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`Case 5:15-cv-03295-BLF Document 464 Filed 12/08/17 Page 1 of 21
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`
`
`STEFANI E. SHANBERG (State Bar No. 206717)
`sshanberg@mofo.com
`NATHAN B. SABRI (State Bar No. 252216)
`nsabri@mofo.com
`ROBIN L. BREWER (State Bar No. 253686)
`rbrewer@mofo.com
`EUGENE MARDER (State Bar No. 275762)
`emarder@mofo.com
`MADELEINE E. GREENE (State Bar No. 263120)
`mgreene@mofo.com
`MICHAEL J. GUO (State Bar No. 284917)
`mguo@mofo.com
`ALEX N. HADDUCK (State Bar No. 312962)
`ahadduck@mofo.com
`MORRISON & FOERSTER LLP
`425 Market Street
`San Francisco, California 94105
`Telephone:
`(415) 268-7000
`Facsimile:
`(415) 268-7522
`
`DAVID A. NELSON (Pro Hac Vice)
`davenelson@quinnemanuel.com
`NATHAN A. HAMSTRA (Pro Hac Vice)
`nathanhamstra@quinnemanuel.com
`QUINN EMANUEL URQUHART & SULLIVAN LLP
`500 W. Madison Street, Suite 2450
`Chicago, Illinois 60661
`Telephone:
`(312) 705-7400
`Facsimile:
`(312) 707-7401
`
`Attorneys for Defendant
`BLUE COAT SYSTEMS LLC
`UNITED STATES DISTRICT COURT
`
`NORTHERN DISTRICT OF CALIFORNIA
`
`SAN JOSE DIVISION
`
`FINJAN, INC., a Delaware Corporation,
`
`Case No.: 15-cv-03295-BLF-SVK
`
`Plaintiff,
`
`v.
`
`BLUE COAT SYSTEMS LLC, a Delaware
`Corporation,
`
`Defendant.
`
`BLUE COAT SYSTEMS LLC’S
`NOTICE OF MOTION AND PARTIAL
`RENEWED RULE 50(B) MOTION FOR
`JUDGMENT AS A MATTER OF LAW
`
`
`
`BLUE COAT’S PARTIAL RENEWED RULE 50(B)
`MOTION FOR JUDGMENT AS A MATTER OF LAW
`15-cv-03295-BLF-SVK
`
`
`
`
`
`

`

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`Case 5:15-cv-03295-BLF Document 464 Filed 12/08/17 Page 2 of 21
`
`
`
`TABLE OF CONTENTS
`
`Page
`
`I.
`
`II.
`
`INTRODUCTION ............................................................................................................... 1
`
`LEGAL STANDARD .......................................................................................................... 1
`
`III.
`
`NO LITERAL INFRINGEMENT OF THE ’844 PATENT ................................................ 2
`
`A.
`
`B.
`
`Finjan Failed to Provide Evidence That the Accused Products Identify
`Suspicious Code. ...................................................................................................... 2
`
`Finjan Failed to Provide Evidence That the Accused Products Link a
`Downloadable Security Profile to a Downloadable Before a Web Server
`Makes the Content Available to Web Clients. ......................................................... 4
`
`NO LITERAL INFRINGEMENT OF THE ’494 PATENT ................................................ 6
`
`NO INFRINGEMENT UNDER THE DOCTRINE OF EQUIVALENTS ......................... 8
`
`NO WILLFUL INFRINGEMENT OF THE ’844 AND ’494 PATENTS ......................... 10
`
`IV.
`
`V.
`
`VI.
