Finjan, Inc. v. Cisco Systems Inc., No. 5:2017cv00072 - Document 670 (N.D. Cal. 2020)
Court Description: REDACTED ORDER DENYING FINJAN'S MOTION FOR RECONSIDERATION OF THE COURT'S APRIL 28, 2020 ORDER ON CISCO'S MOTION TO STRIKEre 662 Sealed Order Denying Finjan's Motion for Reconsideration of the Court's April 28, 2020 Order on Cisco's Motion to Strike. Signed by Judge Susan van Keulen on 6/18/2020. (svklc1S, COURT STAFF) (Filed on 6/18/2020)
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Finjan, Inc. v. Cisco Systems Inc. Doc. 670 1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 FINJAN, INC., Plaintiff, 7 v. 8 9 CISCO SYSTEMS INC., 10 Defendant. ORDER DENYING FINJAN, INC.'S MOTION FOR RECONSIDERATION OF THE COURT'S APRIL 28, 2020 ORDER ON CISCO'S MOTION TO STRIKE Re: Dkt. No. 623 On April 28, 2020, this Court issued an order granting Defendant Cisco Systems Inc.’s 11 United States District Court Northern District of California Case No. 17-cv-00072-BLF (SVK) 12 motion to strike portions of Plaintiff Finjan, Inc.’s amended expert reports on infringement of 13 U.S. Patent No. 7,647,633. Dkt. 582 (the “April 28 Order”). The Court subsequently granted 14 Finjan’s motion for leave to file a motion for reconsideration of the April 28 Order. Dkt. 620. 15 Now before the Court is Finjan’s motion for reconsideration. Dkt. 623 (redacted version); Dkt. 16 626-4 (unredacted version). Cisco opposes. Dkt. 638 (redacted version); Dkt. 637-3 (unredacted 17 version). The Court deems this matter suitable for determination without a hearing. Civil L.R. 18 7-1(b). For the reasons that follow, Finjan’s motion for reconsideration is DENIED. 19 I. 20 BACKGROUND The April 28 Order discusses the relevant factual and procedural background. Following 21 issuance of the April 28 Order, Judge Freeman held a pretrial conference on April 30. At the 22 pretrial conference, Finjan informed Judge Freeman that it would seek reconsideration of the April 23 28 Order on both procedural and substantive grounds. Dkt. 613 at 101:22-102:1. Judge Freeman 24 referred the procedural issue—i.e., Finjan’s argument that it “did not have an opportunity to 25 oppose Cisco’s post-hearing submission at ECF 558”—to the undersigned. Dkt. 609. 26 II. 27 28 LEGAL STANDARD Any order that adjudicates fewer than all claims may be revised at any time before the entry of a final judgment. Fed. R. Civ. Proc. 54(b). Motions for reconsideration are disfavored Dockets.Justia.com 1 and “should not be granted, absent highly unusual circumstances, unless the district court is 2 presented with newly discovered evidence, committed clear error, or if there is an intervening 3 change in the controlling law.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 4 F.3d 873, 880 (9th Cir. 2009) (internal citation and quotation marks omitted). In addition, “[a] 5 motion for reconsideration may not be used to raise arguments or present evidence for the first 6 time when they could reasonably have been raised earlier in the litigation.” Id. (internal citation 7 and quotation marks omitted). Under this District’s local rules, a party may not bring a motion for reconsideration without 8 United States District Court Northern District of California 9 first obtaining leave of Court. Civ. L.R. 7-9(a). A motion for reconsideration of an interlocutory 10 order may be made on three grounds: (1) a material difference in fact or law exists from that 11 which was presented to the Court, which, in the exercise of reasonable diligence, the moving party 12 did not know at the time of the order; (2) the emergence of new material facts or a change of law 13 after issuance of the order; or (3) a manifest failure by the Court to consider material facts or 14 dispositive legal arguments that were presented to the Court before it issued the order. Civ. L.R. 15 7-9(b). The moving party may not repeat any written or oral argument previously asserted to the 16 Court. Civ. L.R. 7-9(c). 