Volume 2
` Pages 151 - 289
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`BEFORE THE HONORABLE WILLIAM H. ORRICK, JUDGE
`FINJAN, INC., a Delaware
`)
`corporation, )
` )
` Plaintiff,
`)
` )
` VS. ) No. C 14-1197 WHO
` )
`SOPHOS, INC., a Massachusetts )
`corporation, )
` )
` Defendant.
`)
` ) San Francisco, California
` Wednesday, September 7, 2016
`
`TRANSCRIPT OF PROCEEDINGS
` APPEARANCES:
` For Plaintiff:
` KRAMER, LEVIN, NAFTALIS & FRANKEL LLP
` 990 Marsh Road
` Menlo Park, California 94025
` BY: PAUL J. ANDRE, ESQUIRE
` LISA KOBIALKA, ESQUIRE
` JAMES HANNAH, ESQUIRE
` HANNAH YUNKYUNG LEE, ESQUIRE
` For Defendant: DLA PIPER LLP
` 401 B Street, Suite 1700
` San Diego, California 92101
` BY: JOHN ALLCOCK, ESQUIRE
` SEAN CUNNINGHAM, ESQUIRE
` KATHRYN RILEY GRASSO, ESQUIRE
` Reported By: Katherine Powell Sullivan, CSR #5812, RMR, CRR
` Pamela A. Batalo, CSR No. 3593, RMR, FCRR
` Official Reporters - U.S. District Court.
`
`I N D E X
` E X H I B I T S
` TRIAL EXHIBITS IDEN EVID VOL.
` 2
`257
`2
` 153
`252
`2
` 154
`209
`2
` 157
`206
`2
` 162
`230
`2
` 2034
`272
`2
` 2039
`282
`2
` 2525
`217
`2
` 2526
`251
`2
` 3045
`243
`2
` 4445
`256
`2
`
` 1
` 2
` 3
` 4
` 5
` 6
` 7
` 8
` 9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`I N D E X
` Wednesday, September 7, 2016 - Volume 2
`
`PLAINTIFF'S WITNESSES PAGE VOL.
` BIMS, HARRY
`(SWORN)
`165
`2
`Direct Examination by Mr. Andre
`166
`2
`Cross-Examination by Mr. Allcock
`184
`2
`Redirect Examination by Mr. Andre
`188
`2
` HARTSTEIN, PHIL
`(SWORN)
`189
`2
`Direct Examination by Ms. Kobialka
`189
`2
`Cross-Examination by Mr. Allcock
`221
`2
`Redirect Examination by Ms. Kobialka
`246
`2
`Recross-Examination by Mr. Allcock
`255
`2
` TOUBOUL, SHLOMO
`By Videotape Deposition (not reported)
`256
`2
` KROLL, DAVID
`(SWORN)
`257
`2
`Direct Examination by Mr. Hannah
`257
`2
`Cross-Examination by Mr. Allcock
`269
`2
` STUTZ, DANIEL
`By Videotape Deposition (not reported)
`271
`2
` HARRIS, MARK
`By Videotape Deposition (not reported)
`271
`2
` HOWARD, FRASER
`By Videotape Deposition (not reported)
`272
`2
` COLE, ERIC
`(SWORN)
`273
`2
`Direct Examination by Mr. Andre
`273
`2
`
`- - - - -
`
` 154
`
`issue.
`
`PROCEEDINGS
` 7:36 a.m.
`Wednesday - September 7, 2016
`P R O C E E D I N G S
`---000---
`(Proceedings were heard out of presence of the jury:)
`MR. ALLCOCK: Good morning, Your Honor.
`THE COURT: Good morning. I understand we have an
`
`MR. ANDRE: Your Honor, just -- Paul Andre for Finjan.
`Just a couple small issues.
`We have plans this afternoon -- this morning to play some
`deposition designations, and we got some counters in last night
`from Sophos which we objected to, and we could not resolve
`them. I guess a good night's sleep resolved a lot of them, but
`there are still a couple that are not resolved.
`The first one is a deposition of a Mr. Stutz, one of their
`engineers. We've agreed now to allow their -- some of their
`counters in because they withdrew the majority of them this
`morning, but I don't know logistically if we can get it done or
`not. I think our trial technician says he can do it at the
`break so I think we will be okay. I want to conditionally put
`that out there. We may have to object if we can't do the
`mechanics of the new cut. The way we do it is we prepare our
`original designations and we prepare a cut with their counters
`in, and now they've modified that again this morning. I think
`we can do it.
`
`Patent Owner Finjan, Inc. - Ex. 2048, p. 1
`
`

`
` 284
`
` 286
`
`COLE - DIRECT / ANDRE
`
`BY MR. ANDRE
`Q.
