Case 5:15-cv-03295-BLF Document 423 Filed 11/13/17 Page 1 of 24
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`
`
`PAUL J. 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
`HANNAH LEE (State Bar No. 253197)
`hlee@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
`
`FOR THE NORTHERN DISTRICT OF CALIFORNIA
`
`FINJAN, INC., a Delaware Corporation,
`
`
`
`
`
`
`Plaintiff,
`
`v.
`
`SAN JOSE DIVISION
`
`
`Case No.: 15-cv-3295-BLF-SVK
`
`PLAINTIFF FINJAN, INC.’S MOTION
`FOR JUDGMENT AS A MATTER OF
`LAW PURSUANT TO FEDERAL RULE
`OF CIVIL PROCEDURE 50(a)
`
`TBD
`Date:
`TBD
`Time:
`Place: Courtroom 3, 5th Floor
`Before: Hon. Beth Labson Freeman
`
`
`
`BLUE COAT SYSTEMS, LLC, a Delaware
`Corporation,
`
`
`
`
`Defendant.
`
`
`
`
`
`
`
`
`
`__________________________________________________________________________________
`FINJAN’S MOTION FOR JUDGMENT AS A MATTER
`CASE NO. 15-cv-03295-BLF-SVK
`OF LAW PURSUANT TO FED. R. CIV. P. 50(a)
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`Case 5:15-cv-03295-BLF Document 423 Filed 11/13/17 Page 2 of 24
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`TABLE OF CONTENTS
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`Page
`NOTICE OF MOTION AND MOTION .................................................................................................. 1
`RELIEF REQUESTED ............................................................................................................................. 1
`I.
`LEGAL STANDARD ................................................................................................................... 1
`II.
`FINJAN IS ENTITLED TO JMOL THAT BLUE COAT FAILED TO PRESENT
`EVIDENCE OF GOVERNMENT SALES .................................................................................. 2
`FINJAN IS ENTITLED TO JMOL THAT BLUE COAT INFRINGES THE
`ASSERTED CLAIMS OF THE ASSERTED PATENTS ........................................................... 3
`A.
`Finjan Presented Substantial Evidence That Blue Coat Infringes,
`
`Literally or Under the Doctrine of Equivalents, Claim 15 of the
`‘844 Patent. ........................................................................................................... 3
`Finjan Presented Substantial Evidence That Blue Coat Infringes,
`Literally Under The Doctrine of Equivalents, Claim 10 of the ‘494
`Patent..................................................................................................................... 3
`Finjan Presented Substantial Evidence That Blue Coat Infringes,
`Literally and Under The Doctrine of Equivalents, Claim 1 of the
`‘731 Patent ............................................................................................................ 4
`Finjan Presented Substantial Evidence That Blue Coat Infringes,
`Literally and Under The Doctrine of Equivalents, Claim 1 of the
`‘968 Patent ............................................................................................................ 6
`Finjan Presented Substantial Evidence That Blue Coat Infringes
`Claim 22 of the ‘408 Patent. ................................................................................. 7
`Finjan Presented Substantial Evidence That Blue Coat Infringes,
`Literally Or Under The Doctrine of Equivalents, Claims 1 and 10
`of the ‘621 Patent. ................................................................................................. 9
`Finjan Presented Substantial Evidence That Blue Coat Infringes
`The ‘844, ‘494, ‘731, ‘968 and ‘621 Patents Under The Doctrine of
`Equivalents. ......................................................................................................... 11
`Finjan is Entitled to JMOL of Infringement Because Blue Coat’s
`Non-Infringement Expert Applied an Improper Reading of the
`Asserted Claims. ................................................................................................. 11
`FINJAN IS ENTITLED TO JMOL THAT BLUE COAT WILLFULLY
`INFRINGES FINJAN’S ASSERTED PATENTS ..................................................................... 13
`FINJAN IS ENTITLED TO JMOL THAT IT IS ENTITLED TO DAMAGES ........................ 14
`FINJAN IS ENTITLED TO JMOL THAT BLUE COAT FAILED TO PRESENT
`SUBSTANTIAL EVIDENCE TO SUPPORT A DEFENSE TO DAMAGES
`BASED ON THE BLUE COAT I VERDICT ............................................................................. 19
`VII. CONCLUSION ........................................................................................................................... 20
`
`
`III.