17 III. 18 DISCUSSION Finjan moves for reconsideration of the April 28 Order on the grounds of manifest failure 19 of the Court to consider material facts or dispositive legal arguments. See Dkt. 626-4 at 1. Finjan 20 first argues that the Court should reconsider the April 28 Order because Finjan did not have an 21 opportunity to oppose Cisco’s post-hearing submission identifying the paragraphs it wanted struck 22 from Dr. Medvidovic’s amended reports. Id. at 3-6. Finjan’s second argument is that the Court 23 did not consider Finjan’s facts and arguments relating to the replacement language (i.e., “virtual 24 environment agent” and “parameters to run the sample file or URL”) for the terms 25 and used in Dr. Medvidovic’s amended reports. Id. at 6-12. 26 Before the Court discusses Finjan’s specific arguments, it must address a recurring theme 27 in the motion for reconsideration. Woven throughout Finjan’s motion are suggestions that it did 28 not realize until Cisco filed its reply brief on the motion to strike, or even later, that Cisco was 2 1 seeking to strike replacement language for the terms in Dr. Medvidovic’s amended reports. Examples of Finjan’s statements of professed 2 3 4 surprise include the following: • “This motion is necessary because of Cisco’s shifting complaints regarding 5 Finjan’s infringement contentions for the ‘mobile protection code’ limitation 6 (‘MPC’)” of the ’633 Patent. Id. at 2. 7 8 9 United States District Court Northern District of California and • • “[A]t every turn, Cisco has changed its tune as to what is supposedly missing from Finjan’s contentions.” Id. “In its reply and at the hearing, Cisco crystallized a completely new argument that 10 focused on the second issue. Instead of a lack of notice of the codenames 11 themselves 12 Opening Brief, Cisco focused on lack of notice of the replacement language 13 (‘virtual employment agent’ and ‘parameters to run the sample file or URL’) in 14 Dr. Medvidovic’s expert report, arguing for the first time that this replacement 15 language failed to provide notice of the functionality corresponding to the 16 codenames.” Id. at 3 (emphasis in original; citations omitted). 17 • and ) as it had done in its “[F]or the first time during rebuttal argument, Cisco identified some paragraphs in 18 Finjan’s expert reports that Cisco believed exceeded the scope of Finjan’s 19 infringement contentions. Cisco added more than a hundred paragraphs to that 20 identification in a post-hearing submission.” Id. (emphasis in original; citation 21 omitted). 22 • “Cisco shifted focus in its reply from arguing that Finjan failed to disclose any 23 sandbox-only theories to arguing that Finjan never mapped a virtual environment 24 agent to the functionality corresponding to 25 • Id. at 7. “Finjan understands the issue to now be whether the replacement language from 26 Finjan’s infringement contentions (in this case, ‘parameters to run the sample file 27 or URL’) provides sufficient notice of the 28 functionalities.” Id. at 11. 3 and Finjan’s efforts to depict the object of Cisco’s motion to strike as unclear ring hollow. United States District Court Northern District of California 1 2 Finjan is well-aware of the procedural and substantive events that led up to Cisco’s motion. As 3 discussed in the April 28 Order, a series of disputes spanning multiple years over Finjan’s 4 infringement contentions and expert reports culminated in an explanation by Judge Freeman 5 during the summary judgment hearing that she had “allowed the reports to be modified to replace 6 [code names] with the terminology used in the infringement contentions” and that Finjan would 7 “have to ask Judge van Keulen to allow a substitution from something from the contentions to go 8 to the jury in place of all the arguments about 9 (transcript of summary judgment hearing) at 47:12-15, 120:6-11)). Cisco’s motion to strike 10 prominently identified one of the issues to be decided as “[w]hether assertions in ‘Amended 11 Expert Report of Nenad Medvidovic, Ph. D Regarding Infringement … of Patent No. 7,647,633’ 12 asserting 13 scope of the Operative Contentions.” 