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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`FINJAN, INC.,
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`Plaintiff,
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`v.
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`CHECK POINT SOFTWARE
`TECHNOLOGIES, INC., et al.,
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`Defendants.
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`Case No. 18-cv-02621-WHO
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`
`ORDER DENYING MOTION TO
`CERTIFY THE ORDER ENTERED AT
`DKT. NO. 247 FOR INTERLOCUTORY
`APPEAL
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`Re: Dkt. No. 263
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`In this patent infringement case, plaintiff Finjan, Inc. (“Finjan”) accuses defendant Check
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`Point Software Technologies, Inc. and Check Point Software Technologies Ltd. (collectively
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`“Check Point”) of infringing on several of its patents related to cyber security. There have been
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`three rounds of infringement contentions in this case. On January 17, 2020, I granted in part
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`Check Point’s motion to strike Finjan’s second amended infringement contentions (“SAICs”),
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`which amounted to 5,135 charts, totaling to over 185,000 pages. See Order Granting in Part
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`Motion to Strike Second Amended Infringement Contentions; Granting in Part Motions to Seal
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`(the “SAIC Order”) [Dkt. No. 247]. Given the unmanageable size of Finjan’s SAICs, I appointed
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`a special master to determine if other contentions should be struck in accordance with the SAIC
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`Order. See Order Appointing Special Master [Dkt. No. 261].
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`Before me is Finjan’s request that I certify the SAIC Order for interlocutory review of
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`whether Patent Local Rule 3 requires a party claiming patent infringement to provide pinpoint
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`source code citations for every element of every asserted claim. It also seeks to stay the
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`proceedings and permit it limited discovery while the appeal is pending. I conclude that Finjan
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`has failed to identify a pure question of law over which substantial grounds for difference exists
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`Case 3:18-cv-02621-WHO Document 267 Filed 04/21/20 Page 2 of 12
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`and that an interlocutory appeal would further prolong this already-prolonged litigation. Finjan’s
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`motion to certify the SAIC Order for interlocutory appeal is DENIED.
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`BACKGROUND1
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`In September 2018, I received briefing from the parties on how to manage this litigation in
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`compliance with Federal Rule of Civil Procedure 1’s mandate of a “just, speedy, and inexpensive
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`determination of this action[.]” Order Re Case Narrowing and Infringement Contentions (the
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`“Narrowing Order”) [Dkt. No. 29]. I then ordered Finjan to serve its infringement contentions
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`under specifications that largely follow the provisions of this District’s Patent Local Rules as well
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`as the guidance provided in the since withdrawn 2013 Model Order from the Federal Circuit. See
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`Narrowing Order. Finjan was instructed to “include pinpoint source code citations . . .
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`accompanied by the document production required by Patent Local Rule 3-2” and to also:
`(i) avoid open-ended citations to “exemplary” products and use of the
`terms “such as” and “for example”; (ii) set forth any infringement
`theories based on the doctrine of equivalents with limitation-by-
`limitation analyses; and (iii) for any indirect theories of infringement,
`identify the alleged direct infringement, the alleged acts of
`inducement or contribution to that infringement, and the relationship
`between them.
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`Id. at 2.
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`On February 27, 2019, I granted in part Check Point’s motion to strike Finjan’s
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`infringement contentions (“ICs”) because they violated my Narrowing Order and the Patent Local
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`Rules. See Order Granting Motion to Strike in Part; Granting Motions to Seal; Granting Motion to
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`Amend Claim Construction Schedule (the “IC Order”) [Dkt. No. 84]. Among other things, I
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`specifically ordered Finjan to provide pinpoint source code citations that show “where and how
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`each limitation of each asserted claim is found within each Accused Instrumentality.” Id. at 12;
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`see also id. at 11 (“It is Finjan’s obligation to identify the particular claim components in each
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`claim, map those components onto the features of the allegedly infringing products, and pinpoint
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`cite source code that practices that component.”).
