1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Case 5:15-cv-03295-BLF Document 485 Filed 12/29/17 Page 1 of 17
`
`
`
`DARALYN J. DURIE (SBN 169825)
`ddurie@durietangri.com
`STEPHEN ELKIND (Pro Hac Vice)
`selkind@durietangri.com
`DURIE TANGRI LLP
`217 Leidesdorff Street
`San Francisco, CA 94111
`Telephone: (415) 362-6666
`Facsimile: (415) 236-6300
`
`STEFANI E. SHANBERG (SBN 206717)
`sshanberg@mofo.com
`NATHAN B. SABRI (SBN 252216)
`nsabri@mofo.com
`ROBIN L. BREWER (SBN 253686)
`rbrewer@mofo.com
`EUGENE MARDER (SBN 275762)
`emarder@mofo.com
`MADELEINE E. GREENE (SBN 263120)
`mgreene@mofo.com
`MICHAEL J. GUO (SBN 284917)
`mguo@mofo.com
`ALEX N. HADDUCK (SBN 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’S REPLY
`IN SUPPORT OF PARTIAL
`RENEWED RULE 50(B) MOTION
`
`BLUE COAT SYSTEMS LLC, a Delaware
`Corporation,
`
`
`
`Defendant.
`
`
`
`BLUE COAT’S REPLY ISO PARTIAL RENEWED RULE 50(B) MOTION
`15-cv-03295-BLF-SVK
`
`
`

`

`Case 5:15-cv-03295-BLF Document 485 Filed 12/29/17 Page 2 of 17
`
`TABLE OF CONTENTS
`
`
`Page
`
`BLUE COAT IS ENTITLED TO JUDGMENT AS A MATTER OF LAW THAT
`IT DOES NOT INFRINGE THE ’844 PATENT ............................................................... 1
`A.
`Finjan’s Evidence Related to Suspicious Operations, not Suspicious Code ........... 1
`B.
`Finjan’s Evidence Ignored the Web Server Limitation ........................................... 3
`BLUE COAT IS ENTITLED TO JUDGMENT AS A MATTER OF LAW THAT
`IT DOES NOT INFRINGE THE ‘494 PATENT ............................................................... 4
`BLUE COAT IS ENTITLED TO JUDGMENT AS A MATTER OF LAW OF
`NONINFRINGEMENT UNDER THE DOCTRINE OF EQUIVALENTS ...................... 5
`BLUE COAT IS ENTITLED TO JUDGMENT AS A MATTER OF LAW THAT
`ITS ALLEGED INFRINGEMENT OF THE ’844 AND ’494 PATENTS WAS
`NOT WILLFUL .................................................................................................................. 7
`A.
`Finjan Cannot Rebut Blue Coat’s Evidence Demonstrating No Willful
`Infringement. ........................................................................................................... 7
`Finjan’s Evidence Does Not Establish Willful Infringement ................................. 8
`B.
`BLUE COAT IS ENTITLED TO JUDGMENT AS A MATTER OF LAW THAT
`FINJAN MAY NOT RECOVER DAMAGES BASED ON WORLDWIDE
`USERS ................................................................................................................................ 9
`A.
`An Accused Product Is Made Where it First Becomes Capable of
`Performing Every Limitation of the Asserted Claim .............................................. 9
`The Undisputed Trial Evidence Shows that Blue Coat’s Foreign Users Use
`Accused Products that Were Made Abroad .......................................................... 10
`Finjan Incorrectly Applies NTP ............................................................................ 11
`C.
`Finjan’s Collateral Estoppel Argument Is Without Merit ..................................... 11
`D.
`CONCLUSION ................................................................................................................. 12
`
`B.
`
`
`I.
`
`II.
`
`III.
`
`IV.
`
`V.
`
`VI.
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`BLUE COAT’S REPLY ISO PARTIAL RENEWED RULE 50(B) MOTION
`15-cv-03295-BLF-SVK
`
`
`i
`
`

