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` UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
` ----------------------------
` PALO ALTO NETWORKS, :
` INC.K, and BLUE COAT :
` SYSTEM, INC., :
` : Case IPR-2015-1979
` Petitioners, : IPR-2016-919
` :
` v. :
` :
` FINJAN, INC., :
` :
` Patent Owner. :
` ----------------------------
`
` November 16, 2016
` TELEPHONE CONFERENCE IN THE ABOVE MATTER
`
` Before the PTAB Panel
` Honorable Miriam Quinn
` Honorable Thomas Giannetti
` Honorable Honorable Richard Rice
`
` Veritext Legal Solutions
` Mid-Atlantic Region
` 1250 Eye Street NW - Suite 350
` Washington, D.C. 20005
`
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`Patent Owner Finjan, Inc. - Ex. 2037, p. 1
`
`

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`Page 2
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`Page 4
`
` A P P E A R A N C E S
`
` On behalf of Petitioner:
`
` ORION ARMON, ESQUIRE
` Cooley LLP
` 380 Interlocken Crescent, Ste 900
` Broomfield, CO 80021
` On behalf of Symantec:
` NATHAN HAMSTRA, ESQUIRE
` Quinn Emanuel
` 500 West Madison Street, Ste 2450
` Chicago, Il 60661
`
` On behalf of Patent Owner:
`
` JAMES HANNAH, ESQUIRE
` Kramer, Levin, Naftalis & Frankel, LLP
` 990 Marsh Road
` Menlo Park, CA 94025
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` P R O C E E D I N G S
` * * * * * * * * *
` HONORABLE QUINN: This is Judge Miriam
` Quinn. With me are Judges Tom Giannetti and
` Richard Rice. This is a call on IPR2015-1979, with
` which IPR2016-919 has been joined. The call has
` been requested by Patent Owner. And the parties
` now can make their appearances for the record.
` Who do we have for Petitioner?
` MR. ARMON: Good morning. Orion Armon,
` lead counsel for Petitioner, Palo Alto Networks, as
` well as Nathan Hamstra, lead counsel for Petitioner
` Symantec Corporation.
` MR. HANNAH: Good morning, Your Honor.
` This is James Hannah on behalf of Finjan, Patent
` Owner.
` HONORABLE QUINN: Thank you. And I heard
` there was a court reporter on the line. Is that
` correct?
` COURT REPORTER: Yes, Your Honor.
` Felicia Newland.
` HONORABLE QUINN: Wonderful.
`
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` So let's parse these one by one. I
` think we have a few issues to discuss, so let's
` take them one at a time, shall we.
` Let's start with the first issue on the
` e-mail that we received from Mr. Jeffrey Price.
` Patent Owner, you have the floor.
` MR. HANNAH: Thank you, Your Honor. So
` the first issue relates to a declaration of
` Mr. Sirer. As Your Honors may remember, earlier in
` this case, the Petitioner had a request to
` substitute the declaration of a Mr. DeSart with the
` declaration of Mr. Sirer, because Mr. Sirer -- and
` I believe the words that were used were -- we're
` holding the Petitioner hostage with an exorbitant
` amount of money to do a deposition. I believe it
` was on the range of $50,000 to do a deposition.
` Patent Owner tried to challenge this,
` saying it was improper and that we should -- that
` it was late for them to do this, but the Board
` granted the Petitioner's request and actually
` substituted the DeSart declaration with the Sirer
` declaration, and then we pursued to take the
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` DeSart deposition in accordance with the rules.
` Well, when we got the reply in this
` matter, the Sirer declaration popped up again,
` and we said -- we reached out to the Petitioner
` and we said that this declaration has been
` withdrawn based on the request of the Petitioner
` and there should be no reliance on it and you
` should withdraw from the reply.
` And the response that we got from the
` Petitioner was that it was not withdrawn from the
` record and that they had every right to rely on
` it still.
` And so that brings us to the first
` issue, where we believe that the declaration of
` Mr. Sirer should be withdrawn based on
` Petitioner's earlier request and that any
` reliance upon it in the reply should be struck
` from the record.
` HONORABLE QUINN: Okay.
` Petitioner, what is your response?
` MR. ARMON: Your Honor, we had a call
` with the board on June 14th concerning this issue.
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`Patent Owner Finjan, Inc. - Ex. 2037, p. 2
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`

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`Page 6
` And the call was recorded and transcribed. And
` what the Board decided to do, and ordered on page
` 25 of that transcript, was to grant Petitioner's
` motion for submission of supplemental information,
` which was the DeSart declaration.
