Case 5:15-cv-03295-BLF Document 326 Filed 09/28/17 Page 1 of 9
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`
`PAUL ANDRE (State Bar No. 196585)
`pandre@kramerlevin.com
`LISA KOBIALKA (State Bar No. 191404)
`lkobialka@kramerlevin.com
`JAMES HANNAH (State Bar No. 237978)
`jhannah@kramerlevin.com
`KRAMER LEVIN NAFTALIS & FRANKEL LLP
`990 Marsh Road
`Menlo Park, CA 94025
`Telephone: (650) 752-1700
`Facsimile: (650) 752-1800
`
`Attorneys for Plaintiff
`FINJAN, INC.
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`
`
`
`IN THE UNITED STATES DISTRICT COURT
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`FOR THE NORTHERN DISTRICT OF CALIFORNIA
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`SAN JOSE DIVISION
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`FINJAN, INC., a Delaware Corporation,
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`
`
`
`
`
`Plaintiff,
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`v.
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`
`BLUE COAT SYSTEMS LLC, a Delaware
`Corporation,
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`
`
`
`
`Defendant.
`
`Case No.: 15-cv-03295-BLF-SVK
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`PLAINTIFF’S FINJAN INC.’S
`OPPOSITION TO BLUE COAT’S
`MOTION IN LIMINE NO. 1 REGARDING
`DAUBERT OF DR. CHRISTINE MEYER
`
`October 5, 2017
`Date:
`1:30 pm
`Time:
`Place: Courtroom 3, 5th Floor
`Judge: Hon. Beth Labson Freeman
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`PLAINTIFF’S OPPOSITION TO BLUE COAT’S
`MOTION IN LIMINE NO. 1 RE: DAUBERT OF DR. MEYER
`
`CASE NO. 15-cv-03295-BLF-SVK
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`

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`Case 5:15-cv-03295-BLF Document 326 Filed 09/28/17 Page 2 of 9
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`Dr. Meyer used reliable methodology and sufficient data to support her damages opinions and
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`Blue Coat’s motion amounts to nothing more than a disagreement with Dr. Meyer’s damages opinions
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`that can be tested on cross-examination. Blue Coat’s requested wholesale exclusion of Dr. Meyer is
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`inappropriate because she disclosed a sound method and basis for her calculations. Micro Chem., Inc.
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`v. Lextron, Inc., 317 F.3d 1387, 1391-92 (Fed. Cir. 2003).
`I.
`
`ARGUMENT
`DR. MEYER CALCULATED DAMAGES FOR EACH ASSERTED PATENT
`A.
`Blue Coat’s argument regarding purported “double-counting”1 is based on the demonstrably
`false assumption that Finjan asserted the same patents against the exact same features of Blue Coat’s
`GIN/Webpulse2 in this case and in Blue Coat I and that GIN/Webpulse has not changed since Blue
`Coat I. With respect to GIN/Webpulse alone, the ‘844 Patent is the only patent in common between
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`Blue Coat I and this case. The remaining Asserted Patents against GIN/Webpulse here are the ‘408,
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`‘494, ‘621 and ‘086 Patents, which were not asserted in Blue Coat I, and cover different claimed
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`inventions and time periods of infringement and damages, than the ‘844 Patent in Blue Coat I. Dkt.
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`No. 305-9, Declaration of Robin L. Brewer (“Brewer Decl.”), Ex. 1 at ¶ 51. Thus, the jury’s award of
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`damages in Blue Coat I did not address and could not cover damages for Blue Coat’s infringement
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`with GIN/Webpulse of the 408, ‘494, ’621, and ‘086 Patents in this case. Any suggestion to the
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`contrary is an issue for cross-examination.
