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`Case 5:15-cv-03295-BLF Document 317 Filed 09/28/17 Page 1 of 5
`
`
`
`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 OPPOSITION TO PLAINTIFF
`FINJAN, INC.’S MOTION IN LIMINE
`NO. 3 TO PRECLUDE REFERENCE
`TO PENDING LITIGATIONS AND
`PTO PROCEEDINGS
`
`Pretrial: October 5, 2017
`Time:
`1:30 p.m.
`Place: Courtroom 3, 5th Floor
`Judge: Honorable Beth Labson Freeman
`
`BLUE COAT’S OPP. TO MOT. IN LIMINE NO. 3
`15-cv-03295-BLF-SVK
`
`
`
`
`

`

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`Case 5:15-cv-03295-BLF Document 317 Filed 09/28/17 Page 2 of 5
`
`
`
`TABLE OF ABBREVIATIONS
`
`
`Plaintiff Finjan, Inc.
`Defendant Blue Coat Systems LLC
`Expert Report of Vince Thomas
`Plaintiff Finjan, Inc.’s Motion in Limine No. 3 to Preclude Reference to
`Pending Litigations and PTO Proceedings, Dkt. No. 292
`Declaration of Hannah Lee in Support of Plaintiff Finjan Inc.’s Motions
`in Limine Nos. 1-4 and Daubert Motion, Dkt. No. 304
`Declaration of Robin L. Brewer in Support of Defendant Blue Coat
`Systems LLC’s Motions in Limine, Dkt. No. 307
`Declaration of Robin L. Brewer in Support of Defendant Blue Coat
`Systems LLC’s Oppositions to Motions in Limine
`U.S. Patent and Trademark Office
`Inter partes review
`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
`Thomas Rpt.
`Br.
`
`Lee Decl.
`
`Brewer Decl.1
`
`Brewer Opp. Decl. 2
`
`PTO
`IPR
`Blue Coat I
`
`Sophos
`Secure Computing
`
`
`1 Unless otherwise specified, all numeric exhibits refer to those attached to the Brewer Decl.
`2 Unless otherwise specified, all alphabetic exhibits refer to those attached to the Brewer Opp.
`Decl.
`
`BLUE COAT’S OPP. TO MOT. IN LIMINE NO. 3
`15-cv-03295-BLF-SVK
`
`
`i
`
`

`

`Case 5:15-cv-03295-BLF Document 317 Filed 09/28/17 Page 3 of 5
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`Blue Coat agrees that irrelevant proceedings should be excluded. Blue Coat moved to
`
`exclude results of the concluded Blue Coat I, Secure Computing, Sophos, and PTO proceedings in
`
`its Motion in Limine No. 3. See Dkt. No. 297. Finjan’s Motion in Limine No. 3 makes a self-
`
`serving, but baseless, distinction between pending and concluded proceedings, seeking to exclude
`
`pending proceedings while introducing those in which Finjan has obtained a favorable outcome.
`
`Blue Coat will not seek to introduce the results of any irrelevant proceeding, whether favorable or
`
`unfavorable. Nor will Blue Coat seek to introduce IPR results, whether interim or final.
`
`Consistent with this Court’s prior rulings against Finjan on this issue, however, Blue Coat
`
`should be permitted to introduce evidence regarding Finjan’s litigation and licensing practices:
`
`“Plaintiff’s litigation practices—in particular, its past and current practices in enforcing patent
`
`rights and licensing those rights—are relevant to the determination of a reasonable royalty under
`
`the Georgia-Pacific factors and that any prejudice can be mitigated by a limiting instruction.”
`
`Finjan, Inc. v. Blue Coat Sys., No. 13-cv-03999-BLF, 2015 U.S. Dist. LEXIS 88760, at *3 (N.D.
`
`Cal. July 8, 2015) (denying Finjan’s motion in limine); Finjan, Inc. v. Sophos Inc., No.14-cv-
`
`01197-WHO, 2016 U.S. Dist. LEXIS 189272, at *27-28 (N.D. Cal. Aug. 22, 2016) (same).
`
`Finjan’s motion should be denied as to pending litigation. Blue Coat maintains that
`
`neither party should be allowed to discuss IPR results, whether interim or final.
`
`I.
`
`THE EXISTENCE OF OTHER LITIGATION IS RELEVANT
`Finjan seeks to “preclude Blue Coat from presenting any argument or evidence regarding
`
`co-pending lawsuits involving Finjan, except to the extent any litigation has reached a jury
`
`verdict.” Br. at 2. In Blue Coat I, this Court permitted evidence and argument regarding Finjan’s
`
`“litigation practices—in particular, its past and current practices in enforcing patent rights and
`
`licensing those rights” as relevant to damages. Finjan, Inc., 2015 U.S. Dist. LEXIS 88760, at *3.
`
`Finjan’s same request was also rejected in Sophos, with the Court finding Finjan’s pending
`
`litigation relevant to the Georgia-Pacific factors. Finjan, 2016 U.S. Dist. LEXIS 189272, at *27-
`
`28. Nothing has changed: Finjan’s litigation practices are still relevant. See e.g., Ex. D at ¶¶
`
`136-142 (discussing Finjan’s licensing efforts in context of Georgia-Pacific). Blue Coat
`
`contemplates making general statements regarding Finjan’s business, including its litigation and
`
`BLUE COAT’S OPP. TO MOT. IN LIMINE NO. 3
`15-cv-03295-BLF-SVK
`
`
`1
`
`