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`IV.
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`V.
`VI.
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`B.
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`C.
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`D.
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`E.
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`F.
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`G.
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`H.
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`i
`FINJAN’S MOTION FOR JUDGMENT AS A MATTER CASE NO. 15-cv-03295-BLF-SVK
`OF LAW PURSUANT TO FED. R. CIV. P. 50(a)
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`Case 5:15-cv-03295-BLF Document 423 Filed 11/13/17 Page 3 of 24
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`TABLE OF AUTHORITIES
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`
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`Page(s)
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`
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`Cases
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`Erie Eng’d Prods., Inc. v. Wayne Integrated Techs. Corp.,
`No. CV 03-3776, 2005 WL 6582921 (E.D.N.Y. July 29, 2005) ........................................................ 2
`
`i4i Ltd. P’ship v. Microsoft Corp.,
`598 F.3d 831 (Fed. Cir. 2010), aff’d 564 U.S. 91 (2011) ................................................................. 14
`
`Larson v. U.S.,
`26 Cl. Ct. 365 (1992) .......................................................................................................................... 2
`
`Nichols v. City of San Jose,
`No. 14-cv-03383-BLF, 2017 WL 3007072 (N.D. Cal. July 14, 2017) ............................................... 1
`
`Parker Beach Restoration, Inc. v. U.S.,
`58 Fed. Cl. 126 (2003) ........................................................................................................................ 2
`
`Sevenson Envtl. Servs., Inc. v. Shaw Envtl., Inc.,
`477 F.3d 1361 (Fed. Cir. 2007)........................................................................................................... 2
`
`Stryker Corp. v. Zimmer, Inc.,
`No. 2013-1668, 2016 WL 4729504 (Fed. Cir. Sept. 12, 2016) ........................................................ 14
`
`Statutes
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`28 U.S.C. § 1498 ................................................................................................................................... 1, 2
`
`35 U.S.C. § 284 ....................................................................................................................................... 14
`
`Other Authorities
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`Fed. R. Civ. P. 50(a)(1) ............................................................................................................. 1, 2, 13, 20
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`
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`ii
`FINJAN’S MOTION FOR JUDGMENT AS A MATTER
`OF LAW PURSUANT TO FED. R. CIV. P. 50(a)
`
`CASE NO. 15-cv-03295-BLF-SVK
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`Case 5:15-cv-03295-BLF Document 423 Filed 11/13/17 Page 4 of 24
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`TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
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`NOTICE OF MOTION AND MOTION
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`NOTICE IS HEREBY GIVEN that as soon as the matter may be heard by the Court, Finjan,
`
`Inc. (“Finjan”) will and hereby does move the Court for an order granting judgment as a matter of law.
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`This Motion is based on this Notice of Motion, the Memorandum of Points and Authorities, the trial
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`record, the pleadings and papers on file, and any evidence and argument presented to the Court.
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`RELIEF REQUESTED
`
`Pursuant to the Federal Rule of Civil Procedure 50(a), Finjan moves for judgment as a matter
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`of law (“JMOL”) that Blue Coat Systems LLC (“Blue Coat”) filed to present “a legally sufficient
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`evidentiary basis” for the following claims: (1) Blue Coat’s claim of government sales to support its
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`affirmative defense under 28 U.S.C. § 1498; (2) Blue Coat’s claims of that Blue Coat’s Accused
`Products1 do not infringe the Asserted Claims of the Asserted Patents;2 (3) Blue Coat’s claim Blue
`Coat’s infringement of the Asserted Patents was not willful; (4) Blue Coat’s claim that Finjan is not
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`entitled to damages; and (5) Blue Coat’s claim that has a defense to damages based on the Finjan, Inc.
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`v. Blue Coat Systems, Inc., No. 13-cv-03999-BLF (N.D. Cal.) (“Blue Coat I”) verdict.
`I.