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`Blue Coat presented a misleading and inaccurate table of 11 features, which is not based on
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`the record evidence and for which Blue Coat cites no support. Motion at 2:24-3:5. Contrary to the
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`claims made in the chart, Finjan did not assert infringement of the following features with respect to
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`
`1 It is undisputed that among the Asserted Patents in this case, Dr. Meyer did not “double-count”
`features. Blue Coat’s contention is only that Dr. Meyer “double-counted” features in Webpulse
`between this case and Blue Coat I. The Court’s Order in the Sophos case concerned the issue of
`counting the exact same features multiple times when those features were covered by multiple patents
`to get to a royalty base that exceeded the total possible value, which Dr. Meyer did not do here.
`2 Blue Coat’s WebPulse Service is also known as the “Global Intelligence Network” (GIN) and
`includes the architecture for Blue Coat’s URL and file analysis service. Declaration of Hannah Lee
`(“Lee Opp. Decl.”) filed herewith, Ex. 1 at 15:7-16:14; id., Ex. 2 at 28:8-21.
`
`1
`PLAINTIFF’S OPPOSITION TO BLUE COAT’S
`MOTION IN LIMINE NO. 1 RE: DAUBERT OF DR. MEYER
`
`CASE NO. 15-cv-03295-BLF-SVK
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`

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`Case 5:15-cv-03295-BLF Document 326 Filed 09/28/17 Page 3 of 9
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`the ‘844 Patent in Blue Coat I:
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`
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` Thus, the jury could not have awarded damages for these features.
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`Lee Opp. Decl., Ex. 3, Blue Coat I Trial Tr. at 454:7-676:5; 712:13-741:17; see also Dkt. No. 181,
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`Order on Blue Coat’s Motion to Strike Infringement Contentions (denying Blue Coat’s motion to
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`strike Finjan’s infringement contentions against Webpulse as it included new sandboxing technology
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`that did not exist in Blue Coat I relating to FRS). With respect to the remaining features, namely
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` these features are
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`different from the technology discussed in Blue Coat I, because Blue Coat added new and different
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`functionality to GIN/Webpulse over the past two years. Specifically, in 2015, Blue Coat released
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`“WebPulse 2.0” that added different functionality, including a new version of
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`
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` Lee Opp. Decl., Ex. 4
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`at 77:21-78:24, 165:2-9, Lee Opp. Decl., Ex. 1 at 20:13-25:20; id. Ex. 5 at BC2-1884393-402 at
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`1884399, id., Ex. 6, BC2-0031071-121 at 0031112-21, id., Ex. 7, BC2-0195111-12. Given that these
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`infringing features of GIN/Webpulse were not accused in the first case, Blue Coat I could not cover
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`damages in this case because the jury’s damages verdict in Blue Coat I was not based on the new
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`features. Because GIN/Webpulse is now a different product, the use of the same brand name does not
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`support Blue Coat’s Daubert motion.
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`Further, the ‘494, ‘086 and ‘408 Patents cover different aspects of GIN/Webpulse than the
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`‘844 Patent. For example, the ‘494 Patent’s asserted claims recites specific limitations, such as a
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`“database”, “database manager”, and a “downloadable scanner,” which are not in the claims of the
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`‘844 Patent. Similarly, the asserted claims of the ‘086 Patent recite limitations such as “transmitting
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`the Downloadable” and the ‘408 Patent recites limitations such as “dynamically building..a parse
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`tree,” all specific limitations not in the claims of the ‘844 Patent. Thus, the GIN/Webpulse
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`components that infringe the ‘086, ‘408 and ‘494 Patents include more than just DRTR itself (the
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`basis for damages for infringement of the ‘844 Patent in Blue Coat I), and includes other components
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`such as
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` See, e.g., Lee Opp. Decl., Ex. 8 at ¶ 1129; id. Ex.
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`9 at ¶¶ 118, 953, 1028, 1029, 1107, 1108; id., Ex. 10 at ¶¶ 515-518, 582, 664. Ultimately, Dr.
