Fed Circ. Asked To Nix Finjan Cybersecurity Patents
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By Nicole Narea
Law360, New York (September 19, 2017, 11:16 PM EDT) -- Blue Coat Systems Inc. and Palo Alto Networks Inc. asked the Federal Circuit to rethink a Patent Trial and Appeal Board ruling upholding a Finjan Inc. malware detection patent asserted against them, arguing that it had misinterpreted prior art.
The companies’ Friday brief asserts that the board wrongly found that the patent was nonobvious over prior art that they claimed described a key claim of the patent. The brief also posits that the board should not have disregarded cross-examination testimony and their alternative prior art arguments.
“The board provides no sufficient explanation or identifies any substantial evidence for its findings,” their opening brief states.
The patent covers a means of detecting malware in data streamed from a network onto a computer, requiring the conversion of incoming data to a so-called parse tree that is then evaluated for malicious code, according to the petition.
Finjan had accused Blue Coat and Palo Alto Networks of infringing the patent in California federal court, and then the companies asked the Patent Trial and Appeal Board to institute review of the patent. The board granted their petition.
The companies argued that prior art referred to as Chandnani described the “dynamic building” of a parse tree from an incoming data stream — and that a key claim of the Finjan patent rested on that process.
In its final written decision issued in March, the PTAB rejected that argument, relying on Finjan’s expert testimony. The board found that Chandnani did not describe the creation of a parse tree while the data streams and therefore didn’t count as the type of “dynamic building” the patent was based on.
The board additionally found that Blue Coat and Palo Alto’s alternative obviousness arguments under prior art known as Walls “suffer from the same deficiencies as its challenges based on Chandnani,” in that it does not describe the simultaneous construction of the parse tree and reception of the data stream, according to its decision. It thus found the patent valid and denied Blue Coat and Palo Alto Network’s request for a rehearing.
On appeal Friday, Blue Coat and Palo Alto Networks argued that the board had misinterpreted Chandnani and ignored cross-examination testimony that undermined its decision. Furthermore, it neglected to discuss their particular obviousness arguments in relation to Walls, they said.
They asserted the board had wrongly concluded that Chandnani requires that an incoming file must be stored on a computer and evaluated in whole in order to ascertain its programming language, even though it clearly pertains to data streams that are not yet stored.
“The board then selectively read only the disclosure of Chandnani that could be read as consistent with this assumption, while disregarding contradictory disclosure in the reference,” the brief states.
Without elaborating on its reasoning, the board also disregarded cross-examination testimony from Finjan’s expert witnesses indicating that the system would evaluate the programming language of a data stream as it came in, the companies pointed out. If a system waited for the entire file to render, it would be “unnecessary and counterproductive to the goal of rapid malware detection,” according to the brief.
Blue Coat and Palo Alto Networks furthermore alleged that the board had mistakenly dismissed their arguments under a combination of prior art including Walls, which describes a method of operating successive tasks by breaking them down into smaller pieces while evaluating code. The board merely determined that Walls was similar to Chandnani in its disclosures, they said.
“The board erred by rejecting the proposed combination based on an analysis of a single reference rather than addressing what one of ordinary skill would understand from the teachings of the combination as a whole,” the petition states.
The patent-in-suit is U.S. Patent Number 8,225,408.
Counsel for the parties did not immediately respond to requests for comment.
Blue Coat was represented by Michael T. Rosato, Andrew S. Brown, and Sonja R. Gerrard of Wilson Sonsini Goodrich & Rosati PC.
Palo Alto Networks was represented by Orion Armon and Brian Eutermoser of Cooley LLP.
Finjan was represented by James R. Hannah and Paul J. Andre of Kramer Levin Naftalis & Frankel LLP.
The case is Blue Coat Systems LLC et al. v. Finjan Inc., case number 17-2059 in the U.S. Court of Appeals for the Federal Circuit.
--Editing by Nicole Bleier
