Case 5:17-cv-04467-BLF Document 348 Filed 01/21/21 Page 1 of 14
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`Juanita R. Brooks (CA SBN 75934) brooks@fr.com
`Roger A. Denning (CA SBN 228998) denning@fr.com
`Jason W. Wolff (CA SBN 215819) wolff@fr.com
`John-Paul Fryckman (CA SBN 317591) fryckman@fr.com
`K. Nicole Williams (CA291900) nwilliams@fr.com
`FISH & RICHARDSON P.C.
`12860 El Camino Real, Suite 400
`San Diego, CA 92130
`Telephone: (858) 678-5070 / Fax: (858) 678-5099
`
`Proshanto Mukherji (Pro Hac Vice) mukherji@fr.com
`FISH & RICHARDSON P.C.
`One Marina Park Drive
`Boston, MA 02210
`Phone: (617) 542-5070/ Fax: (617) 542-5906
`
`Robert Courtney (CA SNB 248392) courtney@fr.com
`FISH & RICHARDSON P.C.
`3200 RBC Plaza
`60 South Sixth Street
`Minneapolis, MN 55402
`Phone: (612) 335-5070 / Fax: (612) 288-9696
`
`Attorneys for Plaintiff
`FINJAN LLC
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`(SAN JOSE DIVISION)
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`FINJAN LLC, a Delaware Limited Liability
`Company,
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`Case No. 5:17-cv-04467-BLF (VKD)
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`Plaintiff,
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`v.
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`PLAINTIFF FINJAN LLC’S MOTION TO
`PRECLUDE TRIAL TESTIMONY
`RELATING TO WRITTEN
`DESCRIPTION
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`SONICWALL, INC., a Delaware Corporation,
`
`Defendant.
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`Date: June 24, 2021
`Time: 9:00 a.m.
`Judge: Hon. Beth Labson Freeman
`Dept: Courtroom 3, Fifth Floor
`
`REDACTED VERSION OF DOCUMENT FILED
`UNDER SEAL
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`Case No. 5:17-cv-04467-BLF (VKD)
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`Case 5:17-cv-04467-BLF Document 348 Filed 01/21/21 Page 2 of 14
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`I.
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`II.
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`TABLE OF CONTENTS
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`NOTICE OF MOTION ................................................................................................................. 1
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`STATEMENT OF RELIEF BEING SOUGHT AND THE ISSUE TO BE
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`DECIDED .................................................................................................................................... 1
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`III.
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`STATEMENT OF THE RELEVANT FACTS .............................................................................. 1
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`A.
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`B.
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`Nature and Stage of the Case ................................................................................. 1
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`The Written Description Opinions of SonicWall’s Technical Experts
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`are Based on Alternative Claim Constructions Purportedly Drawn
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`from Finjan’s Infringement Allegations, Not the Court’s
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`Constructions ........................................................................................................ 1
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`C.
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`At Deposition, SonicWall’s Technical Experts Confirmed Their
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`Reliance on Alternative Claim Constructions Derived From
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`Infringement Allegations ....................................................................................... 3
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`IV. ARGUMENT .................................................................................................................................. 4
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`A.
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`B.
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`Legal Standards ..................................................................................................... 4
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`The Opinions’ Methodology of Comparing the Patents’ Disclosures
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`to Alternative Claim Constructions Derived From Infringement
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`Allegations is Improper Under Daubert and Rule 702 ........................................... 6
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`C.
