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`NICOLA A. PISANO, CA Bar No. 151282
` NicolaPisano@eversheds-sutherland.com
`JOSE L. PATIÑO, CA Bar No. 149568
`
`JosePatino@eversheds-sutherland.com
`JUSTIN E. GRAY, CA Bar No. 282452
`
`JustinGray@eversheds-sutherland.com
`SCOTT A. PENNER, CA Bar No. 253716
` ScottPenner@eversheds-sutherland.com
`EVERSHEDS SUTHERLAND (US) LLP
`12255 EL CAMINO REAL, SUITE 100
`SAN DIEGO, CALIFORNIA 92130
`TELEPHONE:
`858.252.6502
`FACSIMILE:
`858.252.6503
`Attorneys for Defendants and Counter-Plaintiffs
`ESET, LLC and ESET, SPOL. S.R.O.
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`FINJAN, INC.,
`
`Plaintiff,
`
`v.
`ESET, LLC, et al.,
`Defendants.
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF CALIFORNIA
` Case No. 3:17-cv-0183-CAB-BGS
`ESET, LLC AND ESET, SPOL. S.R.O.’S
`REPLY BRIEF IN SUPPORT OF
`RENEWED MOTION FOR SUMMARY
`JUDGMENT OF INVALIDITY BASED
`ON INDEFINITENESS OF THE TERM
`“DOWNLOADABLE”
`
`Judge: Hon. Cathy Ann Bencivengo
`
`
` PER CHAMBERS RULES, NO ORAL
`ARGUMENT UNLESS SEPARATELY
`ORDERED BY THE COURT
`
`AND RELATED COUNTERCLAIMS.
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`Case 3:17-cv-00183-CAB-BGS Document 816 Filed 09/25/20 PageID.39853 Page 2 of 12
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`I.
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`INTRODUCTION
`Finjan’s Opposition rewrites this Court’s claim construction for “Downloadable,”
`mischaracterizes the irreconcilable testimony of Finjan’s expert witnesses and luxuriates
`in non sequiturs. ESET’s renewed motion on indefiniteness of “Downloadable”
`demonstrated that Finjan’s experts are hopelessly unable to assign any upper bound to
`the term. D.I. 806-1. At trial, Dr. Cole sidestepped the indefiniteness issue by testifying
`that the term “small” in the Court’s construction is unrelated to size, but instead hinges
`on “installability” of the Downloadable. Ignoring this Court’s claim construction, Finjan
`proclaims that “Downloadable” is properly construed as “a small non-installed
`executable or interpretable application program which is downloaded from a source
`computer and run on a destination computer.” Finjan argues that its new definition is
`totally consistent with its experts’ prior testimony. It plainly is not.
`Finjan’s Opposition also is at war with itself. Finjan first argues that the Court
`cannot decide ESET’s motion without hearing from Dr. Spafford. But Finjan then
`contends that Dr. Spafford did not opine on “small,” and thus should not be permitted
`opinions at trial “that were not in his expert report.” So, the Court need not wait for Dr.
`Spafford’s testimony after all. Finjan also argues that fact issues require the Court to
`hear testimony from Finjan’s other experts. Yet none of those other experts – Drs.
`Medvidovic, Mitzenmacher, Goodrich, or Jaeger – opined on “small” in their expert
`reports, and should not be permitted to testify at trial inconsistently with their reports or
`deposition testimony. Finjan cannot create a triable issue relying on disagreements
`between its own experts.1
`Finjan’s Opposition fails to identify a meaningful upper bound for its asserted
`claims that is consistent with this Court’s formulation. The evidence is abundant, clear,
`and convincing that the term “Downloadable” is indefinite.
`
`
`1 Finjan wrongly contends that Dr. Spafford never opined that the term “Downloadable”
`was indefinite. But Dr. Spafford testified that Downloadable is indefinite even without
`the word “small” because it encompasses interpretable and executable programs, which
`are mutually disjoint. See D.I. 138-1 at 3 and 138-3 at ¶¶ 20-40.
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`II. ARGUMENT
`A.
`“Downloadable” As Construed from the Intrinsic Record
`Dr. Cole’s novel construction of “Downloadable” proffered at trial is utterly at
`odds with the intrinsic evidence. As set forth in this Court’s claim construction analysis
`for “Downloadable,” the concept of “a small executable or interpretable application
`program” is introduced in the definition provided in the ’520 patent and the ’962 patent.