`

`Case 5:15-cv-03295-BLF Document 485 Filed 12/29/17 Page 3 of 17
`
`
`
`Cases
`
`TABLE OF AUTHORITIES
`
`
`
`Page(s)
`
`Affinity Labs of Tex., LLC v. BMW N. Am, LLC,
`783 F. Supp. 2d 891 (E.D. Tex. 2011) ........................................................................................8
`
`Ansel Communs., Inc. v. Novell, Inc.,
`No. C-97-21088, 1999 U.S. Dist. LEXIS 22737 (N.D. Cal. Mar. 23, 1999) ............................11
`
`CNET Networks, Inc. v. Etilize, Inc.,
`528 F. Supp. 2d 985 (N.D. Cal. 2007) ..................................................................................9, 10
`
`Decca Ltd. v. United States,
`210 Ct. Cl. 546 (1976) ..............................................................................................................11
`
`Deepsouth Packing Co. v. Laitram Corp.,
`406 U.S. 518 (1972) ..................................................................................................................10
`
`Fr. Telecom S.A. v. Marvell Semiconductor Inc.,
`39 F. Supp. 3d 1080 (N.D. Cal. 2014) ......................................................................................10
`
`Honeywell Int’l Inc. v. Universal Avionics Sys. Corp.,
`347 F. Supp. 2d 114 (D. Del. 2004) ............................................................................................5
`
`Imperium IP Holdings (Cayman), Ltd. v. Samsung Elecs. Co.,
`No. 4:14-cv-371, 2017 WL 4038884 (E.D. Tex. Sep. 13, 2017) ................................................8
`
`Lear Siegler, Inc. v. Sealy Mattress Co.,
`873 F.2d (Fed. Cir. 1989) ............................................................................................................5
`
`NTP, Inc. v. Research in Motion, Ltd.,
`418 F.3d 1282 (Fed. Cir. 2005) .................................................................................................11
`
`SpeedTrack, Inc. v. Office Depot, Inc.,
`No. C 07-3602-PJH, 2014 WL 1813292 (N.D. Cal. May 6, 2014) ..........................................12
`
`Texas Instruments, Inc. v. Cypress Semiconductor Corp.,
`90 F.3d 1558 (Fed. Cir. 1996) .....................................................................................................5
`
`WMS Gaming Inc. v. Int’l Game Tech.,
`184 F.3d 1339 (Fed. Cir. 1999) ...................................................................................................8
`
`Statutes
`
`35 U.S.C. § 271(a) ..........................................................................................................9, 10, 11, 12
`
`35 U.S.C. § 271(f) .............................................................................................................................9
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`BLUE COAT’S REPLY ISO PARTIAL RENEWED RULE 50(B) MOTION
`15-cv-03295-BLF-SVK
`
`
`ii
`
`

`

`Case 5:15-cv-03295-BLF Document 485 Filed 12/29/17 Page 4 of 17
`
`
`
`35 U.S.C. § 271(g) ......................................................................................................................9, 10
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`BLUE COAT’S REPLY ISO PARTIAL RENEWED RULE 50(B) MOTION
`15-cv-03295-BLF-SVK
`
`
`iii
`
`

`

`Case 5:15-cv-03295-BLF Document 485 Filed 12/29/17 Page 5 of 17
`
`
`
`TABLE OF ABBREVIATIONS
`
`
`Plaintiff Finjan, Inc.
`Defendant Blue Coat Systems LLC
`U.S. Patent No. 6,154,844
`U.S. Patent No. 6,965,968
`U.S. Patent No. 7,418,731
`U.S. Patent No. 8,677,494
`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. 15-cv-03295-BLF (N.D.
`Cal. filed July 15, 2015)
`Blue Coat Systems LLC’s Partial Renewed Rule 50(b) Motion for
`Judgment as a Matter of Law, Dkt. No. 464
`Plaintiff Finjan Inc.’s Opposition to Blue Coat Systems LLC’s Partial
`Renewed Rule 50(b) Motion for Judgment as a Matter of Law, Dkt. No.
`477
`
`
`Finjan or Plaintiff
`Blue Coat or Defendant
`’844 patent
`’968 patent
`’731 patent
`’494 patent
`MAA
`DRTR
`GIN
`Blue Coat I
`
`Blue Coat II
`
`Mot. or Motion
`
`Opp. or Opposition
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`BLUE COAT’S REPLY ISO PARTIAL RENEWED RULE 50(B) MOTION
`15-cv-03295-BLF-SVK
`
`
`
`iv
`
`