`
`LEGAL STANDARD
`
`A court may grant judgment as a matter of law when “a party has been fully heard on an issue
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`during a jury trial and the court finds that a reasonable jury would not have a legally sufficient
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`evidentiary basis to find for the party on that issue . . . .” Fed. R. Civ. P. 50(a)(1); Nichols v. City of
`
`San Jose, No. 14-cv-03383-BLF, 2017 WL 3007072, at *1 (N.D. Cal. July 14, 2017) (a court may
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`grant JMOL “if no reasonable juror could find in the non-moving party's favor”) (citation omitted).
`
`1 The Accused Products are: (1) GIN (U.S. Patent No. 6,154,844 (the “ ‘844 Patent”), Claim 15; U.S.
`Patent No. 8,677,494 (the “ ‘494 Patent”), Claim 10; and U.S. Patent No. 9,189,621 (the “ ‘621
`Patent”), Claims 1 and 10); (2) Advanced Secure Gateway (“ASG”) with Malware Analysis Appliance
`(“MAA”) (U.S. Patent No. 6,965,968 (the “ ‘968 Patent”), Claim 1; U.S. Patent No. 7,418,731 (the
`“ ‘731 Patent”), Claim 1); and (3) Web Security Service (“WSS”) with GIN (U.S. Patent No.
`8,225,408 (the “ ‘408 Patent”), Claim 22).
`
` 2
`
` The “Asserted Patents” and “Asserted Claims” are Claim 15 of the ‘844 Patent, Claim 10 of the ‘494
`Patent, Claims 1 and 10 of the ‘621 Patent, Claim 1 of the ‘968 Patent”, Claim 1 of the ‘731 Patent,
`and Claim 22 of the ‘408 Patent.
`
`1
`FINJAN’S MOTION FOR JUDGMENT AS A MATTER
`OF LAW PURSUANT TO FED. R. CIV. P. 50(a)
`
`CASE NO. 15-cv-03295-BLF-SVK
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`II.
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`Case 5:15-cv-03295-BLF Document 423 Filed 11/13/17 Page 5 of 24
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`FINJAN IS ENTITLED TO JMOL THAT BLUE COAT FAILED TO PRESENT
`EVIDENCE OF GOVERNMENT SALES
`Blue Coat failed to present “a legally sufficient evidentiary basis” at trial to support an
`
`affirmative defense under 28 U.S.C. § 1498 (“Section 1498”). Fed. R. Civ. P. 50(a). The Section 1498
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`affirmative defense requires proof of two elements: (1) that the use or manufacture of the infringing
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`product was for the Government and (2) that the use of the infringing product was with the
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`authorization or consent of the Government that is express or implied. Sevenson Envtl. Servs., Inc. v.
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`Shaw Envtl., Inc., 477 F.3d 1361, 1365-67 (Fed. Cir. 2007). Government sales, standing alone, do not
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`establish a defense under Section 1498. Erie Eng’d Prods., Inc. v. Wayne Integrated Techs. Corp., No.
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`CV 03-3776, 2005 WL 6582921, at *3 (E.D.N.Y. July 29, 2005). Blue Coat failed to present evidence
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`to prove that the Government provided express or implied consent to use the infringing the Accused
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`Products.
`
`First, Blue Coat failed to present substantial evidence of express consent which is typically
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`established by an explicit authorization or consent clause within a contract. Parker Beach Restoration,
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`Inc. v. U.S., 58 Fed. Cl. 126, 132 (2003). Blue Coat offered no contracts or agreements with the U.S.
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`Government and its fact witnesses discussed products not at issue in this case (Trial Tr. at 1402:18-21),
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`referred to generalized meetings with and training provided to U.S. Government customers with no
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`indication that such trainings and meetings relates specifically to the Accused Products, (Trial Tr. at
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`1403:2-13), and testified that they did not know which products on the only two exhibits Blue Coat
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`presented JTX-3070 and DTX-2095 were relevant to this case. Trial Tr. at 1574:7-25; 1576:13-18.
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`Second, Blue Coat also failed to provide evidence of any implied authorization or consent by the
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`Government. Blue Coat failed to present any evidence at trial that the U.S. Government had any
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`knowledge of infringement or that the U.S. Government customers received and used any of the
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`infringing products that were first sold to the distributors—which is required to show implied consent.