`
`VII. NO WORLDWIDE DAMAGES ON THE ’844 AND ’494 PATENTS ........................... 12
`
`VIII. CONCLUSION .................................................................................................................. 15
`
`
`
`BLUE COAT’S PARTIAL RENEWED RULE 50(B)
`MOTION FOR JUDGMENT AS A MATTER OF LAW
`15-cv-03295-BLF-SVK
`
`
`
`i
`
`

`

`Case 5:15-cv-03295-BLF Document 464 Filed 12/08/17 Page 3 of 21
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`TABLE OF AUTHORITIES
`
`
`
`Page(s)
`
`Cases
`
`Centillion Data Sys. LLC v. Quest Commc’ns Int’l,
`631 F.3d 1279 (Fed. Cir. 2011) .................................................................................................13
`
`Consolidated Edison Co. v. NLRB,
`305 U.S. 197 (1938) ....................................................................................................................2
`
`Eolas Techs. Inc. v. Microsoft Corp.,
`No. 99 C 626, 2003 U.S. Dist. LEXIS 13482 (N.D. Ill. Aug. 1, 2003) ....................................13
`
`Finjan, Inc. v. Cisco Sys.,
`Case No. 17-cv-00072-BLF, 2017 U.S. Dist. LEXIS 87657 (N.D. Cal. June 7,
`2017) .........................................................................................................................................11
`
`Fr. Telecom S.A. v. Marvell Semiconductor Inc.,
`39 F. Supp. 3d 1080 (N.D. Cal. 2014) ......................................................................................13
`
`Halo Elecs., Inc. v. Pulse Elecs., Inc.,
`136 S. Ct. 1923 (2016) ........................................................................................................10, 11
`
`Headwaters Forest Defense v. County of Humboldt,
`240 F.3d 1185 (9th Cir. 2000), vacated on other grounds, 534 U.S. 801 (2001) .......................1
`
`Honeywell Int’l Inc. v. Universal Avionics Sys. Corp.,
`347 F. Supp. 2d 114 (D. Del. 2004) ............................................................................................8
`
`Johnson v. Paradise Valley Unified Sch. Dist.,
`251 F.3d 1222 (9th Cir. 2001) .....................................................................................................2
`
`Kalitta Air, LLC v. Cent. Tex. Airborne Sys.,
`No. C 96-2494 CW, 2005 U.S. Dist. LEXIS 43317 (N.D. Cal. Jul. 22, 2005) ...........................1
`
`Lear Siegler, Inc. v. Sealy Mattress Co.,
`873 F.2d 1422 (Fed. Cir. 1989) ...................................................................................................9
`
`Microsoft Corp. v. AT&T Corp.,
`550 U.S. 437 (2007) ............................................................................................................13, 14
`
`Monolithic Power Sys., Inc. v. Silergy Corp.,
`127 F. Supp. 3d 1071 (N.D. Cal. 2015) ....................................................................................11
`
`Morrison v. Nat’l Australia Bank Ltd.,
`561 U.S. 247 (2010) ..................................................................................................................14
`
`NTP, Inc. v. Research in Motion, Ltd.,
`418 F.3d 1282 (Fed. Cir. 2005) .................................................................................................13
`BLUE COAT’S PARTIAL RENEWED RULE 50(B)
`ii
`MOTION FOR JUDGMENT AS A MATTER OF LAW
`15-cv-03295-BLF-SVK
`
`
`
`

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`Case 5:15-cv-03295-BLF Document 464 Filed 12/08/17 Page 4 of 21
`
`
`
`Power Integrations, Inc. v. Fairchild Semiconductor Int'l, Inc.,
`711 F.3d 1348 (Fed. Cir. 2013) .................................................................................................14
`
`Radware, Ltd. v. F5 Networks, Inc.,
`Case No. 5:13-cv-02024-RMW, 2016 U.S. Dist. LEXIS 112504 (N.D. Cal.