`

`Case 5:15-cv-03295-BLF Document 485 Filed 12/29/17 Page 6 of 17
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Finjan failed at trial to introduce sufficient evidence for any reasonable jury to find
`
`infringement of the ’844 or ’494 patents (literally or by equivalents), willful infringement, or
`
`worldwide damages. Finjan is unable to refute these points, and instead continues to ignore the
`
`claim language, controlling authority, and the evidence that was actually presented at trial. The
`
`Court should grant Blue Coat’s motion denying Finjan’s remaining claims as a matter of law.
`
`Finjan should not be allowed a second attempt to meet its burden of proof through retrial.
`
`I.
`
`BLUE COAT IS ENTITLED TO JUDGMENT AS A MATTER OF LAW THAT IT
`DOES NOT INFRINGE THE ’844 PATENT
`
`A.
`Finjan’s Evidence Related to Suspicious Operations, not Suspicious Code.
`Finjan cannot refute that it presented an infringement analysis that focused on the accused
`products’ ability to detect operations, contradicting the Court’s construction 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; see Motion at 2-4. Instead, it attempts to remedy its deficient
`
`case by reference to evidence that was not presented at trial and belies its own expert’s testimony.
`
`First, Finjan argues that Dr. Cole “fully explained using Blue Coat’s documents and his
`
`own testing how GIN/WebPulse inspects the downloadable using dynamic analysis to identify
`
`any suspicious code.” Opp. at 2. But Dr. Cole actually testified that each of the exhibits cited by
`Finjan shows suspicious operations. See Trial Tr. (Cole) at 521:7-10 (PTX-368 (“But these are
`
`all suspicious operations.”)), 522:17-19 (PTX-564 (“So this is, once again, showing me that it
`
`generates those suspicious operations and it’s tracking it to build that security profile . . . .”)),
`
`524:17-21 (PTX-499 (“In essence that’s another way of saying suspicious operations. So Blue
`
`Coat’s own document . . . they’re clearly saying that the MAA looks for those suspicious
`
`operations to build that security profile.”)), 526:23-527:7 (PTX-1025 at BC2_SC_000862)
`
`(“[T]hose are the suspicious operations that they’re looking for to build a security profile. . . . .
`
`Suspicious operations and suspicious code are both the same thing . . . )), 527:21-22 (PTX-427
`
`(“And this is, in essence, an example of a security profile that shows the information and
`
`suspicious operations.”)), 512:25-513:2 (PTX-575 (“So the name that Blue Coat’s products
`
`actually use shows that these are suspicious or malicious operations that are stored in memory.”)).
`
`BLUE COAT’S REPLY ISO PARTIAL RENEWED RULE 50(B) MOTION
`15-cv-03295-BLF-SVK
`
`
`
`1
`
`