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`The Opinions Are Additionally Inadmissible Under Rule 403
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`Because They are Non-Probative and Would Promote Confusion
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`About the Claim Constructions the Jury Must Apply During Fact-
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`Finding .................................................................................................................. 8
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`V. CONCLUSION ............................................................................................................................... 9
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`Cases
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`TABLE OF AUTHORITIES
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`
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`Page(s)
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`Ariad Pharms., Inc. v. Eli Lilly & Co.,
`598 F.3d 1336 (Fed. Cir. 2010) (en banc) ................................................................................. 6
`
`Brookhill-Wilk 1, LLC v. Intuitive Surgical, Inc.,
`334 F.3d 1294 (Fed. Cir. 2003) ................................................................................................ 7
`
`Coleman v. Home Depot, Inc.,
`306 F.3d 1333 (3d Cir. 2002) ................................................................................................... 5
`
`CytoLogix Corp. v. Ventana Medical Sys., Inc.,
`424 F.3d 1168 (Fed. Cir. 2005) ............................................................................................ 8, 9
`
`Energy Trans. Grp. v. William Demant Holding A/S,
`697 F.3d 1342 (Fed. Cir. 2012) ................................................................................................ 6
`
`Every Penny Counts, Inc. v. American Express Co.,
`563 F.3d 1378 (Fed. Cir. 2009) ........................................................................................ 5, 8, 9
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`Koninklijke Philips Elecs. N.V. v. Cardiac Sci. Operating Co.,
`590 F.3d 1326 (Fed. Cir. 2010) ................................................................................................ 7
`
`Markman v. Westview Instruments, Inc.,
`517 U.S. 370 (1996)............................................................................................................. 5, 9
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`O2 Micro Int’l Ltd. v. Beyond Innovation Tech. Co.,
`521 F.3d 1351 (Fed. Cir. 2008) ................................................................................................ 9
`
`Phillips v. AWH Corp.,
`415 F.3d 1303 (Fed. Cir. 2005) (en banc) ............................................................................. 5, 7
`
`SRI Int’l v. Matsushita Elec. Corp. of Am.,
`775 F.2d 1107 (Fed. Cir. 1985) (en banc) ................................................................................. 7
`
`Summit 6, LLC v. Samsung Elecs. Co.,
`802 F.3d 1283 (Fed. Cir. 2015) ................................................................................................ 5
`
`Uniloc USA, Inc. v. Microsoft Corp.,
`632 F.3d 1292 (Fed. Cir. 2011) ................................................................................................ 5
`
`United States v. Redlightning,
`624 F.3d 1090 (9th Cir. 2010) .................................................................................................. 5
`
`
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`Case 5:17-cv-04467-BLF Document 348 Filed 01/21/21 Page 4 of 14
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`
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`Statutes
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`35 U.S.C. § 112, ¶ 1....................................................................................................................... 5
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`Other Authorities
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`Fed. R. Evid. 403 ........................................................................................................................... 5
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`Fed. R. Evid. 702 ........................................................................................................................... 4
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`Fed. R. Evid. 703 ........................................................................................................................... 5
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`Case 5:17-cv-04467-BLF Document 348 Filed 01/21/21 Page 5 of 14
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`
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`I.
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`NOTICE OF MOTION
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`NOTICE IS HEREBY GIVEN that on June 24, 2021, at 9:00 a.m. PT or as soon as
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`counsel may be heard by the Honorable Beth Labson Freeman, Plaintiff Finjan LLC (“Finjan”)
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`will and hereby does move for an order precluding certain trial testimony from Aviel Rubin,
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`Ph.D.; Kevin Almeroth, Ph.D.; and Patrick McDaniel, Ph.D. (together, “the SonicWall Technical
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`Experts”).
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`II.
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`STATEMENT OF RELIEF BEING SOUGHT AND THE ISSUE TO BE DECIDED
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`Finjan seeks an order precluding Drs. Rubin, Almeroth, and McDaniel from presenting at
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`trial any opinions that any asserted patent lacks sufficient written description for its asserted
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`claims, and/or that any asserted patent is invalid for that reason. The issue to be decided is
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`whether the SonicWall Technical Experts’ opinions on this issue comport with controlling law
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`requiring that the written description inquiry apply the claims as construed by the court, and not
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`alternative constructions purportedly gleaned from infringement contentions.
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`III.
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`STATEMENT OF THE RELEVANT FACTS
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`A.
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`Nature and Stage of the Case
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`This is a patent case. Finjan accuses Defendant SonicWall, Inc. (“SonicWall”) with
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`infringing eight Finjan patents. Discovery in this case closed in October 2020, and the Court has
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`scheduled trial to begin on May 3, 2021.
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`B.