`Aug. 22, 2016) ..........................................................................................................................11
`
`Research Corp. Techs., Inc. v. Microsoft Corp.,
`No. CV-01-658-TUC-RCJ, 2009 U.S. Dist. LEXIS 135255 (D. Ariz. 2009) ..........................14
`
`Streck, Inc. v. Research & Diagnostic Sys.,
`665 F.3d 1269 (Fed. Cir. 2012) .................................................................................................12
`
`Texas Instruments, Inc. v. Cypress Semiconductor Corp.,
`90 F.3d 1558 (Fed. Cir. 1996) ...............................................................................................9, 10
`
`TI Group Auto. Sys. (N.A.) v. VDO N.A., LLC,
`C.A. No. 00-432-GMS, 2002 U.S. Dist. LEXIS 17783 (D. Del. Sep. 4, 2002),
`aff’d 375 F.3d 1126 (Fed. Cir. 2004) ..........................................................................................1
`
`Vectren Commc’n Servs. v. City of Alameda,
`No. C 08-3137 SI, 2011 U.S. Dist. LEXIS 35523 (N.D. Cal. Mar. 22, 2011)............................2
`
`Volterra Semiconductor Corp. v. Primarion, Inc.,
`799 F. Supp. 2d 1092 (N.D. Cal. 2011) ......................................................................................2
`
`Zoltar Satellite Alarm v. Snaptrack, Inc.,
`No. C 01-20291 JW, 2004 U.S. Dist. LEXIS 27713 (N.D. Cal. July 26, 2004) .....................1, 2
`
`Statutes
`
`35 U.S.C. § 101 ...............................................................................................................................15
`
`35 U.S.C. § 271(a) ..........................................................................................................................13
`
`Rules
`
`Fed. R. Civ. P. 50(a) ..........................................................................................................................9
`
`Fed. R. Civ. P. 50(b) .........................................................................................................................1
`
`
`
`
`
`BLUE COAT’S PARTIAL RENEWED RULE 50(B)
`MOTION FOR JUDGMENT AS A MATTER OF LAW
`15-cv-03295-BLF-SVK
`
`
`iii
`
`

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`Case 5:15-cv-03295-BLF Document 464 Filed 12/08/17 Page 5 of 21
`
`
`
`TABLE OF ABBREVIATIONS
`
`
`Plaintiff Finjan, Inc.
`Defendant Blue Coat Systems LLC
`U.S. Patent No. 6,154,844
`U.S. Patent No. 8,677,494
`U.S. Patent No. 6,965,968
`U.S. Patent No. 7,418,731
`Malware Analysis Appliance
`Dynamic Real Time Rating
`Global Intelligence Network
`Finjan, Inc. v. Blue Coat Systems LLC, No. 13-cv-03999-BLF (N.D.
`Cal. filed Aug. 28, 2013)
`Finjan, Inc. v. Blue Coat Systems LLC, No. 13-cv-03999-BLF, Claim
`Construction Oder, Dkt. No. 118
`Finjan, Inc. v. Blue Coat Systems LLC, No. 15-cv-03295-BLF (N.D.
`Cal. filed July 15, 2015)
`Finjan, Inc. v. Sophos, Inc., No. 14-cv-01197-WHO (N.D. Cal.)
`
`
`
`
`
`
`
`Finjan or Plaintiff
`Blue Coat or Defendant
`’844 patent
`’494 patent
`’968 patent
`’731 patent
`MAA
`DRTR
`GIN
`Blue Coat I
`
`BC I CC Order
`
`Blue Coat II
`
`Sophos
`
`BLUE COAT’S PARTIAL RENEWED RULE 50(B)
`MOTION FOR JUDGMENT AS A MATTER OF LAW
`15-cv-03295-BLF-SVK
`
`
`iv
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`Case 5:15-cv-03295-BLF Document 464 Filed 12/08/17 Page 6 of 21
`
`NOTICE OF MOTION
`TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
`
`PLEASE TAKE NOTICE that at the Court’s earliest convenience, or as soon thereafter as
`
`
`
`
`
`
`
`the matter may be heard by the Honorable Beth Labson Freeman in Courtroom 3, United States
`
`District Court for the Northern District of California, Robert F. Peckham Federal Building, 280
`
`South 1st Street, San Jose, CA 95113, Defendant Blue Coat shall and hereby does respectfully
`
`seek an order granting judgment as a matter of law.
`
`
`
`This motion is based on this notice of motion and supporting memorandum, the trial
`
`record, and such other written or oral argument as was presented and may be presented at or
`
`before the time this motion is taken under submission by the Court.
`
`RELIEF REQUESTED
`
`
`
`Blue Coat respectfully seeks an order granting it judgment as a matter of law on Finjan’s
`
`remaining claims for infringement, willful infringement, and worldwide damages.
`
`Dated: December 8, 2017
`
`MORRISON & FOERSTER LLP
`
`
`
`
`
`By:
`
`/s/ Stefani E. Shanberg
`Stefani E. Shanberg
`
`Attorneys for Defendant
`BLUE COAT SYSTEMS LLC
`
`BLUE COAT’S PARTIAL RENEWED RULE 50(B)
`MOTION FOR JUDGMENT AS A MATTER OF LAW
`15-cv-03295-BLF-SVK
`
`
`v
`
`

`

`Case 5:15-cv-03295-BLF Document 464 Filed 12/08/17 Page 7 of 21
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`I.