`

`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Case 5:15-cv-03295-BLF Document 485 Filed 12/29/17 Page 7 of 17
`
`
`
`Finjan seeks to bridge the gap between its evidence and the claim language by citing Dr.
`
`Cole’s conclusory statement that “[t]he suspicious operations map back to the code that actually
`
`performs those suspicious functions,” a single, unexplained sentence, without reference to
`
`evidence. Id. at 521:11-16; see Opp. at 2-4. But Finjan has no response to Dr. Nielson’s
`
`explanation that innumerable variations of code could be responsible for any given operation, so a
`
`report that shows only operations cannot constitute an identification of the code that performed
`
`the operation. Trial Tr. (Nielson) at 1621:6-1622:12. Finjan’s argument also ignores that the
`Court has held it is not enough to “simply detect the presence of suspicious code without further
`
`specifying its location or characteristics. . . . [T]he downloadable security profile (‘DSP’) [must]
`include details about the suspicious code in the received downloadable.” BC I CC Order at 16-
`
`17 (emphasis added). Finjan’s assertion that Dr. Cole “identifie[d] specific ‘characteristics’ of the
`
`suspicious code by identifying particular details about the operation the code performed, and
`
`additional details about the operation,” citing PTX-564, again ignores the actual testimony. Dr.
`
`Cole testified in connection with PTX-564 only that it generates “those suspicious operations,”
`
`such as “creates process in a suspicious location,” a vague reference to a sort of operation,
`
`without any discussion of code or details about that code. Trial Tr. (Cole) at 522:14-20. This
`
`disconnect between Finjan’s evidence and the claim language stems not from semantics, but from
`functionality—the MAA is a dynamic analysis device that inspects operations, not code.1
`Second, Finjan attempts to evade the results of its failure of proof by ignoring the claim
`
`term “suspicious” in various ways. Finjan points to detected events and states that Dr. Nielson
`agreed that they could be code. Opp. at 3. But Finjan cannot dispute the testimony that these
`functions are not considered suspicious. Trial Tr. (Rohan) at 1488:23-1489:17; see Motion at 3-
`
`4. Finjan also suggests that the Court should ignore the designation given to these events and
`
`consider them suspicious, even in the absence of such a designation, because “they are used to
`
`
`1 For the same reason, Finjan’s assertion that Blue Coat I is instructive here (Opp. at 2) is wrong,
`as the infringement analysis in Blue Coat I was fundamentally different in precisely this respect.
`In Blue Coat I, on this claim, Finjan accused DRTR, which uses static analysis of actual code. By
`contrast, Finjan now accuses MAA, which involves dynamic analysis that analyzes results.
`Finjan’s own witness, David Kroll, testified to this distinction. (Trial Tr. (Kroll) at 455:8-18).
`
`BLUE COAT’S REPLY ISO PARTIAL RENEWED RULE 50(B) MOTION
`15-cv-03295-BLF-SVK
`
`
`2
`
`

`

`Case 5:15-cv-03295-BLF Document 485 Filed 12/29/17 Page 8 of 17
`
`
`
`block content.” (Opp. at 3.) Dr. Cole actually relied upon these very designations in providing
`
`his testimony. See, e.g., Trial Tr. (Cole) at 520:25 (“The second one actually uses the word
`
`suspicious”); 522:14-20. Moreover, none of the testimony to which Finjan cites indicates that
`
`these detected events are used to block content—the cited testimony states that “we purposely
`
`don’t treat 6 as malicious because the problem is that a lot of the legitimate programs do
`
`behaviors that fall under the risk category of 6.” (Opp. at 3 (citing Trial Tr. at 1485:2-1486:1).)
`
`B.
`Finjan’s Evidence Ignored the Web Server Limitation.
`Finjan is also unable to refute that Blue Coat’s products do not do anything before a web
`
`server makes a Downloadable available to web clients—a requirement of the claim. Finjan
`
`asserts that the accused “linking occurred before the web server makes the downloadable
`
`available to Blue Coat’s protected client systems.” Opp. at 5. This is not what the claim requires.
`And Finjan cites only evidence and testimony in which the claimed web server does not appear.
`
`As stated in Blue Coat’s Motion, Finjan’s evidence was limited to the notion it now repeats: Blue
`
`Coat “generat[es] profiles for this content before its protected web clients can access the
`
`information.” Id.; see Motion at 4-6. Whether Blue Coat inspects content before its protected
`
`clients can access it is irrelevant. The question presented by the claim is whether it is done before
`the web server makes the Downloadable available to web clients. See ’844 patent at Fig. 6; Trial
`
`Tr. (Nielson) at 1784:1-1788:2. Neither Finjan nor Dr. Cole addressed this question.
`
`Finjan’s argument that Blue Coat is precluded from making its noninfringement argument
`
`by prior orders on claim construction and post-trial briefing in Blue Coat I is incorrect and
`
`misunderstands the scope of Finjan’s deficient evidence. Blue Coat’s Motion is not premised on
`
`some particular understanding of the claim term, but rather on the fact that Finjan ignored the
`
`limitation altogether. In over 50 transcript pages, Dr. Cole mentioned “web server” only once,
`
`when reading the claim language. Trial Tr. (Cole) at 479:13-539:9; see Motion at 4-6. Similarly,
`
`Finjan is incorrect in casting Blue Coat’s Motion as a claim construction argument. See Opp. at
`5. Blue Coat’s Motion centers on Finjan’s failure to present any evidence of actions taken by
`
`Blue Coat prior to a web server making content available, regardless of what that the relevant
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`BLUE COAT’S REPLY ISO PARTIAL RENEWED RULE 50(B) MOTION
`15-cv-03295-BLF-SVK
`
`
`3
`
`

