UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`CISCO SYSTEMS, INC.,
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`Petitioner,
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`v.
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`FINJAN, INC.,
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`Patent Owner.
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`Case IPR2018-00391
`U.S. Patent No. 7,647,633
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`PETITIONER’S OBJECTIONS TO PATENT OWNER’S EVIDENCE
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`UNDER 37 C.F.R. § 42.64
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`DM2\9236019.1
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`CISCO SYSTEMS, INC.,
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`Petitioner,
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`v.
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`FINJAN, INC.,
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`Patent Owner.
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`Case IPR2018-00391
`U.S. Patent No. 7,647,633
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`PETITIONER’S OBJECTIONS TO PATENT OWNER’S EVIDENCE
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`UNDER 37 C.F.R. § 42.64
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`DM2\9236019.1
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`Petitioner Cisco Systems, Inc. (“Petitioner”) objects under the Federal Rules
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`of Evidence and 37 C.F.R. § 42.64(b)(1) to the admissibility of the following
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`exhibits submitted by Finjan, Inc. (“Patent Owner”) in support of its Patent Owner
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`Response:
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`Ex. 2008, the Declaration of Dr. Nenad Medvidovic (“Medvidovic
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`Declaration”)
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`EX. 2009, Java 2: The Complete Reference, Third Ed., 1999
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`Ex. 2010, Just Java, 1996
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`Ex. 2012, the Declaration of Phil Hartstein (“Hartstein Declaration”);
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`Ex. 2013-2019, Finjan SEC Filings
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`Ex. 2020-2022, Gartner Report Documents
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`Ex. 2023-2025, Proofpoint Documents
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`Ex. 2030, 2031, 2035, Websense Documents
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`Patent Owner served its Patent Owner’s Response on September 10, 2018.
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`Petitioner’s objections are timely under 37 C.F.R. § 42.64(b)(1). By serving these
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`objections on Patent Owner, Petitioner reserves its right to file motions to exclude
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`these exhibits under 37 C.F.R. § 42.64(c).
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`I. MEDVIDOVIC DECLARATION (EX. 2008)
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`Petitioner objects to the admissibility of the Medvidovic Declaration under
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`FRE 702 because it contains opinions that are conclusory, do not disclose
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`DM2\9236019.1
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`2
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`supporting facts or data, or are based on unreliable facts, data, or methods. For
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`example, Dr. Medvidovic opinions includes statements that do not identify proper
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`underlying factual support, including ¶¶ 41, 45, 48, 52, 56, 62, 65, 66, 67, 68, 69,
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`71, 73, 74, 75, 76, 77, 78, 80. Accordingly, the opinions contained in the
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`Medvidovic Declaration are not based on sufficient facts or data, and are not the
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`product of reliable principles and methods and should be excluded under FRE 702.
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`Dr. Medvidovic is also unqualified as an expert to provide opinions from the
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`perspective of a person of ordinary skill in the art, rendering the Medvidovic
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`Declaration inadmissible under FRE 702. The Medvidovic Declaration also
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`contains opinions that are irrelevant, confusing, and of minimal probative value
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`under FRE 401, 402, and 403. Finally, the Medvidovic Declaration relies on
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`exhibits that are inadmissible and unreliable for the reasons set forth below.
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`II.
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`JAVA 2: THE COMPLETE REFERENCE, THIRD ED., 1999
`(EX. 2009)
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`Petitioner objects to the admissibility of the Java 2 exhibit under FRE 401,
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`402, and 403 as irrelevant, prejudicial, misleading, and of minimal probative value.
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`For example, the exhibit does not identify the ‘633 Patent or otherwise explain
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`how it is relevant to the ‘633 Patent. The Java 2 exhibit is also inadmissible
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`hearsay under FRE 801 and 802, and lack authentication under FRE 901.
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`DM2\9236019.1
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`III. JUST JAVA, 1996 (EX. 2010)
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`Petitioner objects to the admissibility of the Just Java exhibit under FRE
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`401, 402, and 403 as irrelevant, prejudicial, misleading, and of minimal probative
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`value. For example, the exhibit does not identify the ‘633 Patent or otherwise
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`explain how it is relevant to the ‘633 Patent. The exhibit is also inadmissible
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`hearsay under FRE 801 and 802, and lack authentication under FRE 901.
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`IV. HARTSTEIN DECLARATION (EX. 2012)
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`Petitioner objects to the Hartstein Declaration because it does not introduce
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`evidence of Mr. Hartstein’s personal knowledge of the subject matter of the
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`testimony contained therein, rendering such testimony inadmissible under FRE
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`602. For example, the Hartstein Declaration states that Mr. Hartstein is the
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`“current” President of Finjan, but it does not indicate when he became president of
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`Finjan, when he became employed by Finjan, his roles and responsibilities at
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`Finjan or any other facts that demonstrate that he has personal knowledge
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`regarding the matters discussed in his Declaration. In addition, the Hartstein
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`Declaration contains testimony regarding the terms of several Patent Owner license
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`agreements, but the Hartstein Declaration includes no facts that demonstrate that
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`he has personal knowledge regarding the license agreements. The Hartstein
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`Declaration is also inadmissible hearsay under FRE 801 and 802. The Hartstein
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`Declaration is also inadmissible under FRE 401, 402, and 403 as irrelevant,
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`DM2\9236019.1
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`prejudicial, misleading, and of minimal probative value and relies on evidence that
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`itself is inadmissible as set forth herein.
