Case 3:17-cv-00183-CAB-BGS Document 720 Filed 12/30/19 PageID.36208 Page 1 of 3
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`UNITED STATES DISTRICT COURT
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`SOUTHERN DISTRICT OF CALIFORNIA
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`FINJAN, INC.,
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`v.
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`Plaintiff,
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`ESET, LLC, a California Limited Liability
`and ESET SPOL. S.R.O., a Slovak
`Republic Corporation,
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`Defendants.
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` Case No.: 3:17-cv-0183-CAB-(BGS)
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`ORDER ON ESET’S MOTION FOR
`RECONSIDERATION
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`[Doc. No. 708]
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`On October 16, 2019, the Court entered an order denying ESET’s motions for
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`summary judgment of non-infringement of three of the patents-at-issue1 and summary
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`judgment on Finjan’s claim for willful infringement. [Doc. No. 699.] ESET now moves
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`for reconsideration of that order pursuant to Fed.R.Civ.P. 60(b)(6), on the grounds that
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`the determination of the non-infringement motions is a matter of law, not a factual
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`dispute, and that Finjan has no competent evidence to support a claim of willful
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`infringement, so it is error for the Court to send these issues to the jury. [Doc. No. 708.]
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`The motion for reconsideration is Denied in Part and Granted in Part.
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`1 Specifically, ESET challenged Finjan’s expert analysis of infringement of U.S. Patents Nos. 6,154,844;
`6,804,780; and 8,079,086, as legally deficient in light of the Court’s claim constructions.
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`Case 3:17-cv-00183-CAB-BGS Document 720 Filed 12/30/19 PageID.36209 Page 2 of 3
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`Reconsideration of a prior order is appropriate if the district court (1) is presented
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`with newly discovered evidence, (2) committed clear error or the initial decision was
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`manifestly unjust, or (3) if there is an intervening change in controlling law.” Sch. Dist.
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`No. 1J Multnomah Cty. V. ACandsS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). Whether to
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`grant a motion for reconsideration is in the “sound discretion” of the district court. Navajo
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`Nation v. Norris, 331 F.3d 1041, 1046 (9th Cir. 2003).
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`In the motion for reconsideration, ESET reargues its position that the infringement
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`evidence presented by Finjan’s experts does not properly apply the Court’s claim
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`constructions and factually mispresents the operations of the accused systems and software.
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`In the context of a motion for summary judgment the Court must not weigh the credibility
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`of the evidence and determine the truth of the matter. Anderson v. Liberty Lobby, Inc., 477
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`U.S. 242, 249 (1986). Further the non-movant’s evidence is to be believed and all
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`justifiable inferences are to be drawn in the non-movant’s favor. Id., at 255. The Court
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`concluded that “there are genuine factual issues that properly can be resolved only by a
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`finder of fact because they may reasonably be resolved in favor of either party.” Id. at 250.
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`The motion for reconsideration does not establish that the Court’s order denying the
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`motions for summary judgment of non-infringement were clearly erroneous.
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`If at trial, it becomes apparent that plaintiff has not applied the Court’s claim
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`construction, as ESET contends, or that Finjan has not produced evidence upon which a
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`jury could properly proceed to find a verdict of infringement by a preponderance of the
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`evidence, ESET may procedurally move for a verdict pursuant to Fed.R.Civ.P. 50 (a).
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`However, on the documentary evidence before the Court on the motions for summary
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`judgment of non-infringement, the Court will not reconsider its determination that material
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`facts are in dispute. The request for interlocutory appeal is also denied as the motions were
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`denied based on factual disputes, not as a matter of law.
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`Regarding the request to reconsider the dismissal of Finjan’s claim of willful
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`infringement, the Court GRANTS the motion. In its opposition to ESET’s motion for
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`reconsideration, Finjan has not cited to any evidence that ESET had knowledge of the
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`Case 3:17-cv-00183-CAB-BGS Document 720 Filed 12/30/19 PageID.36210 Page 3 of 3
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`patents-at-issue in this litigation prior to January 2015 and the entry of the parties’
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`Standstill Agreement, and that ESET acted in willful disregard of Finjan’s patent rights.
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`Finjan recites again general knowledge of Finjan’s existence as a company with an
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`extensive patent portfolio, a statement by outside counsel that will not be attributed to
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`ESET, and Dr. Cole’s opinion, all which the Court excluded. Finjan proffered no evidence
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`that ESET was aware of any of the patents-at-issue prior to January 2015 or that it entered
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`licensing negotiations in bad faith. Failure to reach a licensing agreement alone is not
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`evidence of bad faith.
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`The Court admonished Finjan in its order on the motion for summary judgment that
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`Finjan would be required “to produce evidence at trial that ESET had knowledge of each
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`of the asserted patents and committed subjective willful infringement as of the dates it
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`became aware of those patents.” Further, “the evidence of ESET’s knowledge cannot be
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`based on disclosures made by Finjan during the Standstill Agreement, but rather must be
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`independent of those discussions.” [Doc. No. 66.]
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`On reconsideration, in the context of the Court’s admonitions, ESET argues that
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`Finjan has produced no evidence that would sustain this claim and it should be dismissed.
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`In response to the motion for reconsideration Finjan does not raise material facts, it only
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`offers the same excluded evidence and opinions, and the conclusory statements of counsel
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`that ESET should have known of Finjan’s patents and that it negotiated with no intent to
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`enter a license agreement. Finjan has provided no evidence upon which a finder of fact
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`can reasonably resolve this claim in its favor. The motion for reconsideration of Finjan’s
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`willfulness claim is Granted and the claim for willful infringement is dismissed.
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`IT IS SO ORDERED.
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`Dated: December 30, 2019
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`3:17-cv-0183-CAB-(BGS)
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