this sounds like a fun trial
Alsup Probes Patent Trial Jury Pool On UFOs, Telekinesis
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Law360, San Francisco (December 10, 2018, 8:52 PM EST) -- U.S. District Judge William Alsup questioned prospective jurors about their beliefs in aliens, telekinesis and UFOs on Monday at the start of a trial over Finjan Inc.'s allegations that Juniper Network Inc.'s malware detection products infringe its security patent, saying it's "interesting" to see which party "knocks off" jurors with scientific backgrounds.
When the jury wasn't in the courtroom, Judge Alsup suggested that people who were observing jury selection pay attention to how jury selection "plays out" and whether the potential jurors with scientific backgrounds get selected for service.
"I have found it very interesting which side knocks off people who know science…," Judge Alsup said of patent trials. "It's one of the more interesting points of the trial."
The judge then called the jury into the courtroom and asked the jurors if any of them believe in UFOs, telekinesis or that aliens have visited Earth. Two out of 14 potential jurors said they "strongly" believe in all three things, and one of those two individuals ultimately made it on the eight-member jury panel.
Meanwhile, Juniper used two of its three peremptory challenges to ax from the jury a mechanical engineer, who said he's a named inventor on multiple patents, and a personal injury attorney who is a former prosecutor. Finjan Inc. also nixed three potential jurors, two who said they didn't like so-called patent trolls — a pejorative term used for so-called nonpracticing entities that make a business of suing for patent infringement. The second alien-believer would have made it on the jury too, but she was excused from service based on the order she was called after Juniper forfeited its third peremptory challenge.
After jury selection, Finjan's counsel, Paul J. Andre of Kramer Levin Naftalis & Frankel LLP, gave opening arguments on behalf of the San Jose, California-based company, which sued Juniper in September 2017. Finjan accuses Juniper of infringing a single claim off U.S. Patent No. 8,677,494 — titled "Malicious Mobile Code Runtime Monitoring System and Methods" — to make its Sky ATP products, which integrate with Juniper's SRX Gateways to detect malware.
Andre explained that the sole claim at issue describes a system for managing downloadables, using a scanner to identify a list of suspicious operations and create a security profile based on the data, and then using a database manager to store the security profile data.
"That's how simple this claim is, that's how elegant," Andre said.
Andre said Juniper released its Sky ATP products that infringe the claim in 2015, nearly two years before its patent expired, even though Finjan had contacted Juniper in 2014 and warned the company it was at risk of infringing Finjan's intellectual property. At that time, Andre said, Juniper had secretly recorded the phone call, and a Juniper employee told Finjan that Juniper was going to "drain" it of resources by forcing Finjan to sue Juniper.
"That's what their strategy is — drain smaller companies of money and resources," Andre said.
But in Juniper's openings, Jonathan S. Kagan of Irell & Manella LLP argued that Finjan never notified the company of its patent and therefore Juniper wasn't on notice of its alleged infringement.
Kagan also argued its Sky ATP products don't infringe the patent, because the patent's claim involves a database "schema" that is structured, but the database that Juniper's products use isn't structured.
"When you look at where the data is actually stored, it cannot meet the court's definition of database," Kagan said.
Kagan also attempted to cast doubt on Finjan's business model, noting that over the past decade, Finjan has turned into a nonpracticing entity that has "no products and no employees." Kagan also said Juniper only made $1.8 million in revenue from the accused products during the time period at issue. Even if Juniper had agreed to negotiate with Finjan, Kagan said it would have started the licensing negotiations at $200,000 and Juniper would never have agreed to more than that.
The trial will continue Tuesday with the examination of Finjan's technology expert Harry Bims.
The patent-in-suit is one of multiple patents at the center of another patent infringement suit that Finjan launched against Symantec Corp. and its subsidiary. In March, Symantec agreed to pay at least $65 million to settle Finjan's allegations.
Finjan was represented by Paul J. Andre of Kramer Levin Naftalis & Frankel LLP.
Juniper was represented by Jonathan S. Kagan of Irell & Manella LLP.
The case is Finjan Inc. v. Juniper Network Inc., case number 3:17-cv-05659, in the U.S. District Court for the Northern District of California.
--Editing by Nicole Bleier.
