just what code is in each blade but also all of the code
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`that we produced that interacts with it.
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`We responded under 33(d) that it was a mechanical process;
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`that someone would have to go through all the code and look at
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`all of the links and look at all the functions and list them
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`out. They said it was easier for us to do it than for them.
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`When I met and conferred with Mr. Andre, I said, Look --
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`before that motion, I said, Look, if you are telling me your
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`experts don't have the ability to do this -- like they can't do
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`it -- I will do it for you. They said, No, they can do it. We
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`just think it is easier for you. We litigated a motion over
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`that. The magistrate judge said we had to do it. We did it.
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`I don't understand what they say: Oh, now that we have this
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`thing, we can do something different. They have had three
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`different experts look at this code for over ten months.
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`THE COURT: I'm allowing them to amend.
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`MR. ROBERTS: Yep.
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`THE COURT: This is going to be the last time. So do
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`the absolute best, and then you are going to be stuck with it.
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`MR. KASTENS: Yes, Your Honor.
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`THE COURT: And I will get an order out on these
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`Case 3:18-cv-02621-WHO Document 264-12 Filed 03/27/20 Page 17 of 23
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`things, and we will see where we are.
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`MR. KASTENS: May I raise two additional brief issues
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`not related to the merits of that?
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`THE COURT: Okay.
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`MR. KASTENS: One is the scheduling order with respect
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`to claim construction. If they are going to be amending, can
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`we, again, delay the claim construction until we --
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`THE COURT: Yes, we have to do that one more time; and
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`then that will be it. I mean, the whole -- this is something
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`that occurs not in just this case but the whole purpose of this
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`is not to have preliminary jousting, but it is to understand
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`what the case is; and it is for you to understand it so that
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`you can explain it to me when it comes time for claim
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`construction and everything else. And what I often see through
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`the clouds is just sort of general obfuscation. So I really
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`want you to -- this should be a matter at this point of
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`collaboration and understanding -- and making sure that you
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`both understand what your perspectives are, so you can then
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`present it to me.
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`I do think we have to delay it one more time, and we can
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`set the schedule either by your stipulation which would be
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`preferable. And if you can't do that, give me competing
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`schedules.
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`MR. ROBERTS: Your Honor, I just -- one last point
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`based on that, you know, we believe from their motion that they
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`Case 3:18-cv-02621-WHO Document 264-12 Filed 03/27/20 Page 18 of 23
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`filed to amend their invalidity contentions, if you read that,
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`they have full understanding of what our contentions are.
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`THE COURT: I know that is your perspective, and you
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`may well be right. I don't know. I can't read into either of
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`your minds. You both think that the other one is acting in a
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`nefarious way, and that is the way that you litigate; and
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`that's too bad for me, and it is probably too bad for your
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`clients.
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`MR. ROBERTS: My further point to that was just -- I
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`think if you take a look at our actual charts we provided, we
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`went through great pains to make them as understandable as
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`possible. We have underlined, highlighted, arrows, everything
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`we can do to try to say: This is what we are accusing. And
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`this just seems to be monkey business to keep trying to, you
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`know, argue about what the definitions are --
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`THE COURT: We finished with that motion, so I don't
`
`want to deal with that anymore.
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`MR. ROBERTS: All right.
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`THE COURT: Ms. Xu.
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`MS. KOBIALKA: Your Honor, I will want to be heard on
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`your ruling as well. I have to make some statements, but it is
`
`fine to go ahead.
`
`MS. XU: Good morning, Your Honor.
`
`THE COURT: Was I correct in my understanding of how
`
`the -- your declaration was laid out?
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`
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`Case 3:18-cv-02621-WHO Document 264-12 Filed 03/27/20 Page 19 of 23
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`MS. XU: Respectfully, it is incorrect. What happened
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`is I did a in-person source code review sometime in September
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`of last year, and at the time the majority of the source code
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`was already on the source code computer. So specifically there
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`is a network security blade -- so-called Blade Architecture,
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`and that one contributes to the majority of the source code on
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`the source code computer. That particular source code was
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`already there at the time of review.
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`Similarly, there is endpoint security source code which
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`was also there at the time when I did the review; and if you
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`look at my declaration, it contributed to the majority of the
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`source code.
