Case 5:17-cv-04467-BLF Document 309 Filed 11/12/20 Page 1 of 8
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`DUANE MORRIS LLP
`D. Stuart Bartow (SBN 233107)
`Email: DSBartow@duanemorris.com
`Nicole E. Grigg (SBN 307733)
`Email: NEGrigg@duanemorris.com
`2475 Hanover Street
`Palo Alto, CA 94304-1194
`Tel.: 650.847.4150
`Fax: 650.847.4151
`
`DUANE MORRIS LLP
`Joseph A. Powers
`Admitted Pro Hac Vice
`japowers@duanemorris.com
`Jarrad M. Gunther
`Admitted Pro Hac Vice
`jmgunther@duanemorris.com
`30 South 17th Street
`Philadelphia, PA 19103
`Telephone: 215.979.1000
`Facsimile: 215.979.1020
`
`Attorneys for Defendant
`SONICWALL INC.
`
`DUANE MORRIS LLP
`Matthew C. Gaudet
`Admitted Pro Hac Vice
`mcgaudet@duanemorris.com
`Robin L. McGrath
`Admitted Pro Hac Vice
`rlmcgrath@duanemorris.com
`David C. Dotson
`Admitted Pro Hac Vice
`dcdotson@duanemorris.com
`Jennifer H. Forte
`Admitted Pro Hac Vice
`jhforte@duanemorris.com
`1075 Peachtree Street, Ste. 2000
`Atlanta, GA 30309
`Telephone: 404.253.6900
`Facsimile: 404.253.6901
`
`(Complete list of counsel for Defendant
`on signature page)
`
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`SAN JOSE DIVISION
`FINJAN LLC., a Delaware Limited Liability
`Case No. 5:17-cv-04467-BLF (VKD)
`Company,
`
`DEFENDANT SONICWALL INC.’S
`
`NOTICE OF MOTION AND
`ADMINISTRATIVE MOTION FOR LEAVE
`FOR ADDITIONAL PAGES FOR MOTION
`FOR SUMMARY JUDGMENT
`
`
`
`vs.
`
`SONICWALL, INC., a Delaware
`Corporation
`
`Defendant.
`
`
`Plaintiff,
`
`
`DEFENDANT SONICWALL INC.’S ADMINISTRATIVE MOTION FOR LEAVE FOR ADDITIONAL PAGES FOR SUMMARY
`JUDGMENT MOTION
`CASE NO. 5:17-CV-04467-BLF (VKD)
`
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`Case 5:17-cv-04467-BLF Document 309 Filed 11/12/20 Page 2 of 8
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`I.
`
`INTRODUCTION
`Pursuant to Civil L.R. 7-11, defendant SonicWall, Inc. (“SonicWall”) brings this
`Administrative Motion to respectfully request permission to exceed the page limitation set forth in
`this Court’s Standing Order Re Civil Cases, Section IV.A.1, concerning motions under Federal Rule
`of Civil Procedure 56. Specifically, SonicWall requests the Court increase the page limit for
`SonicWall’s opening brief (and, correspondingly, Finjan’s responsive brief) by 10 pages (for a total
`of 35 pages each) and increase the page limit for SonicWall’s reply brief by 5 pages (for a total of 20
`pages). Finjan opposes this motion.
`SonicWall seeks this increase given the specific issues, previewed below, that should be
`addressed on the ten patents-at-issue, particularly in view of the history of Finjan litigation in which
`summary judgment has proven to be a valuable tool to streamline issues for the jury. The specific
`issues that SonicWall seeks to present in its summary judgment motion are identified below.
`II.
`BACKGROUND
`This case involves twenty asserted claims from ten asserted patents: claims 15, 16, 41, and
`43 of U.S. Patent No. 6,154,844 (“’844 Patent”); claims 10 and 14 of U.S. Patent No. 8,677,494
`(“’494 Patent”); claim 9 of U.S. Patent No. 7,058,822 (“’822 Patent”); claim 9 of U.S. Patent No.
`6,804,780 (“’780 Patent”); claim 1 of U.S. Patent No. 6,965,968 (“’968 Patent”); claims 22 and 25
`of U.S. Patent No. 7,613,926 (“’926 Patent”); claims 1, 8, and 14 of U.S. Patent No. 7,647,633
`(“’633 Patent”); claims 11 and 12 (which both depend from claim 1) of U.S. Patent No. 7,975,305
`(“’305 Patent”); claim 1 of U.S. Patent No. 8,141,154 (“’154 Patent”); and claims 1 and 22 of U.S.
`Patent No. 8,225,408 (“’408 Patent”). The twenty asserted claims exceeds the standard of sixteen
`asserted claims set forth in The Federal Circuit’s Model Order Limiting Excess Patent Claims and
`Prior Art. See Dkt. 56 at 19-20 (adopting Plaintiff’s position for twenty asserted claims).