1 Dkt. 491-3 at i; see also id. at 1 (“The issue before this 14 Court relates to the 3 remaining components that Finjan accuses as MPC, and whether Finjan 15 made such allegations in the Operative Contentions.”); id. at 10 (“Even if Finjan could show its 16 Operative Contentions accused something already present in the sandbox, it did not accuse (using 17 this or any other terminology) any of the following: (i) and as ‘Mobile Protection Code’ exceed the (ii) or (iii) ). Finjan acknowledged and addressed this argument in its opposition to the motion to 18 19 Dkt. 582 at 4-5 (citing Dkt. 419 strike, albeit in a cursory fashion, asserting that “Cisco arguments regarding the phrases and 20 are moot issues because Finjan has served 21 amended expert reports that use language that track the operative infringement contentions,” 22 namely “parameters to run the sample file or URL” as a substitute for 23 and “virtual environment agent” as a substitute for the term and Dkt. 507-4 at 10. Against the backdrop of this procedural history, Finjan cannot credibly argue that it was 24 25 surprised that it was required in response to Cisco’s motion to strike to show support in the 26 Operative Contentions for the substitute language for and 27 28 As used in the April 28 Order and this order, “Operative Contentions” refers to Finjan’s infringement contentions dated November 30, 2017. See Dkt. 582 at 1. 4 1 1 2 3 28 Order. 4 A. 5 As explained more fully in the April 28 Order, at the April 21, 2020 hearing on Cisco’s Cisco’s post-hearing submission 6 motion to strike, the Court requested that following the hearing, Cisco submit a document 7 “identify[ing] by paragraph number, which paragraph you view the substitutions are problematic.” 8 Dkt. 560 (April 21 hearing transcript) at 66:1-6; Dkt. 582 at 5. Cisco filed the requested document 9 on April 22, 2020. Dkt. 558. The Court issued the April 28 Order six days later. 10 11 United States District Court Northern District of California The Court will next consider each of Finjan’s arguments for reconsideration of the April 12 1. Finjan’s lack of opportunity to respond to Cisco’s post-hearing submission Finjan now argues that it “was never invited to submit a response” to Cisco’s post-hearing 13 submission and that, as a result, the Court did not consider facts and arguments showing that the 14 struck language had support in Finjan’s infringement contentions. Dkt. 626-4 at 4; see also id. at 15 1, 3-6. Finjan is correct in that it was not invited to respond to Cisco’s submission. Because the 16 Court requested that Cisco submit a list of paragraph numbers containing substitutions for the 17 disputed terms and that list was to come from Finjan’s own red-lined reports of Finjan’s own 18 expert, Dr. Medvidovic, there was no need for a responsive submission from Finjan. 19 Finjan’s procedural complaints about Cisco’s post-hearing submission are also without 20 merit. As Cisco points out, although the submission lists more than 100 paragraphs, it was the 21 culmination of an extensive history, in which Finjan participated, and which tracks through the 22 “thousands of pages of Finjan’s two amended reports and focuses the Court on the amendments to 23 paragraphs that originally contained the 3 components” still at issue. Dkt. 637-3 at 6. The number 24 of paragraphs on Cisco’s list simply reflected Finjan’s substitution of terms throughout the 25 supplemental expert reports. 26 Of course, if Cisco had misrepresented the paragraphs containing the replacement language 27 to be stricken, Finjan could have asked the Court for an opportunity to correct the list submitted by 28 5 1 Cisco.2 But that is clearly not Finjan’s complaint. Even at this late date, Finjan has not identified 2 any substantive arguments it could have made in response to Cisco’s post-hearing submission that 3 would have been pertinent to the questions being considered by the Court. The post-hearing 4 submission simply identifies, without argument, paragraphs in Dr. Medvidovic’s amended reports 5 where Finjan substituted new language for the terms Finjan has not demonstrated that the list provided by Cisco was inaccurate or 6 7 otherwise objectionable. 8 2. 9 Finjan’s complaints as to the paragraphs identified in Cisco’s posthearing submission a. 10 11 United States District Court Northern District of California and Paragraphs identified in Cisco’s submission that reflect replacement of with “virtual environment agent” Finjan argues that “Cisco’s complaints do not stand up substantively” because the 12 13 paragraphs identified by Cisco in connection with replacement language for 14 i.e., paragraphs 632, 656, 657, and 690 of Dr. Medvidovic’s March 2020 supplemental report, 15 which the Court referred to in the April 28 Order as the “600-series paragraphs” (see Dkt. 582 at 16 10)—have support in the deposition of Cisco engineer Dean De Beer. Dkt. 626-4 at 4-5. Finjan 17 argues that it could not have included this testimony in its infringement contentions, which were 18 served before Mr. De Beer was deposed, but that it “did disclose the underlying theory as best it 19 could without discovery.” Id. at 4. Cisco responds that these arguments are a “subterfuge” to 20 reargue the motion to strike and to introduce new evidence Finjan could have presented earlier. 