` And Your Honor actually ordered on
` specifically page 25 of the transcript at lines 4
` and 5, the response to a question from Mr. Hannah
` on this point. Mr. Hannah said, "What happens
` with the Sirer declaration at this point?" This
` is Lines 2 and 3 on page 25.
` And Your Honor responded on lines 4 and
` 5 on page 25, with, "It's still in the record.
` "We're not -- we're not deciding anything on it."
` And on page 24, with respect to this
` same issue, the guidance from the Panel was that,
` "We are not deciding here to expunge anything in
` the record, we're just adding to the record the
` declaration that has been submitted to us." And
` that's at Lines 12 through 14 -- I'm sorry, 12
` through 15 of the transcript.
` So, Your Honor, based upon the Board's
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` rulings and the clarification provided to
` Mr. Hannah during that June 14th call, the DeSart
` declaration was, and is, supplemental
` information. And according to the Board's order
` during that call, the Sirer declaration was not
` struck or expunged from the record.
` And so in accordance with the Board's
` order during that call, we, in our reply, pointed
` out that the Sirer declaration is evidence still
` in the record, along with the other publications
` that were offered.
` So Petitioner's position on this issue
` is that Mr. Hannah's argument is mistaken in
` light of the record and the Board's prior
` rulings.
` HONORABLE QUINN: Okay. Mr. Hannah, I've
` got a couple of questions for you. In light of the
` transcript of that call that is on the record in
` Exhibit 1037, why do you see that the Board had
` asked the Petitioner to withdraw or somehow expunge
` that declaration?
` I don't see anything in our order that
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`Page 8
`
` could be viewed as such.
` MR. HANNAH: Well, Your Honor, it is our
` position that they should withdraw. If I said that
` I believe that the Board withdrew it, I misspoke.
` It's our position we asked them to withdraw from
` the reply because we never got the deposition of
` Mr. Sirer. And we still haven't had the deposition
` of Mr. Sirer. So today at least, the declaration
` is given no weight, and should be given no weight,
` in this proceeding because we haven't had the
` opportunity to depose him.
` And so our request of the Petitioner
` was to withdraw the declaration at this point,
` because we haven't had the deposition and because
` of the Petitioner's earlier request to
` substitute. The request was to substitute.
` Now, during the argument of that first
` hearing, I argued that it was improper to
` substitute because there's no mechanism in place,
` and then the Board -- from what I remember, the
` Board said they were going to be -- essentially,
` a sua sponte motion for supplemental information,
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` which got around, like I was saying, there was no
` procedural way for them to get it into the
` record.
` So while I agree that Counsel is, you
` know, reading the transcript correctly, but in
` the spirit of the order, and the spirit was that
` the DeSart declaration got into the record
` because Sirer was holding them hostage. And then
` for them to try to use the Sirer declaration in a
` reply, and we still don't have the deposition,
` is -- I believe that's improper. At the very
` least, it should be given absolutely no weight in
` this proceeding and it should be completely
` ignored.
` But I request that it actually be
` expunged and struck from the record at this point
` because we still haven't gotten the deposition of
` him. And it's against the spirit of what the
` original request was.
` HONORABLE QUINN: I mean, are you making
` a motion?
` We already ruled on whether the Sirer
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`Patent Owner Finjan, Inc. - Ex. 2037, p. 3
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`

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`Page 10
` declaration would be expunged. We already dealt
` with that. We did not rule on that in the first
` call. We allowed the DeSart declaration to be
` added to the record.
` And so aside from that, now you want
` the same relief that you were asking before for
` the Sirer declaration to be withdrawn. The
` Petitioner is not doing that. Why can't you just
` file a motion to exclude and make your argument
` there?
` MR. HANNAH: We can, Your Honor.
` That's -- we reached out to the Board in other
` instances, we want -- we want to make sure that
` we're doing it in a proper fashion and how the
` Court sees it. If the Board wants us to do it in a
` motion to exclude, then that's fine, we can do
` that.
` HONORABLE QUINN: Okay.
` All right. Let me confer with my Panel
` really quick and rule on this issue and then move
` on to the next.
` (Discussion had off the record.)
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` HONORABLE QUINN: Okay. So our panel is
` back.
` One of the clarifications we would like
` to ask of Petitioner is do you intend at any
` point in time between now and oral argument to
` produce Mr. Sirer for deposition?
