Case 3:17-cv-00183-CAB-BGS Document 194 Filed 11/09/17 PageID.9040 Page 1 of 28
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`NICOLA A. PISANO, CA Bar No. 151282
` npisano@foley.com
`JOSE L. PATIÑO, CA Bar No. 149568
`
`jpatino@foley.com
`JUSTIN E. GRAY, CA Bar No. 282452
`
`jegray@foley.com
`SCOTT A. PENNER, CA Bar No. 253716
`
`spenner@foley.com
`FOLEY & LARDNER LLP
`3579 VALLEY CENTRE DRIVE, SUITE 300
`SAN DIEGO, CALIFORNIA 92130
`TELEPHONE:
`858.847.6700
`FACSIMILE:
`858.792.6773
`Attorneys for Defendants and Counter-Plaintiffs
`ESET, LLC and ESET SPOL. S.R.O.
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF CALIFORNIA
`
`FINJAN, INC.,
`
`Plaintiff,
`
`v.
`ESET, LLC, et al.,
`Defendants.
`
`AND RELATED COUNTERCLAIMS.
`
`Case No. 3:17-cv-0183-CAB-BGS
`ESET, LLC AND ESET SPOL. S.R.O.’S
`OPPOSITION TO PLAINTIFF FINJAN,
`INC.’S MOTION FOR
`RECONSIDERATION OF
`PRELIMINARY CLAIM
`CONSTRUCTION ORDER
`
`Date:
`November 24, 2017
`Dept:
`4C
`Judge: Hon. Cathy Ann Bencivengo
`PER CHAMBERS RULES, NO ORAL
`ARGUMENT UNLESS ORDERED BY
`THE COURT
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`TABLE OF CONTENTS
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`I.
`II.
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`INTRODUCTION .................................................................................................. 1
`FACTUAL BACKGROUND ................................................................................. 1
`A.
` All of Finjan’s Purported “New” Evidence Is Old.. .................................... 2
`Finjan’s Purported Factual Background ....................................................... 3
`B.
`
`III. ARGUMENT .......................................................................................................... 4
`A.
`Finjan Offers No New Evidence That Supports Reconsideration. .............. 4
`The Six Decisions Finjan Relies on Are Not Binding on this Court and
`B.
`Are Irrelevant to Construing the Term. ........................................................ 7
`Symantec Claim Construction ......................................................... 8
`1.
`Proofpoint Summary Judgement Decision ..................................... 9
`2.
`Sophos Summary Judgment Decision ........................................... 10
`3.
`Sophos Post Trial Briefing ............................................................ 11
`4.
`Blue Coat Claim Construction ...................................................... 11
`5.
`Blue Coat Motions ........................................................................ 13
`6.
`The Language of Claims 1 and 15 in the Context of the Specification
`Supports this Court’s Construction. ........................................................... 14
`1.
`The Claim Language Is Anything But Plain; This
`Court’s Construction Prevents the Use of “Plain and
`Ordinary” Meaning as a “Nose of Wax.” ...................................... 14
`The Specification Fully Supports the Court’s
`Construction. ................................................................................. 16
`The Court’s Construction Is Fully Consistent with the
`Purpose of the Invention. .............................................................. 20
`The File History Supports this Court’s Construction.................... 20
`4.
`Construction of this Term Is Not a Factual Issue. ......................... 23
`5.
`IV. CONCLUSION ..................................................................................................... 23
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`C.
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`3.