`

`Case 5:15-cv-03295-BLF Document 485 Filed 12/29/17 Page 9 of 17
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`claim terms mean.2 And claim construction has long been resolved: this Court agreed with Blue
`Coat in construing the relevant term, pointing out that the ’844 patent disclaims inspection
`
`performed at a network gateway, which is precisely what Finjan now accuses. See BC I CC
`
`Order at 19. Finally, Finjan refers to this Court’s Order on post-trial motions in Blue Coat I, but
`
`that decision responded to a different noninfringement argument and found substantial evidence
`
`to support a verdict of infringement for a different product on a different record. Opp. at 5.
`
`Neither Finjan in its Opposition, nor its expert at trial, attempted to explain how a web
`
`server makes the Downloadable available to web clients if not by publishing it. Instead, Finjan
`
`continues to ignore this element entirely, stating that Blue Coat performs analysis before the
`
`content “is available” to Blue Coat’s particular users. See Motion at 4-6. That cannot sustain
`
`Finjan’s burden, and Blue Coat is entitled to judgment of noninfringement as a matter of law.
`
`II.
`
`BLUE COAT IS ENTITLED TO JUDGMENT AS A MATTER OF LAW THAT IT
`DOES NOT INFRINGE THE ‘494 PATENT
`
`Finjan’s Opposition does not address the fundamental fact that the labels of YARA rules,
`
`expressed as part of the Cookie2 string, do not comprise a list of suspicious computer operations.
`
`See Motion at 8. Blue Coat not only showed that Dr. Cole failed to point to any YARA rule name
`
`that identifies a particular suspicious computer operation, but also explained why that failure
`
`“goes back to what a YARA rule is about. A YARA rule is about finding pattern matches . . . .
`
`It’s about finding patterns in text . . . . [The rule] is looking for that text. It’s not looking for the
`
`operation.” Trial Tr. (Nielson) at 1600:6-1601:14.
`
`Rather than addressing this discrepancy, Finjan points to the same testimony and YARA
`
`rules discussed in Blue Coat’s Motion. Compare Motion at 6-8 with Opp. at 6-7. And Finjan
`
`misconstrues Blue Coat’s argument as requiring a listing of code. Opp. at 7. Finjan ignores that a
`
`YARA rule name indicates the potential presence of several different operations. See Motion at
`
`
`2 Finjan also refers to a claim construction order in Finjan, Inc. v. Symantec Corp, Case No. 14-
`cv-02998-HSG (N.D. Cal.). This is irrelevant to the Motion. Finjan also fails to mention that in
`Finjan, Inc. v. ESET, LLC, et al., Case No. 17-cv-0183-CAB, Dkt. No. 205 (S.D. Cal. Dec. 19,
`2017), the court denied Finjan’s Motion for Reconsideration of Claim Construction, finding that
`this limitation of claim 15 should be construed as “before the Downloadable is available on a web
`server to be called up or forwarded to a web client.”
`
`BLUE COAT’S REPLY ISO PARTIAL RENEWED RULE 50(B) MOTION
`15-cv-03295-BLF-SVK
`
`
`4
`
`