`D.I. 195 at 2 (italics in original). The Court noted that the ’194 and ’780 patents define
`“Downloadable” without the “small” or “interpretable application program” limitations.
`Id. (italics is original). The ’844 patent incorporates by reference the ’520 and ’194
`patents, and is a continuation-in-part of the ’962 and ’780 patents. Id. at 3. The ’086,
`’621, and ’755 patents are continuations of the ’844 patent; none includes a definition of
`“Downloadable”, but incorporates by reference both the ’962 and ’780 patents. Id.
`At the Markman Hearing on September 25-26, 2017, the Court noted the asserted
`patents are continuations of earlier patents that include different definitions of the term
`Downloadable; thus, there is no principled way to conclude that Downloadable covers
`both executable and interpretable programs (as Finjan urged) without including “small”
`– an adjective integral to the inventors’ explicit definition. Based on the record, this
`Court concluded that “Downloadable” should be consistently construed for all five
`asserted patents as “a small executable or interpretable application program which is
`downloaded from a source computer and run on a destination computer.” D.I. 195 at 2.
`B. No Finjan Expert Could Determine the Scope of “Small.”
`judgment of
`As demonstrated
`in ESET’s original motion for summary
`indefiniteness (D.I. 478-1), ESET sought clarification from Finjan’s experts during
`expert discovery on what one of skill in the art would have understood as the upper
`boundary of a “Downloadable” to qualify as “small.” If no such upper bound can be
`identified, the claim is indefinite for failing to fulfill the “public notice” function of
`claims. That is, the public, based on the intrinsic evidence, must be able to determine
`what infringes and what does not.
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`Finjan’s experts are all over the proverbial lot, and do not agree whether there is
`an upper bound to size within six to nine orders of magnitude, or whether small is static
`or changes as technology develops. Like the test for obscenity in Jacobellis v. Ohio, 378
`U.S. 184, 197 (1964) (“I know it when I see it”), Finjan’s experts’ upper bound for
`“small” was “contextual”: every file capable of being processed by ESET’s software
`qualified as “small” for infringement of the asserted patents, even if none could identify
`a file that was “not small.” Finjan’s definition of small is infinitely malleable and
`subjective; Finjan’s citations to its experts’ testimony provide no clarity: “reasonable
`size” (Dr. Cole); “part of a piece of content you’re downloading as part of a web page”
`(Dr. Medvidovic); “would say there’s a range somewhere” (Dr. Mitzenmacher); and
`“small is a relative term” (Dr. Goodrich). Opp. at 4:19-20.
`C.
`Finjan’s Epiphany Regarding Installability
`Forewarned by ESET’s initial motion for summary judgment, Finjan arrived at
`trial with a brand spanking new definition of “small” found nowhere in its experts’
`reports and unuttered during expert deposition. Not wishing to concede to any upper
`bound, Dr. Cole reluctantly testified at trial that a two terabyte file meets his definition
`of “small” – because “small” has nothing to do with size!2 Dr. Cole disavowed his
`deposition testimony that, for the ’844 patent, a small file “wouldn’t be multiple gigs,”
`and instead pushed Finjan’s new construction that “small” depends only upon whether or
`not the Downloadable is installed on the user’s computer. See, e.g., D.I. 805 (Trial
`Testimony Day 3 – Dr. Cole) at 397:12-400:6; 403:11-404:2. Thus, as Dr. Cole opined,
`“the definition of small is not based on a number. It’s based on whether it requires
`installation or not …” Id. at 408:2-11 (emphasis added).
`Apart from rewriting this Court’s construction of Downloadable (which
`construction is based on the intrinsic materials), Dr. Cole’s new construction creates
`further chaos and ambiguity because it (1) is untethered from the intrinsic evidence; (2)
`was not understood or apparent to any of Finjan’s experts or Dr. Spafford during the
`
`2 A DVD typically holds 4.5 GB; a 2 TB file would fill about 415 DVDs.
