Case 5:15-cv-03295-BLF Document 327 Filed 09/28/17 Page 1 of 7
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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.
`
`
`
`
`IN THE UNITED STATES DISTRICT COURT
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`FOR THE NORTHERN DISTRICT OF CALIFORNIA
`
`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.
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`Case No.: 15-cv-03295-BLF-SVK
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`PLAINTIFF’S FINJAN INC.’S
`OPPOSITION TO BLUE COAT SYSTEM
`LLC’S MOTION IN LIMINE NO. 2 TO
`EXCLUDE EVIDENCE AND
`ARGUMENT CONCERNING ALLEGED
`COPYING
`
`October 5, 2017
`Date:
`1:30 pm
`Time:
`Place: Courtroom 3, 5th Floor
`Judge: Hon. Beth Labson Freeman
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`REDACTED VERSION OF DOCUMENT SOUGHT TO BE SEALED
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`PLAINTIFF’S OPPOSITION TO BLUE COAT’S
`MOTION IN LIMINE NO. 2
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`CASE NO. 15-cv-03295-BLF-SVK
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`Case 5:15-cv-03295-BLF Document 327 Filed 09/28/17 Page 2 of 7
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`Focusing only on evidence presented in the prior litigation (“Blue Coat I”), Blue Coat ignores
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`Finjan’s substantial new evidence of Blue Coat’s copying that did not exist in Blue Coat I, which is
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`evidence that Finjan could not have relied upon in the prior litigation. Further, to support its motion,
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`Blue Coat cites to Finjan’s experts who address (i) Blue Coat’s development of its products which is
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`relevant to damages as well as Blue Coat’s willfulness, and (ii) Finjan’s rebuttal validity experts
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`addressing copying as an objective indicia of nonobviousness. No single expert’s testimony is
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`directed to just “infringement,” as Blue Coat implies. Motion at 1-2, 5. Given the foregoing, Blue
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`Coat has not established any unfair prejudice contemplated by Fed. R. Evid. 403 to support its motion.
`I.
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`ARGUMENT
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`A.
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`Finjan Will Introduce New Evidence On Copying That Did Not Exist at the Time
`of Blue Coat I
`The mountain of newly-existing facts pointing to Blue Coat’s copying that did not exist when
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`Blue Coat I went to trial undermines Blue Coat’s attempt to paint Finjan’s copying case as “ancient
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`history.” Motion at 1. And while Blue Coat points to some similar documents presented in Blue Coat
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`I (Mot. at 2-3), it ignores that those same documents, in connection with the new evidence here,
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`evidence copying and not mere competition. Such evidence falls into three categories: (1) Blue
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`Coat’s implementation of Finjan’s patented technology into different products and newer versions of
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`existing products, despite Blue Coat’s knowledge of the ‘844, ‘968, and ‘731 Patents from Blue Coat I
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`that are asserted here which resulted in a finding of infringement, (2) Blue Coat’s production of new
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`documents
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` which were not produced in the first
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`litigation, that go to the heart of Finjan’s willfulness allegations, and (3) Finjan’s assertion for the first
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`time of the ‘086, ‘408, ‘494 and ‘621, and ‘755 Patents, which Blue Coat has known about since Blue
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`Coat I. Thus, the copying evidence Finjan will present is different and new from that presented in
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`Blue Coat I and is unlike the first case given different facts support Finjan’s willfulness claim. Wyers
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`v. Master Lock Co., 616 F.3d 1231, 1246 (Fed. Cir. 2010) (copying “requires evidence of efforts to
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`replicate a specific product,” which can be demonstrated in a number of ways, including “through
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`internal company documents,” or “access to the patented product combined with substantial similarity
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`to the patented product.”)(citations omitted); Intermedics Stryker Corp. v. Osteonics Corp., 96 F.3d
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`PLAINTIFF’S OPPOSITION TO BLUE COAT’S
`MOTION IN LIMINE NO. 2
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`CASE NO. 15-cv-03295-BLF-SVK
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`Case 5:15-cv-03295-BLF Document 327 Filed 09/28/17 Page 3 of 7
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`1409, 1414 (Fed. Cir. 1996) (patentee is not required to show “slavish copying.”).
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`With respect to the first category of new evidence, despite being aware of the ‘844, ‘968, and
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`‘731 Patents since 2013 when Blue Coat I was filed, Finjan has evidence that Blue Coat decided to
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`implement Finjan’s patented technology into different products and newer versions of old products
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`that were not at issue and could not have been at issue in Blue Coat I. To that end, Finjan will show
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`that Blue Coat quickly developed new versions of the same products both during and after Blue Coat I
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`verdict, and despite a finding of infringement. See, e.g. Dkt. No. 106-4 at 3-7 (identifying Finjan’s
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`accused products in relation to Blue Coat’s products accused in Blue Coat I). And further evidence of
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`copying can be inferred from the fact that Blue Coat has not taken steps to modify its product line,
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`even after the infringement verdict in Blue Coat I. See, e.g., Declaration of Hannah Lee (“Lee Opp.
