`
`
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`
`FINJAN LLC,
`Plaintiff,
`
`vs.
`
`QUALYS INC.,
`Defendant.
`
`CASE NO. 4:18-cv-07229-YGR
`
`
`ORDER GRANTING DEFENDANT’S
`RENEWED MOTION TO STRIKE
`Re: Dkt. No. 194, 197
`
`
`
`
`
`
`
`
`
`
`
`Before the Court is Defendant Qualys Inc. renewed motion to strike portions of Dr. Nenad
`Medvidovic’s expert report proffered on behalf of Plaintiff Finjan LLC. (Dkt. No. 194 (“Mot.”).)1
`Qualys seeks to strike Dr. Medvidovic’s theory that the accused products “receiv[e] an incoming
`stream of program code,” as required by the asserted U.S. Patent No. 8,225,408 (“’408 Patent”),
`because the theory was not disclosed in Finjan’s infringement contentions. The Court previously
`denied the motion on this ground, without prejudice to renewal, for lack of clear explanation. (See
`Dkt. No. 188 (“Order”) at 7 & n.5.) Qualys now clarifies as follows:
`Finjan accuses vulnerability management features in Qualys’ Cloud Platform. (Dkt. No.
`194-2 (“Medvidovic Report”) ¶¶ 87-90.) In its infringement contentions, Finjan stated that the
`accused products “receiv[e] . . . an incoming stream of program code” when a node in the cloud
`computing environment “receives content based on a client device requesting the content from a
`source computer, such as the Internet.” (Dkt. No. 158-6 (“Contentions”) at 2.) In his report, Dr.
`Medvidovic states that the accused products do the same when “collect[ing] data from various
`endpoints in the network” by “initiating a network transaction, and receiving a response to that
`
`
`1 The Court finds the motion appropriate for resolution without oral argument and the
`matter is deemed submitted. See Civ. L. R. 7-1(b). The hearing scheduled for Jun 8, 2021 is
`VACATED.
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`Northern District of California
`United States District Court
`
`
`
`Case 4:18-cv-07229-YGR Document 204 Filed 06/03/21 Page 2 of 2
`
`
`
`transaction.” (Medvidovic Report ¶¶ 184-96.) In other words, Finjan shifted its theory from a
`middleman scanner that passively monitors ongoing traffic to a proactive scanner that initiates
`transactions to detect vulnerabilities.
`This is a new theory, and the Court GRANTS the renewed motion to strike. See Looksmart
`Group, Inc. v. Microsoft Corp., 386 F. Supp. 3d 1222, 1227 (N.D. Cal. 2019). Although all data
`on a network is presumably involved in some client-server interactions, Qualys was entitled to
`know Finjan’s precise theory for how the products receive code.2 Finjan’s main argument in
`response—that the claims do not require client requests—misses the mark: the claims may not
`require them, but the contentions suggest that’s how the products perform the limitation. As such,
`paragraphs 184-96 of the Medvidovic report, which advance this new theory, are struck.3
`This Order terminates docket numbers 194 and 197.
`
`
`IT IS SO ORDERED.
`
`Dated: June 3, 2021
`
`
`
`
`
`
`
`
`
`YVONNE GONZALEZ ROGERS
`UNITED STATES DISTRICT COURT JUDGE
`
`
`
`
`2 Both parties submit extrinsic evidence about the accused products’ operation. The Court
`does not consider it here and makes no factual determination on that issue. This Order is based
`solely on a fair reading of the contentions compared to the expert report.
` The related motion to seal (Dkt. No. 197) is DENIED as the party designating the material
`as confidential does not seek to seal. (See Dkt. No. 199.)
`2
`
` 3
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`Northern District of California
`United States District Court
`
`
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