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`The Written Description Opinions of SonicWall’s Technical Experts are Based
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`on Alternative Claim Constructions Purportedly Drawn from Finjan’s
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`Infringement Allegations, Not the Court’s Constructions
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`In September 2020, SonicWall’s counsel served expert reports from each of the SonicWall
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`Technical Experts. Each of these reports contains opinions about the sufficiency of the written
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`description supporting Finjan’s claims.1 Each of these opinions applies the same basic
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`1 Exhibits (“Exh.”) are attached to the Declaration of Robert Courtney in Support of Finjan’s
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`Motion to Preclude Trial Testimony Relating to Written Description. The Rubin report addressed
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`Case 5:17-cv-04467-BLF Document 348 Filed 01/21/21 Page 6 of 14
`Case 5:17-cv-04467-BLF Document 348 Filed 01/21/21 Page 6 of 14
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`methodology of using Finjan’s infringement contentions, rather than this Court’s claim
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`constructions, as the basis for the written description analysis of each patent. The SonicWall
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`Technical Experts’ methodology has four steps:
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`1.
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`Identifying an infringement contention by Finjan against a
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`SonicWall product or firnctionality;
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`2.
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`Based on Finjan’s contention, forming an alternative
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`construction of a claim 1imitation(s);
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`3.
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`Reasoning that Finjan would have adopted this alternative
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`construction; then
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`4.
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`Stating an opinion as to whether the written description
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`teaches or suggests an embodiment conforming to the
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`alternative claim construction.
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`All three SonicWall Technical Experts employed this infringement-focused methodology
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`in all their 112 analyses. See Exh. A at 212—40; Exh. B at 253—86; Exh. C at 128—41.
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`The Opening Rubin report’s treatment of one limitation from the ’408 patent represents the
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`SonicWall technical experts’ general approach. (See Exh. A at 212—40.) It begins by analyzing
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`Finjan’s infringement contentions. (Id. at 212 (“Finjan contends this claim language is met .
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`.
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`.
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`.”).) The Report then discusses some of the operational details of the SonicWall accused products
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`and Finjan’s infringement allegations against them. (Id. at 2 12—14.) The Report hypothesizes that
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`one basis for those allegations might have been an alternative interpretation of the ’408 claim term
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`“an incoming stream ofprogramming code” such that the term would cover‘=
`=.” (Id. at 213.) The Report assigns this hypothetical construction to
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`Finjan, though it cites neither any filing by Finjan adopting that construction, nor the Court’s
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`US. Patents 8,225,408; 7,975,305; 7,613,926; and 6,965,968. The Almeroth report addressed
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`US. Patents 6,154,844 and 8,141,154. The McDaniel report addressed US. Patents 8,677,494
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`and 6,804,780. Excerpts from these reports are attached as Exhs. A, B, and C, respectively.
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`claim construction order.2 (Id.) Finally, the Report compares its alternative construction to the
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`specification of the ’408 patent to look for disclosure of the exact alleged fimctionality.
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`(Id. at
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`213—14.) After quoting various matter from the patent, the Report opines based on those quotes
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`that a skilled artisan would not find support in the patent for the claim under this alternative,
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`hypothetical interpretation never adopted by (or even submitted to) the Court. (Id. at 214.)
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`This same basic approach—starting with the infringement allegations, using them to crafl a
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`strawman alternative claim construction, assigning that alternative construction to Finjan, then
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`assessing the written description under that alternative construction—is in each of the SonicWall
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`Technical Experts’ reports concerning written description.
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`C.
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`At Deposition, SonicWall’s Technical Experts Confirmed Their Reliance on
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`Alternative Claim Constructions Derived From Infringement Allegations
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`When challenged at deposition, the SonicWall Technical Experts confirmed that their
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`analysis of written description primarily relied on Finjan’s infringement contentions, and not on
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`the Court’s Claim Construction Order or the terms’ ordinary meaning to one of skill in the art.
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`Dr. Rubin confirmed that under the proper construction of the claims, he was “not
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`challenging” written description. (Exh. D 50:11—18— . He confirmed that his written
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`description opinions were based entirely on constructions that the Court has not adopted, and
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`would applyonly we em‘=
`-” (1d. at 46:9—4721.)
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`2 While there are intermittent citations to the Claim Construction Order in the reports’ written
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`description analysis, the analysis primarily relies on Finjan’s infringement contentions, and only
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`secondarily (at best) on the Comt’s claim constructions.
