don't you love it when you get a jury that thinks it is smart
Hung Jury, Partial Verdict In Finjan-Blue Coat IP Rematch
Share us on: By Bonnie Eslinger
Law360, San Jose (November 20, 2017, 6:40 PM EST) -- A California federal jury Monday found that Blue Coat infringed two of Finjan’s online security patents, but cleared the Symantec unit on two other patents and hung on two more, awarding $490,000, far less than the $39.5 million Finjan received in prior litigation.
The jury of four men and five women, who reached their verdict Monday after nearly four days of deliberations, warned the court Friday that they were at loggerheads over some patents, but U.S. District Judge Beth Labson Freeman encouraged them to keep trying to reach consensus on all of the asserted patents. On Monday, just before lunch, the jury informed the court that the best they could offer was a partial verdict.
The $490,000 in damages for infringement of U.S. Patent Numbers 6,965,968 and 7,418,731 is nowhere near the tens of millions of dollars Finjan Inc. told the jury Blue Coat Systems should pay for worldwide use of six of its patents. Those two patents related to Blue Coat’s Advanced Secure Gateway and Malware Analysis Appliance products. The jury, however, didn’t find the infringement was willful.
After the jury had been discharged, foreperson Debbie Phillips told Law360 that they were persuaded by Blue Coat’s assertion that, after it was ordered to pay $39.5 million to Finjan in a prior case involving some of the same patents, the company believed it could continue to use its allegedly infringing products.
“If Blue Coat was already paying, based on the award, for this item, then why would they change their product, right?” Phillips said. “The big thing from Finjan was, ‘Hey, they haven’t changed anything.’ And our argument was, ‘Well, why should they?’”
While Finjan said the rival company created a new generation of products that continued to infringe its inventions, Blue Coat argued Finjan was shoehorning its outdated inventions to fit the design of Blue Coat's modern technology. Jurors sided with Blue Coat’s assertion that just because some of its products had similar operations to Finjan’s inventions didn’t mean the computer code was the same, Phillips said, noting that several jurors had technical backgrounds, including herself.
“I’m a software engineer. I know what code is, I know what operations are,” she said.
After the jury had left, Judge Freeman met with the attorneys to discuss post-verdict issues. After Finjan attorney Paul Andre of Kramer Levin Naftalis & Frankel LLP asked the judge when the infringement claims for the two patents on which the jury hung could be retried, the judge said she wanted the new trial in December or January at the latest.
The judge refused a request from Blue Coat attorney Stefani Shanberg of Morrison & Foerster LLP to hold off until after the Federal Circuit issues a ruling related to the patents.
“I’m not going to wait,” Judge Freeman said. “I want to get this through trial, I want you to have verdicts on everything."
The two-week trial was the second time the East Palo Alto company has brought such allegations against rival Blue Coat Systems Inc. in Judge Freeman's courtroom. The six asserted patents in the current case relate to technologies for protecting computers from viruses downloaded from the internet.
Nearly one week earlier, during closing arguments, Andre told the jury that despite the 2015 jury verdict finding that Blue Coat infringed on five of Finjan’s patents, including three in the case currently before the court, Blue Coat developed a new round of products that also incorporate Finjan’s security technology. The products include Blue Coat’s “Global Intelligence Network, or GIN, a cloud-based service for detecting malware that’s part of many of the rival company’s products, he said.
In its Monday verdict, the jury couldn’t reach a unanimous decision on whether there was infringement on two of the patents asserted by Finjan in the case related to GIN — U.S. Patent Numbers 8,677,494 and 6,154,844 — for which the company was seeking $46 million, the bulk of its damages.
The two patents for which the jury found there was no infringement are U.S. Patent Numbers 8,225,408 and 9,189,621.
Counsel for both Finjan and Blue Coat declined to comment on the jury’s split verdict Monday.
A Symantec spokesperson told Law360 in a statement, "Symantec is pleased that the jury awarded much less than what Finjan was seeking and is considering its options to further reduce the damages."
The patents-in-suit are U.S. Patent Numbers 8,225,408; 8,677,494; 9,189,621; 6,154,844; 6,965,968; and 7,418,731.
Finjan is represented by Paul Andre and Lisa Kobialka of Kramer Levin Naftalis & Frankel LLP.
Blue Coat is represented by David A. Nelson of Quinn Emanuel Urquhart & Sullivan LLP and Stefani E. Shanberg of Morrison & Foerster LLP.
The case is Finjan Inc. v. Blue Coat Systems Inc., case number 5:15-cv-03295, in the U.S. District Court for the Northern District of California.
--Additional reporting by Dorothy Atkins, Ryan Davis and Y. Peter Kang. Editing by Marygrace Murphy.
