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`Case 5:15-cv-03295-BLF Document 294 Filed 09/21/17 Page 1 of 9
`
`
`
`STEFANI E. SHANBERG (State Bar No. 206717)
`sshanberg@mofo.com
`JENNIFER J. SCHMIDT (State Bar No. 295579)
`jschmidt@mofo.com
`NATHAN B. SABRI (State Bar No. 252216)
`nsabri@mofo.com
`ROBIN L. BREWER (State Bar No. 253686)
`rbrewer@mofo.com
`EUGENE MARDER (State Bar No. 275762)
`emarder@mofo.com
`MADELEINE E. GREENE (State Bar No. 263120)
`mgreene@mofo.com
`MICHAEL J. GUO (State Bar No. 284917)
`mguo@mofo.com
`MORRISON & FOERSTER LLP
`425 Market Street
`San Francisco, California 94105
`Telephone:
`(415) 268-7000
`Facsimile:
`(415) 268-7522
`
`DAVID A. NELSON (Pro Hac Vice)
`davenelson@quinnemanuel.com
`NATHAN A. HAMSTRA (Pro Hac Vice)
`nathanhamstra@quinnemanuel.com
`QUINN EMANUEL URQUHART & SULLIVAN LLP
`500 W. Madison Street, Suite 2450
`Chicago, Illinois 60661
`Telephone:
`(312) 705-7400
`Facsimile:
`(312) 707-7401
`
`Attorneys for Defendant
`BLUE COAT SYSTEMS LLC
`UNITED STATES DISTRICT COURT
`
`NORTHERN DISTRICT OF CALIFORNIA
`
`SAN JOSE DIVISION
`
`FINJAN, INC., a Delaware Corporation,
`
`Case No.: 15-cv-03295-BLF-SVK
`
`Plaintiff,
`
`v.
`
`BLUE COAT SYSTEMS LLC, a Delaware
`Corporation,
`
`Defendant.
`
`DEFENDANT BLUE COAT SYSTEMS
`LLC’S MOTION IN LIMINE NO. 1
`REGARDING DAUBERT OF DR.
`CHRISTINE MEYER
`
`Pretrial: October 5, 2017
`Time:
`1:30 p.m.
`Place: Courtroom 3, 5th Floor
`Judge: Honorable Beth Labson Freeman
`
`BLUE COAT’S MOTION IN LIMINE NO. 1
`RE DAUBERT OF DR. CHRISTINE MEYER
`15-cv-03295-BLF-SVK
`
`
`

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`Case 5:15-cv-03295-BLF Document 294 Filed 09/21/17 Page 2 of 9
`
`
`
`TABLE OF ABBREVIATIONS
`
`
`Plaintiff Finjan, Inc.
`Defendant Blue Coat Systems LLC
`Expert Report of Christine Meyer
`Deposition Transcript of Dr. Christine Meyer
`U.S. Patent No. 6,154,844
`U.S. Patent No. 6,965,968
`U.S. Patent No. 7,418,731
`U.S. Patent No. 8,079,086
`U.S. Patent No. 8,225,408
`U.S. Patent No. 8,677,494
`U.S. Patent No. 9,189,621
`U.S. Patent No. 9,219,755
`’844, ’968, ’731, ’086, ’408, ’494, ’621, and ’755 patents, collectively
`Dynamic Real Time Rating
`Global Intelligence Network
`Declaration of Robin L. Brewer in Support of Defendant Blue Coat
`Systems LLC’s Motions in Limine
`Finjan, Inc. v. Blue Coat Systems, Inc., No. 5:13-cv-03999-BLF (N.D.
`Cal.)
`Finjan, Inc. v. Sophos, Inc., No. 14-cv-01197-WHO (N.D. Cal.)
`Finjan Software Ltd. v. Secure Computing Corp., No. 6-cv-00369-GMS
`(D. Del.)