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`2
`PLAINTIFF’S OPPOSITION TO BLUE COAT’S
`MOTION IN LIMINE NO. 1 RE: DAUBERT OF DR. MEYER
`
`CASE NO. 15-cv-03295-BLF-SVK
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`

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`Case 5:15-cv-03295-BLF Document 326 Filed 09/28/17 Page 4 of 9
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`Meyer’s methodology of calculating damages for Blue Coat’s infringement of the ‘408, ‘494, ’621,
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`and ‘086 Patents based upon GIN/Webpulse is reliable as she examined the infringing features
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`specific for each asserted patent. For these newly asserted patents, she assessed a royalty on those
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`features which involve different infringing technology from what was at issue in Blue Coat I. Thus,
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`the issues that Blue Coat raises are ones for cross-examination, but not Daubert.
`B.
`Blue Coat mischaracterizes Dr. Meyer’s methodology to argue she “inflated” GIN/Webpulse
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`GIN REVENUES WERE BASED ON BLUE COAT’S ACTUAL REVENUES
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`revenue and did not use “actual” revenues. Dr. Meyer, in fact, relied upon a document Blue Coat
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`produced
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` Brewer Decl., Ex. 3. Blue Coat does not dispute the accuracy of the
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`fiscal year 2016 actual revenue numbers reported
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` that
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`Blue Coat’s Vice-President of Finance, Mr. Dildine, authenticated as showing actual revenues. Lee
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`Opp. Decl., Ex. 11 at 102:3-104:1; 107:9-108:9; id., Ex. 12 at 144:4-6; Brewer Decl., Ex. 3 at BC2-
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`1888582. Dr. Meyer relied upon
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` to calculate a royalty base for
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`GIN/Webpulse, and thus, her methodology is reliable. Brewer Decl., Ex. 1, ¶ 134; Lee Opp. Decl. Ex.
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` with an
`13 at Exhibits 5A-5C. Blue Coat’s concerns that Dr. Meyer should have used
`inexplicably lower royalty base that Blue Coat argues is more appropriate3, can be addressed on cross-
`examination. As Dr. Meyer explained at her deposition, she did not find it reliable to mix and match
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`different sources of information to calculate revenues using different documents when Blue Coat’s VP
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`of Finance validated
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` Lee
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`Opp. Decl., Ex. 12 at 144:4-145:24; id., Ex. 11 at 102:3-104:1; 107:9-108:9. Because Dr. Meyer
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`sufficiently explained the basis for her opinions, there are no grounds to challenge the basis and
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`reliability of her opinions regarding the “GIN” revenues, other than on cross-examination.
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`In addition, Dr. Meyer properly included worldwide revenues of GIN/Webpulse. It is
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`3 Blue Coat argues that separate Webfilter revenues should have been used as they were in Blue Coat I,
`but the damages expert in the previous case did not have
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`3
`PLAINTIFF’S OPPOSITION TO BLUE COAT’S
`MOTION IN LIMINE NO. 1 RE: DAUBERT OF DR. MEYER
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`CASE NO. 15-cv-03295-BLF-SVK
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`

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`Case 5:15-cv-03295-BLF Document 326 Filed 09/28/17 Page 5 of 9
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`undisputed that Blue Coat’s GIN/Webpulse is developed in Draper, Utah,
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` and that updates presently are pushed out of
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`its Draper facility. See Lee Opp. Decl., Ex. 14 at 203-24; see also Lee Opp. Decl., Ex. 4 at 63:20-
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`64:2; 233:21-234:18. Blue Coat did not contest these facts in Blue Coat I, and recent testimony
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`confirms the circumstances have not changed now. Id.; Blue Coat I, Dkt. No. 543 at 9-10. Because
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`Blue Coat develops and maintains GIN/Webpulse from the United States, including pushing updates
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`for worldwide use, Dr. Meyer included worldwide sales in her damages calculation for the domestic
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`infringement of GIN/Webpulse. See NTP, Inc. v. Research in Motion, Ltd., 418 F.3d 1282, 1317
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`(Fed. Cir. 2005) (infringement occurs “where control of the system is exercised and beneficial use of
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`the system obtained”). Blue Coat’s cited cases are inapposite as they concern situations where chips
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`were made and sold outside the U.S. See Broadcom Corp. v. Emulex Corp., No. 09-cv-1058-JVS
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`(ANx), 2011 WL 13130705, at *7 (C.D. Cal. Aug. 10, 2011) (“product is made and sold outside” the
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`U.S.); see also Lake Cherokee Hard Drive Techs., L.L.C. v. Marvell Semiconductor, Inc., 964
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`F.Supp.2d 653, 656-57 (E.D. Tex. 2013) (“parties agree that the accused chips are currently, and
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`always have been manufactured outside” the U.S.); Ziptronix, Inc. v. OmniVision Techs., Inc., 71
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`F.Supp.3d 1090, 1096 (N.D. Cal. 2014) (undisputed the accused wafers are manufactured and
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`delivered in Taiwan). Thus, Dr. Meyer’s opinions regarding worldwide GIN/Webpulse revenues are
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`proper and reliable.