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`TABLE OF AUTHORITIES
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` Page(s)
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`Federal Cases
`Chef Am., Inc. v. Lamb-Weston, Inc.,
`358 F.3d 1371 (Fed. Cir. 2004) ................................................................................. 20
`
`Finjan, Inc. v. Blue Coat Sys., Inc.,
`Case No. 13-cv-03999-BLF, 2014 WL 5361976 (N.D. Cal. Oct. 20,
`2014) ................................................................................................................... passim
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`Finjan, Inc. v. Proofpoint, Inc.,
`Case No. 13-cv-05808-HSC, D.I. 347 (N.D. Cal. Apr. 12, 2016) ..................... passim
`
`Finjan, Inc. v. Symantec Corp.,
`Case No. 14-cv-029980-HSG, D.I. 170 (N.D. Cal. Feb. 10, 2017) .............. 2, 5, 8, 16
`
`O2 Micro Int’l Ltd. v. Beyond Innovation Tech. Co.,
`521 F.3d 1351 (Fed. Cir. 2008) ........................................................................... 14, 16
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`Southwall Techs., Inc. v. Cardinal IG Co.,
`54 F.3d 1570 (Fed. Cir. 1995) ..................................................................................... 4
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`I.
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`INTRODUCTION
`Finjan’s Motion for Reconsideration misstates the facts and the law, while inviting
`the Court to consider irrelevant information from other cases and against other
`defendants, none of which resulted in appellate review of the contested construction.
`Equally important, Finjan identifies no “new or different facts and circumstances …
`which did not exist, or were not shown, upon such prior application.” Instead, all of the
`information Finjan now cites in support of its construction was available to Finjan at the
`time of the initial briefing and Markman hearing.
`Moreover, Finjan is wrong on the merits. This Court’s preliminary construction is
`not, as Finjan contends, a “new” construction: it closely aligns with ESET’s original
`proposal, which Finjan had ample opportunity to brief and argue at the Markman
`hearing. Finjan’s claim that this Court’s construction would depart from the
`“uniformity” of “six other decisions” is specious: other courts have construed the
`disputed term in multiple ways, with at least one court expressly rejecting “plain and
`ordinary” meaning. Thus, even if “uniformity” were required—and Finjan cites no case
`law in support of that contention—the former cases are themselves inconsistent, and
`provide no basis for amending this Court’s construction. This Court’s construction is
`well supported by the intrinsic record and the claim language. Indeed, many of Finjan’s
`arguments for reconsideration here were flatly rejected by other Courts. Not only does
`Finjan fail to cite any case law that would support a rule effectively depriving a later
`litigant from having its arguments considered, but Finjan fails to note that at least one
`other court expressly endorsed this Court’s view of the intrinsic record.
`Finjan’s motion should be denied as procedurally improper and meritless.
`FACTUAL BACKGROUND
`All of the “evidence” that Finjan relies on in support of its Motion for
`Reconsideration was well-known to Finjan at the time of the claim construction briefing,
`although never produced to ESET. As explained below, much of that information from
`other cases, against other defendants, actually supports ESET’s positions and this
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`II.
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`Court’s construction. Finjan’s election to hold that information in “reserve” does not
`justify a second bite at the apple.
` All of Finjan’s Purported “New” Evidence Is Old.
`A.
`Finjan’s Motion for Reconsideration relies on six decisions of other courts
`purportedly relating to the construction of the term at issue in this Motion. D.I. 188
`(“Motion” or “Mot.”) at § III.A, pp. 7-14. All six of those decisions predate the first
`case management conference in this case, the Joint Claim Construction Chart (“JCCC”)
`filing, and the Markman hearing.
`During the initial case management conference on March 20, 2017, the Court told
`Finjan: “any of the claims that are currently being asserted if they have been construed
`to any extent, I would like see those.” Declaration of Scott A. Penner in Support of
`ESET’s Opposition to Finjan’s Motion for Reconsideration (“Penner Decl.”) Ex. 1 at
`55:2-5 (emphasis added). In response on April 4, 2017, Finjan lodged nine different
`decisions with the Court. Those decisions did not include the Proofpoint summary
`judgment decision, the Sophos summary judgment decision, the Sophos post trial
`decision, or the Blue Coat trial and post-trial decisions, which Finjan now claims are
`relevant to this Court’s claim construction.