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`Decl.”) filed herewith, Ex. 17, Schoenfeld 2/28/17 Depo. Tr. at 13:11-17
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`Regarding the second category of new evidence, Blue Coat produced new relevant documents
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`pertaining to its copying in this case that, despite being available at the time of Blue Coat I, were not
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`produced for some reason in Blue Coat I. These documents include
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`whether Blue Coat copied Finjan’s technology, and not just mere ordinary business competition. Cf.
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` Such evidence goes to the heart of
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`e.g., Lee Opp. Decl., Ex. 18, Clare 1/15/15 Depo. Tr. at 107:17-23 (Mr. Clare testifying:
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`; id., Ex. 19, BC2-1585678-82 at 79
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`10/30/14 Depo. Tr. at 33:14-16 (Mr. Schoenfeld testifying:
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` and Ex. 21, BC2-1324465-80
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`; cf. id., Ex. 20, Schoenfeld
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`Regarding the third category of new evidence, Blue Coat also ignores that Finjan is asserting
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`2
`PLAINTIFF’S OPPOSITION TO BLUE COAT’S
`MOTION IN LIMINE NO. 2
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`CASE NO. 15-cv-03295-BLF-SVK
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`Case 5:15-cv-03295-BLF Document 327 Filed 09/28/17 Page 4 of 7
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`the ‘086, ‘408, ‘494 and ‘621, and ‘755 Patents here that were not asserted in the Blue Coat I, and
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`Blue Coat’s internal documents and communications
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` Thus, the Court’s rulings do not apply because they involve different patents
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`and factual issues. Finjan also has evidence, showing the nexus between the evidence and these new
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`patents––this evidence shows that despite being aware of the newly asserted patents since Blue Coat I,
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`Blue Coat chose not to design around them. This is undisputed as Blue Coat stipulated in the Pretrial
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`Order that it had knowledge during Blue Coat I of the ‘494, ‘086, and ‘408 Patents. See Dkt. No. 289
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`at 7, II(A)(36); see also Dkt. No. 27 at App. B (identifying litigations and IPRs involving Finjan).
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`Rather than address any of the new copying evidence discussed above, Blue Coat instead
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`dedicates most of its brief to arguing that Finjan intends to rely on an OEM Agreement and the Vital
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`Security program to show copying. Yet, Blue Coat misses the point that the OEM Agreement and
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`Vital Security are but two aspects of Blue Coat’s copying. Even then, Finjan’s experts cite to the
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`OEM agreement in the context of the background analysis of Blue Coat and Finjan. See, e.g., Dkt.
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`No. 305-9, Declaration of Robin L. Brewer (“Brewer Decl.”), Ex 56, Cole Rpt., ¶ 82. And the Vital
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`Security documents show that Finjan marked its product with patents that Blue Coat was found to
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`infringe in Blue Coat I, and that Blue Coat implemented the technology of those patents while Blue
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`Coat I was pending and thereafter, all of which evidences Blue Coat’s copying. Id., Ex. 53, Finjan’s
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`Interrog. Resp. No. 4 at 9 and App. A at 1 (noting that the Vital Security appliance is marked with the
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`‘844 patent, which Blue Coat was found to infringe in the prior litigation). Blue Coat’s argument that
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`Finjan “failed to disclose any nexus between the alleged copying of Vital Security” and the ‘844, ‘968
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`and ‘731 Patents is mere attorney argument (e.g., stating that Dr. Cole’s expert report “opin[es]
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`without support that Vital Security incorporated Finjan’s technologies.”), and is without merit because
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`Dr. Cole specifically identifies documents linking Blue Coat’s knowledge of Finjan’s patents to its
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`access to Finjan’s Vital Security appliance. Motion at 4; Brewer Decl., Ex. 56, Cole Rpt., ¶ 93. Thus,
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`Finjan has substantial new evidence for copying and for willful infringement than in Blue Coat I.
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`B.
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`Finjan’s Relevant, Non-Prejudicial Copying Evidence Pertains to
`Nonobviousness, Willful Infringement and Damages
`Blue Coat’s motion is merely an attempt to exclude key evidence that Finjan has regarding
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`PLAINTIFF’S OPPOSITION TO BLUE COAT’S
`MOTION IN LIMINE NO. 2
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`CASE NO. 15-cv-03295-BLF-SVK
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`Case 5:15-cv-03295-BLF Document 327 Filed 09/28/17 Page 5 of 7
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`issues of nonobviousness, damages, Blue Coat’s development of its infringing technology and willful
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`infringement. Blue Coat’s motion cites to the Brewer Decl. ¶ 107, which references a laundry-list of
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`paragraphs in Finjan’s expert’s reports and the corresponding exhibits cited therein (containing new
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`documents not disclosed in Blue Coat I nor cited in Blue Coat’s brief) that Blue Coat is attempting to
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`exclude as opining on “copying.” Motion at 5 n.2. These paragraphs contain Finjan’s experts’
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`opinions, based upon an evaluation of the evidence (and more) outlined above, pertaining to Blue
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`Coat’s development of its technology, relevant support for damages, such as Dr. Meyer’s opinion
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`related to relevant information regarding the parties’ positions at the hypothetical negotiation, Drs.