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`Petitioner also objects to the admissibility of the Hartstein Declaration under
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`FRE 702. The Hartstein Declaration offers inadmissible expert testimony because
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`the opinions contained in his Declaration are conclusory, do not disclose
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`supporting facts or data, are biased and unreliable, and the Hartstein Declaration
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`provides no basis to support Mr. Hartstein’s qualifications as an expert.
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`Accordingly, Hartstein’s opinions are inadmissible under FRE 702.
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`V.
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`FINJAN SEC FILINGS (EX. 2013-2019)
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`Petitioner objects to the admissibility of the Finjan SEC Filings under FRE
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`FRE 401, 402, and 403 as irrelevant, prejudicial, misleading, and of minimal
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`probative value. For example, none of these exhibits identify the ‘633 Patent or
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`otherwise explain how they are relevant to the ‘633 Patent. The Finjan SEC
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`Filings are also inadmissible hearsay under FRE 801 and 802, and lack
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`authentication under FRE 901
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`IV. GARTNER REPORT DOCUMENTS (EX. 2020-2022)
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`Petitioner objects to the admissibility of the Gartner Report Documents
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`under FRE 401, 402, and 403 as irrelevant, prejudicial, misleading, and of minimal
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`probative value. For example, none of these exhibits identify the ‘633 Patent or
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`otherwise explain how they are relevant to the ‘633 Patent. The Gartner Report
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`DM2\9236019.1
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`Documents are also inadmissible hearsay under FRE 801 and 802, and lack
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`authentication under FRE 901.
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`V.
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`PROOFPOINT DOCUMENTS (EX. 2023-2025)
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`Petitioner objects to the admissibility of the Proofpoint Documents under
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`FRE 401, 402, and 403 as irrelevant, prejudicial, misleading, and of minimal
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`probative value. For example, none of these exhibits identify the ‘633 Patent or
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`otherwise explain how they are relevant to the ‘633 Patent. The Proofpoint
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`Documents are also inadmissible hearsay under FRE 801 and 802, and lack
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`authentication under FRE 901.
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`VI. Websense Documents (EX. 2030, 2031, 2035)
`Petitioner objects to the admissibility of the Websense Documents under
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`FRE 401, 402, and 403 as irrelevant, prejudicial, misleading, and of minimal
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`probative value. Patent Owner has failed to provide any testimony as to what the
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`Websense Documents are or why they are being offered. The Websense
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`Documents are also inadmissible hearsay under FRE 801 and 802, and lack
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`authentication under FRE 901.
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`DM2\9236019.1
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`Dated: September 17, 2018
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`Respectfully submitted,
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`/Patrick D. McPherson/
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`Patrick D. McPherson
`USPTO Reg No. 46,255
`DUANE MORRIS LLP
`505 9th Street, NW, Suite 1000
`Washington, DC 20004
`Telephone: 202-776-5214
`Facsimile: 202-776-7801
`PDMcPherson@duanemorris.com
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`Patrick Craig Muldoon
`USPTO Reg No. 47,343
`505 9th Street, NW, Suite 1000
`Washington, DC 20004
`Telephone: 202-776-7840
`Facsimile: 202-776-7801
`PCMuldoon@duanemorris.com
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`Joseph A. Powers
`USPTO Reg No. 47,006
`30 South 17th Street
`Philadelphia, PA 19103-4196
`Telephone: 215-979-1842
`Facsimile: 215-689-3797
`JAPowers@duanemorris.com
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`DM2\9236019.1
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`7
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`CERTIFICATE OF SERVICE
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`The undersigned certifies, in accordance with 37 C.F.R. § 42.6(e), that
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`service was made of the Petitioner’s Objections to Patent Owner’s Evidence on the
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`Attorneys for Petition Owner as detailed below, dated: September 17, 2018, via
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`Electronic Mail:
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`James Hannah: jhannah@kramerlevin.com
`Jeffrey H. Price: jprice@kramerlevin.com
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`/Patrick D. McPherson/
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`Patrick D. McPherson
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`USPTO Reg No. 46,255
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`DUANE MORRIS LLP
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`505 9th Street, NW, Suite 1000
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`Washington, DC 20004
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`Telephone: 202-776-5214
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`Facsimile: 202-776-7801
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`PDMcPherson@duanemorris.com
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`DM2\9236019.1
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`8
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