`
`Finjan or Plaintiff
`Blue Coat or Defendant
`Ex. 1
`Ex. 2
`’844 patent
`’968 patent
`’731 patent
`’086 patent
`’408 patent
`’494 patent
`’621 patent
`’755 patent
`asserted patents
`DRTR
`GIN
`Brewer Decl.1
`
`Blue Coat I
`
`Sophos
`Secure Computing
`
`
`1 Unless otherwise specified, all exhibits refer to those attached to the Brewer Decl.
`BLUE COAT’S MOTION IN LIMINE NO. 1
`RE DAUBERT OF DR. CHRISTINE MEYER
`15-cv-03295-BLF-SVK
`
`
`i
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`

`

`Case 5:15-cv-03295-BLF Document 294 Filed 09/21/17 Page 3 of 9
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`Blue Coat does not challenge Dr. Meyer’s use of a feature-based apportionment method in
`
`this case. Blue Coat does challenge Dr. Meyer’s inflation of the royalty base by double-counting
`
`features, estimating revenue when actual revenue was available, and including foreign sales;
`
`unreliable royalty rate; and unsupported kickers and “checks.” Pursuant to Federal Rules of
`
`Evidence 702 and 703, Blue Coat moves this Court for an order excluding WebPulse revenue or,
`
`in the alternative, adjusting WebPulse revenue to remove inflation; the 8% and 16% royalty rates;
`
`the kicker for the Symantec acquisition; and the reasonableness check and bargaining range.
`
`I.
`
`LEGAL STANDARD
`Admissibility of expert testimony is governed by Daubert v. Merrell Dow Pharms., Inc.,
`
`509 U.S. 579 (1993) and Federal Rules of Evidence 702 and 703. The party offering the testimony
`
`bears the burden of proving admissibility by a preponderance of evidence. Id. at 592, n.10.
`
`District courts “are charged with a ‘gatekeeping role,’ the objective of which is to ensure that
`
`expert testimony admitted into evidence is both reliable and relevant.” Sundance, Inc. v. De Monte
`
`Fabricating Ltd., 550 F.3d 1356, 1360 (Fed. Cir. 2008). “An expert witness may provide opinion
`
`testimony if: (1) the testimony is based upon sufficient facts or data; (2) the testimony is the
`
`product of reliable principles and methods; and (3) the expert has reliably applied the principles
`
`and methods to the facts of the case.” GPNE Corp v. Apple, Inc., No. 12-cv-02885-LHK, 2014
`
`WL 1494247, at *2 (N.D. Cal. Apr. 16, 2014).
`
`II.
`
`INFLATION OF ROYALTY BASE
`Double-Counting of Features: When two patents cover the same feature, the value
`
`associated with that feature may only be included in the royalty base once. See Finjan, Inc. v.
`
`Sophos, Inc., No. 14-cv-01197-WHO, 2016 WL 4268659, at *3 (N.D. Cal. Aug. 15, 2016)
`
`(involving similar patents and damages methodology). Id. The Court explained (using the ’844
`
`and ’494 patents as examples) that, where Finjan’s expert opined that both patents covered the
`
`“threat engine” feature, “what is not possible, as a matter of law and logic, is that the ’844 and
`
`’494 patents combined add more value to the threat engine feature than its total value.” Id. at *3-4.
`
`As Finjan’s expert counted certain features multiple times when those features were covered by
`
`multiple patents, the Court found the “calculation results in an inflated damage calculation that is
`
`BLUE COAT’S MOTION IN LIMINE NO. 1
`RE DAUBERT OF DR. CHRISTINE MEYER
`15-cv-03295-BLF-SVK
`
`
`1
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`

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`Case 5:15-cv-03295-BLF Document 294 Filed 09/21/17 Page 4 of 9
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`
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`likely to mislead the jury” and the methodology is unreliable. Id.