`

`Case 5:15-cv-03295-BLF Document 485 Filed 12/29/17 Page 10 of 17
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`7, PTX-516 at 61. So seeing the YARA rule name does not reveal which operations are actually
`
`present in the code. Id.; see also Trial Tr. (C. Larsen) at 1554:9-1556:16 (“[T]hat’s not going to
`
`tell you which pattern within the rule actually triggered.”).
`
`Further, while Finjan accuses Blue Coat of presenting attorney argument in its Motion, it
`
`is Finjan that attempts to supplement its evidence by referring to YARA rules that its expert did
`
`not discuss at
`
`trial.
`
` See Opp. at 6
`
`(discussing “VBS_create”), 7
`
`(discussing
`
`“JPEG_EXIF_Contains_eval”). Similarly, contrary to Finjan’s statements, Dr. Cole never
`
`described why the “JS injection” constitutes a suspicious operation; the testimony referred to in
`
`Finjan’s Opposition discusses a different process altogether. See Opp. at 7. While Finjan cites
`
`Dr. Nielson’s testimony rather than that of its own expert, Dr. Nielson was unambiguous in his
`
`testimony that YARA rules identify text, not operations. Trial Tr. (Nielson) at 1601:12-14
`
`(“YARA rules are about text matching. They match text.”). Finjan’s Opposition fails to address
`
`this fundamental shortcoming in its evidence, and Blue Coat is entitled to judgment as a matter of
`
`law of noninfringement.
`
`III. BLUE COAT IS ENTITLED TO JUDGMENT AS A MATTER OF LAW OF
`NONINFRINGEMENT UNDER THE DOCTRINE OF EQUIVALENTS
`
`Unable to defend its “rather skinny” (Trial Tr. at 1363:13-14) doctrine of equivalents
`
`presentation at trial, Finjan attempts instead to improperly sweep in all of its expert’s testimony
`
`on literal infringement. Opp. at 8. Finjan’s argument misses the point and is exactly what the
`
`Federal Circuit has consistently held is an insufficient equivalents analysis: “boot-strapp[ing] …
`
`conclusions with respect to literal infringement and extend[ing] them to the infringement under
`
`the Doctrine of Equivalents.” Honeywell Int’l Inc. v. Universal Avionics Sys. Corp., 347 F. Supp.
`
`2d 114, 119 n.21 (D. Del. 2004) (citing Lear Siegler, Inc. v. Sealy Mattress Co., 873 F.2d 1422,
`
`1425 (Fed. Cir. 1989)). Dr. Cole failed to present any evidence or opinion supporting an
`
`independent finding of equivalence, much less did he present the requisite “linking argument as to
`
`the insubstantiality of the differences between the claimed invention and the accused device or
`
`process.” Texas Instruments, Inc. v. Cypress Semiconductor Corp., 90 F.3d 1558, 1566-68 (Fed.
`
`Cir. 1996) (upholding grant of JMOL regarding doctrine of equivalents where “overwhelming
`
`BLUE COAT’S REPLY ISO PARTIAL RENEWED RULE 50(B) MOTION
`15-cv-03295-BLF-SVK
`
`
`5
`
`

`

`Case 5:15-cv-03295-BLF Document 485 Filed 12/29/17 Page 11 of 17
`
`
`
`majority of [expert’s] testimony . . . was solicited for purposes of establishing literal
`
`infringement.”). Rather, for one element of each asserted claim, Dr. Cole simply restated his
`
`literal infringement theory and testified that “at the very least,” the claim is infringed under the
`
`doctrine of equivalents as a fallback. See Trial Tr. (Cole) at 538:8-9, 559:11-13. Dr. Cole does
`
`not even refer back to generally applicable technical background testimony, much less support a
`
`doctrine of equivalents analysis on its own merits. Id.
`
`Finjan argues that “Dr. Cole presented particularized testimony . . . under the Federal
`
`Circuit’s function/way/result test for infringement under the doctrine of equivalents, including
`
`providing particularized testimony on an element-by-element bases [sic].” Opp. at 9. But Dr.
`
`Cole did no such thing: he provided testimony amounting to one page of the trial transcript on a
`
`single element for each patent. See Motion at 8-10. Finjan’s string cites of its alleged
`
`“substantial evidence” of infringement of both patents under the doctrine of equivalents includes
`all testimony and exhibits discussed in the context of its literal infringement arguments,
`
`underscoring the problem inherent in Finjan’s boot-strapped equivalents case. Opp. at 8.
`
`Because these documents were discussed exclusively in the context of literal infringement and
`
`Finjan presented no argument linking that evidence to its equivalents theories, it is impossible to
`
`glean which, if any, are related to the doctrine of equivalents. Further emphasizing the
`insufficiency of Finjan’s equivalents case, Finjan argues that Dr. Cole’s testimony on literal
`infringement “includes evidence demonstrating that if there are differences between the claimed
`
`inventions and GIN/WebPulse, those differences are so insubstantial that GIN/WebPulse infringe
`
`these claims under the doctrine of equivalents.” Opp. at 8-9 (citing evidence only discussed in
`
`context of literal infringement).
`
`Finjan’s Opposition makes it clear that its doctrine of equivalents evidence is
`
`impermissibly subsumed in its case of literal infringement and that it did not provide at trial the
`
`requisite arguments and evidence. Blue Coat is entitled to a judgment of no infringement under
`
`the doctrine of equivalents.
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`BLUE COAT’S REPLY ISO PARTIAL RENEWED RULE 50(B) MOTION
`15-cv-03295-BLF-SVK
`
`
`6
`
`