21 Dkt. 637-3 at 6. Cisco pointed specifically to paragraph 632 at the hearing on Cisco’s motion to strike, and 22 23 — the Court addressed the 600-series paragraphs in its April 28 Order. See, e.g., Dkt. 560 at 53-55; 24 25 26 27 28 2 The Court does not agree with Cisco that at the April 21 hearing Finjan’s attorney expressly waived an opportunity for Finjan to respond to Cisco’s post-hearing submission. See Dkt. 637-3 at 5. However, Cisco filed its post-hearing submission on April 22, and Finjan had reviewed the submission no later than the following day, when it filed an opposition to Cisco’s motion in limine number 4 that discussed the substance of the post-hearing submission. Dkt. 576-8 at 3 (citing Dkt. 558-1). The Court issued its order on April 28, thus leaving Finjan ample time to have requested an opportunity to respond. 6 1 Dkt. 582 at 10-11. Finjan has not shown that its present argument concerning these paragraphs 2 could not have been made earlier, or that the Court failed to consider the facts and arguments 3 concerning these paragraphs. In any event, Finjan’s current argument regarding paragraph 656, 4 which Cisco’s post-hearing submission identified as a “representative” example of the substitution, exposes the circular flaw in Finjan’s position. Dr. Medvidovic’s March 5 6 2020 report, as red-lined by Finjan and set forth below, purports to reference Mr. De Beer’s 7 deposition testimony concerning a “virtual environment agent” that, for example “is attached to 8 every running virtual machine at that point in time” and “allows us to monitor interactions with 9 the ”: 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 Dkt. 507-10 at ¶ 656. However, Mr. De Beer’s cited deposition testimony on this point refers to a not a “virtual environment agent”: 21 22 23 24 25 26 27 28 7 1 Dkt. 400-18 at 72:10-23 (excerpts of deposition testimony of Dean De Beer) (emphasis added).3 Finjan injecting the term “virtual environment agent” into Mr. De Beer’s testimony 2 3 concerning a 4 whether Finjan’s infringement contentions disclose the functionality Finjan now seeks to associate 5 with the “virtual environment agent.” Even setting aside the issue of whether Finjan can properly 6 use Mr. De Beer’s deposition testimony to bolster the Operative Contentions, Mr. De Beer’s 7 testimony regarding the function of the 8 its contentions that the virtual environment agent had the same functionality. Put another way, 9 Finjan’s red-lining the Medvidovic report to replace Mr. De Beer’s 10 does not establish that Finjan disclosed in with the words “virtual environment agent” does not enhance the disclosures in the Operative Contentions. 11 United States District Court Northern District of California does not address the issue in Cisco’s motion to strike, which was b. 12 Paragraphs identified in Cisco’s submission that support other infringement theories Finjan also argues that many of the paragraphs identified in Cisco’s post-hearing 13 14 submission are supported in the Operative Contentions for reasons other than supporting Finjan’s 15 sandbox-only theory, such as various “transmission-based theories.” Dkt. 626-4 at 5. Cisco 16 responds that “no such ‘transmission-based theories’ survived summary judgment.” Dkt. 637-3 at 17 7. Finjan asserts that it “believes that if the Court had considered the argument, it would not have 18 struck the language” but rather “would have determined that the proper remedy, if any … would 19 be a limiting instruction at trial.” Dkt. 626-4 at 5. Of course, Finjan could have made this 20 argument in opposition to Cisco’s motion to strike but failed to do so. In any event, in the April 21 28 Order, the Court did not decide the status of Finjan’s “sandbox-only” or “transmission-based” 22 theories. The narrow issue decided was whether the functionality associated with Finjan’s 23 replacement language for 24 Finjan’s Operative Contentions. Finjan has not demonstrated that the Court should reconsider its 25 conclusion that this functionality was not disclosed. and was disclosed in 26 27 28 All four paragraphs from which the Court struck replacement language for similarly replace with “virtual environment agent” in passages from Mr. De Beer’s deposition testimony. See Dkt. 507-10 at ¶¶ 632, 656, 657, 690. 