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`Larson v. U.S., 26 Cl. Ct. 365, 370 (1992). Blue Coat’s witness testified that “a way” to verify that the
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`end-user is using the products is when the technical support team is contacted by an end-user, but did
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`not testify that this actually occurred with respect to any U.S. Government customers. Trial Tr. at
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`1575:4-14.
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`2
`FINJAN’S MOTION FOR JUDGMENT AS A MATTER
`OF LAW PURSUANT TO FED. R. CIV. P. 50(a)
`
`CASE NO. 15-cv-03295-BLF-SVK
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`III.
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`Case 5:15-cv-03295-BLF Document 423 Filed 11/13/17 Page 6 of 24
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`FINJAN IS ENTITLED TO JMOL THAT BLUE COAT INFRINGES THE ASSERTED
`CLAIMS OF THE ASSERTED PATENTS
`
`
`Finjan Presented Substantial Evidence That Blue Coat Infringes, Literally or
`Under the Doctrine of Equivalents, Claim 15 of the ‘844 Patent.
`No reasonable jury could find that GIN/WebPulse does not literally infringe Claim 15 of the
`
`A.
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`‘844 Patent. Finjan presented substantial evidence demonstrating GIN/WebPulse satisfies the
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`preamble and Elements 1-2 of Claim 15 of the ‘844 Patent, with Blue Coat documents, source code,
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`witness testimony, expert testimony and testing of the Accused Products establishing that: (Preamble:
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`“[a]n inspector system comprising”) GIN/WebPulse is an inspector system (Trial Tr. at 501:22-504:14;
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`PTX-105; JTX-3043); (Element 1: “memory storing a first rule set; and”) GIN/WebPulse contains a
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`memory with a rule set (Trial Tr. at 504:15-514:17; PTX-1025; PTX-290; PTX-295; PTX-1276; PTX-
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`575); and (Element 2: “a first content inspection engine for using the first rule set to generate a first
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`Downloadable security profile that identifies suspicious code in a Downloadable, and for linking the
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`first Downloadable security profile to the Downloadable before a web server makes the Downloadable
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`available to web clients”) GIN/WebPulse contains a content inspection engine that generates a profile
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`identifying suspicious code and links the profile before making the downloadable available (Trial Tr.
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`at 514:18-515:3, 517:11-537:13; PTX-1274; PTX-49; PTX-368; PTX-423; PTX-427; PTX-564; PTX-
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`499; PTX-1025; and JTX-3050); see also generally Trial Tr. at 469:16-539:9, 560:9-23, 565:14-591:9,
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`603:18-605:11. Blue Coat challenged only Element 2 with nothing but the unsupported opinion of Dr.
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`Nielson, who did not cite any exhibits or witness testimony (aside from PTX564 to show that the MAA
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`reports also show information that is not code), primarily arguing that GIN/WebPulse do not identify
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`code. Trial Tr. at 1618:16-18, 1626:8-11. Based on this substantial evidence and the lack of evidence
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`from Blue Coat, Finjan is entitled to JMOL that GIN/WebPulse infringes Claim 15 of the ‘844 Patent
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`either literally or under the doctrine of equivalents (as described below).
`
`B.
`
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`Finjan Presented Substantial Evidence That Blue Coat Infringes, Literally Under
`The Doctrine of Equivalents, Claim 10 of the ‘494 Patent.
