There's no ginger in our cookies ! Ha!
and where is that appeals court opinion???????????
Finjan Says Symantec Unit Owes $30M In IP Trial Rematch
Share us on: By Bonnie Eslinger
Law360, San Jose (January 8, 2018, 10:22 PM EST) -- Months after a California federal jury ordered Symantec unit Blue Coat Systems to pay Finjan Inc. $490,000 for infringing two cybersecurity patents, Finjan greeted eight new jurors Monday and asked for $30 million for two other patents on which the prior jury hung.
During opening statements Monday in the retrial, Finjan attorney Paul Andre of Kramer Levin Naftalis & Frankel LLP told jurors that in 2015, his client secured a nearly $40 million verdict against Blue Coat over infringed patents, but glossed over the November verdict, in which a jury awarded Finjan $490,000, hung on two patents and found no infringement on two others.
“We have proven in our previous case that Blue Coat began taking our technology, infringing,” Andre said. “We’re here again today for a second round.”
Finjan’s current suit, first filed in July 2015, alleges that former partner Blue Coat didn’t get a license before using Finjan’s intellectual property, which relates to appliances and software for protecting computers from hostile files downloaded from the internet.
Finjan was started in 1995 by Shlomo Touboul, an inventor who sold his first company to Intel Corp. and then discovered a way to protect computers from possible threats from what was then a new programing language, Java. Two of Finjan’s early “foundational patents” for technology that proactively detects the behavior of online viruses and other malicious code, are at issue in the current trial, the attorney said.
“You talk about Henry Ford who invented automobiles and then you put things on top of it. These are foundational patents in the computer science world,” Andre said. “Mr. Touboul, he invented patents that changed the world.”
While Finjan and Blue Coat once produced a product together, around 2009 Blue Coat began developing its own technology and became a competitor, Andre said.
“Which is not unusual, it happens from time to time, no bad feelings,” the attorney added. “As long as they compete fair in the marketplace.
But around 2011, Finjan found that Blue Coat was using its technology in its products.
“We don’t want to be here a second time, but Blue Coat decided to take Finjan’s technology and not pay for it. That’s what we’re going to prove in this case and we’re going to prove it's willful, that they did it with egregious behavior,” Andre said.
The patents expired last year, so a “reasonable royalty” for use of the patents up until that time is “a little over $30 million,” the attorney said.
Offering the opening statement for Blue Coat on Monday was Daralyn Durie of Durie Tangri LLP, which came on board for the retrial.
Durie told jurors that while Finjan may have once been a cybersecurity pioneer, the innovator in the field is now Blue Coat, which now provides web security solutions for government and private clients — about 70 percent of top U.S. companies. Finjan’s patents, which trace back to 1996 and 1997, are outdated and haven’t kept up with computer speeds and the growing number of online threats.
“The world has changed a lot since 1996 in network technology.... This was pre-Google, if you can imagine,” Durie said. “And so, technology from 1996 and 1997 that were designed to address issues from that time are not necessarily relevant anymore.”
The attorney suggested that assessing patent litigation claims was like comparing cookie recipes that all begin with flour, sugar and butter. One can’t claim a ginger cookie recipe is copied just because another has the first three ingredients, she said, it has to have the fourth as well. Finjan may claim similarities between its products and Blue Coat's, but it’s not owning up to the differences.
“What the evidence in the case is going to show you is there is no infringement, there is no ginger in our cookie,” Durie said.
The Blue Coat attorney also noted that her client is appealing the 2015 verdict.
The patents back in battle are U.S. Patent Numbers 8,677,494 and 6,154,844, the latter of which was also at issue in the 2015 trial.
The $490,000 in damages awarded in November for infringement of two other patents was nowhere near the tens of millions of dollars Finjan told the jury Blue Coat should pay for worldwide use of six of its patents. The jury also didn’t find the infringement was willful.
After the jury had been discharged, foreperson Debbie Phillips told Law360 that the jurors 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.
During the 2017 trial, Finjan argued to the jury that despite the 2015 jury verdict finding that Blue Coat infringed on five of Finjan’s patents, 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, Finjan said.
In its November 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 — the patents at issue in the retrial.
The '494 and '844 patents both relate to a computer network system that protects devices connected to the internet from undesirable operations from web-based content.
The patents-in-suit are U.S. Patent Numbers 8,677,494 and 6,154,844.
Finjan is represented by Paul J. Andre, Lisa Kobialka, James Hannah and Hannah Lee of Kramer Levin Naftalis & Frankel LLP.
Blue Coat is represented by Stefani E. Shanberg, Nathan B. Sabri, Robin L. Brewer, Eugene Marder, Madeleine E. Greene, Michael J. Guo and Alex N. Hadduck of Morrison & Foerster LLP and Daralyn J. Durie and Stephen J. Elkind of Durie Tangri 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 Bruce Goldman.