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`Finjan then served its amended infringement contentions (“AICs”). Check Point moved to
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`1 I summarized the facts of this case in more detail in the January 17, 2020 SAIC Order. See
`SAIC Order at 3-7.
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`Case 3:18-cv-02621-WHO Document 267 Filed 04/21/20 Page 3 of 12
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`strike, arguing that they were deficient in largely the same ways as before. On August 12, 2019, I
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`granted Check Point’s motion in part. See Order Granting Motion to Strike Infringement
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`Contentions in Part (the “AIC Order”) [Dkt. No. 192]. In relevant part, I found that Finjan had
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`already been directed to provide pinpoint source code citations for each limitation and held that
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`“[t]o the extent any or all of the 30 of the accused instrumentalities lack pinpoint citations, they are
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`struck with prejudice.” Id. at 11. Where Finjan used the same source code for different things, I
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`allowed it to “amend its infringement contentions to better explain why the same source code []
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`applies to wholly different limitations.” Id. I allowed Finjan limited leave to amend its
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`infringement contentions “one last time within fourteen days.” Id. at 18. I cautioned that “if any
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`of its infringement contentions remain deficient, they may not form the basis for relief in this
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`action.” Id.
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`On August 26, 2019, Finjan served its SAICs, containing 5,135 claim charts and totaling
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`more than 185,000 pages. SAIC Order at 7. Check Point moved to strike the SAICs for six
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`reasons. Before the hearing, I issued a tentative ruling on these six issues that was almost entirely
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`against Finjan; at the start of the hearing, Finjan abandoned its positions in response to most of the
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`tentative. Id. at 1.
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`In making my final ruling, I emphasized that “just because a contention crosses one of the
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`issue hurdles, it does not necessarily mean that it is sufficiently alleged because it could fail to
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`cross another issue hurdle.” SAIC Order at 2 n.1. Ultimately, I struck with prejudice all
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`contentions identified under Issue 1 (products and theories that were previously struck with
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`prejudice), Issue 2 (new accusations), and Issue 5 (contentions without pinpoint source code
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`citations). SAIC Order at 39. I struck with prejudice all inadequately identified and explained
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`combination contentions discussed under Issue 3, and I decided to appoint a special master to
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`determine if the other accused combinations should also be struck. Id. Finally, I struck with
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`prejudice all examples discussed under Issue 6, and referred to the master the determination of
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`whether the other contentions should also be struck for inadequate source code explanations
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`and/or failure to explain why the same source code applies in different cases. Id.2
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`On February 14, 2020, I appointed the Honorable Elizabeth D. Laporte, United States
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`District Court Magistrate Judge (Retired), as special master after neither party objected to my
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`notice of intent to appoint her. See Order Appointing Special Master [Dkt. No. 261]. On March
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`13, 2020, Special Master Laporte set a briefing schedule, but on the same day Finjan filed this
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`motion to certify interlocutory appeal, to stay, and to permit limited discovery. See Plaintiff
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`Finjan Inc.’s Notice of Motion and Motion to Certify the Court’s January 17, 2020 Order (Dkt.
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`No. 247) For Interlocutory Appeal, to Stay, and to Permit Limited Discovery (“Mot.”) [Dkt. No.
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`263].
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`LEGAL STANDARD
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`Appellate review before a final judgment is appropriate “only in exceptional cases where
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`decision of an interlocutory appeal might avoid protracted and expensive litigation.” U.S. Rubber
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`Co. v. Wright, 359 F.2d 784, 785 (9th Cir. 1966). For the court of appeals to have jurisdiction
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`over an interlocutory appeal, the order must involve: (i) a controlling question of law; (ii)
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`substantial grounds for difference of opinion; and (iii) a likelihood that an immediate appeal may
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`materially advance the ultimate termination of the litigation. 28 U.S.C. § 1292(b). Section 1292
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`“was not intended merely to provide review of difficult rulings in hard cases.” Id. Certification is
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`at the discretion of the district court. Swint v. Chambers Cnty. Comm’n, 514 U.S. 35, 47 (1995).