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`THE COURT: Are you saying -- what I understood the
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`facts to be was that you were in the repository for two and a
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`half hours or something like that?
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`MS. XU: Yes, that portion is correct. I was there,
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`and then I looked at what is being loaded onto the source code
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`computer as well as how many files were there and those sort of
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`ballpark estimate, also in my declaration, and I also opened
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`selected files to take a look to see the functionality of
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`certain files and folders.
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`THE COURT: Are you telling me that the entire
`
`declaration was from your own personal knowledge?
`
`MS. XU: That's a trick question. So --
`
`THE COURT: No, it's not.
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`
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`Case 3:18-cv-02621-WHO Document 264-12 Filed 03/27/20 Page 20 of 23
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`MS. XU: Okay. I'm saying that declaration is based
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`on my review of the source code on the source code computer,
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`but it is also based on subsequent reviews by our expert and
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`then the expert had --
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`THE COURT: So here is the point -- and this is the
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`only point that I wanted to make, and I wanted to be really
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`clear -- you don't get to put in a declaration that you say you
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`have personal knowledge of information that you don't have
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`personal knowledge of.
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`So when you are putting in the -- what an expert has told
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`you about the source code review, you need to have that expert
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`do it, not you. And don't let any partner in your law firm
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`tell you that you need to do this yourself. That's -- you are
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`stuck always with your -- the most important thing you have is
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`your integrity, and you don't use somebody else's testimony and
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`put it in as your own. Don't let anybody do that. So this is
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`not -- I'm -- that was the basis for my ruling, okay.
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`MS. XU: Okay.
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`THE COURT: Thank you.
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`MS. KOBIALKA: Your Honor, may I be heard briefly on
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`your ruling? I do think that there have been some other
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`allegations that have been made in connection with that
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`particular motion that I have concerns about as well as the
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`relief that is requested and so --
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`THE COURT: So all I'm doing is saying -- I don't
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`
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`Case 3:18-cv-02621-WHO Document 264-12 Filed 03/27/20 Page 21 of 23
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`think this is -- I don't think this is a big issue in the -- on
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`any level except for I think it was inappropriate for you to
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`make Ms. Xu file that declaration. I don't blame her at all.
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`But I do blame your firm. And you just shouldn't do it that
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`way.
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`MS. KOBIALKA: I understand what your ruling is. I
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`wanted to get clarification because they have asked for
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`in-camera reviews and --
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`THE COURT: I'm not doing anything -- I'm done with
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`that, and Ms. Xu has indicated that she didn't violate the
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`protective order. What she did was -- and it happens. Other
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`people do similar kinds of things, but it is not right; and I
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`shouldn't have people do it.
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`If you want to have somebody make a statement about what
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`anything says, make sure they have personal knowledge.
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`MS. KOBIALKA: I mean, that takes me to the other
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`point, which was that we signed declarations that says there
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`has been 200 hours of document review in connection with, let's
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`say, some discovery dispute. Now, I didn't personally do that
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`document review; but I may have overseen that entire process.
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`And to be very clear, her declaration is just about
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`high-level information regarding the source code. You know,
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`90 percent of it was based on what she had actually seen
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`already. And she referred, especially in her declaration, that
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`there was a hundred hours of review total done. She never
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`
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`Case 3:18-cv-02621-WHO Document 264-12 Filed 03/27/20 Page 22 of 23
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`said, I personally did that review.
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`So I understand your ruling, but I want to be clear
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`because what it sounds like you are saying now is if I have a
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`motion to compel, I'm now going to have -- let's say, the five
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`associates who did the document review say, I did 25 hours of
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`this review. I did this other review -- if I'm overseeing that
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`process, I think it is fair to say I oversaw this review, and
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`it took a total of 125 hours or 125 paralegal hours. This
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`really is the level at which the declaration was stated.
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`THE COURT: That's not the way that I read it, and
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`that is not the way I just heard it described. And I wouldn't
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`be argued this so vociferously because I think I'm being fairly
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`lenient with respect to all of this because I do accept the
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`truth of what Ms. Xu just said.
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`MS. KOBIALKA: The only other question I have in
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`connection with this is we were required to do pinpoint
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`citations; and, you know, they made a big stink about maybe you
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`have copied the source code, and I unde
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