8 3 3. 1 2 Finjan argues that if the Court decides to maintain its ruling, it should clarify whether it has 3 struck only the replacement language for 4 sentences containing the replacement language; or struck the entire paragraphs containing the 5 replacement language. Id. at 5-6. Cisco argues that the Court need not clarify its April 28 Order 6 because the order is clear that what was struck is the replacement language for and 7 8 9 United States District Court Northern District of California Finjan’s request for clarification of the April 28 Order and struck in the enumerated paragraphs. Dkt. 637-3 at 8. The April 28 Order clearly states that the Court “STRIKES the replacement language” for the terms and in the enumerated paragraphs. Dkt. 582 10 at 12, 13-16 (emphasis in original). What effect the striking of the replacement language from 11 these paragraphs has on Finjan’s infringement theories is an issue for Judge Freeman to decide. 12 13 14 B. Fact and arguments relating to replacement language 1. “Virtual environment agent” Finjan argues that the Court failed to consider facts and arguments concerning “virtual 15 environment agent,” which is Finjan’s replacement language for 16 6-9. In support of this argument, Finjan cites (1) evidence and arguments that Finjan cited in its 17 opposition to Cisco’s motion to strike, (2) evidence and arguments that Finjan discussed at the 18 hearing on the motion to strike, and (3) new evidence and arguments submitted with Finjan’s 19 motion to reconsider. Id. The Court now addresses each category of evidence and arguments 20 identified by Finjan. 21 22 23 24 a. Dkt. 626-4 at Evidence and arguments in Finjan’s opposition to motion to strike Finjan argues that “it presented evidence that its contentions identified virtual employment agent functionality residing at the sandbox.” Id. at 6. Finjan asserts that its opposition to the motion to strike “shows that the very second sentence in Finjan’s infringement contentions for the 25 MPC limitation discloses that the virtual environment agent executes at the sandbox (i.e., the 26 27 virtual environment)” which “should have given Cisco notice that the virtual environment agent could reside in the sandbox.” Id. at 6 (citing Dkt. 507-4 at 2; Dkt. 491-5 (Operative Contentions) 28 9 1 at 35). This argument misses the point. In its April 28 Order, the Court explained that “Finjan has 2 presented no evidence that the ‘virtual environment agent’ described in the Operative Contentions 3 is in any way related to the functionality now described as a ‘virtual environment agent’ in the 4 March 2020 Report and previously described as a 5 2019 Reports.” Dkt. 582 at 11-12 (emphasis added). The Court further explained that Finjan has 6 “fatally cited no evidence in the Operative Contentions or elsewhere in support of” the assertion 7 that this functionality “clearly map[s] to a virtual environment agent residing in a sandbox.” Id. 8 (citations omitted) (emphasis added). The Court concluded that “Finjan has failed to identify any 9 language in the Operative Contentions that links the functionality associated with the term United States District Court Northern District of California 10 in the July 2-19 and December in the earlier reports of Dr. Medvidovic with the now-substituted term ‘virtual 11 environment agent.’” Id. at 15 (emphasis added). In seeking reconsideration, Finjan has not 12 shown that the Court failed to consider the facts and evidence presented by Finjan on this point. 