`On June 12, 2017, the parties filed JCCC pursuant to Patent Local Rule 4.2(b). As
`part of the JCCC, the parties were required to identify all “extrinsic evidence known to
`the party on which it intends to rely either to support its proposed construction of the
`claim or to oppose any party’s proposed construction of the claim.” Of the six decisions,
`Finjan only cited the Symantec claim construction decision in the JCCC for this term.
`D.I. 136-2 at 4-6. Finjan also relied on the Symantec decision in its opening claim
`construction brief for this term. D.I. 139 at 9. At the time of the JCCC, Finjan did not
`identify any of the other five decisions as being relevant to the term that is the subject of
`the present motion. Finjan did cite the Proofpoint claim construction decision and the
`Blue Coat claim construction decision as relevant to a different term in the JCCC. D.I.
`136-2 at 2 (for the term Downloadable in the same patent).
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`Finjan’s Purported Factual Background
`B.
`Despite Finjan’s best efforts to obfuscate, there was no uncertainty regarding
`either ESET’s position on, or the Court’s understanding of, the meaning of the phrase
`“before a web server makes the Downloadable available to web clients.” Mot. at 3.
`ESET’s position has always been that linking of the Downloadable security profile to the
`Downloadable must occur before the file is made available on the web server, which
`plainly happens before the file is called up or forwarded to a web client. Contrary to
`Finjan’s citations to the transcript, there was no confusion. Finjan’s citation substitutes
`an ellipsis for the second half of the Court’s comment. Mot. at 3. But read in full, the
`Court perfectly understood ESET’s argument: “I don’t understand what it is we’re
`fighting about here. It’s the plain language of the claim it has to be before it’s made
`available to the client.” D.I. 188-16 (“Tr. Vol. I”) at 76:24-77:3 (emphasized portion
`omitted from Finjan’s brief).
`Next, Finjan erroneously states that ESET “abandoned” the “deployment”
`language. Mot. at 3. ESET did not. Instead ESET adopted the Court’s preferred
`language, which requires that the linking happen “before the Downloadable is available
`on a web server to be called up or forwarded to the web client.” Consistent with the
`Court’s construction, a Downloadable cannot be “called up or forwarded to the web
`client” if it has not yet been deployed to the web server.
`Finally, Finjan mischaracterizes ESET’s statements as adopting a “different
`construction—i.e., that the linking of the security profile to the Downloadable must be
`done and then made available to the web server (as opposed to made available to the
`web client as written in the claim.)” Id. That was not ESET’s argument, and again
`Finjan misstates the record by omitting critical words. For example, Finjan uses an
`ellipsis to argue that ESET’s counsel said the exact opposite of he actually said: “it
`doesn’t have to be at the web server.” Tr. Vol. I at 114:18-19. Finjan also left out
`counsel’s response to the Court’s question on this very matter by explaining that the
`linking could be done by the web server itself and concluding that “the linking has to be
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`done before the thing is available at that web server for Downloadable web clients.” Id.
`at 116:5-7. ESET did not adopt or argue a “different” construction than ultimately
`adopted by the Court; the contention otherwise in Finjan’s brief are flatly incorrect.
`III. ARGUMENT
`Finjan’s “plain and ordinary meaning” has no meaning, precisely so that Finjan
`can use that claim language as a “nose of wax” – and its expert can tell the jury the claim
`means the exact opposite of what the claim says. See Southwall Techs., Inc. v. Cardinal
`IG Co., 54 F.3d 1570, 1578 (Fed. Cir. 1995) (“A patentee may not proffer an
`interpretation for the purpose of litigation that would alter the indisputable public record
`consisting of the claims, the specification and the prosecution history, and treat the
`claims as a ‘nose of wax.’”). This was made plain at the Markman hearing, where it
`became clear that Finjan’s plain and ordinary meaning is the exact opposite of the what
`the claim says. See, e.g., Tr. Vol. I at 124:6-8 (“I was just going to say, you inspect the
`content after you receive it from the web server.” (emphasis added).) If, as Finjan
`argues, the inspection can happen “after you receive it from the webserver” then it
`cannot be the case that the “linking” occurs “before a web server makes the
`Downloadable available” as required by claim 1.