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`A party seeking to certify an issue for interlocutory review bears the burden of showing
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`that each of the three requirements are satisfied and that a departure from long-standing policy is
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`justified. Stiner v. Brookdale Senior Living, Inc., 383 F. Supp. 3d 949, 957 (N.D. Cal. 2019).
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`Even when the moving party can meet the requirements of Section 1292(b), a district court’s
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`decision to grant or deny certification is entirely discretionary. Nat’l Fair Hous. All. v. A.G.
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`Spanos Const. Inc, No. C 07-3255 SBA, 2008 WL 5273335, at *1 (N.D. Cal. Dec. 16, 2008). A
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`decision by the district court to deny certification of an issue is unreviewable. Id.
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`2 I allowed Finjan to include the open-ended citations discussed under Issue 4 because it clarified
`that these block citations will not be relied on to show infringement at trial, but to provide context
`and show how pinpoint citations operate. SAIC Order at 39.
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`DISCUSSION
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`Finjan has not met its burden of satisfying all three requirements to justify the
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`extraordinary remedy it seeks. Interlocutory review is not appropriate because Finjan seeks
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`review of a mixed question of law and fact, it fails to show a substantial ground for a difference of
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`opinion, and an appeal would not materially advance this litigation.
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`I.
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`CONTROLLING QUESTION OF LAW
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`A question of law is controlling if “resolution of the issue on appeal could materially affect
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`the outcome of the litigation.” In re Cement Litig., 673 F.2d 1020, 1026 (9th Cir. 1982). This
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`requirement helps ensure that section 1292(b) interlocutory appeals occur “sparingly and only in
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`exceptional cases” as Congress intended. See id. at 1027. A “mixed question of law and fact or
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`the application of law to a particular set of facts” by itself is not appropriate for permissive
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`interlocutory review. Johnson v. Serenity Transportation, Inc., No. 15-CV-02004-JSC, 2017 WL
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`3168491, at *1 (N.D. Cal. July 26, 2017) (citation omitted); see also Allen v. Conagra Foods, Inc.,
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`No. 13-CV-01279-JST, 2013 WL 6000456, at *3 (N.D. Cal. Nov. 12, 2013) (denying
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`section 1292(b) certification because proposed appeal involved application of the relevant facts to
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`a regulation).
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`Finjan asserts that the SAIC Order raises the following controlling question of law:
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`“whether Patent Local Rule 3-1 requires pinpoint source code citations for every claim element,
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`particularly prior to the deposition phase of fact discovery, or if a Plaintiff may reasonably rely on
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`other evidence of infringement to provide the ‘where and how’ of infringement for certain
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`limitations.” Mot. 7-8. But contrary to Finjan’s formulation of the question, the SAIC Order did
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`not simply apply Patent Local Rule 3-1; it also applied the Narrowing Order, the IC Order and the
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`AIC Order.
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`I exercised my inherent broad discretion in supervising the pretrial phase of litigation and
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`managing my docket when I entered the Narrowing Order in this case. See Johnson v. Mammoth
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`Recreations, Inc., 975 F.2d 604, 607 (9th Cir.1992) (citation omitted); Dietz v. Bouldin, 136 S. Ct.
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`1885, 1892 (2016). At the Initial Case Management Conference, I directed the parties to submit
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`briefs in support of their proposals as how to manage the litigation of this case to comply with
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`Federal Rule of Civil Procedure 1’s mandate of a “just, speedy, and inexpensive determination” of
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`this action. Minute Entry for Proceedings Held on August 14, 2018 [Dkt. No. 24]. After
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`considering their briefs, the Patent Local Rules, and the 2013 Model Order, I ordered Finjan to
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`identify the specific infringing products, Check Point to provide source code for these identified
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`products, and then Finjan to serve its infringement contentions that comply with Patent Local Rule
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`3-1, “include pinpoint source code citations, and be accompanied by the document production
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`required by Patent Local Rule 3-2.” Narrowing Order at 2. The Narrowing Order was a tailored
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`order made in light of the facts; it was not simply an order directing compliance with the Patent
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`Local Rules. Id. Other courts have also required the same in similar situations. See, e.g., Big
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`Baboon Corp. v. Dell, Inc., 723 F. Supp. 2d 1224, 1228 (C.D. Cal. 2010) (where the accused
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`instrumentality includes computer software based upon source code made available to the
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`patentee, the patentee must provide “pinpoint citations” to the code identifying the location of
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`each limitation).