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`Dr. Almeroth described his written description argument as a “conditional” argument, and
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`that he was not providing a written description opinion under “the proper” interpretation of the
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`claims. (Exh. E 62222—6322, 64: 13—19.) His analysis was expressly “predicated based on a claims
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`scope” that he purportedly discerned from Finjan’s “infringement allegations.” (Id. at 6728—15.)
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`Dr. McDaniel confirmed that he—like all the SonicWall experts—was applying a
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`different claim construction for written description than he applied to either infringement or other
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`aspects of invalidity. (Exh. F 54:12—21 (describing how his written description discussion
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`.=,)_) And, like the other
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`experts, he ofl‘ered no written description opinion under the claim construction actually entered by
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`the Court. (Id. at 55:16—20.)
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`IV.
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`ARGUMENT
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`The opinions concerning written description in the SonicWall Technical Experts’ reports
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`are expressly based on alternative claim constructions crafted by the SonicWall Experts from
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`Finjan’s infringement allegations. Such methodology is improper as a matter of law, per se
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`unreliable, and improper for consideration by the jury. The Court should not permit SonicWall to
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`confuse the jury with opinion testimony based on alternative claim constructions prepared by
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`SonicWall and never adopted by the Court or by Finjan Because the same fundamental
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`methodological defect applies across the written description analysis of all SonicWall Experts, the
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`Court should enter an order prechlding those experts from presenting opinions at trial concerning
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`the sufliciency ofwritten description for any patent-in-suit. The jury should only be presented
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`with one set of claim constructions: those in the Court’s Claim Construction Order.
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`A.
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`Legal Standards
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`Evidentiary standards. As the Court knows, Rule 702 bars qualified experts from
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`presenting to the jury opinions that are not the “product of reliable principles and methods,” or
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`where the record indicates a failure by the expert to “reliably appl[y] the principles and methods to
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`the facts of the case.” Fed. R. Evid. 702(c), ((1). Rule 703 bars experts from basing their opinions
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`on facts or data other than those that experts in the field would “reasonably rely on.” Fed. R.
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`Evid. 703.
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`In the Ninth Circuit, as throughout the U.S., “[t]he trial judge must perform a gatekeeping
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`function to ensure that the expert’s proffered testimony is both reliable and relevant.” United
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`States v. Redlightning, 624 F.3d 1090, 1111 (9th Cir. 2010). A district court “may exclude
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`evidence that is based on unreliable principles or methods, [or] legally insufficient facts or data.”
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`Summit 6, LLC v. Samsung Elecs. Co., 802 F.3d 1283, 1295 (Fed. Cir. 2015). Where the expert,
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`or the party proffering the expert’s testimony, is unable to “justif[y] the application of a general
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`theory to the facts of the case,” the affected testimony should be excluded. Uniloc USA, Inc. v.
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`Microsoft Corp., 632 F.3d 1292, 1316 (Fed. Cir. 2011).
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`Additionally, under Rule 403 evidence is excludable if its “probative value is substantially
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`outweighed” by the risk of “unfair prejudice, confusing the issues, [or] misleading the jury.” Fed.
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`R. Evid. 403; see also Coleman v. Home Depot, Inc., 306 F.3d 1333, 1343 (3d Cir. 2002)
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`(“[E]vidence may be excluded if its probative value is not worth the problems that its admission
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`may cause[.]”).
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`Standards for claim interpretation. The Supreme Court has long held that patent claim
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`interpretation is an issue of law, to be resolved exclusively by the court. Markman v. Westview
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`Instruments, Inc., 517 U.S. 370, 372 (1996). In jury trials, the court supplies its constructions to
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`the jury via instructions. E.g., Every Penny Counts, Inc. v. American Express Co., 563 F.3d 1378,
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`1383 (Fed. Cir. 2009) (“[T]he court’s obligation is to ensure that questions of the scope of the
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`patent claims are not left to the jury.”) Claim interpretation is not, in any sense, a jury issue. Id.
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`Courts construing patent claims give terms the meaning they would have to a person of ordinary
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`skill in the art at the time of the invention in view of the specification and the prosecution history.