`
`In this case, Dr. Meyer recognizes the need to avoid double-counting features and to
`
`account for damages awarded in Blue Coat I, but nonetheless still double-counts features from
`
`Blue Coat I. See e.g., Ex. 1 ¶ 148 (“If any single feature is related to more than one Finjan patent,
`
`such a feature is counted only once . . .”); Id. ¶ 149 (“[M]y damages analysis ensures that there is
`
`no overlap of damages for patents that were already accounted for in the first case and no double-
`
`counting.”). To properly account for Blue Coat I, Dr. Meyer testified it would be necessary to
`
`analyze any overlapping features between the two cases, but Dr. Meyer was under the mistaken
`
`impression that there was no such overlap. See Ex. 2 at 208:25-209:15 (“I was careful . . . to make
`
`sure that to the extent that there are products and patents that are at issue in this case and that were
`
`at issue in a previous case, that the damages that I’m calculating relate to different features or
`
`functionality that I believe . . . were not considered in that case.”).
`
`Dr. Meyer’s report nevertheless demonstrates that there is complete overlap of features
`
`between this case and Blue Coat I relating to WebPulse. In Blue Coat I, Finjan was awarded
`
`damages for WebPulse on the ’844 patent. Blue Coat I, Dkt. No. 438. It is not enough to remove
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`WebPulse from the count on the ’844 patent in this case, Dr. Meyer must remove the features for
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`which Finjan has already been compensated from the damages calculation across all patents.
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`Sophos, at *4 (explaining that “[i]f Finjan’s patented technologies are truly overlapping then it can
`
`in fact only recover damages as if one patent is in suit.”). In this case, WebPulse is accused of
`
`infringing the ’408, ’494, ’621, and ’086 patents. Dr. Meyer identifies the features of WebPulse
`
`that relate to the asserted patents in this case, as well as to the ’844 patent, as summarized below.
`
`Ex. 1 ¶ 143, n. 433. The chart shows the complete overlap between the ’844 patent in Blue Coat I
`
`(blue) and the asserted patents (green).
`
`Feature Count / Name
`
`E”
`
`
`
`
`
`ta”
`
`1
`2
`3
`4
`5
`
`BLUE COAT’S MOTION IN LIMINE NO. 1
`RE DAUBERT OF DR. CHRISTINE MEYER
`15-cv-03295-BLF-SVK
`
`
`Blue Coat II
`
`’494
`x
`x
`x
`x
`x
`
`’621
`
`x
`
`x
`
`
`’086
`x
`x
`
`x
`x
`
`’408
`x
`x
`
`x
`x
`
`Blue Coat
`I
`’844
`x
`x
`x
`x
`x
`
`2
`
`

`

`Case 5:15-cv-03295-BLF Document 294 Filed 09/21/17 Page 5 of 9
`
`
`
`Feature Count / Name
`ne”
`
`
`R”
`
`
`
`
`
`Blue Coat
`I
`x
`
`x
`x
`x
`x
`x
`
`x
`x
`
`x
`x
`
`x
`x
`x
`x
`
`Damages in Blue Coat I already account for the total value of all WebPulse features in this
`
`Blue Coat II
`
`x
`x
`x
`
`x
`x
`x
`x
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`case. Accordingly, Finjan is not entitled to recover damages on WebPulse again. Dr. Meyer’s
`
`failure to fully account for the damages award in Blue Coat I under her own methodology renders
`her opinion on damages for WebPulse unreliable. All WebPulse revenue should be excluded.2
`
`Inflation of WebPulse Revenue: Blue Coat maintains that all WebPulse revenue should
`
`be excluded as double-counted. If any is allowed, it must be adjusted to remove Dr. Meyer’s
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`
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` of inflation resulting from unsupported estimates and
`
` of inflation for improper
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`counting for foreign sales.
`
`Despite having actual revenue, Dr. Meyer relies on estimated WebPulse revenue. All
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`admitted expert testimony or evidence must be reliable and based on sufficient facts or data.