`
`INTRODUCTION
`A hung jury does not alter the Court’s ability to grant judgment as a matter of law. See,
`
`e.g., Zoltar Satellite Alarm v. Snaptrack, Inc., No. C 01-20291 JW, 2004 U.S. Dist. LEXIS
`
`27713, at *6 (N.D. Cal. July 26, 2004) (“The jury did not reach a verdict on the claim. . . . The
`
`Court finds that pursuant to Federal Rule of Civil Procedure 50, Defendants are entitled to
`
`judgment as a matter of law on this infringement claim.”). A retrial on the ’844 and ’494 patents
`
`is a waste of Court and party resources, because Finjan failed to introduce sufficient evidence for
`
`a reasonable jury to find infringement as to those patents. There was little disagreement about the
`
`facts and the functionality of the accused products; rather, the parties focused on whether that
`
`undisputed functionality meets the claim limitations, as construed by the Court. See generally TI
`
`Group Auto. Sys. (N.A.) v. VDO N.A., LLC, C.A. No. 00-432-GMS, 2002 U.S. Dist. LEXIS
`
`17783 (D. Del. Sep. 4, 2002) (reversing jury’s infringement findings under 50(b) based on
`
`comparison of undisputed functionality to claim terms and noting that plaintiff’s “arguments are
`
`effectively an end-run around the court’s rejection” of claim construction positions), aff’d 375
`
`F.3d 1126 (Fed. Cir. 2004). Finjan also failed to introduce substantial evidence of willfulness or
`
`worldwide damages. Finjan is not entitled to a second attempt to meet its burden of proof. Blue
`
`Coat respectfully requests that the Court deny Finjan’s remaining claims for relief as a matter of
`law.1
`
`II.
`
`LEGAL STANDARD
`Judgment as a matter of law is appropriate when “a party has been fully heard on an issue
`
`during a jury trial and the court finds that a reasonable jury would not have a legally sufficient
`
`evidentiary basis to find for the party on that issue.” Fed. R. Civ. P. 50(b). The Court may grant
`
`judgment as a matter of law on claims where the jury was deadlocked. Headwaters Forest
`
`Defense v. County of Humboldt, 240 F.3d 1185, 1197 (9th Cir. 2000), vacated on other grounds,
`
`534 U.S. 801 (2001); see, e.g., Kalitta Air, LLC v. Cent. Tex. Airborne Sys., No. C 96-2494 CW,
`
`
`1 In light of the Court’s guidance that the parties may wait until after the retrial to file Rule 50(b)
`motions, see Hr’g Tr. (11/21/17) at 16:6-9, Blue Coat has limited this motion to those issues that
`would obviate or narrow the scope of a retrial and has not included issues such as
`noninfringement of the ’731 and ’968 patents or other damages issues.
`BLUE COAT’S PARTIAL RENEWED RULE 50(B)
`MOTION FOR JUDGMENT AS A MATTER OF LAW
`15-cv-03295-BLF-SVK
`
`1
`
`
`
`

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`Case 5:15-cv-03295-BLF Document 464 Filed 12/08/17 Page 8 of 21
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`2005 U.S. Dist. LEXIS 43317, at *9 (N.D. Cal. Jul. 22, 2005) (On 50(b) motion, “[t]he fact that a
`
`mistrial was declared because of jury deadlock does not alter the standard to be applied.”); Zoltar
`
`Satellite Alarm, 2004 U.S. Dist. LEXIS 27713, at *6. Indeed, the Court may grant JMOL
`
`anytime a party fails to support its burden with substantial evidence. Johnson v. Paradise Valley
`
`Unified Sch. Dist., 251 F.3d 1222, 1227 (9th Cir. 2001) (citations omitted). “Substantial evidence
`
`is more than a scintilla of evidence.” Vectren Commc’n Servs. v. City of Alameda, No. C 08-3137
`
`SI, 2011 U.S. Dist. LEXIS 35523, at *5 (N.D. Cal. Mar. 22, 2011) (citing Consolidated Edison
`
`Co. v. NLRB, 305 U.S. 197, 229 (1938)). While the Court “must view the evidence in the light
`
`most favorable to the non-moving party . . . and draw all reasonable inferences in [its] favor,”
`
`“conclusory expert assertions do not give rise to a genuine issue of material fact.” Id. at 1062;
`
`Streck, Inc. v. Research & Diagnostic Sys., 665 F.3d 1269, 1290-91 (Fed. Cir. 2012) (upholding
`
`district court’s grant of JMOL); see also Volterra Semiconductor Corp. v. Primarion, Inc., 799 F.