`No reasonable jury could find that GIN/WebPulse does not literally infringe Claim 10 of the
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`‘494 Patent. Finjan presented substantial evidence demonstrating that GIN/WebPulse satisfies the
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`preamble and Elements 1-3 of Claim 10 of the ‘494 Patent with Blue Coat documents, source code,
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`3
`FINJAN’S MOTION FOR JUDGMENT AS A MATTER
`OF LAW PURSUANT TO FED. R. CIV. P. 50(a)
`
`CASE NO. 15-cv-03295-BLF-SVK
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`Case 5:15-cv-03295-BLF Document 423 Filed 11/13/17 Page 7 of 24
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`witness testimony, expert testimony and testing of the Accused Products establishing that: (Preamble:
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`“[a] system for managing Downloadables, comprising”) GIN/WebPulse contains a system for
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`managing downloadables (Trial Tr. at 501:22-504:14, 540:18-543:12); (Element 1: “a receiver for
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`receiving an incoming Downloadable”) GIN/WebPulse contains a receiver for incoming
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`downloadables (Trial Tr. at 542:14-546:13; PTX105; and PTX1025); (Element 2: “a Downloadable
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`scanner coupled with said receiver, for deriving security profile data for the Downloadable, including
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`a list of suspicious computer operations that may be attempted by the Downloadable; and”)
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`GIN/WebPulse contains a scanner for deriving security profile information from downloadables,
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`including a list of suspicious operations (Trial Tr. at 546:14-552:17; PTX-211; PTX-516; JTX-3060);
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`and (Element 3: “a database manager coupled with said Downloadable scanner, for storing the
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`Downloadable security profile data in a database”) GIN/WebPulse contains a database manager for
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`storing security profile in a database (Trial Tr. at 554:11-559:10; JTX-3050; PTX-1276; PTX-211;
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`PTX-1025); see also generally, Trial Tr. at 469:16-496:21, 540:18-560:8. 565:14-605:11. Blue Coat
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`challenged only Element 2 with nothing but the unsupported opinion of Dr. Nielson, who did not cite
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`any exhibits or witness testimony, primarily arguing that GIN/WebPulse do not identify suspicious
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`operations. Trial Tr. at 1592:20, 1597:7-12, 1598:1-2, 1603:19-21. Based on this substantial evidence
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`and the lack of evidence from Blue Coat, Finjan is entitled to JMOL that GIN/WebPulse infringes
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`Claim 10 of the ‘494 Patent either literally or under the doctrine of equivalents (as described below).
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`
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`C.
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`Finjan Presented Substantial Evidence That Blue Coat Infringes, Literally and
`Under The Doctrine of Equivalents, Claim 1 of the ‘731 Patent
`No reasonable jury could find that Blue Coat’s ASG with MAA products do not literally
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`infringe Claim 1 of the ‘731 Patent. Finjan presented substantial evidence demonstrating ASG with
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`MAA satisfies the preamble and Elements 1-4 of Claim 1 of the ‘731 patent with Blue Coat
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`documents, source code, witness testimony, expert testimony and testing of the Accused Products
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`establishing that: (Preamble: “[a] computer gateway for an intranet of computers, comprising”) the
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`ASG acts as the required gateway by intercepting a request and, if it does not have information and
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`requires a scan, sends the request to the MAA to be scanned before returning it to the client (Trial Tr.
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`4
`FINJAN’S MOTION FOR JUDGMENT AS A MATTER
`OF LAW PURSUANT TO FED. R. CIV. P. 50(a)
`
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`at 694:9-695:4); (Element 1: “a scanner for scanning incoming files from the Internet and deriving
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`security profiles for the incoming files, wherein each of the security profiles comprises a list of
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`computer commands that a corresponding one of the incoming files is programmed to perform”) the
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`MAA is a scanner that receives files from the ASG and scans them through sandboxing technology and
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`based on that analysis will return back to the ASG an analysis report that contains information about
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`what the MAA found, including behavioral profile that identifies a list of suspicious commands (Trial
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`Tr. at 695:5-715:9; PTX-360; JTX-3003; JTX-3048; JTX-3120; PTX-575; PTX-426; PTX-1025 at
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`1215; PTX-1025 at 1306; PTX-1025 at 1355; PTX-1274); (Element 2: “a file cache for storing files
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`that have been scanned by the scanner for future access, wherein each of the stored files is indexed by
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`a file identifier”) the ASG contains the file cache, often referred to as the object store, wherein files are
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`indexed by a file identifier, such as a hash of the URL (Trial Tr. at 715:11-720:10; PTX-352; JTX-
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`3037; PTX-1277); (Element 3: “a security profile cache for storing the security profiles derived by the
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`scanner, wherein each of the security profiles is indexed in the security profile cache by a file identifier
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`associated with a corresponding file stored in the file cache”) there are security profile caches in both
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`the ASG and MAA (i.e., MAA- events cache and the MAG2; ASG- ThreatDB and the cachestore) and
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`various identifiers, such as the task identifier and SHA1 hash, are associated with the file (Trial Tr. at
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`720:11-727:7; PTX-426; PTX-295; PTX-1025 at 530; PTX-1025 at 1795; PTX-1025 at 2252-53); and
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`(Element 4: “a security policy cache for storing security policies for intranet computers within the
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`intranet, the security policies each including a list of restrictions for files that are transmitted to a
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`corresponding subset of the intranet computers”) the policy cache is the policy repository or policy
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`container in the ASG and the security policies contain a list of restrictions for files (Trial Tr. at 727:9-
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`734:4, 735:4-737:11; PTX-565; PTX-579; PTX-563; PTX-331; PTX-1278); see also generally Trial
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`Tr. at 618:8-24, 624:21-24, 625:19-640:19, 640:20-737:11.