`Finjan asserts these ten patents against seven different product groups and combinations of
`product groups: (1) Gateways; (2) Email Security products; (3) Capture ATP; (4) Gateways +
`Capture ATP; (5) Gateways + WXA; (6) Email Security products + Capture ATP; and (7) Capture
`Client + Capture ATP. The Court asked the parties to voluntarily use a “representative product”
`
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`DEFENDANT SONICWALL INC.’S ADMINISTRATIVE MOTION FOR LEAVE FOR ADDITIONAL PAGES FOR SUMMARY
`JUDGMENT MOTION
`CASE NO. 5:17-CV-04467-BLF (VKD)
`
`

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`Case 5:17-cv-04467-BLF Document 309 Filed 11/12/20 Page 3 of 8
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`procedure in order to simplify the proof, both for trial and summary judgment. SonicWall was in
`favor of this, but Finjan’s proposal did not designate any products whose resolution – one way or the
`other – would be agreed to resolve other products. Following a meet-and-confer in which SonicWall
`requested again that Finjan propose “representative products” whose resolution – one way or the
`other – would then control the resolution of other designated products, Finjan declined.
`III. ARGUMENT
`SonicWall is mindful that the mere number of asserted patents, by itself, is not cause to
`modify the Court’s Standing Order. SonicWall respectfully submits that additional pages are
`justified here because there are seven sets of specific issues that SonicWall intends to raise on
`various patents and product combinations, and because the merits of many of these issues have
`already been confirmed by the granting of at least partial summary judgment by this and other
`Courts. Given the likely success of these issues on summary judgment – and the resulting
`crystallization of the issues for the jury – SonicWall seeks an increase in pages to have a full
`opportunity to brief the issues. On average, the ten-page increase would give SonicWall five pages
`per issue. It still would require extreme efficiency to brief these issues in 35 pages – and, of course,
`some of these issues will take more pages to brief, and some less – but this increase would at least
`make it possible to present these issues to the Court in a manner that is appropriate for resolution.
`This also will avoid a scenario where SonicWall is not able to fairly narrow the issues for trial
`simply because of Finjan’s unusually large assertion of patents and product combinations.
`SonicWall intends to file a motion for partial summary judgment on the following issues.
`1. Non-infringement of the ’154 Patent. Regarding SonicWall’s Capture ATP, Gateways,
`Gateways + Capture ATP, Email Security, Email Security + Capture ATP, and Capture Client +
`Capture ATP, Finjan alleges that the “call to a first function (i.e., substitute function)” recited in
`claim 1 is met by functions within the content as it was originally created, not any substitute
`function. This Court granted Cisco summary judgment on essentially this same issue. Finjan, Inc.
`v. Cisco Systems, Inc., 17-cv-00072-BLF (N.D. Cal. March 20, 2020), Dkt. No. 499, at 6-11.
`SonicWall thus intends to move on the same issue here.
`
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`DEFENDANT SONICWALL INC.’S ADMINISTRATIVE MOTION FOR LEAVE FOR ADDITIONAL PAGES FOR SUMMARY
`JUDGMENT MOTION
`CASE NO. 5:17-CV-04467-BLF (VKD)
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`

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`Case 5:17-cv-04467-BLF Document 309 Filed 11/12/20 Page 4 of 8
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`2. Non-infringement of the ’633 and ’822 Patents. The Court granted partial relief on
`summary judgment motions on issues in both the ’633 and ’822 Patents in the Blue Coat case, and
`the ’633 Patent in the Cisco case. In this case, for all accused products, SonicWall intends to file a
`motion for summary judgment concerning all asserted claims that the product features Finjan
`accuses are not mobile protection code because they do not do runtime monitoring or interception of
`code operations, and concerning claims 1 and 8 of the ’633 Patent, and claim 9 of the ’822 Patent
`that Finjan has failed to demonstrate the transmission of what Finjan alleges is mobile protection
`code. In the Cisco case, the Court noted the transmission requirement is expressly set forth in claims
`1 and 8 of the ’633 Patent, Cisco, 17-cv-00072-BLF, Dkt. No. 499, at 15. Further, Finjan’s
`infringement allegations for claim 14 of the ’633 Patent exclusively identify components of Capture
`ATP for all of the claim limitations, and thus Finjan does not actually set forth evidence of
`infringement by the products (e.g., Gateways, Email Security, and Capture Client) that are accused
`in combination with Capture ATP.