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`In all three rounds of infringement contentions, Check Point sought to strike not only for
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`failure to comply with the Patent Local Rules but also to enforce the Narrowing Order that was
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`tailored to the facts of this case. The Narrowing Order includes a determination of how to manage
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`my docket, how to supervise pretrial litigation, or how to ensure an efficient determination, all of
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`which are not questions of law. Ellis v. Bhd. of Ry., Airline & S.S. Clerks, Freight Handlers,
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`Express & Station Emps., 685 F.2d 1065, 1071 (9th Cir.1982), rev’d in part and aff’d in part, 466
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`U.S. 435 (1984) (“A district court has wide latitude in controlling discovery; its rulings will not be
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`overturned in the absence of a clear abuse of discretion.”). The AC Order and AIC Order further
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`developed the analysis of Finjan’s contentions.
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`At best, the SAIC Order entails a mixed question of law which is inappropriate for
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`interlocutory appeal. For example, in Allen v. Conagra Foods, Inc, I denied a motion to certify an
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`order for interlocutory appeal because, among other things, the question presented was not one of
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`pure law, but rather a mixed question of law and fact. No. 3:13-cv-01279-WHO, 2019 WL
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`1466889 (N.D. Cal. Feb. 5, 2019). In ruling on a motion to dismiss, I “determined that the federal
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`regulations governing food labeling do not preempt the plaintiff’s claims.” Id. at *1. The
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`defendants sought interlocutory appeal, claiming that my order turned on a question of law –the
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`interpretation of a federal regulation. Id. But I found that “[t]he facts alleged in the complaint
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`[could not] be extricated from my discussion or from any conclusion I reached.” Id. at *2.
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`Similarly, even if the SAIC includes a legal question of my interpretation of a Patent Local
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`Rule, the nature of Finjan’s infringement contentions, combined with three rounds of litigation
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`relating to the sufficiency of those contentions, cannot be extricated from my discussion and
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`conclusion about them. In the AIC Order and the SAIC Order, I did not make a blanket
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`determination that all infringement contentions must include pinpoint source code citations.
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`Rather, considering the facts unique to this case, I held that pinpoint source code citations and
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`supporting explanations were required to put Check Point (and me) on notice of Finjan’s
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`infringement theories. Without a controlling question of law, interlocutory appeal is
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`inappropriate.
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`Even if I were to find that my requirement for source code citations in this case is a pure
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`question of law, Finjan has not met its burden in showing that it is a controlling question of law as
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`required by 28 U.S.C. § 1292(b). A controlling question of law is one where the “resolution of the
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`issue on appeal could materially affect the outcome of litigation in the district court.” In re
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`Cement, 673 F.2d at 1026. Finjan argues that the question of whether source code citations are
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`required by the Patent Local Rules is controlling because it materially affects the outcome of this
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`case by striking many of Finjan’s infringement contentions, thereby removing these allegations
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`from this case. Mot. 8. But it fails to consider that contentions addressed in the SAIC Order were
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`struck on multiple overlapping grounds. Check Point moved to strike the SAICs because Finjan
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`“(1) accuses products and theories struck with prejudice by the Court; (2) asserts new theories,
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`claims, and combinations; (3) continues to accuse combinations without explaining which parts of
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`the combination meet which limitation or how the combination of products act together to
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`infringe; (4) relies on new open-ended contentions and citations to the entire code base for accused
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`instrumentalities; (5) has not provided pinpoint source code citations for numerous contentions3;
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`3 Under Issue 5, Finjan stipulated to my tentative ruling to strike all contentions identified by
`Check Point that did not include any source code citations or had source code citations that were
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`Case 3:18-cv-02621-WHO Document 267 Filed 04/21/20 Page 8 of 12
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`and (6) still fails to specify how Check Point’s products infringe Finjan’s patents.” SAIC Order at
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`9. In deciding each of these six issues, I emphasized that “just because a contention crosses one of
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`the issue hurdles, it does not necessarily mean that it is sufficiently alleged because it could fail to
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`cross another issue hurdle.” Id. at 2 n.1.