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`Daubert, 509 U.S. at 589; Fed. R. Evid. 702. Here, Dr. Meyer’s inflated estimates are contradicted
`
`by the actual data. In estimating WebPulse revenue, Dr. Meyer relies on a single presentation that
`
`identifies 2016 bookings for GIN. Ex. 1 at ¶ 134; Ex. 3. The presentation defines GIN as Blue
`
`Coat WebFilter and Intelligence Services. Ex. 3 at BC2-1888583. Blue Coat provided actual
`revenue for WebFilter3 and Intelligence Services4 that should have been used. Instead, Dr. Meyer
`uses the presentation’s 2016 bookings for GIN and year-to-year growth figures to estimate past
`
`and future revenue. Ex. 1 at ¶ 134. Dr. Meyer’s only justification for using an approximation
`
`when the actual numbers were available is that no other document was labeled GIN. Ex. 2 at
`
`2 The same problem likely exists relating to the ’731 and ’968 patents, but Dr. Meyer did not
`identify features for ProxySG on those patents.
`3 The parties agreed in Blue Coat I to use WebFilter revenues as a proxy for WebPulse. Blue
`Coat I, Dkt No. 273-4 at 10.
`4 Intelligence Services is a subscription service not independently implicated in this case. It is,
`therefore, a conservative measure of WebPulse revenue to say that Finjan should have used actual
`revenue for WebFilter and Intelligence Services. That conservative measure is still
`
`less than Dr. Meyer’s estimate.
`
`BLUE COAT’S MOTION IN LIMINE NO. 1
`RE DAUBERT OF DR. CHRISTINE MEYER
`15-cv-03295-BLF-SVK
`
`
`3
`
`

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`Case 5:15-cv-03295-BLF Document 294 Filed 09/21/17 Page 6 of 9
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`
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`130:20-148:1. GIN is not sold on its own and is defined as Blue Coat WebFilter and Intelligence
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`Services in the very presentation upon which Dr. Meyer relies, demonstrating the unreliability of
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`her methodology. Dr. Meyer’s approach results in over-calculation of almost
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` or 14%
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`of past WebPulse revenues. Brewer Decl. at ¶ 5. An adjustment should be made at least to
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`exclude the unsupported inflation.
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`
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`Despite having U.S. revenue, Dr. Meyer relies upon worldwide WebPulse revenue.
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`Expert testimony based on worldwide revenue is improper where a party fails to demonstrate it is
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`entitled to damages on foreign products. Broadcom Corp. v Emulex Corp., No. 09-cv-1058-JVS,
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`2011 WL 13130705, at *7 (C.D. Cal. Aug. 10, 2011). Dr. Meyer offers an opinion on damages
`
`only for worldwide WebPulse revenues even though Finjan is not entitled to these damages. Dr.
`
`Meyer’s only justification is that “the software for Blue Coat’s WebPulse product is developed and
`
`the updates pushed out of its facility in Draper, Utah” and, therefore, “all worldwide sales of
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`WebPulse are considered to be U.S. sales.” Ex. 1 at ¶ 134; see also id. at ¶ 125. The mere fact
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`that an original copy of Blue Coat’s software was developed in the United States does not make
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`Blue Coat liable under § 271(a) for copies of its software that were duplicated and sold abroad.
`
`See, e.g., Lake Cherokee Hard Drive Techs., L.L.C. v. Marvell Semiconductor, Inc., 964 F. Supp.
`
`2d 653, 656, 658 (E.D. Tex. 2013) (excluding damages for products developed in the United
`
`States, but manufactured and sold abroad). Such copies were both “made” and “sold” outside of
`
`the United States for purposes of the Patent Act, and it is axiomatic that “no infringement occurs
`
`when a patented product is made and sold in another country.” Ziptronix, Inc. v. OmniVision
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`Techs., 71 F. Supp. 3d 1090, 1094 (N.D. Cal. 2014) (quoting Microsoft Corp. v. AT&T Corp., 550
`
`U.S. 437, 441 (2007)).
`
`Dr. Meyer’s opinion as to WebPulse is based on worldwide revenue and provides no
`
`alternative for the jury. Her opinion is unsupported because Finjan is not entitled to worldwide
`
`damages. This example of Finjan’s overreaching through Dr. Meyer’s unreliable opinions as to
`
`WebPulse revenue further necessitates that WebPulse revenue be excluded. At the very least, Dr.