` MR. ARMON: Your Honor, when we asked
` Dr. Sirer to -- whether he was willing to appear
` for deposition, this issue of his very large
` exorbitant, non-refundable retainer fee arose.
` After we addressed this issue to the Board, Patent
` Owner did not request Dr. Sere's deposition and so
` we did not subsequently ask him to appear.
` Were Patent Owner to ask for his
` deposition, we would have to inquire, see whether
` he would even respond to an inquiry. So we are
` not planning to affirmatively offer him at this
` point because no request for a deposition was
` made subsequent to the call. Were that request
` to be raised now, we would have to attempt to
` reach out to him.
` HONORABLE QUINN: Okay. Well, it seems
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`Page 12
` to me that you want to rely on the declaration, but
` not produce him for deposition. So you -- you
` know, you pick your poison in a way. So if you
` rely on it, then you know what our rules are on
` declarations that have not -- have not had the
` benefit of cross-examination.
` We're at this point now going to order
` a withdraw or an expungement of the declaration.
` Patent Owner has the opportunity to argue in its
` motion to exclude, to argue that the Board need
` not give it weight if, indeed, there is no
` cross-examination or whatever the argument may
` ask for us to consider in regards to Dr. Sirer.
` So at this point, our ruling is that
` we're not going to order any expungement or we're
` not going to order the party to withdraw the
` declaration. Proceed with caution, however,
` because we now have been apprised of the
` situation and we foresee that Patent Owner has
` that opportunity to include that argument in its
` motion to exclude.
` So that's it for issue one. Are there
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` any questions?
` MR. HANNAH: Your Honor, I'd just like to
` make it clear on the record that we absolutely are
` requesting and wanting the deposition of Dr. Sirer
` in response to Counsel's comment. So I just want
` to make that clear for the record.
` HONORABLE QUINN: And that's fine. And
` you all can meet and confer on that issue. We
` don't need to be involved in that aspect. I leave
` it to the parties to communicate effectively and
` see what common ground they can reach; otherwise,
` you know what to do, you know what our rules allow.
` MR. HANNAH: Thank you, Your Honor.
` MR. ARMON: Thank you.
` HONORABLE QUINN: Thank you.
` MR. HANNAH: Shall I move on to Issue No.
` 2, Your Honor?
` This is --
` HONORABLE QUINN: Yes. Hold on for a
` second. Let me move on to my paperwork here.
` MR. HANNAH: Okay.
` HONORABLE QUINN: All right. So Issue
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`Patent Owner Finjan, Inc. - Ex. 2037, p. 4
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`Page 14
` No. 2 dealt with the Patent Owner's belief that
` issues raised in the reply are relatedly presented.
` You have the floor.
` MR. HANNAH: Thank you, Your Honor.
` So there's been a mechanism that I've
` seen develop through the Board, I think, in
` general, in a quick and efficient way for the
` Board, and it seems to be helpful, in which the
` Patent Owner -- there's a common argument that is
` raised, is that arguments are outside the scope
` of the reply.
` And what we've seen kind of develop is
` this procedure, and it's also actually, you know,
` in infringement cases as well, where the Patent
` Owner, where we would identify arguments by line
` number -- page and line number that we believe
` are outside the scope of the reply, and the
` Petitioner would get a chance to, by page and
` line number, say where those arguments were
` actually in response to our opposition.
` This is -- again, this is just a
` mechanism that we've seen that's been prevalent
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` and useful for the Board, and we would submit
` that I think it would be useful in this case as
` well.
` Some panels have like a short
` description of why we believe it's outside the
` scope of the reply, others just like page and
` line numbers and they can make the call. So
` that's the -- it's more of an inquiry into
` whether the Board would prefer that type of
` filing from the parties.
` HONORABLE QUINN: Are you -- are you
` saying you have actually identified material
` outside the scope or are you asking for our advice
` or opinion on what format we would like should you
` have identified information outside the scope?
` MR. HANNAH: Well, we're currently in the
` process of -- yes, there are arguments outside the
` scope. We're currently in the process of
` identifying those arguments and are asking how you
` would like us to present those. And this is the
` format that I've seen it in other instances.
` HONORABLE QUINN: All right. It seems to
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`Page 16
` me, though, that the issue is not moot. Until you
` have actually identified material that's outside
` the scope and you have conferred with Petitioner on
` this issue, there's nothing for us to decide. Or
` did you want -- did you have material that you
` wanted to discuss right now with us?