`3. Non-infringement of the ’305 and ‘408 Patents. With respect to the asserted claims of the
`’305 and ’408 Patents, Finjan’s infringement allegations against Capture ATP, Gateways + Capture
`ATP, and Email Security + Capture ATP span multiple computers despite the claims requiring all of
`the elements to be found within a single computer. See ’305 Patent, cl. 1 (“A security system for
`scanning content within a computer, comprising: a network interface, housed within a computer…a
`database of parser and analyzer rules corresponding to computer exploits, stored within the
`computer….”); ’408 Patent, cl. 1 (“…receiving, by a computer, an incoming stream of program
`code; determining, by the computer…; instantiating, by the computer…; identifying, by the
`computer…; dynamically building, by the computer…; dynamically detecting, by the computer…;
`and indicating, by the computer….”), cl. 22 (“A non-transitory computer-readable storage medium
`storing program code for causing a computer to perform the steps of….”). Finjan also fails to
`identify any evidence of “selectively diverting incoming content from its intended destination to said
`rule-based scanner” being performed by what Finjan identified as the network traffic probe, as
`required by claims 11 and 12 (via claim 1) of the ’305 Patent to support its infringement allegations
`
`3
`DEFENDANT SONICWALL INC.’S ADMINISTRATIVE MOTION FOR LEAVE FOR ADDITIONAL PAGES FOR SUMMARY
`JUDGMENT MOTION
`CASE NO. 5:17-CV-04467-BLF (VKD)
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`

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`Case 5:17-cv-04467-BLF Document 309 Filed 11/12/20 Page 5 of 8
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`concerning Capture ATP. Finjan identifies the “controller server” within Capture ATP as the
`claimed network traffic probe, but the controller server does not perform any selective diverting.
`4. Non-infringement of the ’926 Patent. SonicWall intends to move for summary judgment
`that Finjan has failed to demonstrate that the accused products (Capture ATP, Gateways + Capture
`ATP, and Email Security + Capture ATP) include “a transmitter…for transmitting the incoming
`Downloadable and a representation of the retrieved Downloadable security profile data to a
`destination computer” as required by asserted claims 22 and 25 of the ’926 Patent. Finjan points to
`Capture ATP as the component that has the transmitter for transmitting, yet it has failed to identify
`any evidence that Capture ATP ever transmits the Downloadable anywhere much less does so with a
`representation of retrieved Downloadable security profile data. SonicWall’s motion is case
`dispositive for the ’926 Patent given Finjan’s failure of proof on this claim element.
`5. Accusations of infringement by a product combination that was not released until after the
`expiration of the ’926, ’844, and ’494 Patents. Finjan accuses a combination of SonicWall’s Email
`Security products and Capture ATP as infringing the asserted claims of the ’926, ’844, and ’494
`Patents. However, none of SonicWall’s Email Security products were integrated with Capture ATP
`until after the ’926, ’844, and ’494 Patents expired. Thus, this issue is ripe for summary judgment.
`6. Non-infringement based on the “Downloadable” term in the ’926, ’780, ’494, and ’844
`Patents. Finjan has a number of infringement allegations based solely on SonicWall’s Gateway
`products. Claims 22 and 25 of the ’926 Patent, claim 9 of the ’780 Patent, claims 41 and 43 of the
`’844 Patent, and claims 10 and 14 of the ’494 Patent all require a “Downloadable” to be received or
`obtained. The Court construed “Downloadable” as “an executable application program, which is
`downloaded from a source computer and run on the destination computer.” SonicWall intends to
`move for summary judgment of non-infringement of these claims because SonicWall’s Gateways
`analyzes individual internet protocol (“IP”) packets as they pass through the firewalls, without ever
`reassembling the data carried by those IP packets into a file (unlike most gateway products in the
`marketplace sold by other vendors). An IP packet by itself – i.e., the thing that SonicWall’s
`Gateways actually analyze – is not executable. Conversely, a file (which is comprised of data
`
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`DEFENDANT SONICWALL INC.’S ADMINISTRATIVE MOTION FOR LEAVE FOR ADDITIONAL PAGES FOR SUMMARY
`JUDGMENT MOTION
`CASE NO. 5:17-CV-04467-BLF (VKD)
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`Case 5:17-cv-04467-BLF Document 309 Filed 11/12/20 Page 6 of 8
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`extracted from multiple IP packets) cannot be executed without the file first being reassembled,
`which SonicWall’s Gateways do not ever do. Consequently, SonicWall’s Gateways do not receive
`and/or obtain a Downloadable, i.e., “an executable application program, which is downloaded from a
`source computer and run on the destination computer,” as required by the asserted claims and the
`Court’s relevant claim construction.
`7. Damages issues. Finally, SonicWall intends to file for summary judgment on certain
`damages-related issues that impact all of the accused products. Damages-related issues were
`presented (and granted) in the Cisco case, thus dramatically limiting Finjan’s damages claims.