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`expert testimony period; and (3) creates further confusion as to what constitutes a
`Downloadable. More particularly, under Dr. Cole’s substitute construction, the very
`same “file could be small if it doesn’t require installation, [but] it won’t be small if it
`requires installation” and thus “small depends on the function.” Id. at 414:8-14;
`415:7-15. If the word “small” (the definition of which specifically references size)
`actually means “non-installed,” then size just doesn’t matter and the common every day
`understanding of the word “small” has lost all meaning. If it doesn’t mean non-installed,
`then the upper bound of “small” remains undefined, and a further definition is required
`regarding what “installed” means. Indeed, an executable program may be either
`installed or not, so under Finjan’s new construction, the same file could infringe if
`installed, but not infringe if not installed! Rather than offering clarity, Dr. Cole’s trial
`definition only descends further down the rabbit hole. This Court need not, and should
`not, follow.
`D. The Arguments in Finjan’s Opposition Fail.
`Finjan’s brief proffers three points of opposition to ESET’s motion: (1)(a) Dr.
`Cole’s trial testimony “confirmed” the definiteness of the term small; (1)(b) Dr. Spafford
`did not opine that the term “small” was indefinite; (2) the Court should revise its
`construction of Downloadable to preserve validity by ignoring the word “small” (as
`other courts have done); and (3) decision of ESET’s motion should await creation of a
`“complete” record. None of Finjan’s arguments is credible, much less persuasive.
`1.
`Dr. Cole’s New Construction Is Confirmed by Nothing.
`As discussed supra, Finjan’s newfound construction of “small” as “installed” did
`not occur, even to Finjan, until it was confronted with the stark reality that Finjan’s
`experts could not answer the simple question: “how big is not small”? Finjan’s experts’
`answers diverged from between six to nine orders of magnitude, thus clearly and
`convincingly establishing indefiniteness of the term “Downloadable.” See generally,
`D.I. 478-1; D.I. 623 at 4:11-20; D.I. 806-1 at 4-11, 16:12-11. Dr. Cole’s revised
`construction at trial tried to sidestep entirely the issue of relative size. D.I. 806-1 at
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`6:16-8:4. In so doing, however, Finjan concedes it has no viable answer.
`Finjan’s Opposition struggles unsuccessfully to find a basis for Dr. Cole’s new
`opinion in the patent disclosure. Opp. at 8:2-14. Finjan points to a reference to “Java
`applets, ActiveX controls, JavaScript scripts and Visual Basic scripts.” ’844 patent at
`1:48-56. But those file types are merely non-limiting examples. And as explained by
`Dr. Spafford, JavaScript and Visual Basic scripts are interpreted, thus, they are not
`“executable application program[s]” as set forth in the definition of Downloadable
`expressly included in the ’844 patent at 1:44-47. D.I. 138-3 at ¶¶ 24-29. The only
`portion of the ’844 patent cited in Finjan’s Opposition refutes, rather than supports, its
`position. Far more informative is Finjan’s concession that “as Dr. Cole explained, there
`is no precise numerical size range for a small executable” (Opp. at 8:23-24) (emphasis
`added) or indeed any size range, irrespective of numerical precision.3
`Finjan contends that Dr. Spafford “understood and applied the term Downloadable
`during discovery,” so he must have understood what “small” means. Opp. at 3:3-4. But
`ESET’s original claim construction brief, relying on Dr. Spafford’s declaration,
`explained that the term Downloadable is indefinite even without use of the term small.
`See D.I. 138 at 3:8-4:21; D.I. 138-3 at ¶¶ 21-28. Specifically, all of the asserted patents
`except the ’780 patent incorporate two different definitions for Downloadable as
`discussed supra. Id. One definition requires “a small executable or interpretable
`application program” while the other requires only “executable application programs.”
`There is nothing in the ’844, ’086, ’621, or ’755 patents to dictate which definition
`controls. Id. So far as Dr. Spafford was concerned, inclusion of the word “small” in the
`Court’s final construction did not resolve the fundamental dichotomy; in Dr. Spafford’s
`opinion, the term Downloadable already was insolubly ambiguous. D.I. 138-3 at ¶ 28.
`Finjan includes multiple citations to Dr. Spafford’s Invalidity Expert Report.
`Opp. at 3:12-14. However, that report recites the Court’s construction of Downloadable,
`and states “I have applied [the Court’s] constructions in forming my opinions expressed
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`3 The analysis relating to numerical precision is discussed in more detail below.