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`Case 5:15-cv-03295-BLF Document 317 Filed 09/28/17 Page 4 of 5
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`licensing efforts, consistent with the Court’s prior ruling. This is also consistent with the parties’
`
`agreement that they “may make neutral, factual statements concerning each other’s business.”
`
`See Dkt. No. 289 at 13.
`
`Finjan makes an unsupportable distinction between pending litigation and “litigation [that]
`
`has reached a jury verdict.” See Br. at 2. The potential for prejudice greatly outweighs any
`
`potential probative value of verdicts and judgments. See Enquist v. Or. Dept. of Agric., 478 F.3d
`
`985, 1010 (9th Cir. 2007) (finding “substantial risk that the jury would import the whole verdict
`
`of liability from the prior proceeding”); Dkt. No. 297 at 1-3. The Secure Computing verdict,
`
`which Finjan apparently seeks to introduce, is irrelevant due to involving different patents, a
`different defendant, different accused products, and different damages law.3 See Dkt. No. 297 at
`3-4. The Sophos verdict is irrelevant because it is impossible to discern the basis for the jury’s
`
`damages calculation. See id. at 4.
`
`Accordingly, aside from general statements regarding Finjan’s litigation and licensing
`
`efforts, the Court should exclude irrelevant proceedings. Finjan’s request to treat cases that have
`
`reached jury verdicts and judgments differently should be denied.
`
`II.
`
`BLUE COAT AGREES THAT IPR RESULTS—INTERIM OR FINAL—SHOULD
`BE EXCLUDED
`
`“Finjan . . . seeks to exclude evidence or argument regarding any pending PTO inter
`
`partes review (‘IPR’) proceedings where no final written decision or denial of institution of trial
`
`has been rendered.” Br. at 3. But Blue Coat does not seek to introduce any such evidence or
`argument and listed no IPR institution decision on its exhibit list.4 See Dkt. No. 289-5 (listing no
`documents from pending IPR proceedings in Blue Coat’s exhibit list). Finjan’s argument is
`
`3 In Blue Coat I, this Court allowed limited use of Secure Computing for damages since “the jury
`verdict in that case . . . involved two of the six patents-in-suit.” See Blue Coat I, Dkt. No. 367 at
`12-13. Here, none of the asserted patents overlaps with those in Secure Computing. See Ex. 68
`(PTX-761); Ex. 69 (PTX-762).
`4 Finjan may be concerned about the PTAB’s September 5, 2017, institution decision on Blue
`Coat’s IPR of the ’621 patent finding a reasonable likelihood that claims 1 and 6-10 are
`unpatentable as obvious and the PTAB’s July 18, 2017, institution decision granting Blue Coat’s
`request for rehearing and finding a reasonable likelihood that claims 1, 4-6, 9, 12-14, 17, 24, 35,
`37, and 42 of the ’086 patent are unpatentable as obvious. To be clear, Blue Coat does not intend
`to introduce these, or any other, institution decisions.
`
`BLUE COAT’S OPP. TO MOT. IN LIMINE NO. 3
`15-cv-03295-BLF-SVK
`
`
`2
`
`

`

`Case 5:15-cv-03295-BLF Document 317 Filed 09/28/17 Page 5 of 5
`
`
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`predicated on a single case cite that supports the exclusion of all IPR decisions, as Blue Coat has
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`requested. See Br. at 3 (citing Wis. Alumni Research Found., 135 F. Supp. 3d at 873-75
`
`(excluding PTO’s denial of institution since “it would be difficult for a jury to understand, much
`
`less apply, the nuanced differences between the various proceedings” and because “there is a
`
`great risk that the jury would conclude, incorrectly, that the Patent Office has twice held the . . .
`
`patent is nonobvious over prior art”)); see also Dkt. No. 297 at 4-5 (citing Sophos, Dkt. No. 262
`
`at 25 (excluding evidence of PTO proceedings); Interdigital Commc’ns Inv. v. Nokia Corp., No.
`
`13-10-RGA, 2014 WL 8104167, at *1 (D. Del. Sept. 19, 2014) (holding that IPR denial was “of
`
`marginal relevance, and the probative value is greatly outweighed by the expenditure of time that
`
`would be required to give the jury the full context necessary to fairly evaluate the evidence”)).
`
`Finjan provides no support for its attempt to treat differently IPR decisions. Blue Coat
`
`requests that the Court exclude evidence or argument regarding IPR results, whether interim or
`
`final.
`
`III. CONCLUSION
`The parties agree that irrelevant proceedings should be excluded. Finjan should not be
`
`able to except from that exclusion the highly prejudicial results of irrelevant proceedings.
`
`Accordingly, aside from general statements regarding Finjan’s litigation and licensing efforts, the
`
`Court should exclude results of irrelevant proceedings, whether at the district court or the PTO
`
`and whether pending or final.
`
`
`
`Dated: September 28, 2017
`
`
`
`
`
`
`MORRISON & FOERSTER LLP
`
`By:
`
`/s/ Stefani E. Shanberg
`Stefani E. Shanberg
`
`Attorneys for Defendant
`BLUE COAT SYSTEMS LLC
`
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`BLUE COAT’S OPP. TO MOT. IN LIMINE NO. 3
`15-cv-03295-BLF-SVK
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`3
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