`
`Supp. 2d 1092, 1098 (N.D. Cal. 2011) (“When an expert opinion is not supported by sufficient
`
`facts to validate it in the eyes of the law, or when indisputable record facts contradict or otherwise
`
`render the opinion unreasonable, it cannot support a jury’s verdict.”) (internal citations omitted).
`
`III. NO LITERAL INFRINGEMENT OF THE ’844 PATENT
`Finjan Failed to Provide Evidence That the Accused Products Identify
`A.
`Suspicious Code.
`
`Claim 15 of the ’844 patent, the Court’s claim construction, and the jury instructions
`
`require that “[a]s used in the patent, ‘code’ and ‘operations’ are not the same.” JTX-3001 (’844
`
`patent) at 11:64-66; BC I CC Order at 17; Dkt. No. 428, at 47. No reasonable jury could find
`
`infringement of the ’844 patent based upon the evidence presented by Finjan, entitling Blue Coat
`
`to judgment as a matter of law of noninfringement.
`
`At counsel’s repeated prompting, Dr. Cole ignored the claim requirements and stated that
`
`“operations” are “the same thing” as suspicious code. See, e.g., Trial Tr. (Cole) at 521:11-14 (“Q.
`
`And the suspicious operations, is that the same thing as identifying suspicious code? A. Yes.”);
`
`527:5-7 (“Suspicious operations and suspicious code are both the same thing and it’s in the file
`
`and looking for what actions the code would take that could be harmful.”). Dr. Cole pointed to
`
`BLUE COAT’S PARTIAL RENEWED RULE 50(B)
`MOTION FOR JUDGMENT AS A MATTER OF LAW
`15-cv-03295-BLF-SVK
`
`
`2
`
`

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`Case 5:15-cv-03295-BLF Document 464 Filed 12/08/17 Page 9 of 21
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`only one alleged downloadable security profile: MAA reports. See, e.g., id. at 520:5-521:10,
`
`522:2-523:7, 527:8-528:8 (discussing PTX-368, PTX-564, and PTX-427). In describing the
`contents of the MAA reports, Dr. Cole stated only that they list suspicious operations, not code.
`
`See, e.g., id. at 521:7-10 (“But these are all suspicious operations. So Blue Coat’s own document
`
`is showing you that it generates, it looks for and attracts these suspicious operations which forms
`
`the security profile.”); see also, 522:17-20; 527:21-528:8. Finjan failed to present any evidence
`
`that the accused products provide a downloadable security profile that identifies suspicious code.
`
`Finjan now focuses on Dr. Cole’s assertion that “suspicious operations map back to the
`
`code that actually performs those functions.” Id. at 521:15-16. Whether or not correct, that is
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`insufficient for infringement. The Court addressed this issue in its claim construction order,
`
`recognizing Blue Coat’s “concern that ‘identifies’ is too vague and could be interpreted to permit
`the downloadable security profile to simply detect the presence of suspicious code without
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`further specifying its location or characteristics” and determining that “[t]his concern is well
`
`taken, and the Court agrees with Blue Coat that the patent requires the downloadable security
`profile (‘DSP’) to include details about the suspicious code in the received downloadable.” Id.
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`(emphasis added). It is undisputed that Dr. Cole did not point to any “details about the suspicious
`
`code in the received downloadable.”
`
`As Dr. Seth Nielson, Blue Coat’s technical expert, explained in reference to the exemplary
`
`MAA report that Dr. Cole used in his testimony, none of the results listed in the MAA report
`
`identify code because “there’s a lot of different ways, maybe an infinite number of ways, of
`
`writing code that can all cause the same event.” Trial Tr. (Nielson) at 1621:6-1622:12. The mere
`fact that some code must have existed to cause an operation does not mean that one has identified
`
`that code, much less details about that code, upon identifying an operation, as there would be
`
`innumerable different code that could lead to any given operation. See id.