` MR. HANNAH: I don't have a -- I don't
` have a complete -- I don't have a complete list. I
` mean, one of them would be the declaration of
` Dr. Sirer, for instance, would be outside the
` scope of the -- it would be outside the scope of
` the opposition because it was never raised in the
` opposition, it was never in the petition because it
` wasn't replied upon.
` There's also other technical arguments.
` If you want us to -- I mean, I -- it's up to you.
` I don't know what you want us to do, Your Honor.
` If you want us to --
` HONORABLE QUINN: We can confer on this
` issue. I mean, I -- I hesitate to tell you what my
` preference is or what my Panel's preference is,
` because this is really not an issue that we need to
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` decide at this point. We're not going to just
` allow any filing -- a future filing in the event
` that you do find something.
` So, I mean, I -- we expect the parties
` to meet and confer on these issues before we are
` contacted to decide the best way to present the
` issues.
` And, you know, if you reach a -- if you
` reach a compromise on the Sirer elements in their
` reply, then there's nothing for you to file on
` the Sirer issue. So this seems -- there seems to
` be more communication with the other side in
` order for the Board to actually get involved.
` And I can tell you I have a preference,
` but that's not actually going to help us if we
` don't really have an issue to decide.
` Does that make sense?
` MR. HANNAH: I think so, Your Honor. I
` mean, typically -- I mean, I can just foresee that
` what the meet and confer is going to be is we
` believe that these arguments are outside the scope
` and they're going to say that they're not and then
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`Patent Owner Finjan, Inc. - Ex. 2037, p. 5
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`Page 18
` we're just going to call the Board and say how we
` want to present those.
` I mean, we can do that meet and confer.
` We just have a limited amount of time between
` when we have to -- we don't want to identify the
` issues that are outside of the reply until we
` finish all of the depositions, which are coming
` up, so we have --
` HONORABLE QUINN: Well, we're not -- see,
` this is the issue with this, if something rises to
` the level of truly being an issue outside the
` scope, I have to be honest with you, like
` 90 percent of these things that get raised on these
` papers are not outside the scope, it's just -- you
` know, you want to characterize them outside the
` scope and you want the Board not to consider them
` for the case.
` And I understand that, but a lot of
` these things may be resolved by communication
` with the other side regarding the
` characterization of the material that you believe
` is outside the scope, which you haven't really
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` identified yet.
` So we're dealing with hypotheticals.
` We're not going to allow filings in the record
` based on a hypothetical situation and/or some
` decision as to whether you think it's outside the
` scope or not without a conference.
` So I am -- I hear you, that you have
` more work to do and you'd like to know now what
` will be the filing that you will do, but we don't
` know. Depending on the issues, sometimes we do
` allow a reply. It just depends on the issue.
` And sometimes we don't allow any
` filings. We can take it up by ourselves because
` we understand what's happening in the case.
` There's a lot of contentious issues.
` So just meet and confer before we can
` decide on how to proceed in a proper
` identification by you of what you ultimately
` contend is outside the scope so that we can
` determinate the severity of the infraction, if
` there is one.
` MR. HANNAH: All right. Then, Your
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`Page 20
` Honor, after we do the meet and confirm and we
` identify that information, do you want that in the
` e-mail communication to the Board or should we just
` do that orally after we request another conference?
` HONORABLE QUINN: If you have a meet and
` confer and you actually have identified the
` outside-of-the-scope material -- and I hope what
` you're not saying is the entire reply is outside
` the scope, because that's --
` MR. HANNAH: No. No. Of course not,
` Your Honor. It would be limited to page and line
` numbers. I'm just asking if you would just -- we
` could just do a blanket request to the Board?
` We've been working out with the
` Petitioner where we do these joint e-mails. I
` can -- and we can identify the material in the
` e-mail or we can do it orally. I'm just curious
` on how you would like us to communicate with you
` regarding this issue, if it does arise, after we
` take the depositions.
` HONORABLE QUINN: Yes. If this does
` arise, then we ask the parties that you just
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` communicate with the Board what the request is. No
` argument. And what I would -- I think on this
` particular case, it might be useful to have a
` representative portion be cited by the Patent
` Owner --
` MR. HANNAH: Okay.
` HONORABLE QUINN: -- with a corresponding
` citation. No argument. We don't want to hear any
` reasoning or analysis or anything.
` MR. HANNAH: Right. It would essentially
` be one of the citations that we would provide in
` the filing, if it was authorized.
` HONORABLE QUINN: Yes.
` MR. HANNAH: Understood.