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`in this report. For all terms not construed by the Court, I have applied the constructions
`of the terms ascribed by Finjan in Finjan’s infringement contentions as best as I have
`been able to determine from those contentions…” D.I. 559-9 at ¶ 27. Because the word
`“small” was not construed by the Court, Dr. Spafford simply relied on how Finjan’s
`infringement contentions appeared to define the term. Those contentions identified
`every file analyzed by ESET’s software as allegedly infringing (hence qualifying as
`“small”). Applying the well-known patent law axiom: that which infringes if later,
`invalidates if earlier, Dr. Spafford used the same metric to find that files processed by
`the invalidating prior art programs were also “small.” Id. His analysis is based on the
`premise that if Finjan contends file X infringes, then that same file, if processed by a
`prior art system, demonstrates invalidity. Nothing about Dr. Spafford’s expert report or
`deposition testimony regarding invalidating prior art touches upon, much less
`contradicts, the overwhelming evidence of indefiniteness of the asserted claims.
`Finjan also is of two minds regarding Dr. Spafford’s testimony. Finjan first urges
`the Court to await Dr. Spafford’s trial testimony before deciding ESET’s motion. See
`Opp. at 2:2-3 (“Dr. Spafford would provide trial testimony showing that this term is
`readily understandable…”) and Opp. at 5:24-25, 6:2-3 (“Dr. Spafford … did not testify
`… As such, the Court did not hear complete testimony and ‘cross-examination.’”). But
`Finjan then argues that “[Dr. Spafford] has no basis to set forth an indefiniteness opinion
`on the term anyway” (id. at 6:1) and that he “did not opine in any of his expert reports
`that the term was indefinite” and “cannot now change or offer any new opinions at trial
`that were not in his expert report.” Id. at 13:25-26, 15:21-22. Applying Finjan’s own
`logic, the Court need not hear Dr. Spafford’s testimony before deciding this motion.
`The Court can and should decide it now.4
`
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`4 Dr. Spafford did testify that the term “Downloadable” is indefinite due to the
`conflicting and mutually disjoint definitions supplied in the incorporated patents. D.I.
`138-3 at ¶¶ 12-28. Moreover, Finjan’s contention that Dr. Spafford somehow should be
`precluded from testifying in response to Finjan’s newfound “installability” construction,
`which is nowhere in Finjan’s expert reports, is risible.
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`2.
`Finjan Is Not Entitled to a Different Claim Construction.
`Finjan urges this Court to resolve the indefiniteness problem by construing
`“Downloadable” to preserve validity, just as multiple other courts have done – by
`excising “small” from its claim construction. See Opp. at 1:18-25 (“if inclusion of
`“small” raises an indefiniteness issue, it should be construed in a manner with other
`courts’ constructions”); Opp. at 7:3-8 (this Court “deviated from the way other various
`other courts … construed Downloadable”); Opp. at 2:10 (“Downloadable [construed] in
`multiple cases and IPRs without the word ‘small’”).5 Finjan thus urges the Court to
`solve the indefiniteness problem by blue-penciling the word “small.” But as this Court
`recognized, it cannot properly disregard the words that the inventor chose in the ’520
`and ’962 patents to define the term “Downloadable,” nor is there any rational basis for
`the Court to pick-and-choose only certain of the words from the two conflicting
`definitions provided in the asserted patents. If bad drafting results in indefiniteness and
`invalidity, that is the legally appropriate consequence.
`3.
`The Record Is Adequately Developed.
`Finjan’s third point of opposition is that Dr. Cole’s testimony was incomplete
`“and will be replaced by his testimony at the future trial.” Opp. at 7:17-18. Finjan’s
`bold statement suggests that Dr. Cole’s testimony will be different, yet again, the next
`time he testifies. Finjan also argues that the Court need await the testimony of Finjan’s
`other witnesses, Drs. Medvidovic, Mitzenmacher, Goodrich, and Jaeger. Id. at 7:18-22.
`Dr. Cole’s testimony on the ’844 patent was completed at trial. He testified at
`length about the ’844 patent, and the extensive cross-examinations and redirects created
`a complete record on that patent. As noted in ESET’s opening brief, none of Finjan’s
`other experts testified about the upper bound of the term “small” in their expert reports.