`C.
`While Blue Coat disagrees with Dr. Meyer’s royalty rate of 8-16%, numerous pieces of
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`THERE IS SUPPORT FOR DR. MEYER’S ROYALTY RATE OF 8-16%
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`evidence support these rates, as discussed in Dr. Meyer’s report. Brewer Decl., Ex. 1 at ¶¶ 8, 71, 79,
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`84, 87, 91, 93, 98, 113, 115-17, 119, 121-23, 171; Lee Opp. Decl., Ex. 15 (Meyer Supp. Rpt., ¶113
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`errata). Thus, Blue Coat can cross examine her regarding the 6-8% rate from Blue Coat I, but has no
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`grounds to exclude her opinion. Specifically, Dr. Meyer details the basis for the 8-16% in her report:
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`jury verdicts from the Blue Coat I (2015), Sophos (2016), and Secure Computing cases (2008) based
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`on evidence of an 8-16% royalty rate, Finjan’s current licensing practices, Blue Coat’s continued use
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`of Finjan’s technology after Blue Coat I on the same and related patents, and Finjan’s past licenses
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`4
`PLAINTIFF’S OPPOSITION TO BLUE COAT’S
`MOTION IN LIMINE NO. 1 RE: DAUBERT OF DR. MEYER
`
`CASE NO. 15-cv-03295-BLF-SVK
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`Case 5:15-cv-03295-BLF Document 326 Filed 09/28/17 Page 6 of 9
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`covering similar patents and similar products. Brewer Decl., Ex. 1 at ¶¶ 121-22.
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`The jury verdicts from Secure Computing, Blue Coat I, and Sophos all support Dr. Meyer’s
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`use of an 8-16% royalty rate. Blue Coat admits that the jury in Secure Computing applied this royalty
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`rate. This Court previously already rejected Blue Coat’s argument that this Secure Computing royalty
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`rate is unreliable because it was based on the “25 percent rule,” finding that the outcome from the
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`Secure Computing case is “relevant to the jury’s consideration of damages.” Blue Coat I, Dkt. No.
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`367 at 12. Further, as the Court held in the Sophos case, the jury ultimately did not rely on this “rule
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`of thumb” when calculating damages. Finjan, Inc. v. Sophos, Inc., No. 14-cv-1197-WHO, 2016 WL
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`4268659, at *5 (N.D. Cal. Aug. 15, 2016); Finjan, Inc. v. Secure Computing Corp., 626 F.3d 1197,
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`1208 (Fed. Cir. 2010). In fact, the Secure Computing case involved patents related to the Asserted
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`Patents here, and Blue Coat was aware of the Secure Computing litigation at the time, making the 8-
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`16% royalty rates relevant to Blue Coat’s state of mind entering the hypothetical negotiation and the
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`parties’ bargaining positions. Blue Coat I, Dkt. No. 367 at 12; Georgia-Pacific Corp. v. United States
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`Plywood Corp., 318 F.Supp. 1116, 1121 (S.D.N.Y. 1970).