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`Finjan has not met its burden in showing that the issue is a controlling question of law
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`appropriate for interlocutory review.
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`II.
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`SUBSTANTIAL GROUND FOR DIFFERENCE OF OPINION
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`A substantial ground for difference of opinion exists where “novel and difficult questions
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`of first impression are presented” on which “fair-minded jurists might reach contradictory
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`conclusions.” Reese v. BP Exploration (Ak.) Inc., 643 F.3d 681, 688 (9th Cir. 2001). Some
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`examples of substantial ground for difference of opinion include cases in direct conflict with the
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`holding in the order sought for interlocutory review, or a split in authority on the questions
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`posed. See Bennett v. SimplexGrinnell LP, No. 11-cv-01854-JST, 2014 WL 4244045, at *2 (N.D.
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`Cal. Aug. 25, 2014). “A party’s strong disagreement with the Court’s ruling is not sufficient for
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`there to be a substantial ground for difference.” Couch v. Telescope Inc., 611 F.3d 629, 633 (9th
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`Cir. 2010).
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`Finjan relies on a series of cases in this District, including one before me, that it contends
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`shows a difference of opinion on “whether and to what extent Patent Local Rule 3-1 requires
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`universal pin cites to source code.” Mot. 10. But each of the cases it relies on are easily
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`distinguishable from this case because this determination is so fact dependent.
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`For example, in Finjan, Inc. v. Sophos, Inc., No. 14-CV-01197-WHO, 2015 WL 5012679,
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`at *1 (N.D. Cal. Aug. 24, 2015), I granted defendant’s motion to strike to the extent that it sought
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`to compel Finjan to amend its infringement contentions, but denied it in all other respects. I
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`refused to strike Finjan’s contentions because, unlike the third rounds of infringement contentions
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`here, it was “the first time that a court has reviewed Finjan’s contentions in [that] case, Finjan []
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`requested leave to amend, and it appear[ed] likely that Finjan [would] be able to cure the
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`extremely deficient because they cite code for only portions of a limitation. SAIC Order at 28-29.
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`deficiencies.” Id. at *2. n.2.
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`Even though I allowed Finjan to amend its infringement contentions in that case, I still
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`required the amended contentions to include “pinpoint citations, or the substantial equivalent, to
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`source code.” 2015 WL 5012679, at *3. Finjan similarly argued “that pinpoint citations to source
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`code are not required under the patent local rules and that they are only required in response to an
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`interrogatory.” Id. But I noted that “[t]his distinction is irrelevant here because Sophos has
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`already served (nearly five months ago) an interrogatory requesting pinpoint citations to source
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`code” and “[s]everal courts have held that once a plaintiff has had a sufficient opportunity to
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`review the defendant’s source code, the plaintiff must provide citations to the source code in
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`response to an interrogatory.” Id. (collecting cases). I concluded that “[o]nce Finjan responds to
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`the pinpoint citations interrogatory, it will be required to include that information in its
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`infringement contentions as well.” Id. Here, Finjan has not only had access to the source code of
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`Check Point’s accused products for several months, but also to a source-code mapping showing
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`the relationship between the code Check Point had produced for inspection and the accused
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`products. Check Point provided this source-code mapping to Finjan well before the SAICs were
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`served.4
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`4 I briefly address Finjan’s request for limited discovery here. After receiving a source-code
`mapping from Check Point, Finjan attempted to compel the testimony of Tamir Zegman, Check
`Point’s chief architect, because Finjan disagreed with his understanding with respect to what
`source code was related to which products. Finjan complains that despite filing repeated motions
`to compel, it has not been able to depose Zegman. Plaintiff Finjan, Inc.’s Reply in Support of its
`Motion to Certify For Interlocutory Appeal, to Stay, and to Permit Limited Discovery [Dkt. No.
