UNITED STATES PATENT AND TRADEMARK OFFICE
`
`__________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`___________________
`
`PALO ALTO NETWORKS, INC.,
`Petitioner,
`
`
`v.
`
`FINJAN, INC.,
`Patent Owner.
`____________________
`
`Case IPR2015-019741
`U.S. Patent No. 7,647,633
`
`__________________________________________________________
`
`PATENT OWNER’S OBJECTIONS TO EVIDENCE IN PETITIONER’S
`REPLY UNDER 37 C.F.R. § 42.64
`
`
`1 Case IPR2016-00480 has been joined with this proceeding.
`
`
`
`__________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`___________________
`
`PALO ALTO NETWORKS, INC.,
`Petitioner,
`
`
`v.
`
`FINJAN, INC.,
`Patent Owner.
`____________________
`
`Case IPR2015-019741
`U.S. Patent No. 7,647,633
`
`__________________________________________________________
`
`PATENT OWNER’S OBJECTIONS TO EVIDENCE IN PETITIONER’S
`REPLY UNDER 37 C.F.R. § 42.64
`
`
`1 Case IPR2016-00480 has been joined with this proceeding.
`
`
`
`Patent Owner’s Objections to Evidence
`IPR2015-01974 (U.S. Patent No. 7,647,633)
`
`Patent Owner Finjan, Inc. (“Patent Owner”) objects under the Federal Rules
`
`
`
`
`of Evidence and 37 C.F.R. § 42.64(b)(1) to the admissibility of the following
`
`documents submitted by Palo Alto Networks, Inc. and Blue Coat Systems, Inc.
`
`(“Petitioner”) in its Reply to Patent Owner’s Response (“Reply”). Paper No. 31.
`
`
`
`Petitioner’s Reply was filed on November 3, 2016. Patent Owner’s
`
`objections are timely under 37 C.F.R. § 42.64(b)(1). Patent Owner serves
`
`Petitioner with these objections to provide notice that Patent Owner will move to
`
`exclude these exhibits as improper evidence.
`
`I.
`
`PETITIONER’S EVIDENCE
`A. Declaration of Nenad Medvidovic in Support of Plaintiff Finjan,
`Inc.’s Opening Claim Construction Brief, in Finjan, Inc. v. Blue
`Coat Sys., Inc., Case No. 5:13-cv-03999-BLF (June 16, 2014), ECF
`65-1 (“Medvidovic Declaration”) (Exhibit 1099)
`
`Patent Owner objects to the admissibility of the Medvidovic Declaration for
`
`at least the following reasons:
`
`Patent Owner objects to the Medvidovic Declaration as not relevant under
`
`FRE 401 and FRE 402 because it exceeds the proper scope of Petitioner’s Reply.
`
`See 37 C.F.R. § 42.23(b). Patent Owner further objects to the Medvidovic
`
`Declaration under FRE 403 because of the prejudice arising from Patent Owner’s
`
`inability to respond to the untimely evidence and arguments therein.
`
`Patent Owner objects to the Medvidovic Declaration as untimely because it
`
`should have been introduced in its Petition. See 37 C.F.R. § 42.104(b); 37 C.F.R. §
`
`1
`
`
`
`Patent Owner’s Objections to Evidence
`IPR2015-01974 (U.S. Patent No. 7,647,633)
`
`42.23(b). Patent Owner objects to the Medvidovic Declaration because it is
`
`supplemental information that is improper and untimely under 37 C.F.R. § 42.123.
`
`Patent Owner also objects because the Medvidovic Declaration is not
`
`relevant. For example, the claim construction discussed in the Medvidovic
`
`Declaration was not adopted by the court.
`
`Petitioner has failed to authenticate the Medvidovic Declaration under FRE
`
`901 and FRE 602. Specifically, Petitioner has failed to establish that the
`
`Medvidovic Declaration is what Petitioner claims it to be.
`
`Patent Owner objects to the portions of the Medvidovic Declaration that
`
`Petitioner does not cite to or rely on in its Reply. Accordingly, such evidence is
`
`not relevant under FRE 401 and is inadmissible under FRE 402. Any attempt by
`
`Petitioner to rely on these portions would be highly prejudicial to Patent Owner
`
`under FRE 403.
`
`Patent Owner also objects because the Medvidovic Declaration is hearsay
`
`under FRE 801 and inadmissible under FRE 802 and FRE 803.
`
`Accordingly, for at least the foregoing reasons, the Medvidovic Declaration
`
`is not relevant under FRE 401 and inadmissible under FRE 402. Moreover, the
`
`Medvidovic Declaration is confusing, of minimal probative value, outweighed by
`
`prejudice, and/or a waste of time and is therefore inadmissible under FRE 403.