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`Blue Coat challenged only Element 4 with nothing but the unsupported opinion of Dr. Nielson,
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`who did not cite any exhibits or witness testimony, primarily arguing that there are not multiple
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`policies in the Accused Product combination. Trial Tr. at 1650:17-1653:5. Based on this substantial
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`evidence and the lack of evidence from Blue Coat, Finjan is entitled to JMOL that ASG with MAA
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`5
`FINJAN’S MOTION FOR JUDGMENT AS A MATTER
`OF LAW PURSUANT TO FED. R. CIV. P. 50(a)
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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 423 Filed 11/13/17 Page 9 of 24
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`infringes Claim 1 of the ‘731 Patent either literally or under the doctrine of equivalents (as described
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`below).
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`D.
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`Finjan Presented Substantial Evidence That Blue Coat Infringes, Literally and
`Under The Doctrine of Equivalents, Claim 1 of the ‘968 Patent
`No reasonable jury could find that Blue Coat’s ASG with MAA products do not literally
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`infringe Claim 1 of the ‘968 Patent. Finjan presented substantial evidence demonstrating ASG with
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`MAA satisfies the preamble and Elements 1-3 of Claim 1 of the ‘968 patent with Blue Coat
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`documents, source code, witness testimony, expert testimony and testing of the Accused Products,
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`including the evidence that demonstrated Blue Coat’s infringement of the ‘731 Patent which equally
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`establishes Blue Coat’s infringement of the ‘968 Patent, establishing that: (Preamble: “[a] policy-based
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`cache manager, comprising”) the ASG with MAA contain a policy based cache manager (Trial Tr. at
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`740:7-23); (Element 1: “a memory storing a cache of digital content, a plurality of policies, and a
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`policy index to the cache contents, the policy index including entries that relate cache content and
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`policies by indicating cache content that is known to be allowable relative to a given policy, for each
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`of a plurality of policies”) the memory for storing content and policies is on the ASG, the cache of
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`digital content is the object store, the plurality of policies is the policy repository or the policy
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`container and the policy index if the policy index in the ASG product (Trial Tr. at 742:13-18, 743:4-
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`752:19, 759:18-24, 759:25-760:2, 760:3-10; JTX-3037; PTX-522; JTX-3036; PTX-1279); (Element 2:
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`“a content scanner, communicatively coupled with said memory, for scanning a digital content
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`received, to derive a corresponding content profile”) the MAA corresponds to the content scanner
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`(Trial Tr. at 742:19-23, 752:21-756:7, 760:11-13; JTX-3048; PTX-571; PTX-1279); and (Element 3:
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`“a content evaluator, communicatively coupled with said memory, for determining whether a given
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`digital content is allowable relative to a given policy, based on the content profile, the results of which
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`are saved as entries in the policy index”) the content evaluator that will make the final policy decision
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`is policy engine of ASG and the policy engine uses policy tickets to make and record allowability
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`decisions (Trial Tr. at 742:24-725:3, 756:9-759:16, 760:14-17; PTX-563; PTX-1025 at 1650; PTX-
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`1278); see also generally Trial Tr. at 618:8-24, 624:21-24, 625:19-640:19, 640:20-737:11; JTX-3002.