`Cisco, 17-cv-00072-BLF, Dkt. No. 499, at 32. This was also the basis for partial summary judgment
`in Finjan, Inc. v. Juniper Networks, Inc., No. 17-cv-05659-WHA (N.D. Cal. May 8, 2019), Dkt. No.
`491, at 18.
`Good cause exists for increasing the page limits for SonicWall’s motion for summary
`judgment in this case given the number of asserted claims, asserted patents, and accused products.
`An adequate discussion of the accused products and relevant undisputed material facts cannot be
`fully developed in the 25 pages set forth in the Court’s Standing Order. Defendant’s request
`includes an equal increase in the number of pages for Plaintiff’s responsive brief to ensure they are
`not prejudiced by this request.
`IV. CONCLUSION
`For the foregoing reasons, SonicWall respectfully requests the Court to increase the opening
`and responsive briefs for its motion for summary judgment under Federal Rule of Civil Procedure 56
`by 10 pages (for a total of 35 pages) and increase the reply by 5 pages (for a total of 20 pages).
`
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`DEFENDANT SONICWALL INC.’S ADMINISTRATIVE MOTION FOR LEAVE FOR ADDITIONAL PAGES FOR SUMMARY
`JUDGMENT MOTION
`CASE NO. 5:17-CV-04467-BLF (VKD)
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`Case 5:17-cv-04467-BLF Document 309 Filed 11/12/20 Page 7 of 8
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`Dated: November 12, 2020
`
`Respectfully submitted,
`
`/s/ Nicole E. Grigg
`
`Nicole E. Grigg
`Email: NEGrigg@duanemorris.com
`DUANE MORRIS LLP
`D. Stuart Bartow (SBN 233107)
`2475 Hanover Street
`Palo Alto, CA 94304-1194
`Tel.: 650.847.4150
`Fax: 650.847.4151
`
`Matthew C. Gaudet (admitted pro hac vice)
`Email: mcgaudet@duanemorris.com
`Robin L. McGrath (admitted pro hac vice)
`Email: rlmcgrath@duanemorris.com
`David C. Dotson (admitted pro hac vice)
`Email: dcdotson@duanemorris.com
`Jennifer H. Forte (admitted pro hac vice)
`Email: jhforte@duanemorris.com
`1075 Peachtree Street, Ste. 2000
`Atlanta, GA 30309
`Telephone: 404.253.6900
`Joseph A. Powers (admitted pro hac vice)
`Email: japowers@duanemorris.com
`Jarrad M. Gunther (admitted pro hac vice)
`Email: jmgunther@duanemorris.com
`30 South 17th Street
`Philadelphia, PA 19103
`Telephone: 215.979.1000
`Attorneys for Defendant
`SONICWALL, INC.
`
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`DEFENDANT SONICWALL INC.’S ADMINISTRATIVE MOTION FOR LEAVE FOR ADDITIONAL PAGES FOR SUMMARY
`JUDGMENT MOTION
`CASE NO. 5:17-CV-04467-BLF (VKD)
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`Case 5:17-cv-04467-BLF Document 309 Filed 11/12/20 Page 8 of 8
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`SAN JOSE DIVISION
`FINJAN LLC., a Delaware Limited Liability
`Case No. 5:17-cv-04467-BLF (VKD)
`Company,
`
`[PROPOSED] ORDER GRANTING
`
`DEFENDANT SONICWALL INC.’S
`NOTICE OF MOTION AND
`ADMINISTRATIVE MOTION FOR LEAVE
`FOR ADDITIONAL PAGES FOR MOTION
`FOR SUMMARY JUDGMENT
`
`
`vs.
`
`SONICWALL, INC., a Delaware
`Corporation
`
`Defendant.
`
`
`Plaintiff,
`
`
`
`Before the Court is Defendant SonicWall’s Administrative Motion for Leave for Additional
`Pages for Motion for Summary Judgment. The Motion is hereby GRANTED for good cause shown
`and based on the grounds set forth in Defendant’s Motion. It is hereby ORDERED that
`SonicWall’s opening brief in support of its motion for summary judgment under Federal Rule of
`Civil Procedure 56 shall not exceed 35 pages, Finjan’s responsive brief shall not exceed 35 pages,
`and SonicWall’s reply brief shall not exceed 20 pages.
`
`IT IS SO ORDERED
`
`Dated: ________________
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`Honorable Beth Labson Freeman
`United States District Court Judge
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`[PROPOSED] ORDER GRANTING DEFENDANT SONICWALL INC.’S ADMINISTRATIVE MOTION FOR LEAVE FOR ADDITIONAL
`PAGES FOR SUMMARY JUDGMENT MOTION
`CASE NO. 5:17-CV-04467-BLF (VKD)
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