13 b. 14 15 Evidence and arguments presented by Finjan at hearing on motion to strike In its motion for reconsideration, Finjan cites evidence it referred to for the first time at the 16 hearing on the motion to strike that allegedly shows “that Cisco’s own engineers understood a 17 virtual environment agent to be equivalent in functionality to the 18 sandbox”: residing at the 19 Declaration of Watchinski Declaration of Brozefsky 20 21 22 23 24 25 26 27 28 Dkt. 626-4 at 8 (citing 377-23 (Declaration of Watchinski), 377-9 (Declaration of Brozefsky)); see 10 1 also Dkt. 560 at 41-43. Finjan suggests that this evidence was not in its opposition to the motion to strike because United States District Court Northern District of California 2 3 “Cisco shifted focus in its reply from arguing that Finjan failed to disclose any sandbox-only 4 theories to arguing that Finjan never mapped a virtual environment agent to the functionality 5 corresponding to 6 argument that Cisco “shifted focus” in its reply brief is baseless. Accordingly, Finjan has not 7 shown why it could not have presented this evidence in its opposition to Cisco’s motion to strike 8 such that it could have been fully briefed by both parties for the Court. Dkt. 626-4 at 7. As discussed above, however, Finjan’s 9 Even assuming Finjan’s presentation of this evidence at the hearing was timely, the issue 10 before the Court on the motion to strike was whether the Operative Contentions disclosed that a 11 “virtual environment agent” had the functionality attributed to that term in the amended 12 Medvidovic reports. Finjan argues that the Cisco engineers have used the terms 13 and “virtual environment agent” interchangeably and that therefore Finjan’s disclosure of “virtual 14 environment agent” must have put “Cisco on notice of the functionality associated with . . . .” Id. at 8-9. However, putting evidence before the Court regarding the alleged 15 16 understanding of Cisco’s engineers, without reference to where the Operative Contentions 17 described a “virtual environment agent” as having the same functionality as what Finjan formerly 18 described as a 19 functionality in its Operative Contentions. See Dkt. 582 at 10-12. Finally, Finjan speculates that “[o]ne reason that the Court may have concluded that Finjan 20 21 does not establish that Finjan had disclosed the relevant failed to present evidence on [the propriety of substituting “virtual environment agent” for is because some of the aforementioned evidence was raised for the first time at the April 22 23 21, 2020 hearing.” Dkt. 626-4 at 9. Not so. The Court’s determination that Finjan had failed to 24 show that the Operative Contentions disclosed that a “virtual environment agent” had the 25 functionality formerly associated with the term 26 based on consideration of all evidence and arguments presented by the parties in the briefing and 27 hearing on Cisco’s motion to strike. 28 //// in Dr. Medvidovic’s report was 11 1 c. New evidence and arguments presented in Finjan’s motion for reconsideration 2 In support of its motion for reconsideration, Finjan for the first time submits the report of 3 Cisco expert Dr. Atul Prakash and argues that Dr. Prakash refers to a as 4 5 Id. at 7 (citing Expert Report of Dr. Atul Prakash ¶ 352). The cited paragraph in Dr. 6 Prakash’s report includes a statement that 7 8 9 Dkt. 626-6 at ¶ 352. Finjan also cites paragraph 528 of Dr. Prakash’s report as 10 United States District Court Northern District of California 11 12 13 Dkt. 626-4 at 7. The cited paragraph in Dr. Prakash’s report states that Dkt. 626-6 at ¶ 528. Finjan argues that statements on page 5 of the Operative Contentions “ascribe the very same functionality” to the “virtual environment agent.” 14 Dkt. 626-4 at 7 (citing Dkt. 491-5 at 5). That portion of the Operative Contentions states that 15 16 17 18 19 20 “Cisco AMP for Networks configure a virtual environment agent (e.g., sandboxing) for intercepting and monitoring [] suspicious traffic ...” Dkt. 491-5 at 5. Finjan also points to statements on Cisco’s website and blog explaining that “sandboxing” relates to analysis of malware in a local virtual machine. Dkt. 626-4 at 7-8. Finjan argues that “[t]hus, [it] argued at the hearing that the forementioned statements in Finjan’s infringement contentions expressly linking ‘sandboxing’ functions to a virtual environment agent involved in ‘monitoring’ provided Cisco 21 sufficient notice that the component responsible for those functions (the 22 23 was at issue.” Id. at 8 (citing Dkt. 560 at 40:2-18). The only piece of this argument that Finjan presented in connection