`
`Meyer’s
`
` worth of foreign sales should be excluded.
`
`BLUE COAT’S MOTION IN LIMINE NO. 1
`RE DAUBERT OF DR. CHRISTINE MEYER
`15-cv-03295-BLF-SVK
`
`
`4
`
`

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`Case 5:15-cv-03295-BLF Document 294 Filed 09/21/17 Page 7 of 9
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`
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`III. UNSUPPORTED ROYALTY RATE
`Dr. Meyer admits that there are no established royalty rates for the asserted patents. Ex. 2
`
`at 253:18-25. Dr. Meyer admits that none of the license or settlement agreements include an 8% or
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`16% royalty rate. Id., 261:3-7. Dr. Meyer nonetheless applies an 8% royalty rate to hardware and
`
`a 16% royalty rate to software, and justifies doing so solely by reference to jury verdicts in Blue
`
`Coat I, Sophos, and Secure Computing. Ex. 1 at ¶¶ 111, 115-117. Generously viewing Dr.
`
`Meyer’s alleged support, Dr. Meyer should be limited to opining on a royalty rate of 6-8%, as that
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`is the only range for which she has cited any colorable support.
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`Dr. Meyer admits that Blue Coat I involved only a 6-8% royalty rate. Ex. 1 at ¶ 117; Ex. 2
`
`at 113:2-18. Blue Coat I cannot support a 16% royalty rate.
`
`The Sophos verdict cannot support Dr. Meyer’s opinion. The Court in Sophos specifically
`
`found that there was no way to determine the basis for the jury’s damages award. See Sophos, Dkt.
`
`No. 453 at 22 (“While the jury’s $15 million award was within the range [Finjan’s expert]
`
`presented, it does not line up with any of her precise figures. It is possible that the jury adopted a
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`modified version of [Finjan’s expert’s] analysis, but it is also possible that [the] jury based its
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`damages award on the fact evidence presented or the expert testimony of Sophos’ expert.”).
`
`Secure Computing applied 8% and 16% royalty rates. But the Secure Computing royalty
`
`rates are based on the 25 percent rule about which the Federal Circuit said: “This Court now holds
`
`as a matter of Federal Circuit law that the 25 percent rule of thumb is a fundamentally flawed tool
`
`for determining a baseline royalty rate in a hypothetical negotiation. Evidence relying on the 25
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`percent rule of thumb is thus inadmissible under Daubert and the Federal Rules of Evidence.”
`
`Uniloc USA, Inc. v. Microsoft Corp., 632 F.3d 1292, 1315 (Fed. Cir. 2011) (commenting on
`
`Secure Computing, the Federal Circuit said the parties did not dispute use of the 25 percent rule, so
`
`it did not find it unreasonable); see also Ex. 5 (Secure Computing Trial Tr.) at 637:7-638:1
`
`(Finjan’s damages expert testifying to using 25 percent rule). Dr. Meyer further admits that 8%
`
`and 16% represent Finjan’s opening offer. Ex. 5 at 259:11-260:1. Dr. Meyer’s opinion rests on a
`
`royalty rate methodology the Federal Circuit has found inadmissible, and the resulting royalty rates
`
`should be excluded.
`
`BLUE COAT’S MOTION IN LIMINE NO. 1
`RE DAUBERT OF DR. CHRISTINE MEYER
`15-cv-03295-BLF-SVK
`
`
`5
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`

`

`Case 5:15-cv-03295-BLF Document 294 Filed 09/21/17 Page 8 of 9
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`IV. UNSUPPORTED KICKERS AND CHECKS
`Dr. Meyer calculates additional damages based on a purely speculative growth
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`scenario in view of Symantec’s acquisition of Blue Coat. Ex. 1 at ¶ 155, Ex, 118. Dr. Meyer
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`uses total revenue information and does not analyze projected growth for specific products and
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`further projects growth and revenue more than six years into the future. Sophos, at *5 (finding
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`future sales calculations speculative). The kicker added as a result of the Symantec acquisition is
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`unsupported and should be excluded.