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`Phillips v. AWH Corp., 415 F.3d 1303, 1312–13 (Fed. Cir. 2005) (en banc).
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`Standards for assessing the sufficiency of a patent’s written description. The Patent
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`Act requires that each patent contain a sufficient written description “as to enable any person
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`skilled in the art . . . to make and use the same[.]” 35 U.S.C. § 112, ¶ 1. Specifically, the
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`description must “clearly allow persons of ordinary skill in the art to recognize that the inventor
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`invented what is claimed.” Ariad Pharms., Inc. v. Eli Lilly & Co., 598 F.3d 1336, 1351 (Fed. Cir.
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`2010) (en banc) (quote marks omitted). “[T]he test for sufficiency is whether the disclosure of the
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`application relied upon reasonably conveys to those skilled in the art that the inventor had
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`possession of the claimed subject matter as of the filing date.” Id. The sufficiency of written
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`description is evaluated based on “the four corners of the specification.” Id. A patent satisfies the
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`written description requirement where its specification is adequate “to support the full scope of the
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`claims as construed [by the court].” Energy Trans. Grp. v. William Demant Holding A/S, 697 F.3d
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`1342, 1350 (Fed. Cir. 2012). Fact-finders evaluating the sufficiency of a patent’s written
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`description apply a presumption that the description is sufficient. A patent may be invalidated on
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`written description grounds only upon clear and convincing evidence that the full scope of the
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`claims, using the construction assigned by the court, lacks support in the written description.
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`Ariad, 598 F.3d at 1354.
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`B.
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`The Opinions’ Methodology of Comparing the Patents’ Disclosures to
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`Alternative Claim Constructions Derived From Infringement Allegations is
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`Improper Under Daubert and Rule 702
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`The written description opinions offered by Drs. Rubin, Almeroth, and McDaniel are
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`inadmissible under Daubert due to their use of alternative claim constructions (purportedly drawn
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`from Finjan’s infringement allegations) instead of constructions approved by the Court. That
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`approach is improper as a matter of law, and for each of the SonicWall Experts it led to a
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`distorted, unreliable methodology. Instead of comparing each patent’s construed claims with its
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`description as the law requires, the SonicWall Experts compared Finjan’s infringement allegations
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`(and hypothetical claim constructions derived therefrom) to try and find an embodiment in the
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`patent that exactly matched what was alleged to satisfy those limitations. There is no legal support
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`for such an approach, particularly in the context of a presentation to a jury.
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`For a written description inquiry (as for any other inquiry into the validity of a patent
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`claim), claims are interpreted according to their ordinary meaning at the time of the invention, in
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`Case No. 5:17-cv-04467-BLF (VKD)
`FINJAN’S DAUBERT MOTION RE WRITTEN
`DESCRIPTION
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`Case 5:17-cv-04467-BLF Document 348 Filed 01/21/21 Page 11 of 14
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`view of the specification and the prosecution history. Koninklijke Philips Elecs. N.V. v. Cardiac
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`Sci. Operating Co., 590 F.3d 1326, 1336 (Fed. Cir. 2010) (“A district court must base its analysis
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`of written description . . . on proper claim construction.”); see also Phillips, 415 F.3d at 1312–13.
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`District courts typically provide that interpretation via pre-trial claim construction proceedings in
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`which the parties are instructed to bring interpretive disputes forward and have them resolved, as
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`was done here. (See Claim Constr. Order (Mar. 26, 2019), D.I. 132.) During that process, post-
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`patent documents—such as infringement contentions—that are “not contemporaneous with the
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`patent” and that do not help establish what claim terms meant at the time of the invention, are “not
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`considered.” Brookhill-Wilk 1, LLC v. Intuitive Surgical, Inc., 334 F.3d 1294, 1299 (Fed. Cir.
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`2003). For more than thirty years the Federal Circuit has specifically reminded litigants, “A claim
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`is construed in light of the claim language, the other claims, the prior art, the prosecution history,
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`and the specification, not in light of the accused device.” SRI Int’l v. Matsushita Elec. Corp. of
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`Am., 775 F.2d 1107, 1118 (Fed. Cir. 1985) (en banc).