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`Notably, Blue Coat admits that the Blue Coat I is relevant to damages in arguing to restrict Dr.
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`Meyer in this case to applying 6-8% rates, which it contends is from Blue Coat I. Blue Coat is wrong,
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`however, because the Blue Coat I range of rates was, in fact, 6-16%. Finjan was awarded $24 million
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`for infringement of the ‘844 Patent based on $8 per user rate which Finjan’s Vice President of
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`Licensing testified was “consistent with a 8-16% royalty rate.” Brewer Decl. Ex. 1, ¶¶ 117, 171; Lee
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`Opp. Decl., Ex. 3 at 907:1-908:1; id., Ex. 12 at 242:17-24.
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`
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`Dr. Meyer also relied on Finjan’s licensing practices where Finjan offers patent licenses based
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`upon the 8-16% royalty rate. Brewer Decl., Ex. 1, ¶ 119. Irrespective of whether these rates are an
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`“opening offer” as Blue Coat states (which is a cross-examination issue), there is no dispute that is
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`what Finjan offers and uses in its licensing negotiations. Lee Opp. Decl., Ex. 12 at 259:11-260:1.
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`Given Blue Coat’s continued use of Finjan’s technology after the Blue Coat I verdict, Dr. Meyer
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`opined that the 8-16% rate was conservative since Blue Coat had already been found to infringe the
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`same or related patents in a prior litigation. Brewer Decl., Ex. 1, ¶ 122. Dr. Meyer also relied on
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`5
`PLAINTIFF’S OPPOSITION TO BLUE COAT’S
`MOTION IN LIMINE NO. 1 RE: DAUBERT OF DR. MEYER
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`CASE NO. 15-cv-03295-BLF-SVK
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`Case 5:15-cv-03295-BLF Document 326 Filed 09/28/17 Page 7 of 9
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`Finjan’s license agreements and negotiations that included rates consistent with 8-16% for Finjan’s
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`patents, including Blue Coat’s competitors, such as:
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` Id., ¶¶ 71, 79, 84, 87,
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`91, 93, 98, 119. Thus, Dr. Meyer had sufficient basis for an 8-16% royalty rate.
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`D.
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`DR. MEYER’S GROWTH RATES, USER-BASED METHOD, AND
`BARGAINING RANGE ARE SUPPORTED BY THE RECORD EVIDENCE
`Dr. Meyer did a comprehensive analysis of growth rates of Blue Coat’s products based on
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`reports from Blue Coat and third party analysts. Brewer Decl., Ex. 1 at ¶ 155, Lee Opp. Decl., Ex. 16
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`at Exhibit 11; id. Ex. 13 at Exhibit12. What Blue Coat calls a “kicker” are actually growth rates that
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`Blue Coat and third party analysts published for Blue Coat’s products. Id.
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`Lee Opp. Decl., Ex. 16 at Exhibit 11. Because these analysts reported lower rates, Dr. Meyer
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`conservatively used the lower growth rates of 14% for 2017, 10% for 2018, 4% for 2019 to 2021, and
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`0% for 2021 to 2023. Id. This is nothing like the Sophos case cited, where the damages expert did
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`not cite any particular reports to project the growth of certain sales. Here, Dr. Meyer pointed to the
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`numerous third party and internal Blue Coat documents to support her growth rates. Id. Further, the
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`Sophos Court denied the Daubert motion against Finjan’s expert as to evidence of future sales for
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`some of the asserted patents where it found evidentiary support, which is the same type of support
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`described above. Sophos, 2016 WL 4268659, at *5.