`266] 13. It contends that the court in Finjan, Inc. v. Zscaler, Inc., Case No. 17-cv-06946-JST, did
`not allow that defendant to do the same litigation tactic and after Finjan deposed defendant’s
`representative on its source code, defendant no longer challenged the infringement contentions.
`Finjan believes the same would happen here if it is allowed to depose Zegman. Finjan’s assertion
`is unconvincing.
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`Finjan has been provided a procedure to depose Zegman, but it has never invoked this procedure
`and instead affirmatively declines to make use of it. At the February 13, 2019 hearing that
`resulted in the first IC Order, I rejected Finjan’s request for an unbounded technical deposition.
`However, I provided Finjan with a mechanism for taking early 30(b)(6) deposition – “send me a
`five-page joint letter and append to it the questions that you would like to ask a 30(b)(6) witness.”
`Transcript of Proceedings Held on February 13, 2019 [Dkt. No. 85] 4:17-20. On June 18, 2019,
`Chief Magistrate Judge Joseph C. Spero denied Finjan’s motion to compel deposition of Zegman,
`noting that he “[was] not writing on a blank slate,” because I had previously specified a procedure
`for Finjan to obtain early technical witness testimony, and that Finjan had failed to follow that
`procedure. Order Denying Motion to Compel Deposition of Tamir Zegman Without Prejudice
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`Finjan next relies on Finjan, Inc. v. Proofpoint, Inc., No. 13-cv-05808-HSG, 2015 WL
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`9023166 at *3 (N.D. Cal. Dec. 16, 2015) in which the court held that “pinpoint citations to source
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`code are not a per se requirement in patent cases involving software. Although pinpoint citations
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`to source code are one way of meeting Rule 3-1(c)’s requirement . . . the Court has not been
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`presented with any authority holding that pinpoint citations are the only way to meet its
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`requirements.” This is not inconsistent with the SAIC Order. As discussed above, Finjan’s
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`infringement contentions had to meet not only Patent Local Rule 3-1, but also the criteria specified
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`in the Narrowing Order. After receiving input from the parties on how to manage this case, and
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`the Narrowing Order directed Finjan to provide pinpoint source code citations given the
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`circumstances in this case. The SAIC Order, and my other prior orders on Finjan’s ICs and AICs,
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`merely applied that directive when it came to pinpoint source code citations. The SAIC Order did
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`not attempt to impose a blanket rule that all software cases require “universal pin cites to source
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`code,” as Finjan claims.
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`Finally, Finjan’s reliance on Vasudevan Software, Inc. v. International Business Machines
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`Corp., No. C09-05897 RS HRL, 2011 WL 940263 (N.D. Cal. Feb. 18, 2011) and Network
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`Caching Tech. LLC v. Novell Inc., No. C-01-2079-VRW, 2002 WL 32126128 (N.D. Cal. Aug. 13,
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`2002) are also misplaced. In Vasudevan, although the court did not require pinpoint citations
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`given the circumstances of that case, it nonetheless recognized that “[o]nce source code has been
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`provided to the plaintiffs . . .courts have required plaintiffs to supplement their infringement
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`charges with pinpoint citations.” 2011 WL 940263, at *7. In Network Caching, source code was
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`“solely in the defendants’ possession,” indicating that source code discovery had not yet
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`[Dkt. No. 161].