`
`
`
`2
`
`
`
`Patent Owner’s Objections to Evidence
`IPR2015-01974 (U.S. Patent No. 7,647,633)
`
`B. Redacted Deposition Transcript of Nenad Medvidovic, Ph.D.,
`Finjan, Inc. v. Blue Coat Sys., Inc., Case No. 13-cv-03999-BLF
`(May 23, 2014) (“Blue Coat Transcript”) (Exhibit 1100)
`
`In addition to the objections noted above, Patent Owner objects to the
`
`admissibility of the Blue Coat Transcript for at least the following reasons:
`
`Patent Owner objects to the Blue Coat Transcript as not relevant under FRE
`
`401 and FRE 402 because it exceeds the proper scope of Petitioner’s Reply. See
`
`37 C.F.R. § 42.23(b). Patent Owner further objects to the Blue Coat Transcript
`
`under FRE 403 because of the prejudice arising from Patent Owner’s inability to
`
`respond to the untimely evidence and arguments therein.
`
`Patent Owner objects to the Blue Coat Transcript as untimely because it
`
`should have been introduced in its Petition. See 37 C.F.R. § 42.104(b); 37 C.F.R. §
`
`42.23(b). Patent Owner objects to the Blue Coat Transcript because it is
`
`supplemental information that is improper and untimely under 37 C.F.R. § 42.123.
`
`Petitioner has failed to authenticate the Blue Coat Transcript under FRE 901
`
`and FRE 602. Specifically, Petitioner has failed to establish that the Blue Coat
`
`Transcript is what Petitioner claims it is, and has failed to authenticate the Blue
`
`Coat Transcript.
`
`Patent Owner objects to the Blue Coat Transcript as not relevant under FRE
`
`401 and FRE 402 because the Blue Coat Transcript is outside the scope of this
`
`
`
`3
`
`
`
`Patent Owner’s Objections to Evidence
`IPR2015-01974 (U.S. Patent No. 7,647,633)
`
`proceeding. Specifically, the Blue Coat Transcript is from a different proceeding
`
`and discusses terms in a different context.
`
`Because of these deficiencies, the Blue Coat Transcript is not relevant under
`
`FRE 401 and is inadmissible under FRE 402 and FRE 403.
`
`C. Webpage: Finjan Software Press Release, Wayback Machine
`(“Press Release”) (Exhibit 1101)
`
`Patent Owner objects to the admissibility of the Press Release for at least the
`
`following reasons:
`
`Patent Owner objects to the Press Release as not relevant under FRE 401
`
`and FRE 402 because it exceeds the proper scope of Petitioner’s Reply. See 37
`
`C.F.R. § 42.23(b). Patent Owner further objects to the Press Release under FRE
`
`403 because of the prejudice arising from Patent Owner’s inability to respond to
`
`the untimely evidence and arguments therein.
`
`Patent Owner objects to the Press Release as untimely because it should
`
`have been introduced in its Petition. See 37 C.F.R. § 42.104(b); 37 C.F.R. §
`
`42.23(b). Patent Owner objects to the Press Release because it is supplemental
`
`information that is improper and untimely under 37 C.F.R. § 42.123.
`
`Petitioner has failed to authenticate the Press Release under FRE 901 and
`
`FRE 602. Specifically, Petitioner has failed to establish that the Press Release is
`
`what Petitioner claims it is, and has failed to authenticate the Press Release.
`
`
`
`4
`
`
`
`Patent Owner’s Objections to Evidence
`IPR2015-01974 (U.S. Patent No. 7,647,633)
`
`Because of these deficiencies, the Press Release is not relevant under FRE
`
`401 and is inadmissible under FRE 402 and FRE 403.
`
`D.
`
`Plaintiff Finjan, Inc.’s Opening Claim Construction Brief, Finjan,
`Inc. v. Websense, Inc., 13-cv-04398-BLF (September 23, 2014)
`(“Websense Brief”) (Exhibit 1035)
`
`In addition to the objections noted above, Patent Owner objects to the
`
`admissibility of the Websense Brief for at least the following reasons:
`
`Patent Owner objects to the Websense Brief as not relevant under FRE 401
`
`and FRE 402 because it exceeds the proper scope of Petitioner’s Reply. See 37
`
`C.F.R. § 42.23(b). Patent Owner further objects to the Websense Brief under FRE
`
`403 because of the prejudice arising from Patent Owner’s inability to respond to
`
`the untimely evidence and arguments therein.
`
`Patent Owner objects to the Websense Brief as untimely because it should
`
`have been introduced in its Petition. See 37 C.F.R. § 42.104(b); 37 C.F.R. §
`
`42.23(b). Patent Owner objects to the Websense Brief because it is supplemental
`
`information that is improper and untimely under 37 C.F.R. § 42.123.
`
`Patent Owner objects to the Websense Brief because Petitioner failed to cite
`
`to or rely on the Websense Brief in its Petition. Accordingly, such evidence is not
`
`relevant under FRE 401 and is inadmissible under FRE 402. Petitioner’s attempt
`
`to rely on the Websense Brief is highly prejudicial to Patent Owner under FRE
`
`403.
