Case 5:17-cv-04467-BLF Document 431 Filed 03/21/21 Page 1 of 7
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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 317591) fryckman@fr.com
`K. Nicole Williams (CA291900) nwilliams@fr.com
`FISH & RICHARDSON P.C.
`12860 El Camino Real, Ste. 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 SBN 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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` Plaintiff,
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`v.
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`SONICWALL, INC., a Delaware Corporation,
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` Defendant.
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`Case No. 5:17-cv-04467-BLF (VKD)
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`PLAINTIFF FINJAN LLC’S OFFER OF
`PROOF RE THE APPORTIONMENT
`OPINIONS OF AARON STRIEGEL, PH.D.
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`Date: March 18, 2021
`Time: 1:30 PM
`Hon. Beth Labson Freeman
`Ctrm: 3, 5th Floor
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`Case No. 17-cv-04467-BLF (VKD)
` FINJAN’S OFFER OF PROOF RE AARON STRIEGEL, PH.D.
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`Case 5:17-cv-04467-BLF Document 431 Filed 03/21/21 Page 2 of 7
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`In view of the discussion during the Court’s March 18 hearing on SonicWall’s Third
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`Motion in Limine (D.I. 362), Finjan respectfully submits the following offer of proof. Were the
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`Court to permit Aaron Striegel, Ph.D., to testify about his methodology regarding the
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`identification of accused products’ “top-level functions” for technical apportionment purposes, Dr.
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`Striegel’s testimony, consistent with his expert report and deposition, would include the following:
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`1.
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`Dr. Striegel would testify that he is a Professor in the Department of Computer
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`Science and Engineering at the University of Notre Dame. Exh. A (Striegel Rep.) ¶ 3. He holds a
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`Ph.D. in Electrical and Computer Engineering, and has published twenty-six peer-reviewed
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`journal papers and eighty-nine conference papers in the areas of computer networking, computer
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`security, engineering education, and real-time systems. Id. ¶¶ 3–5. Three of his papers have
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`received best paper awards at conferences, and his work has been cited in research papers and
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`other scholarly materials over 2500 times. Id. ¶ 5. Dr. Striegel would testify that he has reviewed
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`technical material concerning the SonicWall accused products and formed opinions about
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`technical apportionment for Finjan’s asserted patents as to those products.
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`2.
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`Dr. Striegel would testify that to support his technical apportionment analysis, he
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`identified, for each accused product, that product’s “top-level functions.” Id. ¶¶ 86–87. He relied
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`for this task on “datasheets for the accused products because datasheets typically provide a
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`window into the product in a very compact form to convey to a particular interested customer what
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`are the key benefits, what are the functions, [and] what one should expect if one were to go out
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`and purchase the product.” Id. ¶ 88. The datasheets are “targeted at skilled technologists,” and
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`“provid[e] a very crisp summary [ ] of what are the key benefits . . . that one would receive when
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`purchasing or utilizing [a] particular [product].” Exh. B (Striegel Dep. Tr.) 151:25–152:5. Dr.
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`Striegel would testify that an exemplary datasheet relied on by him (which was discussed at the
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`hearing) is the datasheet for SonicWall’s “SuperMassive” product. Id. ¶ 90; see also Exh. C
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`(SuperMassive datasheet).
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`Case No. 17-cv-04467-BLF (VKD)
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`FINJAN’S OFFER OF PROOF RE AARON STRIEGEL, PH.D.
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`Case 5:17-cv-04467-BLF Document 431 Filed 03/21/21 Page 3 of 7
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`3.
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`For each accused product, Dr. Striegel would testify that he created a list of that
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`product’s “top-level functions,” based on the datasheets and also on his own expertise and
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`experience. Exh. A ¶ 88; see also id. ¶ 91 (exemplary list of twelve “top-level functions” for
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`SuperMassive). In the case of SuperMassive, his list of twelve top-level functions “matches up”
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`to the blue-colored rows on the three pages of the datasheet labeled “Features.” Exh. B 148:14–
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`149:5. In his expert opinion, as Dr. Striegel testified at his deposition, the twelve blue-highlighted
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`features “are what SonicWall publicly represents to someone who would purchase the device . . .
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`that these are the key benefits that one would expect to gain.” Id. at 152:10–19.
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`4.
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`Where datasheets (such as the SuperMassive datasheet) listed other “features”—
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`i.e., features not highlighted in blue, but listed below the blue-highlighted “top-level functions”—
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`Dr. Striegel would testify that in his expert opinion each of these “features” are subsumed within
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`the “top-level functions” under which it is listed.
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`An example set of a blue-highlighted term Dr. Striegel calls a “top-level functions,” and
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`unhighlighted lesser “features” following it, is below:
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`Exh. C at SONICWALL-FINJAN_00000660 (annotated). Dr. Striegel would testify that he took this
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`distinction between “top-level functions” and lesser “sub features” from the datasheets themselves.