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`The written description opinions here contravene such law because the opinions employ
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`claim constructions that the SonicWall Experts did not receive from the Court, and did not derive
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`from the specification or prosecution history. The alternative constructions on which the
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`SonicWall Experts based their opinions were purportedly gleaned from Finjan’s infringement
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`allegations, which post-date the patents by years. None of the SonicWall Experts contend that the
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`infringement allegations are valid claim construction evidence, yet all of them rely on them for
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`that purpose. Dr. Rubin confirmed that his written description opinions could apply only if the
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`Court adopts those constructions—which it has not done. (Exh. D at 46:9–47:1.) Dr. Almeroth
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`stated that his analysis was discerned from Finjan’s “infringement allegations,” and that he had no
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`written description opinion under “the proper” (i.e., the Court’s) interpretation of the claims.
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`(Exh. E 62:22–63:2, 64:13–19, 67:8–15.) Dr. McDaniel confirmed that but for considering the
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`allegations, he had no other opinion as to written description, and was basing his opinions on
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`“what Finjan appeared to be arguing.” (Exh. F at 54:12–21, 55:16–20.) However SRI, Brookhill-
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`Wilk 1, and Phillips make the SonicWall Experts’ error abundantly clear. Finjan’s infringement
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`Case No. 5:17-cv-04467-BLF (VKD)
`FINJAN’S DAUBERT MOTION RE WRITTEN
`DESCRIPTION
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`Case 5:17-cv-04467-BLF Document 348 Filed 01/21/21 Page 12 of 14
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`contentions are not a cognizable source of evidence for claim construction. Using Finjan’s
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`infringement allegations as a source for alternative claim constructions is improper as a matter of
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`law, and per se unreliable under Daubert.
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`Finjan is unaware of any authority endorsing an expert applying alternative constructions,
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`derived on the expert’s own recognizance and adopted by neither the Court nor any party, in jury
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`testimony. The Federal Circuit has expressly reminded district courts to be vigilant against
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`attempts to make claim construction a jury issue, which would be the ultimate effect of such
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`testimony. Every Penny Counts, 563 F.3d at 1383 (Fed. Cir. 2009) (“[T]he court’s obligation is to
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`ensure that questions of the scope of the patent claims are not left to the jury.”). And it has noted
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`that failure to sufficiently protect the jury may be grounds for reversal. In its words, “The risk of
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`confusing the jury is high when experts opine on claim construction before the jury[.]” CytoLogix
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`Corp. v. Ventana Medical Sys., Inc., 424 F.3d 1168, 1172 (Fed. Cir. 2005).
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`The written description opinions offered by the SonicWall Experts are fundamentally
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`flawed in their methodology. Tendering invalidity theories based on alternative claim
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`constructions that are (1) unendorsed by the Court, and (2) expressly derived from documents that
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`are not cognizable claim construction evidence is improper as a matter of law and per se unreliable
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`from the standpoint of expert methodology. Under Daubert, the Court should enter an order
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`precluding SonicWall from offering such testimony at trial. Because it is not disputed that none of
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`SonicWall’s experts have disclosed any written description opinions except those based on the
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`infringement allegations (and the hypothetical claim constructions derived therefrom), the Court
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`should order that SonicWall may not present any expert opinion at trial on written description.
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`C.
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`The Opinions Are Additionally Inadmissible Under Rule 403 Because They
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`are Non-Probative and Would Promote Confusion About the Claim
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`Constructions the Jury Must Apply During Fact-Finding
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`Even if the SonicWall Experts’ methodology of using alternative claim constructions
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`rather than court-endorsed ones were permissible under Daubert (it is not), it would still be
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`inadmissible due to the plain lack of probative value and clear risk of jury confusion. As to their
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`Case No. 5:17-cv-04467-BLF (VKD)
`FINJAN’S DAUBERT MOTION RE WRITTEN
`DESCRIPTION
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`Case 5:17-cv-04467-BLF Document 348 Filed 01/21/21 Page 13 of 14
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`probative value, it is well established that courts have the sole responsibility (and obligation) to
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`resolve claim construction disputes. E.g., O2 Micro Int’l Ltd. v. Beyond Innovation Tech. Co., 521
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`F.3d 1351, 1362 (Fed. Cir. 2008). Testimony by a SonicWall expert hypothesizing that the claim
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`constructions might have been different than those the court has entered would not be probative of
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`any claim or defense in the case. And as to confusion, as already noted, “the risk of confusing the
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`jury is high when experts opine on claim construction before the jury[.]” CytoLogix Corp. v.
