Case 5:15-cv-03295-BLF Document 351 Filed 10/13/17 Page 1 of 5
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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
`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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`Case No.: 15-cv-03295-BLF-SVK
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`PLAINTIFF FINJAN, INC.’S
`SUPPLEMENTAL BRIEF ON COPYING
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`BLUE COAT SYSTEMS, LLC, a Delaware
`Corporation,
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`Defendant.
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`REDACTED VERSION OF DOCUMENT SOUGHT TO BE SEALED
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`____________________________________________________________________________________
`FINJAN’S SUPPLEMENTAL BRIEF ON COPYING Case No. 15-cv-03295-BLF-SVK
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`Case 5:15-cv-03295-BLF Document 351 Filed 10/13/17 Page 2 of 5
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`Substantial evidence will be presented at trial to prove that Blue Coat Systems, LLC’s (“Blue
`Coat”) copied Finjan, Inc.’s patented technology to support of Finjan’s willfulness, nonobviousness,
`and damages claims. As such, Finjan should be permitted to use the word “copy,” “copied” and
`“copying” at trial which is the most appropriate word to describe Blue Coat’s reckless actions.
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`I.
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`Finjan Should be Permitted to Introduce Evidence of Blue Coat Copying Finjan’s
`Product to Support Willfulness
`Blue Coat’s copying of Finjan’s Vital Security product is evidence that Blue Coat acted
`subjectively reckless, as required for willfulness. Stryker Corp. v. Intermedics Orthopedics, Inc., 96
`F.3d 1409, 1414 (Fed. Cir. 1996) (willfulness inquiry can rest on whether “infringer ‘intentionally
`copied the ideas of another.’”). Finjan will present substantial evidence at trial showing that Blue Coat
`copied the Vital Security product, which practices asserted patents. Wyers v. Master Lock Co., 616
`F.3d 1231, 1246 (Fed. Cir. 2010) (copying “requires evidence of efforts to replicate a specific product”
`shown “through internal company documents”).
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`1 All exhibits (“Ex.”) cited herein are attached to the Declaration of Kristopher Kastens filed herewith.
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`Case 5:15-cv-03295-BLF Document 351 Filed 10/13/17 Page 3 of 5
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`Courts have concluded that evidence of this type is sufficient to establish copying. For
`example, in Apple Inc. v. Samsung Elecs. Co., the Court concluded that four documents describing the
`testing and benefit of Apple’s “slide-to-unlock” feature were sufficient to establish Samsung’s copying
`of this feature when it was subsequently included in its products. No. 12-cv-00630-LHK, 2017 WL
`2720220, at *8-9 (N.D. Cal. June 23, 2017). In Linear Tech. Corp. v. Micrel, Inc., the Court concluded
`that evidence of employee testing the competitor’s product in making their own infringing product was
`sufficient to show copying. No. C-94-1633 MHP, 2006 WL 8425047, at *58 (N.D. Cal. Jun. 9, 2006).
`Finjan will also present substantial evidence at trial that the Vital Security products practice the
`asserted patents. Finjan intends to call Mr. Hartstein, Finjan’s CEO, who can testify about which
`Finjan products practice the asserted patents. Indeed, Mr. Harstein was the 30(b)(6) designee for this
`exact topic. In addition, Finjan intends to call Mr. Ben-Itzhak who was the former Finjan CTO and has
`first-hand knowledge regarding the Vital Security products, including how they were marked. Finally,
`Finjan intends to call Mr. Kroll at trial who was one of the inventors on the ‘494 Patent and can testify
`about the development of the products which led to the ‘494 Patent. Dkt. No. 289-1 (Finjan’s Witness
`List). These witnesses will establish how the Vital Security products operated, which patents they
`embody, and how Finjan marks its products with patent numbers. Frolow v. Wilson Sporting Goods
`Co., 710 F.3d 1303, 1309 (Fed. Cir. 2013) (“[W]e do agree that the fact that Wilson marked their
`products with his patent number is a fact which supports his allegation that Wilson’s products fall
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`Case 5:15-cv-03295-BLF Document 351 Filed 10/13/17 Page 4 of 5
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`within the patent claims.”).
`In addition, Finjan will present substantial evidence through its experts that Finjan’s products
`practice the asserted patents. For example, Dr. Cole and Dr. Medvidovic conclude in their expert
`reports that “Finjan’s technologies were utilized in its Vital Security line of products” and cited the
`deposition testimony of former Finjan employees in support of this conclusion. Ex. 9, 3/29/2017 Cole
`Rpt. at ¶ 57; Ex. 10, 3/29/27 Medvidovic Rpt. at ¶ 89. Finjan’s experts also discussed how the Vital
`Security product operated in their expert report to support this conclusion, referring to the same
`features discussed by Blue Coat in its testing of the Vital Security product. Ex. 9, 3/29/2017 Cole Rpt.
`at n.7; Ex. 10, 3/29/17 Medvidovic Rpt. at n.8. Furthermore, for the ‘844 and ‘494 Patents, Dr. Cole
`cites Vital Security product related documents as supporting claim elements of the ‘844 and ‘494
`Patents. Ex. 9, 3/29/2017 Cole Rpt. at ¶¶ 326, 491, 661 (‘844 Patent); 1234, 1399, 1596 (‘494 Patent).
`The conclusions of Finjan’s witnesses is consistent with the discovery provided in this
`litigation. During discovery, Finjan responded to a number of interrogatories detailing the assertions
`that Blue Coat copied the Finjan products. Ex. 11, Finjan’s 2/17/17 Supp. Response to Interrog. No. 7.
`Furthermore, Finjan produced a number of claim charts to Blue Coat in response to an interrogatory
`describing how Vital Security product practices the ‘844 and ‘494 Patents. Ex. 12, Finjan’s 11/18/16
`Supp. Response to Interrog. No. 4, at Appendix A. This discovery provided more than sufficient
`notice that Finjan would be offering evidence at trial that Blue Coat copied the Finjan products and
`that the Finjan products practice the asserted patents.
`The case law cited in Blue Coat MIL No. 2 is not relevant to whether copying is relevant for
`willfulness. Indeed, all the cases cited by Blue Coat relate exclusively to the standard used for non-
`obviousness rather than for willfulness. See Amazon.com, Inc. v. Barnesandnoble.com, Inc., 239 F.3d
`1343, 1366 (Fed. Cir. 2001) (discussing copying for secondary considerations); see also Wm. Wrigley
`Jr. Co. v. Cadbury Adams USA LLC, 683 F.3d 1356, 1364 (Fed. Cir. 2012) (same); Finjan, Inc. v. Blue
`Coat Sys., Inc., No. 13-cv-03999-BLF, 2015 WL 4129193, at *7 (B.D. Cal. July 8, 2015) (same). As
`discussed above, Courts have allowed copying claims to go to the jury based on the exact type of
`evidence that Finjan intends to present. As such, Finjan should be allowed use the word “copy” at trial
`to describe Blue Coat’s actions based on the evidence that will be presented.
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`Case 5:15-cv-03295-BLF Document 351 Filed 10/13/17 Page 5 of 5
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`Dated: October 13, 2017
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`Respectfully submitted,
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`By: /s/ James Hannah
`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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`FINJAN’S SUPPLEMENTAL BRIEF ON COPYING Case No. 15-cv-03295-BLF-SVK
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