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`Dr. Meyer’s “reasonableness check” is unsupported and unreliable. Dr. Meyer offers
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`incomplete alternative damages opinions based upon a per user calculation. Ex. 1 at ¶¶ 170-74;
`Ex. 2 at 241:5-10. Dr. Meyer relies upon an unsupported $8 per user fee5. The only justification
`offered for the $8 per user figure is that
`
`
` Ex. 1 at ¶ 170, n. 458. For these numbers, Dr. Meyer admits that
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`she performed no independent analysis to verify the reasonableness of an $8 per user fee and relied
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`exclusively on Finjan’s “view of the world” as reported by its CEO. Ex. 2 at 242:8-246:3 (“Q. Did
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`you do anything to check the
`
` to
`
`which the 16 percent royalty is applied? A. I spoke with Mr. Hartstein about that. Q. So other
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`than that, did you do anything to confirm that
`
`
`
` A. Again, the point of this footnote and the point of that sentence is about
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`Finjan’s view of these things and so the best source of Finjan’s viewpoint is one of Finjan’s
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`employees themselves. [T]his deals specifically with Finjan’s view of the world and I believe it’s
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`quite clear from the sentence that that’s what this is referring to.”). As the $8 per user fee does not
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`reflect Dr. Meyer’s opinion of a reasonable royalty, but merely Finjan’s “view of the world,” it is
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`5 At recent oral arguments in Blue Coat I, the Federal Circuit criticized Finjan’s use of an $8 per
`user fee. Ex. 7 at 37:6-10, 38:14-39:1 (questioning how Finjan’s representation that it uses $8 per
`user as a starting point in negotiations supports that it is a reasonable royalty and saying “[t]he
`question is not whether that’s a starting point. The question is not whether your client seeks at the
`beginning of the negotiation to get an $8 rate, the question is whether at the end of the negotiation
`they have agreed to an $8 rate, and you don’t have any evidence of an agreement to an $8 rate for
`a similar patent, do you?” and also asking, “[i]f your evidence is totally insufficient as a matter of
`law, the fact that they didn’t cross-examine it doesn’t suddenly transform it into credible
`evidence. Why is the $8 credible evidence?”). The questions posed by the Federal Circuit panel
`specifically relate to issues presently before this Court. Blue Coat includes a transcription of the
`oral argument to inform the Court of the same.
`BLUE COAT’S MOTION IN LIMINE NO. 1
`RE DAUBERT OF DR. CHRISTINE MEYER
`15-cv-03295-BLF-SVK
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`6
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`Case 5:15-cv-03295-BLF Document 294 Filed 09/21/17 Page 9 of 9
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`unreliable and should be excluded. Id.; see also ASK Chems., LP v. Comp. Packages, Inc., 593
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`Fed.Appx. 506, 510 (6th Cir. 2014) (affirming that an expert may be excluded where expert
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`“merely offers his client’s opinion as his own.”).
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`Dr. Meyer includes language relating to a bargaining range for the hypothetical
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`negotiation, but includes no numbers. Ex. 1 at ¶¶ 52-60. Dr. Meyer’s opinion about a
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`bargaining range is incomplete and not relevant to the damages analysis. Dr. Meyer should be
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`precluded from testifying regarding a bargaining range.
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`V.
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`CONCLUSION
`For the reasons set forth above, WebPulse revenue should be excluded or, at a minimum,
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`adjusted to remove Dr. Meyer’s inflation. Dr. Meyer should be precluded from testifying that
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`royalty rates of 8% and 16% should be applied. And Dr. Meyer’s kicker and checks should not be
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`permitted.
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`Dated: September 21, 2017
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`MORRISON & FOERSTER LLP
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`By: /s/ Stefani E. Shanberg
`Stefani E. Shanberg
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`Attorneys for Defendant
`BLUE COAT SYSTEMS LLC
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`BLUE COAT’S MOTION IN LIMINE NO. 1
`RE DAUBERT OF DR. CHRISTINE MEYER
`15-cv-03295-BLF-SVK
`
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`7
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