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`Dr. Striegel would testify, as he did at his deposition that, “[He] took SonicWall at their word, that
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`Case 5:17-cv-04467-BLF Document 431 Filed 03/21/21 Page 4 of 7
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`they represented in the document that these [the blue-highlighted “top-level functions”] are the
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`core [functions], the key benefits that [a purchaser] would receive[.] Exh. B at 157:20–23. Dr.
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`Striegel would testify that if one took the time—as SonicWall had when constructing the
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`datasheet—one could “go through and appropriately map those features, specific individual
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`smaller features to the broader top-level functions.” Id. at 158:6–158:9. In other words, one of
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`skill in the art would know and could show that the sub features are subsumed within the top-level
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`functions.
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`5.
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`Dr. Striegel would testify that he did consider the lesser “features,” and considered
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`whether they should be used for apportionment, but ultimately determined, in his expert opinion,
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`that it is more accurate to rely on the “top-level functions.” Dr. Striegel would testify, as he did at
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`deposition, that this is because the features are “narrow” and of interest primarily to “a particular
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`customer, [who may] need a particular feature[.]” Id. 154:21–155:1. Dr. Striegel would testify,
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`as he did at deposition, how he considered the “features,” but relied instead on the higher-level
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`“top-level functions” for his analysis:
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`Again, if I’m . . . a particular customer, if I need a particular feature, I
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`might look through this [the list of lesser “features”] to see is it present with
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`regards to this [product].
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`But, again, as part of my methodology, what I looked at is what are those
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`key benefits, what are those key top-level functions that SonicWall is
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`representing. This [list of lesser features] is more of an enumeration of
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`many different features which might be out there, some which may be
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`important, some which may not be as important.
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`Id. at 155:2–12 (emphasis added).
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`6.
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`SonicWall’s lawyer returned to the issue of the “sub features” several times during
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`Dr. Striegel’s deposition, See, e.g., Id. at pp. 159, 176, 181, 250 – 253, 260 – 267, 281. Dr.
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`Case 5:17-cv-04467-BLF Document 431 Filed 03/21/21 Page 5 of 7
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`Striegel would testify, as he did throughout his deposition, that he considered each “sub feature,”
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`but ultimately determined that in his expert opinion the higher-level “top-level functions” are more
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`appropriate for apportionment:
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`I did not conduct [my analysis] on a sub feature by sub feature basis
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`because I did not feel that would be an appropriate analysis. I thought that
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`the appropriate top-level functions that I identified would be, again, in line
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`with what someone skilled in the area would understand to likely be present
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`on these type of devices, and based on my own expertise of what I would
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`view as a key top-level function.
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`I did evaluate the sub features. . . . [T]hat’s part of the process of
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`evaluating would [a specific] top-level function have benefited from the . . .
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`asserted patents and the asserted claims.
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` Id. at 252:17–253:5.
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`7.
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`Dr. Striegel would testify, again consistent with his deposition, about his
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`methodology for using the top-level functions rather than the sub features for his apportionment
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`analysis. For example in discussing a separate data sheet for which he had identified four “top-
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`level functions”:
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`These [the sub features] might speak to particular features which may not
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`be necessarily valuable to different customers as well . . . . I had looked
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`through these [the sub features].
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`. . . I had to discern what are the top-level functions and I stand by my
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`findings that those four top-level functions were appropriate.
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`Id. at 265:14–23 (emphasis added).
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`8.
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`In sum: Dr. Striegel would testify, consistent with his expert report and deposition,
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`that his identification of the “top-level functions” from SonicWall’s datasheets considered the
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`FINJAN’S OFFER OF PROOF RE AARON STRIEGEL, PH.D.
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`Case 5:17-cv-04467-BLF Document 431 Filed 03/21/21 Page 6 of 7
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`sheets’ entire text—both the highlighted “top-level functions,” and the sub-categorized “features.”
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`When preparing his technical apportionment opinions, Dr. Striegel would testify that he relied on
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`the former (the “top-level functions”) because, in his expert opinion, based upon his analysis and
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`experience, they describe the key functions that establish value for the SonicWall products in the
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`marketplace. Dr. Striegel would testify that he did not include the lesser “sub features” among his
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`“top-level functions” because, again in his expert opinion, they are not only subsumed in the top-
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`level functions, but are specialized features that do not establish value for the products generally,
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`but only have particular value to particular customers.
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`Dated: March 21, 2021
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`Respectfully Submitted,
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`By: /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 SBN 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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`Case No. 17-cv-04467-BLF (VKD)
`5
`FINJAN’S OFFER OF PROOF RE AARON STRIEGEL, PH.D.
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`Case 5:17-cv-04467-BLF Document 431 Filed 03/21/21 Page 7 of 7
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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 March 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
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`Case No. 17-cv-04467-BLF (VKD)
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`FINJAN’S OFFER OF PROOF RE AARON STRIEGEL, PH.D.
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