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`In any event, the SAIC Order did not solely rely on how Check Point mapped its source code. As
`explained above, products were struck for multiple reasons. For example, in evaluating Finjan’s
`contentions against the Capsule Cloud product, I noted that parties disagreed on whether the cited
`source code belonged to that product. Regardless, I found that “[e]ven if Finjan was attempting to
`claim that non-Capsule Cloud code shows infringement, it does not explain that theory and instead
`simply provides a one-sentence incorporation by reference placeholder for Capsule Cloud.” SAIC
`Order at 12; see also id. at 34 (“The parties dispute whether the source code cited on pages 7 and 8
`belong to the Network Anti-Virus instrumentality. Assuming that it does, Finjan fails to provide
`an adequate explanation of the downloadable security profile.”).
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`commenced. 2002 WL 32126128, at *7.
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`Finjan fails to meets its burden in showing that there are substantial grounds for a
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`difference of opinion pertaining to the alleged “question of law”.
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`III. MATERIAL ADVANCEMENT
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`An appeal must be “likely to materially speed the termination of the litigation.” Ambrosio
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`v. Cogent Commc’ns, Inc., No. 14-cv-02182-RS, 2016 WL 777775, at *3 (N.D. Cal. Feb. 29,
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`2016). Considering the effect of a reversal in the case, an interlocutory appeal materially advances
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`the termination of the litigation where it “promises to advance the time for trial or to shorten the
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`time required for trial.” Dukes v. Wal-Mart Stores, Inc., 01-cv-02252-CRB, 2012 WL 6115536, at
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`*5 (N.D. Cal. Dec. 10, 2012) (quoting 16 Federal Practice & Procedure § 3930 at n. 39 (2d ed.)).
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`“The ultimate question is whether permitting an interlocutory appeal would minimize the total
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`burdens of litigation on parties and the judicial system by accelerating or at least simplifying trial
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`court proceedings.” Id. (internal quotation marks and formatting omitted).
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`Finjan’s three reasons on how an interlocutory appeal will advance this case are
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`unpersuasive. First, it contends that interlocutory appeal “will avoid the risk of wasting time and
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`resources by conducting two successive rounds of expert reports and trials with significantly
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`overlapping issues in the event of a remand on the stricken infringement claims.” Mot. 13. I find
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`that risk is low given the multiple opportunities I have given Finjan to comply with Patent Local
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`Rules and my Narrowing Order.
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`Second, it asserts that “guidance from the Federal Circuit will assist the Special Master in
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`determining whether Finjan’s outstanding contentions should also remain in the case.” Mot. 13.
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`The Special Master was appointed to evaluate the remaining charts in light of the SAIC Order. In
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`particular, I appointed the master to “determine if other contentions should also be struck for
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`inadequate source code explanations and/or failure to explain why the same source code applies in
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`different cases.” SAIC Order at 39. Special Master Laporte will not be determining whether
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`contentions should be struck for failure to provide pinpoint source code citations (the alleged
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`“question of law” here) but rather for failure to explain those pinpoint citations. These are two
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`different questions and were separately discussed in the SAIC Order as well. See id. at 28-29
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`(discussing Issue 5 failure to provide pinpoint source code citations); id. at 29-39 (discussing Issue
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`6 failure to explain how cited source code shows infringement). A ruling from the Federal Circuit
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`before the Special Master provides a recommendation will not necessarily materially advance this
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`case.
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`Third, Finjan argues that an interlocutory appeal would “help narrow the issues by
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`finalizing the list of contentions to be tried.” Mot. 13. “While this argument may provide
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`additional support for certification in cases where the first two factors are indisputably met, it is
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`insufficient to carry the entire weight of the certification requirements.” Chiron Corp. v. Abbott
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`Labs., No. C-93-4380 MHP, 1996 WL 15758, at *3 (N.D. Cal. Jan. 3, 1996).
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`Interlocutory appeal is to be reserved for exceptional circumstances. This is not one. It
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`would certainly not accelerate trial court proceedings. Almost two years have passed since Finjan
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`initiated this patent infringement case, yet it is still at the infringement contentions stage.
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`For the foregoing reasons, Finjan’s motion to certify the SAIC Order for interlocutory
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`CONCLUSION
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`appeal is DENIED.
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`IT IS SO ORDERED.
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`Dated: April 21, 2020
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`William H. Orrick
`United States District Judge
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