`If you look at the front page, this is a Sophos
`presentation from January 2006. Did you review this document
`in preparing your analysis?
`A.
`Yes, I did.
`Q.
`And if you turn to page 3 of this document, there is a
`paragraph towards the bottom, next to the last paragraph, that
`states (as read):
`"On the outside of the targets are UTM, Universal
`Threat Management. These products typically appeal to low
`end of the market, both in terms of customer size and what
`a customer is willing to pay. There are circumstances in
`which they may be a soft target, but generally a happy UTM
`customer will not be a realistic prospect for us."
`Do you see that?
`A.
`Yes, I do.
`Q. Would you describe your understanding, what is being
`discussed in that paragraph in 2006?
`A.
`Absolutely. So there's generally two types of solutions.
`There's an endpoint solution, and there's a gateway device
`known as a UTM, or Unified Threat Management, that sits on a
`network between the internal computers and the Internet.
`At this time in 2006, Sophos was still primary on
`endpoint. And here they're evaluating whether that gateway or
`UTM market is worth them getting into. And you can see, based
`
`COLE - DIRECT / ANDRE
`saying they have a unique approach for solving this problem.
`And they're also going in to say that it's so unique, in terms
`of the behavioral analysis on the proactive piece, that they
`want to provide such a comprehensive solution that they also
`have traditional anti-virus that's reactive or signature based,
`that they're adding in so they will be able to catch both types
`of threats.
`MR. ANDRE: Can we turn to the next page of this
`document.
`(Document displayed.)
`BY MR. ANDRE
`Q.
`There is a paragraph that says:
`"Purpose: Demonstrate behavior protection Finjan
`style."
`Do you see that?
`And then two paragraphs below that it says:
`"They claim to have all sorts of patents and secret
`sauce that helps them detect bad behavior in code."
`Do you see that?
`A.
`Yes, I do.
`Q. Would you describe your understanding of what is being
`referred to there.
`A.
`So here Sophos is not only recognizing that Finjan has a
`unique behavioral-based approach, but they're actually naming
`it after them. They're actually calling it the Finjan style,
`
` 1
` 2
` 3
` 4
` 5
` 6
` 7
` 8
` 9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` 1
` 2
` 3
` 4
` 5
` 6
` 7
` 8
` 9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` 283
`
` 285
`
`COLE - DIRECT / ANDRE
`on some of their comments, that this really appeals to the
`low-end market. Typically, it's not going to be a realistic
`prospect.
`They're still not convinced, in 2006, that gateway or UTM
`products are the right solution. They're still, sort of,
`saying, our endpoint solution is the way to go, and they're
`still hesitant and not sure that gateways are really going to
`solve customers' problems.
`Q.
`If we turn to page 6 of this document, in the middle of
`the page there's a paragraph that talks about the advantages of
`the UTM market. It says (as read):
`"Their advantages revolve around their ability to find
`malware. Tend to prove good malware detection. Some are
`better than others. Finjan in particular claimed to offer
`a completely unique approach to protection from web-borne
`malware, and seek to differentiate themselves from the
`mainstream anti-virus vendors. In fact, Finjan's approach
`is so unique they offer OEM virus engines, including ours
`just in case."
`Would you describe what's being discussed in that
`paragraph in 2006.
`A.
`So here they're talking about the new proactive way of
`solving security. And Sophos is clearly stating that Finjan
`has a completely unique approach.
`So not only is Sophos fully aware of Finjan, but they are
`
`COLE - DIRECT / ANDRE
`associating that with that unique behavioral approach.
`And then they go on to be fully aware that Finjan has
`patents in the space. So Sophos is saying, we know they have
`patents; we know they have secret sauce; and they are
`considered, sort of, that leader in behavioral analysis.
`Q.
`If we turn to what's already been admitted into evidence,
`Exhibit 2034.
`(Document displayed.)
`MR. ANDRE: I would like to have this published, Your
`
`Honor.
`THE COURT: You may.
`BY MR. ANDRE
`Q.
`Fast-forward almost five years, to 2011, an email chain.
`And did you review this document in your analysis,
`Dr. Cole?
`A.
`Yes, I did.
`Q.
`So if we go to the last -- the first email that's in the
`chain, it's on page 3.
`(Document displayed.)
`Q.
`This is dated Friday, March 11th, 2011. The subject is
`"Gartner SWG MQ second briefing."
`Do you see that?
`A.
`Yes, I do.
`Q. What does "Gartner SWG MQ" stand for?
`A.
`Gartner is an industry advisory company. They basically
`
` 1
` 2
` 3
` 4
` 5
` 6
` 7
` 8
` 9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` 1
` 2
` 3
` 4
` 5
` 6
` 7
` 8
` 9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`Patent Owner Finjan, Inc. - Ex. 2048, p. 2