with Cisco’s motion to 24 strike was the language on page 5 of the Operative Contentions, which Finjan referred to at the 25 hearing on the motion to strike. Dkt. 560 at 40:10-20. That portion of the Operative Contentions 26 states that Cisco AMP for Networks meets the recited MPC claim language in Claim 1d of the 27 ’633 Patent “because Cisco AMP for Networks configure a virtual environment agent (e.g., 28 12 United States District Court Northern District of California 1 sandboxing) for intercepting and monitoring the suspicious traffic received.” Dkt. 491-5 at 5. But 2 that statement in the Operative Contentions by itself cannot carry the weight Finjan places on it 3 because it does not establish that a “virtual environment agent” performs all the same functions as 4 the 5 report. Moreover, all the evidence Finjan now asks the Court to stitch together in an attempt to 6 connect the Medvidovic reports to the Operative Contentions by way of language used by Cisco 7 and its engineers and expert should have been presented in opposition to Cisco’s motion to strike. 8 Even if the evidence had been timely presented to the Court, Finjan has not explained why the 9 differences between the language used in its cited materials and the language struck by the Court originally identified in the struck 600-series paragraphs in the Medvidovic 10 are not significant. Finjan has therefore failed once again to demonstrate how the Operative 11 Contentions disclosed the functionality attributed to the “virtual environment agent” in the 12 amended Medvidovic reports. 13 As a result Finjan has not demonstrated a manifest failure by the Court to consider material 14 facts or dispositive legal arguments concerning the replacement language for 15 nor has Finjan established any other grounds for reconsideration, and therefore the Court DENIES 16 Finjan’s request for reconsideration of the portion of the April 28 Order that strikes the 17 replacement language for 18 19 20 21 2. in the paragraphs cited in the April 28 Order. “Parameters to run the sample file or URL” Finjan next argues that the Court failed to consider facts and arguments concerning “parameters to run the sample file or URL,” the replacement language for and Dkt. 626-4 at 9-12. Finjan acknowledges that the Court provided three reasons for 22 granting Cisco’s motion regarding this replacement language: (1) Finjan sought but was 23 previously denied permission to add 24 contentions; (2) Finjan failed to show how the replacement language in the Operative Contentions 25 is linked to the functionality now associated with that language in Dr. Medvidovic’s amended 26 reports; and (3) the replacement language was used in the amended reports as a substitute for 27 additional terms beyond 28 language does not uniquely describe those items. Id. at 9 (citing Dkt. 582 at 12-13). and and to its infringement thus showing that the replacement 13 1 2 argues that some of the paragraphs that were struck “concern claims no longer at issue.” Dkt. 626- 3 4 at 10. This does not establish that the Court’s ruling on the paragraphs that were struck requires 4 reconsideration. Finjan also points to Paragraph 4331, one of the “representative” paragraphs 5 identified by Cisco, and argues that its infringement contentions “squarely identify [‘parameters to 6 run the sample file or URL’] as MPC.” Id. (citing Dkt. 491-5 at 35). This Court already 7 addressed that argument, finding that “although similar language appears in [the] Operative 8 Contentions … as with the replacement language for 9 how that language in the Operative Contentions is linked to the functionality now associated with 10 11 United States District Court Northern District of California Finjan argues that this ruling should be reconsidered for multiple reasons. Finjan first … Finjan has failed to show that language in Dr. Medvidovic’s amended reports.” Dkt. 582 at 13 (citing Dkt. 491-5 at 35). Finjan also argues that it “understands the issue to now be whether the replacement 12 language from Finjan’s infringement contentions (in this case, ‘parameters to run the sample file 13 or URL’) provides sufficient notice of the 14 at 11. Finjan newly points to statements in Dr. Prakash’s expert report to argue that Cisco 15 understood the “parameters” replacement language to refer to 16 However, the issue on Cisco’s motion to strike was always whether Finjan’s Operative 17 Contentions disclosed that these “parameters” had the functionality now associated with them in 18 Dr. Medvidovic’s amended reports. Finjan’s untimely citations to a general discussion by 19 Dr. Prakash does not establish the necessary link between the Medvidovic reports and the 20 Operative Contentions. 