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`In addition, there is support for the $8 per user fee, evidenced by the jury verdict. Further, this
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`Court in Blue Coat I confirmed the $8 per user fee as a reliable measure of damages based on
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`testimony from Finjan’s VP of Licensing in Blue Coat I that the $8 per user fee was consistent with a
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`8-16% royalty rate. Dkt. No. 543 at 10; Brewer Decl., Ex. 1, ¶¶ 170-74; Lee Opp. Decl., Ex. 12 at
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`244:22-245:4 (“…the first Blue Coat trial in which I understand that an $8 per user fee … corresponds
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`with the jury verdict regarding Webpulse in that matter”). In her report, Dr. Meyer’s example of how
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`the $8 per user fee is calculated using the 8-16% rate uses a typical $50 security software product in
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`6
`PLAINTIFF’S OPPOSITION TO BLUE COAT’S
`MOTION IN LIMINE NO. 1 RE: DAUBERT OF DR. MEYER
`
`CASE NO. 15-cv-03295-BLF-SVK
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`Case 5:15-cv-03295-BLF Document 326 Filed 09/28/17 Page 8 of 9
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`the marketplace that has a 2.5 year subscription. Brewer Decl., Ex. 1, ¶170 n.458. Using the $8 per
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`user fee and applying an apportionment to get to the footprint of the invention, Dr. Meyer calculates
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`damages in a range of
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` based on the users of Webpulse/GIN in this case. Id.
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`Thus, Dr. Meyer properly disclosed the basis for her opinions, unlike the expert in Ask Chemicals who
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`provided no explanation for his methods or assumptions. Ask Chems. LP v. Comp. Packages, Inc.,
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`593 Fed.Appx. 506, 510 (6th Cir. 2014). Blue Coat’s disagreement with her use of the $8 per user is a
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`cross-examination issue, not a wholesale exclusion of her opinions.
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`Finally, Dr. Meyer disclosed the basis for her opinions regarding a bargaining range for the
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`hypothetical negotiation. She opined that the “highest amount that Blue Coat would be willing to pay
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`for a license to the Patents-in-Suit is the lower of the cost of working around the Patents-in-Suit,
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`which it did not do, or the profits it earns on the sale of the infringing products,” and the “lowest
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`amount that Finjan would be willing to accept to provide a license” is “the cost that Finjan would bear
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`by licensing the patents.” Brewer Decl., Ex. 1, ¶¶ 52, 56. She provides a range of damages based on
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`the information regarding the bargaining range and the other information discussed at length in her
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`report. This information is relevant to what the parties were thinking at the hypothetical negotiation,
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`including the costs of a design-around, the profitability of Finjan’s patented product, and potential
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`reduction in licensing and dividend profits. For such reasons, there is no legal basis to exclude her
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`opinions, and the Court should deny Blue Coat’s Daubert Motion.
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`///
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`///
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`///
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`7
`PLAINTIFF’S OPPOSITION TO BLUE COAT’S
`MOTION IN LIMINE NO. 1 RE: DAUBERT OF DR. MEYER
`
`CASE NO. 15-cv-03295-BLF-SVK
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`Case 5:15-cv-03295-BLF Document 326 Filed 09/28/17 Page 9 of 9
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`DATED: September 28, 2017
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`Respectfully submitted,
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`By: /s/ Lisa Kobialka
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`Paul J. Andre (State Bar. No. 196585)
`Lisa Kobialka (State Bar No. 191404)
`James Hannah (State Bar No. 237978)
`KRAMER LEVIN NAFTALIS
` & FRANKEL LLP
`990 Marsh Road
`Menlo Park, CA 94025
`Telephone: (650) 752-1700
`Facsimile: (650) 752-1800
`pandre@kramerlevin.com
`lkobialka@kramerlevin.com
`jhannah@kramerlevin.com
`
`Attorneys for Plaintiff
`FINJAN, INC.
`
`8
`PLAINTIFF’S OPPOSITION TO BLUE COAT’S
`MOTION IN LIMINE NO. 1 RE: DAUBERT OF DR. MEYER
`
`CASE NO. 15-cv-03295-BLF-SVK
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