`Per Finjan’s logic on Fed. R. Civ. P. 37(c)(1), supra, none of its other witnesses should
`be permitted to testify about the meaning of “small” unless ESET opens the door or the
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`5 As ESET has previously noted, no court conducted a detailed analysis of the intrinsic
`evidence as did this Court to reconcile the conflicting constructions of the term
`Downloadable the patentee offered throughout Finjan’s portfolio. D.I. 149 at 1:12-19.
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`Court elects to elicit such testimony sua sponte.
`Given the highly divergent views of Finjan’s other expert witnesses about the term
`“small,” incentive exists for ESET to elicit such testimony – but only to expose their
`lack of credibility on other issues. More importantly, none of Finjan’s other experts, in
`their reports or deposition testimony, lend support to Dr. Cole’s novel theory that
`“small” relates only to installability, not size. Finjan argues that the deposition
`testimony of Finjan’s other experts is “consistent” with Dr. Cole’s testimony because
`none of those other experts could define an upper bound for the term “small” either.
`Opp. at 9-10. As an example of this “consistency,” Finjan cites to the testimony of Dr.
`Medvidovic that he could not “give you a specific number and say, this is small and
`everything larger is not small.” Id. at 10:2-3. Finjan also cites Dr. Mitzenmacher as
`testifying he would not “provide a specific dividing line in terms of numerical size” (id.
`at 10:12-13) and Dr. Goodrich testifying that small “will always be clear from the
`context” (id. at 10:15-16). Yet all of that testimony employs a completely subjective
`standard for what constitutes “small” and only buttresses ESET’s indefiniteness claim.
`Indeed, none of the testimony of Finjan’s other experts get within a country mile of Dr.
`Cole’s “installability” definition. The lack of citations from the deposition testimony of
`Finjan’s other experts corroborating Dr. Cole’s new construction speaks volumes.
`Unless, like Dr. Cole, Finjan’s other experts will proffer entirely new opinions of the
`term “small” in violation of Fed. R. Civ. P. 37(c)(1), the Court need not await that
`testimony before deciding ESET’s motion.
`4.
`The Case Law Cited by Finjan Provides No Refuge.
`Lacking intrinsic evidence supporting Dr. Cole’s rewrite of Downloadable, Finjan
`argues that Federal Circuit precedent does not really require that the claims be definite.
`Opp. at 11-13. Finjan’s analysis of the case law is disingenuous, as are its efforts to
`distinguish ESET’s cases. Neither the facts nor the law favor Finjan’s contention.
`Finjan clings to Nautilus and Invitrogen as holding that “mathematical precision”
`is not required for claims to be definite. However, those cases require “clear notice of
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`what is claimed, thereby appris[ing] the public of what is still open to them.” Nautilus,
`Inc. v. Biosig Instruments, Inc., 572 U.S. 898, 910 (2014) (citing Minerals Separation,
`Ltd. v. Hyde, 242 U.S. 261, 270 (1916)). The evidence is clear and convincing that
`Finjan’s patents fail to meet that public notice function; Dr. Cole’s rewrite of the term
`Downloadable from “small” to “non-installed” at trial only further muddies the waters.
`Finjan also cites cases where the patents employed understood terms of art, such
`as BASF, or specific examples, like Sonix Tech., where the specification provided the
`necessary context to understand the claim scope. However, the term “Downloadable”
`has no meaning in the art (D.I. 138-3 at ¶ 20), nor do Finjan’s experts agree to any upper
`bound for the term “small” within at least six to nine orders of magnitude (i.e., a factor
`of one million to one trillion). See D.I. 623 at 4:11-20. Moreover, the examples set
`forth in the asserted patents offer no guidance: the various specifications give no clue as
`to the breadth of “Downloadable” and they are internally inconsistent (e.g., cite
`interpretable applications
`immediately defining Downloadables as executable
`programs). No Finjan expert, in his expert report or deposition, opined that “small”
`should mean “non-installed,” only further highlighting Finjan’s “say anything” approach
`to litigation.
`Finjan’s feeble efforts to distinguish ESET’s case citations are unavailing. For
`example, Finjan contends that Interval Licensing LLC v. AOL, Inc., 766 F.3d 1364 (Fed.