`
`
`
`5
`
`
`
`Patent Owner’s Objections to Evidence
`IPR2015-01974 (U.S. Patent No. 7,647,633)
`
`Petitioner has failed to authenticate the Websense Brief under FRE 901 and
`
`FRE 602. Specifically, Petitioner has failed to establish that the Websense Brief is
`
`what Petitioner claims it is, and has failed to authenticate the Websense Brief.
`
`Patent Owner objects to the Websense Brief as not relevant under FRE 401
`
`and FRE 402 because the Websense Brief is outside the scope of this proceeding.
`
`Specifically, the Websense Brief is from a different proceeding and discusses
`
`terms in a different context.
`
`Because of these deficiencies, the Websense Brief is not relevant under FRE
`
`401 and is inadmissible under FRE 402 and FRE 403.
`
`E. Objections to Exhibits Based on Relevance
`In addition to the objections noted above, Patent Owner objects to the
`
`admissibility of the following under FRE 401-403 because Petitioner never relied
`
`on these Exhibits in neither the Petition nor the Reply:
`
`Exhibits 1019, 1034, 1044, 1045, 1046, 1047, 1048, 1049, 1050, 1051, 1052,
`
`1053, 1054, 1055, 1056, 1057, 1058, 1059, 1060, 1061, 1062, 1063, 1064, 1065,
`
`1066, 1067, 1068, 1069, 1070, 1071, 1072, 1073, 1074, 1075, 1076, 1077, 1078,
`
`1079, 1080, 1081, 1083, 1084, 1085, 1086, and 1087.
`
`
`
`6
`
`
`
`
`
`
`
`
`
`Patent Owner’s Objections to Evidence
`IPR2015-01974 (U.S. Patent No. 7,647,633)
`
`Respectfully submitted,
`
`
`
`
`
`/James Hannah/
`
`James Hannah (Reg. No. 56,369)
`jhannah@kramerlevin.com
`Kramer Levin Naftalis & Frankel LLP
`990 Marsh Road
`Menlo Park, CA 94025
`Tel: 650.752.1700
`Fax: 650.752.1800
`
`Jeffrey H. Price (Reg. No. 69,141)
`jprice@kramerlevin.com
`Kramer Levin Naftalis & Frankel LLP
`1177 Avenue of the Americas
`New York, NY 10036
`Tel: 212.715.7502
`Fax: 212.715.8302
`
`Michael Kim (Reg. No. 40,450)
`mkim@finjan.com
`Finjan, Inc.
`2000 University Ave., Ste. 600
`E. Palo Alto, CA 94303
`Tel: 650.397.9567
`
`Attorneys for Patent Owner
`
`Dated: November 10, 2016
`
`Case No. IPR2015-01974
`
`
`
`7
`
`
`
`
`
`Patent Owner’s Objections to Evidence
`IPR2015-01974 (U.S. Patent No. 7,647,633)
`
`CERTIFICATE OF SERVICE
`
`Pursuant to 37 C.F.R. § 42.6(e), the undersigned certifies that a true and
`
`correct copy of the foregoing Patent Owner’s Objections to Evidence in
`
`Petitioner’s Reply Under 37 C.F.R. § 42.64 was served on November 10, 2016, by
`
`filing this document through the Patent Review Processing System as well as
`
`delivering via electronic mail upon the following counsel of record for Petitioner:
`
`8
`
`Orion Armon
`Brian Eutermoser
`COOLEY LLP
`380 Interlocken Crescent, Suite 900
`Broomfield, Colorado 80021
`oarmon@cooley.com
`beutermoser@cooley.com
`zpatdcdocketing@cooley.com
`
`
`Max Colice
`COOLEY LLP
`500 Boylston Street, 14th Floor
`Boston, Massachusetts 02116-3736
`mcolice@cooley.com
`zpatdcdocketing@cooley.com
`
`Jennifer Volk-Fortier
`COOLEY LLP
`One Freedom Square
`Reston Town Center
`11951 Freedom Drive
`Reston, Virginia 2019
`jvolkfortier@cooley.com
`zpatdcdocketing@cooley.com
`
`
`
`
`
`Patent Owner’s Objections to Evidence
`IPR2015-01974 (U.S. Patent No. 7,647,633)
`
`
`Michael T. Rosato
`Andrew. S. Brown
`WILSON SONSINI GOODRICH & ROSATI
`701 Fifth Avenue, Suite 5100
`Seattle, WA 98104-7036
`mrosato@wsgr.com
`asbrown@wsgr.com
`
`Neil N. Desai
`WILSON SONSINI GOODRICH & ROSATI
`633 West Fifth Street, 15th Floor
`Los Angeles, CA 90071-2027
`ndesai@wsgr.com
`
`
`
`
`
`/James Hannah/
`
`James Hannah (Reg. No. 56,369)
`Kramer Levin Naftalis & Frankel LLP
`990 Marsh Road
`Menlo Park, CA 94025
`(650) 752-1700
`
`9
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