`

`Case 5:15-cv-03295-BLF Document 485 Filed 12/29/17 Page 12 of 17
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`IV.
`
`BLUE COAT IS ENTITLED TO JUDGMENT AS A MATTER OF LAW THAT IT
`DID NOT WILLFULLY INFRINGE THE ’844 AND ’494 PATENTS
`
`Finjan has the burden of showing that Blue Coat’s conduct was egregious. Opp. at 9-10.
`
`Finjan does not identify any evidence that would legally support such a finding. Id. at 9-12.
`
`Instead, Finjan focuses on facts outside of the trial record, mischaracterizes case law, reargues
`
`issues long-since resolved, and relies on conclusory and inaccurate expert vouching. The
`
`complete trial record—even when viewed in Finjan’s favor—establishes that the only reasonable
`
`outcome is a finding that any infringement by Blue Coat was not willful.
`
`A.
`Finjan Cannot Rebut Blue Coat’s Evidence of No Willful Infringement.
`Finjan elected to seek, and the Blue Coat I verdict awarded, a lump sum to compensate
`Finjan for the life of the now-expired ‘844 patent, to which the now-expired ‘494 patent is
`
`terminally disclaimed. See JTX-3014 at FINJAN-BLCT 003339; see also Gilead Scis., Inc. v. Natco
`
`Pharma Ltd., 753 F.3d 1208, 1214 (Fed. Cir. 2014) (terminal disclaimer “is tantamount for all
`
`practical purposes to having all the claims in one patent.”); accord Simple Air, Inc. v. Google Inc.,
`
`204 F. Supp. 3d 908, 913-14 (E.D. Tex. 2016). Finjan cannot rebut Blue Coat’s evidence that it
`
`believed the accused products were covered by this lump sum damages award. Mot. at 11.
`
`Finjan claims Mr. Schoenfeld’s acknowledgement that the Blue Coat I verdict is not a portfolio
`
`license undermines this defense (Opp. at 10), but disregards the remainder of Mr. Schoenfeld’s
`
`testimony, including Blue Coat’s belief that it does not infringe and that, to the extent the Blue
`
`Coat I verdict is upheld, the verdict covers the patents and products at issue here. Trial Tr.
`
`(Schoenfeld) at 1404:17-1405:4; 1406:7-1408:7. Finjan also ignores that Blue Coat introduced
`
`substantial testimony from multiple witnesses that the accused products in this case are the same
`
`as the technology accused in Blue Coat I. Trial Tr. (Larsen) at 1551:2-1552:3 (YARA rules are
`
`part of DRTR that has not changed core functionality); id. (Schoenfeld) at 1381:7-1382:7 (MAA
`
`provides sandboxing functionality that has not changed since Blue Coat I).
`
`That Blue Coat did not design around now expired patents it believed covered by the lump
`
`sum award in Blue Coat I is not evidence of willfulness. Id. In the single case Finjan cites in
`
`support of its position that failure to design around is evidence of willfulness, the Federal Circuit
`
`BLUE COAT’S REPLY ISO PARTIAL RENEWED RULE 50(B) MOTION
`15-cv-03295-BLF-SVK
`
`
`7
`
`