` HONORABLE QUINN: A representative, not
` like a whole list of citations, because that just
` obviates the whole process.
` MR. HANNAH: Understood.
` HONORABLE QUINN: But something that
` gives a flavor of how the conference -- how the
` conference between the parties proceeded and, you
` know, the results of that with regards to that
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`6 (Pages 18 to 21)
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`Patent Owner Finjan, Inc. - Ex. 2037, p. 6
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`Page 22
` particular citation. We can take up the rest with
` either a call or an e-mail authorization if needed.
` MR. HANNAH: Understood, Your Honor.
` Thank you for the guidance.
` HONORABLE QUINN: And, Petitioner, do you
` have any questions about that concern?
` MR. ARMON: Your Honor, Petitioner
` earlier requested identification. The content in
` the reply that Patent Owner believed to be new or
` improper, and none were identified, so we'll be
` prepared to participate in that meet and confer
` process when Patent Owner initiates it.
` HONORABLE QUINN: Yes. And that's my
` expectation as well. I think the Panel wants the
` parties to communicate as effectively as possible.
` And the expectation includes Patent Owner to
` identify these portions that are allegedly outside
` the scope as soon as possible and have a meaningful
` meet and confer, so that when we are alerted of the
` issue via e-mail, both sides are fully aware of
` what the issue is.
` MR. HANNAH: Understood, Your Honor.
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` HONORABLE QUINN: Okay. Let me see if
` there's anything else from my Panel on Issue 2
` before we move on to Issue 3. Hold on.
` (Discussion had off the record.)
` HONORABLE QUINN: The Panel doesn't have
` any further questions on Issue 2, so with that, we
` move on to the third issue.
` This, I'm not understanding really what
` the problem is with the protective order
` material. And this appears to be Petitioner's
` request, so I give you the floor.
` MR. ARMON: Your Honor, the issue --
` MR. HANNAH: Judge -- did you want me to
` jump in on this based on our meet and confer or --
` HONORABLE QUINN: I think I gave the
` floor to Petitioner to raise this issue.
` MR. HANNAH: Oh, okay.
` MR. ARMON: The issue in the each of the
` cases, Your Honor, '1974, '1979, '2001, and '159,
` is that the Patent Owner had served material
` designated as under a protective order and has
` asked Petitioner to file documents in the E2E
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` system as designated for Board and parties' eyes
` only, but there had been no protective order. And
` the request was an order from the Board for Patent
` Owner to take further steps to have a protective
` order entered in each case, because at present,
` there is no protective order. And there has never
` been a request of the Board to designate material
` as confidential.
` We did significantly narrow the issue
` or narrow the scope of the issue and may have
` resolved it earlier this week. Petitioner is not
` opposed to entry of the default protective order
` in each case. Our request is that if Patent
` Owner wants to maintain materials as
` confidential, it needs to take the proper steps,
` including seeking entry of the protective order.
` And then also, where appropriate, asking the
` Board to designate material confidential.
` So I'll hand the floor to Mr. Hannah
` with the final re-emphasis that we're not opposed
` to entry of the default protective order, but we
` just believe that those steps need to be taken.
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` HONORABLE QUINN: Okay. Mr. Hannah.
` MR. HANNAH: Thank you, Your Honor. And
` I apologize. I didn't mean to try to interfere.
` Counsel and I had a meet and confer
` earlier this week where we did resolve the issue
` and tried to meet and confer. I believe I was
` supposed to explain the situation, but he already
` has.
` We will be seeking the entry of the
` default protective order, you know, following
` essentially what Counsel has just indicated and
` to make sure that the default protective order is
` in the record and that any material that we have
` sealed is in the record, that we have the default
` protective order in place and the proper
` procedures.
` We should be doing -- we should be
` doing that, I would say, in the next day or so,
` we'll get the default protective order issued.
` HONORABLE QUINN: Okay. And you know how
` to do that under our rules?
` MR. HANNAH: Yes.
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`7 (Pages 22 to 25)
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`Patent Owner Finjan, Inc. - Ex. 2037, p. 7
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` HONORABLE QUINN: Okay.
` MR. HANNAH: Yes, Your Honor.
` HONORABLE QUINN: It sounds to me like
` this issue has been resolved and we don't need to
` be involved in the matter.
` MR. HANNAH: I believe that's correct,
` Your Honor. I believe we resolved that amongst the
` parties earlier this week.
` HONORABLE QUINN: Okay. Thank you for
` that. I appreciate the parties working together to
` resolve the dispute.
` We have a couple of issues that the