`
`Finjan attempted to buttress Dr. Cole’s testimony by questioning Dr. Nielson and Mr.
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`Rohan, a principal developer on MAA, with MAA reports that Dr. Cole never discussed. These
`attempts fail because no MAA reports identify suspicious code. The cross discussed certain
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`MAA reports that list “Javascript: Eval method,” “JavaScript: Unescape function,” and similar
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`BLUE COAT’S PARTIAL RENEWED RULE 50(B)
`MOTION FOR JUDGMENT AS A MATTER OF LAW
`15-cv-03295-BLF-SVK
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`3
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`Case 5:15-cv-03295-BLF Document 464 Filed 12/08/17 Page 10 of 21
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`events observed during analysis. See, e.g., Trial Tr. (Nielson) at 1770:22-1773:1 (discussing
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`PTX-575); Trial Tr. (Rohan) at 1484:19-1485:8 (discussing PTX-575). Mr. Rohan stated that
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`those functions are not considered suspicious by MAA—no JavaScript functions identified by
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`MAA are considered suspicious. Trial Tr. (Rohan) at 1488:23-1489:17. Mr. Rohan explained
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`that the JavaScript functions identified by MAA are performed by “a lot of the legitimate
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`programs,” so these functions are ranked as risk score “6” or below, while MAA only considers
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`risk scores of “7” and above to be suspicious. See id. at 1476:4-25 (“1 through 6 are behaviors
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`that are not suspicious.”); 1485:7-1486:1, 1489:12-14; PTX-368 at BC2-0003663 (table of risk
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`scores for MAA and GIN showing that only “7” and above is “Suspicious behavior”). Absent
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`any contradictory testimony—or any testimony at all—from Dr. Cole on JavaScript functions
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`identified by MAA, Finjan has failed to present any evidence that MAA reports identify
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`suspicious code, as required by the ’844 patent and this Court’s claim construction.
`Finjan Failed to Provide Evidence That the Accused Products Link a
`B.
`Downloadable Security Profile to a Downloadable Before a Web Server
`Makes the Content Available to Web Clients.
`Claim 15 of the ’844 patent also requires “linking the first Downloadable security profile
`to the Downloadable before a web server makes the Downloadable available to web clients,”
`which the Court construed as requiring linking “before a non-network gateway web server makes
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`the Downloadable available to web clients.” ’844 patent at 11:64-12:2 (emphasis added). In
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`construing this term, the Court recognized the arguments made by Finjan to obtain issuance of the
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`’844 patent and “that the ’844 Patent contemplates a distinction between web servers and network
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`gateways.” BC I CC Order at 18-19 (citation to prosecution history omitted).
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`As discussed by Dr. Nielson, “a non-network gateway web server makes the
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`Downloadable available” by publishing it on the internet. Trial Tr. (Nielson) at 1609:19-1610:1.
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`Examples of a “non-network gateway webserver” given during trial were espn.com and cnn.com.
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`See Dkt. 429. This is consistent with an explicit embodiment in the patent in which a
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`downloadable is inspected and linked to its security profile before it is published by the web
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`server. See ’844 patent at Fig. 6; Trial Tr. (Nielson) at 1784:1-1788:2.
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`In order for any Blue Coat product to inspect a file, that file must have already been made
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`BLUE COAT’S PARTIAL RENEWED RULE 50(B)
`MOTION FOR JUDGMENT AS A MATTER OF LAW
`15-cv-03295-BLF-SVK
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`Case 5:15-cv-03295-BLF Document 464 Filed 12/08/17 Page 11 of 21
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`available by a web server. See, e.g., Trial Tr. (Cole) at 486:25-487:3 (“So what will happen is
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`GIN will take the samples from the Internet and run them in a sandbox environment.”); see also,
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`id. (Mitzenmacher) at 626:14-19. Blue Coat’s products are not non-network gateway web
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`servers, and they do not link a downloadable security profile to a downloadable before a web
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`server makes that downloadable available. Id. (Nielson) at 1613:7-13 (“The way the Blue Coat
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`product works is that there’s been a request for that content, that content has already been made
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`available.”).