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`Goodrich, Jaeger, and Lyon’s testimony regarding objective indicia of nonobviousness, and Drs. Cole,
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`Mitzenmacher and Medvidovic’s testimony regarding Blue Coat’s development of the technology, the
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`technological benefits of the patented technology and willfulness. Brewer Decl., ¶ 107.
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`For example, Finjan’s expert, Dr. Cole, opined on Blue Coat’s development of its technology
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`and willfulness, explaining that Blue Coat
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`found to infringe in Blue Coat I. Id., Ex. 56, Cole Rpt., ¶ 97
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`Ex. 57, Medvidovic Rpt., ¶ 100
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`; see also id.,
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`technical internal communications evidencing
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`because it is relevant objective indicia of nonobviousness. See id., Ex. 61, Jaeger Rpt., ¶¶ 248-264 (in
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`analyzing objective indicia of nonobviousness, Blue Coat’s internal technical documents show that
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` Finjan’s experts also explained the
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`; see also
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`id., Ex. 62, Lyon Rpt., ¶¶ 277-288; id., Ex. 60, Goodrich Rpt., ¶¶ 425-441. Dr. Meyer, Finjan’s
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`damages expert, opined about the parties’ relative positions and concerns that exist during the
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`hypothetical negotiation, which includes consideration of the internal communications identified
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`above. Id., Ex. 1, Meyer Rpt., ¶¶ 140-142 (opining on Georgia-Pacific Factor 11,
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`4
`PLAINTIFF’S OPPOSITION TO BLUE COAT’S
`MOTION IN LIMINE NO. 2
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`. Introduction of such
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`CASE NO. 15-cv-03295-BLF-SVK
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`Case 5:15-cv-03295-BLF Document 327 Filed 09/28/17 Page 6 of 7
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`evidence is appropriate for all of these reasons. Advanced Display Sys., Inc. v. Kent State Univ., 212
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`F.3d 1272, 1285 (Fed. Cir. 2000) (copying “may often be the most probative and cogent evidence of
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`nonobviousness”) (citation and internal quotations omitted); WBIP, LLC v. Kohler Co., 829 F.3d
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`1317, 1340 (Fed. Cir. 2016) (affirming a finding of willfulness after party engaged in copying).
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`Further, Finjan’s experts’ reliance on these documents is proper. Fed. R. Evid. 703 (“An
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`expert may base an opinion on facts or data in the case that the expert has been made aware of or
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`personally observed”); Imperium IP Holdings (Cayman), Ltd. v. Samsung Elecs. Co., No. 4:14-cv-
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`371, 2016 WL 3746523, at *1-2 (E.D. Tex. Jan. 28, 2016) (denying to exclude technical expert’s
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`opinions on willfulness); In re Terazosin Hydrochloride Antitrust Litig., No. 99-MDL-1317, 2005 WL
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`5955699, at *6-7 (S.D. Fla. Feb. 2, 2005) (denying exclusion of expert testimony where he relied on
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`various internal documents in forming his opinion). As the Court acknowledged in Blue Coat I, these
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`documents are relevant to Finjan’s allegations of copying. Blue Coat I, Dkt. No. 367 at 10.
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`Finally, Blue Coat’s allegations that the documents are prejudicial is unavailing, as their
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`probative value to the issues identified above is substantially outweighed by the danger of unfair
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`prejudice. See Fed. R. Evid. 403. Indeed, there can be no dispute that the evidence shown above is
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`damaging to Blue Coat’s positions, but damaging does not mean unfairly prejudicial. Lee Opp. Decl.,
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`Ex. 22, Memorandum and Order, Genband US LLC v. Metaswitch Networks Corp., at 2 (E.D. Tex.
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`Jan. 15, 2016) (No. 2:14-cv-33-JRG-RSP) (holding that copying evidence is not rendered
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`inadmissible because it can also support an inference of infringement); see also Oracle Am., Inc. v.
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`Google, Inc., No. 10-03561-WHA, 2012 WL 1189898, at *1 (N.D. Cal. Jan. 4, 2012) (declining to
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`exclude email mentioning products and patents as not unfairly prejudicial because “counsel can try to
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`explain it away or reduce the email’s significance by introducing testimony.”). Thus, Finjan’s
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`copying evidence is relevant and non-prejudicial as to nonobviousness, willful infringement and
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`damages.
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`For the foregoing reasons, Finjan respectfully requests that the Court deny Blue Coat’s Motion
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`in Limine No. 2.
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`5
`PLAINTIFF’S OPPOSITION TO BLUE COAT’S
`MOTION IN LIMINE NO. 2
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`CASE NO. 15-cv-03295-BLF-SVK
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`Case 5:15-cv-03295-BLF Document 327 Filed 09/28/17 Page 7 of 7
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`DATED: September 28, 2017
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`Respectfully submitted,
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`
`By: /s/ Lisa Kobialka
`
`
`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.
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`6
`PLAINTIFF’S OPPOSITION TO BLUE COAT’S
`MOTION IN LIMINE NO. 2
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`CASE NO. 15-cv-03295-BLF-SVK
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