`

`Case 5:15-cv-03295-BLF Document 485 Filed 12/29/17 Page 13 of 17
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`actually vacated the finding of willfulness, and the case did not involve a previous case or a lump
`
`sum verdict. Opp. at 11 (citing WMS Gaming Inc. v. Int’l Game Tech., 184 F.3d 1339, 1354 (Fed.
`
`Cir. 1999)); WMS Gaming, 184 F.3d at 1362 (vacating willfulness finding). 184 F.3d at 1355.
`
`The evidence makes clear that Blue Coat believed it was allowed to continue providing the
`
`technology at issue in Blue Coat I, and Finjan cites nothing to the contrary. And Finjan ignores
`
`the telling fact that after assessing the exact same evidence that pertains to the ’844 and ’494
`
`patents, the Blue Coat II jury found that Blue Coat’s infringement of the ’731 and ’968 patents,
`
`also at issue in Blue Coat I, was not willful. Mot. at 10-11; Dkt. No. 435 at 4.
`
`B.
`Finjan’s Evidence Does Not Establish Willful Infringement.
`Finjan relies on Blue Coat’s alleged pre-suit knowledge of the ’844 and ’494 patents.
`
`Finjan did not establish that knowledge at trial, and Finjan does not dispute the case law holding
`
`that knowledge is insufficient to establish willfulness. Opp. at 9-10, 12; Mot. at 11. Finjan
`
`similarly does not address the case law that post-filing conduct, including the Blue Coat I verdict,
`
`is of limited, if any, relevance in determining willfulness. Mot. at 11.
`
`Finjan’s argument that Blue Coat’s release of new products after an infringement verdict
`
`shows willfulness relies on inapposite case law and expert vouching. Opp. at 10. The cases that
`
`Finjan cites involve calculating a running royalty for ongoing infringement, and whether, under
`
`the circumstances, the infringement was willful and would impact the running royalty rate. See
`
`Imperium IP Holdings (Cayman), Ltd. v. Samsung Elecs. Co., No. 4:14-cv-371, 2017 WL
`
`4038884, at *1-5 (E.D. Tex. Sep. 13, 2017); Affinity Labs of Tex., LLC v. BMW N. Am, LLC, 783
`F. Sup. 2d 891, 901-905 (E.D. Tex. 2011). Neither case involves the existence of a fully paid up
`lump sum verdict or reliance upon such verdict as a defense to willfulness in a follow-on lawsuit,
`
`much less one on the same products. And Finjan relies on Dr. Cole’s testimony that it was
`
`unreasonable for Blue Coat to do anything but take a license or redesign its products after being
`
`sued by Finjan, but ignores that an alleged infringer may defend against a patent infringement
`
`claim without risking a finding of willfulness. Mot. at 12.
`
`Finally, Finjan continues to rely on evidence relating to competitive intelligence, evidence
`
`that the Court has already determined does not show copying and is “consistent with regular,
`
`BLUE COAT’S REPLY ISO PARTIAL RENEWED RULE 50(B) MOTION
`15-cv-03295-BLF-SVK
`
`
`8
`
`

`

`Case 5:15-cv-03295-BLF Document 485 Filed 12/29/17 Page 14 of 17
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`competitive behavior.” (Dkt. No. 381 at 6-9.) Finjan has no evidence of product to product
`
`copying, much less copying of any features tied to the asserted claims (see Dkt. No. 381 at 7-8).
`
`In sum, the evidence leads to only one reasonable conclusion: Blue Coat is not a willful
`
`infringer. Blue Coat’s motion for judgment as a matter of law that it did not willfully infringe the
`
`’844 and ’494 patents should be granted.
`
`V.
`
`BLUE COAT IS ENTITLED TO JUDGMENT AS A MATTER OF LAW THAT
`FINJAN MAY NOT RECOVER WORLDWIDE DAMAGES
`A.
`
`An Accused Product Is Made Where it First Becomes Capable of Infringing.
`
`Precedent is clear th