`This Court’s construction properly applies the rules of construction, accurately
`accounts for the intrinsic record, and construes the term consistent with the claim
`language and prosecution history. Finjan’s motion for reconsideration should be denied
`on the merits. But Finjan’s motion also should be denied as procedurally improper for
`failing to meet the standard of a motion for reconsideration.
`
`Finjan Offers No New Evidence That Supports Reconsideration.
`A.
`Under Local Rule 7.1(i), an application for reconsideration must be accompanied
`by a “certified statement of an attorney setting forth the material facts and circumstances
`surrounding each prior application, including inter alia: … (3) what new or different
`facts and circumstances are claimed to exists which did not exist, or where not shown,
`upon such prior application.” Finjan does not identify any “new or different facts and
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`circumstances.”
`Finjan submits as “new” evidence (1) six other decisions; (2) clarification
`regarding the ’844 patent; (3) a restatement of Finjan’s reasoning why prosecution
`history estoppel is inapplicable and (4) why the disputed claim construction is a factual
`dispute. Mot. at 6-7. None of this is new and all of the issues already were considered
`by the Court.
`First, each of the six opinions Finjan now relies upon were known to Finjan well
`before the claim construction briefing and hearing in this matter. In fact, Finjan cited the
`Symantec decision in both the JCCC and its claim construction briefing. D.I. 136-2 at 5;
`D.I. 139 at 9. Finjan spends two full pages of its Motion for Reconsideration rearguing
`that same decision, which it had already briefed. The most recent of the decisions that
`Finjan relies on dates from March 14, 2017: six days before the CMC in this case; a
`month before Finjan submitted all of its decisions that “to any extent” related to claim
`construction; nearly three months before the JCCC was filed; nearly five months from
`opening claim construction briefs; and over six months from the Markman hearing in
`this case.
`Finjan’s reliance on the specification and file history also clearly is not “new.”
`Finjan does not explain why it could not have raised these materials earlier. At the
`Markman hearing, Finjan expressly raised the previous Northern District decisions,
`which take up another four and half pages of Finjan’s brief. Compare Mot. at 10-14
`with D.I. 188-16 (“Tr. Vol. II”) at 5:7-6:1. In particular, Finjan argued “I have another
`trial in front of Judge Freeman coming up at the end of October in which she has
`construed this contrary to what your Honor is construing now. I have a trial in front of
`Judge Gilliam in April, that he has also construed contrary to your Honor.” D.I. 188-16
`at 5:17-21. Thus, to the extent that the ’844 patent was before other district courts, that
`issue already was considered by this Court.
`Further, Finjan’s effort to introduce “new evidence” in the form of additional
`court decisions and intrinsic evidence ignores the Patent Local Rules. Finjan was
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`required to disclose all of the extrinsic evidence it intended to rely upon in the JCCC.
`That Finjan elected not to include five of the six opinions in that chart (despite raising
`them at the Markman hearing), should not provide Finjan a basis to now introduce those
`materials as “new evidence” in a motion for reconsideration. Such conduct would
`encourage parties to intentionally leave information out of the JCCC, only to raise it as
`“new evidence” if the Court issued an unfavorable claim construction. To avoid this
`iterative and incremental approach, this Court specifically asked Finjan to lodge any
`prior constructions, “to any extent,” relating to the terms. Penner Decl. Ex. 1 at 55:2-5:1
`(emphasis added). Finjan’s obviously did not believe that the Proofpoint summary
`judgment decision, Sophos summary judgment decision, Sophos post-trial decision, or
`Blue Coat trial and post-trial decisions related to any extent to the constructions of the
`terms here because they were not lodged with the Court back in April. Finjan should not
`now be permitted to circumvent the rules, and waste this Court’s and defendants’
`resources by arguing that those very decisions are now material when they were not
`previously provided to the Court.