`Cir. 2014) is inapposite because there “the specification failed to inform a person of
`skilled in the art the scope [of the] invention with reasonably certainty.” Opp. at 12:13-
`22. Here, the word “small” is “entirely subjective” and indeed, after Dr. Cole’s trial
`epiphany, has nothing to do with size! Moreover, that case could not be clearer: “[t]he
`claims, when read in light of the specification and the prosecution history, must provide
`objective boundaries for those of skill in the art.” 766 F.3d at 1371 (emphasis added);
`see also In re Walter, 698 F. App’x 1022, 1026 (Fed. Cir. 2017).
`Cases supporting ESET’s position abound, as to which Finjan has no answer.
`Halliburton Energy Servs., Inc. v. M-I LLC, 514 F.3d 1244, 1251 (Fed. Cir. 2008)
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`(“Even if a claim term’s definition can be reduced to words, the claim is still indefinite if
`a person of ordinary skill in the art cannot translate the definition into meaningfully
`precise claim scope.” (emphasis added)); see also Datamize, LLC v. Plumtree Software,
`Inc., 417 F.3d 1342, 1350 (Fed. Cir. 2005) (“The scope of claim language cannot
`depend solely on the unrestrained, subjective opinion ...” (emphasis added)); Abdou v.
`Alphatec Spine, Inc., No. 12-CV-1804 BEN (RBB), 2014 U.S. Dist. LEXIS 163044, at
`*26-27 (S.D. Cal. Nov. 19, 2014) (claim term indefinite, “lack of clarity in these claims
`leave the next inventor in the ‘zone of uncertainty,’ not knowing what is claimed and
`what is still open.”); Core Wireless Licensing S.A.R.L. v. Apple Inc., No. 15-cv-05008-
`PSG, 2016 U.S. Dist. LEXIS 72935, at *35-36 (N.D. Cal. June 3, 2016) (qualifier
`“substantially” indefinite where the specification left a “zone of uncertainty”); Dow
`Chem. Co. v. Nova Chems. Corp. (Can.), 803 F.3d 620, 635 (Fed. Cir. 2015) (claim term
`indefinite if it “leave[s] the skilled artisan to consult the ‘unpredictable vagaries of any
`one person’s opinion’”); Input/Output, Inc. v. Sercel, Inc., No. 5:06-CV-236, 2008 U.S.
`Dist. LEXIS 124418, at *71 (E.D. Tex. Apr. 28, 2008) (“small positive difference”
`indefinite “because the amount of ‘smallness’ is subjective” when no standard of
`measurement provided in patent); Innovative Display Techs. LLC v. Acer Inc., No. 2:13-
`CV-522-JRG, 2014 U.S. Dist. LEXIS 118422, at *74 (E.D. Tex. Aug. 26, 2014) (finding
`indefinite “a pattern of deformities on … sheet or film having a width and length that is
`quite small in relation to the width and length of the sheet or film” because no
`“indication of the significance of the term ‘quite small’.”).
`5.
`Construction of the Term Downloadable Is Not a Fact Issue.
`Finjan’s Opposition fails to raise a genuine issue of material fact. Neither PPG
`nor Acumed support Finjan’s contention that this Court should let the jury resolve the
`insolvably ambiguous language embedded in the term Downloadable. As demonstrated
`in the briefing on ESET’s motion, there is no objective upper bound to the term “small.”
`This Court should grant summary judgment of invalidity for indefiniteness of the
`term “Downloadable” in all of Finjan’s asserted patents.
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`Case 3:17-cv-00183-CAB-BGS Document 816 Filed 09/25/20 PageID.39863 Page 12 of 12
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`Dated: September 25, 2020
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`Respectfully submitted,
`EVERSHEDS SUTHERLAND (US) LLP
`
`
`
`
`/s/ Nicola A. Pisano
`NICOLA A. PISANO, CA Bar No. 151282
` NicolaPisano@eversheds-sutherland.com
`JOSE L. PATIÑO, CA Bar No. 149568
`
`JosePatino@eversheds-sutherland.com
`JUSTIN E. GRAY, CA Bar No. 282452
`
`JustinGray@eversheds-sutherland.com
`SCOTT A. PENNER, CA Bar No. 253716
` ScottPenner@eversheds-sutherland.com
`12255 EL CAMINO REAL, SUITE 100
`SAN DIEGO, CALIFORNIA 92130
`TELEPHONE:
`858.252.6502
`FACSIMILE:
`858.252.6503
`Attorneys for Defendants and Counter-Plaintiffs
`ESET, LLC and ESET, SPOL. S.R.O.
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