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`Rather than provide any evidence contradicting these facts, Finjan attempted to avoid this
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`issue by reading the word “web server” out of the claim and arguing that linking before a
`particular Blue Coat customer could access information constituted linking “before a web server
`makes the Downloadable available to web clients.” It is undisputed that the Blue Coat products
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`have no effect on whether the web server from which they downloaded a file for inspection has
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`made and will continue to make that file available for web clients (plural). Dr. Cole glossed over
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`this distinction by repeatedly changing the claim language to “the web client” (singular) in order
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`to imply that one must focus on a particular Blue Coat customer. See, e.g., Trial Tr. (Cole) at
`485:20-21 (“[T]hat has to be linked to the downloadable before it’s made available to the client.”)
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`(emphasis added); see also 487:21-23, 498:16-18, 500:24-501:2, 501:5-9, 517:24-518:2, 528:18-
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`529:8, 530:14-17, 533:13-25, 535:2-11, 536:11-16, 536:24-537:2. Finjan attempted again to
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`rewrite the claim when cross examining Dr. Nielson, but he pointed out the distinction and
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`corrected Finjan’s misreading of the claim. Trial Tr. (Nielson) at 1690:5-1691:15.
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`Relying on passive voice and stating that the content “is made available,” in over 50
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`transcript pages, Dr. Cole mentioned the web server only once: when reading the claim language.
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`Id. (Cole) at 479:13-539:9. This is a critical omission, as the claim requires a web server that
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`takes action. Failing to explain the role of the web server in the claim eviscerates the Court’s
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`construction and the patentee’s disclaimer on which it is based. As Dr. Nielson explained, “[i]f
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`you’ve got a web server that is making content available, right, just because there is a Blue Coat
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`product that may decide to block it for some clients, that doesn’t change the fact that the
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`webserver is already making it available. . . . The fact that an intermediary device is deciding to
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`BLUE COAT’S PARTIAL RENEWED RULE 50(B)
`MOTION FOR JUDGMENT AS A MATTER OF LAW
`15-cv-03295-BLF-SVK
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`5
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`Case 5:15-cv-03295-BLF Document 464 Filed 12/08/17 Page 12 of 21
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`block it doesn’t change when that publishing happens.” Trial Tr. (Nielson) at 1612:25-1616:5.
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`Dr. Cole’s presentation of argument and purported evidence that ignores the claim
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`language and this Court’s constructions cannot sustain Finjan’s burden of proof, and no
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`reasonable jury could rely on it to find infringement of these claim elements. Blue Coat is
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`entitled to judgment of noninfringement as a matter of law.
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`IV. NO LITERAL INFRINGEMENT OF THE ’494 PATENT
`Claim 10 of the ’494 patent requires the accused system to derive security profile data of a
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`downloadable, including “a list of suspicious computer operations that may be attempted by the
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`Downloadable.” JTX 3006 (’494 patent) at 22:10-13; Trial Tr. (Cole) at 546:14-22. Finjan
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`accused only the “Cookie2” string produced during DRTR inspection of meeting this limitation,
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`specifically through its two fields that correspond to 1) a count of how many YARA rules were
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`triggered, and 2) a concatenated string of the labels of those YARA rules. Trial Tr. (Cole)
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`593:23-594:25. Neither is a list of suspicious computer operations. Based on this evidence, no
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`reasonable jury could find infringement of claim 10 of the ’494 patent.
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`YARA rules are a popular open source tool used to scan files to match text strings. Id. (C.
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`Larsen) at 1540:22-1541:14; id. (Nielson) at 1600:19-1601:11. A YARA rule tests for text
`strings that may implicate a particular suspicious computer operation, but even then, the label for
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`the YARA rule does not state what the operation is. For that reason, a string of YARA rule labels
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`does not identify a suspicious computer operation. A count of how many rules were triggered is
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`not a list of suspicious computer operations that might have caused them to trigger.