`Finjan’s “clarification” regarding the ’844 patent also is not new. All of the
`“new” information comes from the specification, which Finjan cannot credibly claim is
`“new.” Moreover, every citation to the ’844 patent specification in Finjan’s Motion was
`already included in either the JCCC or Finjan’s opening claim construction brief for this
`term. Compare Mot. at 15-18 with D.I. 136-2 at 4 and D.I. 139. In denying ESET’s
`motion to strike Finjan’s reliance on some of that same evidence as not included in the
`JCCC, the Court acknowledged having already considered that material. Compare Mot.
`at 16 (relying on 5:14-33) and 17 (relying on 7:40-8:6) with Motion to Strike, D.I. 148 at
`6 (seeking to strike reliance on 5:14-19, 5:28-33, 7:40-42, 7:67:8-2).
`Finjan’s argument that prosecution history estoppel does not apply also is not
`new. The parties argued extensively at the Markman hearing about whether prosecution
`history estoppel should be applied to this term in view of the applicant’s characterization
`of the Ji reference. See, e.g., Tr. Vol. I at 93:13-128:25. The Court fully considered
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`those arguments, conducted its own independent analysis of the claims (even after
`counsel explained other courts had considered the same question), and explained exactly
`why prosecution history estoppel did apply. Tr. Vol. II at 6:2-22. The Court
`acknowledged that other courts may have ruled differently, but that this Court’s
`independent evaluation controlled. Id. at 6:19-22 (“And so that’s one of the fun things
`about being a district judge, I can listen to what other district judges have to say, but I
`don’t have to follow it.”).
`Finally, Finjan’s argument that interpretation of the claim term here raises a
`factual issue for the jury’s determination is not new. Finjan made that very argument at
`the Markman hearing. Tr. Vol. I at 153:11-15 (“And this is a factual issue that -- I don’t
`think it’s a claim construction issue. There’s nothing in the claim language that needs to
`be interpreted in such a way that whether or not -- you know, how one reads it, how one
`of skill in the art would read this is a factual issue.”). This Court has already addressed
`that argument. Id. at 154:2-9 (“No. What I’m trying to decide here is not a factual
`question for the jury. It’s the construction of what makes the download available to the
`web client means … whether that means putting up the web page after it’s done its
`inspection or the inspection has been done and it’s received it, or whether that means
`that it’s passed through all those other protections before a client can actually access
`it.”).
`
`In short, nothing that Finjan raises is new. Its request is therefore procedurally
`improper and should be denied. But, as discussed below, Finjan’s arguments fail on the
`merits as well.
`
`The Six Decisions Finjan Relies on Are Not Binding on this Court and
`B.
`Are Irrelevant to Construing the Term.
`There is no dispute that decisions by other district courts are not binding on this
`Court; Finjan acknowledged as much at the Markman hearing. Tr. Vol. II at 6:23-24
`(counsel for Finjan stating “I’m not saying there is anything binding from those other
`district court judges.”). Thus, other court’s decisions not to construe the term, or to
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`construe it differently (as requested by other defendants), does not negate this Court’s
`reasoned construction of the term. Finjan’s new-found desire for uniformity does not
`countenance adopting an erroneous or
`less well-reasoned claim construction.
`Uniformity is assured by the Federal Circuit, and no construction of the term in dispute
`here was the subject of an appellate decision. This Court specifically noted that it would
`consider other courts’ decisions, but that its construction would be the result of its own
`independent evaluation. Nonetheless, none of the decisions Finjan relies on suggests
`any basis for revising this Court’s construction.
`1.
`Symantec Claim Construction
`As discussed above, the relevance of the Symantec claim construction order was
`already briefed by Finjan and discussed during the Markman hearing. See Tr. Vol. I at
`86: 9-15 (“And we have had this exact same argument brought before both Judge
`Freeman, which you've read her order, and also Judge Gilliam up in the Northern
`District. And the deployment language that ESET is now using.”). There is nothing new
`in Finjan’s motion relating to the Symantec decision.