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`Ventana Medical Sys., Inc., 424 F.3d 1168, 1172 (Fed. Cir. 2005). Because the SonicWall
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`Experts’ opinions use alternative constructions the Court has not endorsed, there is a significant
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`risk that the jury would become confused as to which construction should be used in the various
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`portions of the case. Further, presentation of these opinions would even threaten to make the jury
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`incapable of filling out its critical fact-finding role. Because the SonicWall Experts’ opinions are
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`based on disputed claim constructions, it would be impossible for any jury to evaluate the
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`credibility of those opinions without evaluating the credibility of the constructions. But as already
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`discussed, claim construction is outside the jury’s role. E.g., Every Penny Counts, 563 F.3d at
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`1383. The jury would thus be unable to carry out their duty to assess credibility without at the
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`same time exceeding their role by reviewing claim construction. This situation would be deeply
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`unfair to Finjan, as the party seeking to maintain the Court’s constructions rather than venture into
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`hypothetical alternate constructions.
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`It was precisely to avoid this circumstance that the Supreme Court confirmed courts’ sole
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`responsibility for claim construction. Markman, 517 U.S. at 372. The Court should reaffirm that
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`role here, and protect the jury from near-certain confusion, by rejecting SonicWall’s attempt to
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`make claim construction a jury issue. If it does not preclude the SonicWall written description
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`opinions under Daubert, it should preclude them as prejudicial and non-probative under Rule 403.
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`V.
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`CONCLUSION
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`For the reasons given, Finjan respectfully moves that the Court enter an order precluding
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`SonicWall from presenting at trial unreliable expert testimony concerning alleged insufficiency of
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`written description for any of the asserted patents.
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`Case No. 5:17-cv-04467-BLF (VKD)
`FINJAN’S DAUBERT MOTION RE WRITTEN
`DESCRIPTION
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`Case 5:17-cv-04467-BLF Document 348 Filed 01/21/21 Page 14 of 14
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`
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`Dated: January 21, 2021
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`
`
`/s/ Robert Courtney
`Juanita R. Brooks (CA SBN 75934)
`brooks@fr.com
`Roger A. Denning (CA SBN 228998)
`denning@fr.com
`Jason W. Wolff (CA SBN 215819)
`wolff@fr.com
`John-Paul Fryckman (CA 317591)
`fryckman@fr.com
`K. Nicole Williams (CA 291900)
`nwilliams@fr.com
`FISH & RICHARDSON P.C.
`12860 El Camino Real, Ste. 400
`San Diego, CA 92130
`Phone: (858) 678-5070 / Fax: (858) 678-5099
`
`Proshanto Mukherji (Pro Hac Vice)
`mukherji@fr.com
`FISH & RICHARDSON P.C.
`One Marina Park Drive
`Boston, MA 02210
`Phone: (617) 542-5070/ Fax: (617) 542-5906
`
`Robert Courtney (CA SNB 248392)
`courtney@fr.com
`FISH & RICHARDSON P.C.
`3200 RBC Plaza
`60 South Sixth Street
`Minneapolis, MN 55402
`Phone: (612) 335-5070 / Fax: (612) 288-9696
`
`Attorneys for Plaintiff
`FINJAN LLC
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that a true and correct copy of the above and foregoing
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`document has been served on January 21, 2021, to all counsel of record who are deemed to have
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`consented to electronic service via the Court’s CM/ECF system. Any other counsel of record will
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`be served by electronic mail and regular mail.
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`
`
`/s/ Robert Courtney
`Robert Courtney
`courtney@fr.com
`
`Attorney for Plaintiff
`FINJAN LLC.
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`FINJAN’S DAUBERT MOTION RE WRITTEN
`DESCRIPTION
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