21 and functionalities.” Dkt. 626-4 Id. at 11-12. Finjan also takes issue with the Court’s conclusion that the use of the “parameters” and showed that 22 language as a replacement for items other than 23 “parameters” language did not uniquely describe 24 Again, Finjan cites new evidence (Dr. Prakash’s report) that could have been cited in opposition to 25 Cisco’s motion to strike, and that evidence in any event does not establish that Finjan disclosed the 26 relevant functionality in its Operative Contentions. Finjan must do more than show references to 27 “parameters” in its Operative Contentions that would “encompass 28 Id. at 12 (emphasis added). It must show that the Operative Contentions disclosed that 14 and Id. at 11-12. and 1 “parameters to run the sample file or URL” had the same functionality now attributed to that term 2 in the amended Medvidovic reports. See generally Dkt. 582 (“Finjan must show that it disclosed 3 [the relevant infringement theory] in its Operative Contentions … It is not enough for Finjan to 4 argue that the contentions did not expressly exclude such a theory.”) (emphasis in original). 5 Finjan has failed to make that showing with respect to the replacement language for 6 and Finally, Finjan takes issue with the Court’s conclusion that the “parameters” replacement United States District Court Northern District of California 7 8 language corresponds to theories that Finjan was previously denied permission to add to its 9 infringement contentions. Id. Tellingly, Finjan does not dispute that it sought but was denied 10 permission to add and to its infringement contentions. Instead, Finjan 11 argues that the outcome of Cisco’s previous motion to strike infringement contentions “has no 12 bearing on” the issues presented in Cisco’s motion to strike portions of Dr. Medvidovic’s amended 13 reports. Id. However, this argument again ignores the long history of disputes over the 14 infringement contentions and expert reports in this case, which gave rise to clear direction from 15 Judge Freeman that “Finjan was, of course, prohibited from including in its expert reports the 16 theories it sought but failed to add to its infringement contentions” by the previous contentions 17 orders of Judge Freeman and the undersigned. Dkt. 397 at 3. This Court properly took into 18 account Finjan’s violation of that directive as one factor supporting its decision to strike the 19 replacement language for and Accordingly, Finjan has not demonstrated a manifest failure by the Court to consider 20 21 material facts or dispositive legal arguments concerning replacement language for 22 and 23 the Court DENIES Finjan’s request for reconsideration of the portion of the April 28 Order that 24 strikes the replacement language for 25 April 28 Order and therefore the Court will not reconsider that portion of its April 28 Order. 26 IV. 27 28 nor has Finjan established any other grounds for reconsideration, and therefore and in the paragraphs cited in the CONCLUSION Finjan has not demonstrated a “manifest failure by the Court to consider material facts or dispositive legal arguments which were presented to the Court before” it issued the April 28 15 1 Order. The Court considered all material facts and legal arguments presented by Finjan. Finjan’s 2 professed surprise or disagreement with the outcome does not warrant reconsideration of the 3 Court’s ruling. Nor has Finjan demonstrated or even argued that there is a “material difference in 4 fact or law” or “the emergence of new material facts or a change of law” that would warrant 5 reconsideration. Accordingly, the Court DENIES Finjan’s motion for reconsideration of the April 6 28 Order. 7 8 SO ORDERED. Dated: June 11, 2020 9 10 SUSAN VAN KEULEN United States Magistrate Judge United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16
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