`Moreover, Symantec is inapplicable because ESET raised different arguments than
`Symantec and provided this Court a more complete record on which to make its
`determination. Judge Gilliam specifically declined “to take a long and convoluted
`journey not only through the ’844 patent, but through several years of litigation
`maneuvering in other cases involving that patent.” Finjan, Inc. v. Symantec Corp., Case
`No. 14-cv-029980-HSG, Claim Construction Order (D.I. 170) at 24:27-25:1 (N.D. Cal.
`Feb. 10, 2017). Thus, Judge Gilliam adopted an unspecified “plain and ordinary”
`meaning “[i]n the interest of getting the parties as prompt an answer as possible and
`moving this litigation toward resolution.” Id. In so doing, the court tacitly
`acknowledged its construction was more for convenience than based upon a deep dive
`into the patent and prior litigation. While Judge Gilliam reject the “deployment”
`language, this Court’s construction likewise does not use that language. This Court
`appears to have spent considerably more time weighing the arguments and arriving at its
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`claim construction. Finjan provides no reason or legal basis why this Court to substitute
`Judge Gilliam’s determination for its own reasoned analysis.
`2.
`Proofpoint Summary Judgement Decision
`Judge Gilliam’s opinion does not consider or even mention the construction of the
`term that is the subject of Finjan’s motion. Rather, as Finjan acknowledges, the term in
`dispute here was expressly not construed by Judge Gilliam during claim construction.
`Mot. at 10. Rather, in the Proofpoint summary judgment motion the court was asked to
`consider the meaning of the term “web client” – which is not at issue here. Oddly,
`Finjan’s Motion relies on Proofpoint’s Opposition to Finjan’s summary judgment
`motion.1 Moreover, Judge Gilliam’s denial of Proofpoint’s motion for summary
`judgment of non-infringement was due to “factual” issues, which has no bearing on the
`construction adopted by this Court, particularly because the term at issue here was never
`construed by Judge Gilliam. The entire text of Judge Gilliam’s analysis on that issue is
`as follows:
`
`Defendants argue that Proofpoint does not infringe this claim
`limitation because the “linking” alleged is not done “before a
`web server makes the Downloadable available to web clients,”
`Dkt. No. 323 at 8-12. On the other hand, Plaintiff contends that
`[redacted text] Dkt. No. 310, Ex. 39. The parties further
`dispute the limitation’s reference to “web clients”— [redacted
`text] Dkt. No. 323 at 11; see Dkt. No. 329 at 4 [redacted text].
`Additionally, the parties dispute when the downloadable
`becomes “available.” Compare Dkt. No. 323 at 11-12 [redacted
`
`
`1 Unless this Court wishes to delve into the details of that case to understand why Judge
`Gilliam denied Finjan’s motion, Proofpoint’s briefing relating to its own products has no
`relevance to this Court’s claim construction.
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`text], with Dkt. No. 310 at 17 [redacted text]. These are factual
`questions of infringement that a finder of fact must resolve.
`Finjan, Inc. v. Proofpoint, Inc., Case No. 13-cv-05808-HSC, Order Granting in Part and
`Denying in Part Motions for Summary Judgment (D.I. 347) at 3:19-4:4 (N.D. Cal. Apr.
`12, 2016) (redactions in published opinion). Instead, nothing in this “analysis” provides
`any basis for this Court to revisit, much less modify its claim construction.
`ESET has no idea why Proofpoint did not seek a construction of the term at issue
`here. Perhaps, as suggested by the above-quoted language from the Proofpoint decision,
`construction would not have affected the outcome. The fact that neither party sought
`construction is not the same as a court construing a disputed term as having its “plain
`and ordinary” meaning. In light of Judge Gilliam’s decision, quoted above, it is
`nonsensical for Finjan to argue that Judge Gilliam “rejected” this Court’s reasoning. See
`Mot. at 10:2-5.
`3.