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`6
`FINJAN’S MOTION FOR JUDGMENT AS A MATTER
`OF LAW PURSUANT TO FED. R. CIV. P. 50(a)
`
`CASE NO. 15-cv-03295-BLF-SVK
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`Blue Coat only disputed Element 1 of the ‘968 Patent based primarily on Dr. Nielson’s
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`argument that allowability decisions are not saved. Trial Tr. at 1673:2-1684:23; PTX-1025 at 4515;
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`PTX-1025 at 4515; PTX-1025 at 4155. Based on this substantial evidence and the lack of evidence
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`from Blue Coat, Finjan is entitled to JMOL that ASG with MAA infringes Claim 1 of the ‘968 Patent
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`either literally or under the doctrine of equivalents (as described below).
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`E.
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`Finjan Presented Substantial Evidence That Blue Coat Infringes Claim 22 of the
`‘408 Patent.
`No reasonable jury could find that Blue Coat’s WSS with GIN/WebPulse does not infringe
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`Claim 22 of the ‘408 Patent. Finjan presented substantial evidence demonstrating WSS with
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`GIN/WebPulse satisfies the preamble and Elements 1-7 of Claim 22 of the ‘408 Patent with Blue Coat
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`documents, source code, witness testimony, expert testimony and testing of the Accused Products
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`establishing that: (Preamble: “[a] non-transitory computer-readable storage medium storing program
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`code for causing a computer to perform the steps of”) GIN/WebPulse uses program code that is stored
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`on a non-transitory computer-readable storage medium (Trial Tr. at 769:12-770:13); (Element 1:
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`“receiving an incoming stream of program code”) WSS with GIN/WebPulse receives an incoming
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`stream of product code (Trial Tr. at 770:14-775:7; JTX-3042; PTX-405; PTX-1025 at 34; PTX-1025 at
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`32; PTX-1025 at 106); (Element 2: “determining any specific one of a plurality of programming
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`languages in which the incoming stream is written”) GIN/WebPulse with WSS products determine the
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`specific programming language in which the incoming stream is written, such as PDF, HTML, and
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`JavaScript (Trial Tr. at 769:8-786:22; JTX-3005; PTX-1025 at 23; PTX-1025 at 108; PTX-1025 at
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`110; PTX-1025 at 26; PTX-1275); (Element 3: “instantiating a scanner for the specific programming
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`language, in response to said determining, the scanner comprising parser rules and analyzer rules for
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`the specific programing language, wherein the parser rules define certain patters in terms of tokens,
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`tokens being lexical constructs for the specific programming language, and wherein the analyzer rules
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`identify certain combinations of tokens and patterns as being indicators of corresponding exploits,
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`exploits being portions of program code that are malicious”) WSS with GIN/WebPulse instantiates
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`scanners such as a PDF scanner, an HTML scanner, and a JavaScript scanner on the incoming
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`programing code using parser rules including such as searching for “eval”, “unescape”, “OpenAction”
`7
`FINJAN’S MOTION FOR JUDGMENT AS A MATTER
`OF LAW PURSUANT TO FED. R. CIV. P. 50(a)
`
`CASE NO. 15-cv-03295-BLF-SVK
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`

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`Case 5:15-cv-03295-BLF Document 423 Filed 11/13/17 Page 11 of 24
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`tokens (which are lexical constructs for specific programming language) and analyzer rules such as
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`counting the number of suspicious tokens and incrementing particular variables within the context
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`structure (such as nShadyJScriptCalls) (Trial Tr. at 786:23-800:10; PTX-214; PTX-1025 at 441; PTX-
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`1025 at 1532; PTX-1025 at 443; PTX-1025 at 444; PTX-1025 at 1536; PTX-1025 at 1533; PTX-1025
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`at 1534); (Element 4: “identifying individual tokens within the incoming stream”) WSS with
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`GIN/WebPulse identify individual tokens within the incoming stream, with examples of tokens being
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`eval, unescape and document.write (Trial Tr. at 800:12-801:15; PTX-1025 at 443); (Element 5:
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`“dynamically building, while said receiving receives the incoming stream, a parse tree whose nodes