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`But Finjan’s attempt to shoehorn the Cookie2 string into the asserted claim language has
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`even more flaws. YARA rules often search for multiple different text strings and fire if any are
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`found in a file. See PTX-516. Knowing that a rule fired therefore does not indicate whether a
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`particular string is present in the file. Trial Tr. (C. Larsen) at 1546:8-21. Even if one were to
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`assume that a particular YARA rule corresponded to one particular text string, that does not mean
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`that when the YARA rule fires, a suspicious operation is present. “YARA rules are about text
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`matching. They match text.” Trial Tr. (Nielson) at 1601:12-14. As Dr. Nielson explained, “it all
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`goes back to what a YARA rule is about. A YARA rule is about finding pattern matches . . . . It’s
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`BLUE COAT’S PARTIAL RENEWED RULE 50(B)
`MOTION FOR JUDGMENT AS A MATTER OF LAW
`15-cv-03295-BLF-SVK
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`Case 5:15-cv-03295-BLF Document 464 Filed 12/08/17 Page 13 of 21
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`about finding patterns in text . . . . The YARA rule is not identifying any operations.” Id. at
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`1600:6-12. A YARA rule would fire even if the matched string appears in displayed text or a
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`comment rather than the page code. A web page describing an attack in its text could trigger a
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`YARA rule hit even though there is no suspicious operation in the file, because the YARA rule is
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`merely “looking for that text. It’s not looking for the operation.” Id. at 1601:5-14.
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`Dr. Cole’s unsubstantiated testimony is not evidence and is insufficient to support a
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`different conclusion. Dr. Cole testified that “a concatenated string of the labels of the YARA
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`rules that were fired” was “a list of those suspicious operations that were found within the file.”
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`Trial Tr. (Cole) at 551:24-552:6. But he could not explain how particular YARA rule names
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`comprise a list of suspicious computer operations.
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`Dr. Cole pointed to only two specific YARA rules used by Blue Coat, both of which
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`demonstrate the flaws with Finjan’s infringement theory. First, Dr. Cole identified a rule called
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`“generic_javascript_obfuscation.” stating that “this is JavaScript obfuscation detection.” Trial Tr.
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`(Cole) at 548:19-549:25; PTX-516 at 61. But the label “generic_javascript_obfuscation” is not
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`the name of a suspicious operation—“obfuscation” refers to the manner in which code is written,
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`not what it is programmed to do—and, as discussed above, a list that includes this label would not
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`be a “list of suspicious computer operations.” See Trial Tr. (Cole) at 486:8-12 (obfuscation is
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`“where the adversary tries to hide or cover up what they did”). And, as Dr. Cole admitted, this
`rule searches for three separate strings, Trial Tr. (Cole) at 549:13-25, and fires when any of them
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`are matched. See id. (C. Larsen) at 1543:11-1546:21 (“We would know that this rule fired, but
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`that wouldn’t tell us, well, which pattern did we see? . . . . So I wouldn’t know which string it
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`found.”); id. (Nielson) at 1599:23-1601:14 (“[T]here were multiple strings that could match, so
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`even there you wouldn’t know which one of those matches fired, which pattern fired.”); PTX-516
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`at 61 (“condition: any of them”). When asked about this rule on cross-examination, Chris Larsen,
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`the architect of DRTR and WebPulse, reiterated that while a label for the rule would be stored in
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`a database, “that’s not going to tell you which pattern within the rule actually triggered.” Trial
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`Tr. (C. Larsen) at 1554:9-1556:16. Dr. Cole did not address this fact and identified no rules that
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`correspond to a particular operation.
`
`BLUE COAT’S PARTIAL RENEWED RULE 50(B)
`MOTION FOR JUDGMENT AS A MATTER OF LAW
`15-cv-03295-BLF-SVK
`
`
`7
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`

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`Case 5:15-cv-03295-BLF Document 464 Filed 12/08/17 Page 14 of 21
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`The only other rule to which Dr. Cole referred was “Unknown_JS_Injection_Patrik1.”
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`PTX-516 at 155; Trial Tr. (Cole) at 550:3-21. Dr. Cole provided only a single conclusory
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`statement regarding the search performed by this rule: “And this also is injection, which is
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`another type of suspicious operation that we would want to look for.” Trial Tr. (Cole) at 550:20-
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`21. Dr. Cole did not explain why injection would be a suspicious computer operation that may be
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`attempted by the downloadable. It is not. In fact, this rule does not even belong to the “malware”
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`category of YARA rules. See id. (C. Larsen) at 1543:25-1544:2; PTX-516 at 155 (showing that
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`“Unknown_JS_Injection_