`Sophos Summary Judgment Decision
`As in the Proofpoint matter, neither party sought construction of this term in the
`Sophos matter. Mot. at 11:2-6. Accordingly there is no applicable claim construction
`from Judge Orrick that this Court need consider in the context of this Motion. Again in
`a summary judgment context, Judge Orrick decided to follow Judge Gilliam’s lead:
`Judge Orrick was not asked to perform, and did not perform, any claim construction
`analysis with respect to this term. Instead, based on the “plain and ordinary” meaning
`(since neither party asked for a construction), the Court determined that factual issues
`existed that precluded summary judgment. Such a conclusion says nothing about
`whether “plain and ordinary” meaning was the right construction. Finjan again
`overreaches when it says “Judge Orrick … considered this claim term and rejected the
`same reasoning in support for this Court’s construction.” See Mot. at 10:27-11:2. It is
`clear that Judge Orrick neither considered the term, nor rejected the ESET’s or this
`Court’s reasoning. The Sophos summary judgment decision provides no basis for this
`Court to revisit, much less modify, its claim construction.
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`4.
`Sophos Post Trial Briefing
`The Sophos post trial briefing sheds no greater light on any issue of interest here.
`Judge Orrick rested his determination on the term “web client,” which had nothing to do
`with the term “before a web server makes the Downloadable available to web clients.”
`The court was not being asked to construe a claim, but to determine whether, absent any
`claim construction for the term, there was substantial evidence to support the jury’s
`determination. Accordingly, the court did not pass on the question of how the term at
`issue here should be construed, but whether the jury had sufficient evidence to find
`infringement of a completely different term: “web client.” The Sophos post trial
`decision also provides no basis for this Court to revisit, much less modify, its claim
`construction.
`5.
`Blue Coat Claim Construction
`Judge Freeman, in the Blue Coat claim construction order, expressly found that
`the term should not be given its plain and ordinary meaning, but instead adopted a
`modified form of the construction proposed by the defendant in that case. Thus,
`contrary to Finjan’s demand for “uniformity,” even within the Northern District of
`California, different constructions have been accorded for the same term. It is not the
`case, as Finjan contends, that every court has found the term should be construed
`according to its “plain and ordinary” meaning.
`Finjan is also incorrect when it argues that the Judge Freeman “rejected the same
`reasoning provided in support for this Court’s construction of the term.” Mot. at 12:16-
`18. Instead, Judge Freeman found that “[t]he intrinsic evidence [including the estoppel
`over Ji] favors Blue Coat’s construction.” See Finjan, Inc. v. Blue Coat Sys., Inc., Case
`No. 13-cv-03999-BLF, 2014 WL 5361976 at *10 (N.D. Cal. Oct. 20, 2014). The court
`reasoned:
`
`As identified by Blue Coat, Figure 1 of the ’844 Patent shows a
`web server as a distinct entity from the network gateway.
`Def.’s Br. 10; see also ’844 Patent col. 5:12–13. Although the
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`specification specifically indicates that the developer 120,
`inspector 125, and web server 185 can be configured in any
`number of ways, the network gateway 110 is not mentioned in
`these alternative site combinations. ’844 Patent col. 3:47–52.
`The claim language furthermore makes a clear distinction
`between network gateway and web server, as illustrated, for
`example, in Claim 22, wherein the network gateway receives a
`Downloadable with a linked DSP, the linking having occurred
`before the web server makes the Downloadable available to the
`web client. Id. cl. 22. There are no disclosures or claims where
`the network gateway and the web server are one and the same.
`
`The patentee’s statements in prosecution only serve to reinforce
`that conclusion. See Def.’s Br. 10 (quoting Kim Decl. Exh. D
`at 5). One of the primary thrusts of the patentee’s argument of
`Ji is clearly that Ji “teaches a method performed on a network
`gateway” and “the burden of examining a Downloadable for the
`suspicious code is always on the network gateway.” Kim Decl.
`Exh. D at 5. By contrast, the patented invention includes an
`inspector that “generat[es] and link[s] a Downloadable security
`profile to a Downloadable before a web server makes the
`Down