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`represent tokens and patterns in accordance with parser rules”) the parse tree is the context structure
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`and describing the dynamical building of hierarchical structure of nodes pursuant to the Court’s claim
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`construction (Trial Tr. at 801:16-810:22; PTX-1025 at 1775); (Element 6: “dynamically detecting,
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`while said dynamically building builds the parse tree, combinations of nodes in the parse tree which
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`are indicator or potential exploits, based on the analyzer rules”) WSS and GIN/WebPulse uses the
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`context structure to look for combinations of nodes in the parse tree that might be indicators of
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`potential exploits based on analyzer rules (Trial Tr. at 810:23-816:12; PTX-1025 at 242; PTX-1025 at
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`450; PTX-1025 at 444); (Element 7: “indicating the presence of potential exploits within the incoming
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`stream, based on said dynamically detecting”) the WSS with GIN/WebPulse indicate the presence of
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`exploits, for example a system of caucuses and conventions that calculate risk levels that correspond to
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`an indicator identifying the presence of the potential exploit based on the detection mechanism (Trial
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`Tr. at 816:14-822:1; JTX-3050; PTX-513; PTX-1025 at 124; PTX-1025 at 305); see also generally
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`Trial Tr. at 762:14-822:1.
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`Blue Coat primarily challenged Element 5 with Dr. Nielson testimony that the element requires
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`that building and parsing be performed before the incoming stream is downloaded, but DRTR
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`completely downloads the buffer before it does any analysis. Trial Tr. at 1663:15-1664:1; PTX-1025
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`at 106. However, Dr. Nielson acknowledged that in some cases, DRTR only downloads a portion of
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`the file. Trial Tr. at 1665:8-22. Moreover, Dr. Nielson did not address the fact that the incoming
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`stream of program code is finished or downloaded by the WSS while the parse tree is being built. Dr.
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`8
`FINJAN’S MOTION FOR JUDGMENT AS A MATTER
`OF LAW PURSUANT TO FED. R. CIV. P. 50(a)
`
`CASE NO. 15-cv-03295-BLF-SVK
`
`

`

`Case 5:15-cv-03295-BLF Document 423 Filed 11/13/17 Page 12 of 24
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`Nielson further testified that he disagreed that the Accused Products build a parse tree because the
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`content structure keeps track of information but is not constructed from tokens and patterns with the
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`parser rules—but did not present a single exhibit or portion of source code to support his opinion.
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`Trial Tr. at 1667:4-1670:8. Based on Finjan’s substantial evidence and the lack of evidence from Blue
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`Coat, Finjan is entitled to JMOL that WSS with GIN/WebPulse infringes Claim 22 of the ‘408 Patent.
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`
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`F.
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`Finjan Presented Substantial Evidence That Blue Coat Infringes, Literally Or
`Under The Doctrine of Equivalents, Claims 1 and 10 of the ‘621 Patent.
`No reasonable jury could find that Blue Coat’s GIN/WebPulse does not literally infringe
`
`Claims 1 and 10 of the ‘621 Patent. Finjan presented substantial evidence demonstrating
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`GIN/WebPulse satisfies the preamble and Elements 1-5 of Claims 1 and 10 of the ‘621 with Blue Coat
`
`documents, source code, witness testimony, expert testimony and testing of the Accused Products
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`establishing that: (Preamble, Claim 1: “[a] system for determining whether a downloadable is
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`suspicious, comprising”) GIN/WebPulse is a system and its principal purpose is to determine whether
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`a Downloadable is suspicious (Trial Tr. at 989:25-991:18; JTX-3050); (Preamble, Claim 10: “[a]
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`system for reviewing an operating system call issued by a downloadable, comprising”) GIN/WebPulse
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`is a system for determining whether a Downloadable is suspicious and that determination happens by
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`reviewing calls through the probes and hooks, and the redirection of execution and recording of the
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`events (Trial Tr. at 1049:5-22); (Element 1, Claims 1 and 10: “at least one processor for accessing
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`elements stored in at least one memory a