Finjan Fights $8.7M Fee Bid For 'BS' Juniper Patent War
By Dave Simpson
Law360 (December 15, 2020, 11:03 PM EST) -- Finjan urged a California federal judge not to force it to pay Juniper Networks' $8.65 million legal bill for its expenses defending a case that Judge William Alsup said evoked "all the BS that goes on" in patent lawsuits, arguing that the case was "far from frivolous" and pursued in good faith.
Finjan Inc. said Monday that while it lost the jury trial in the patent infringement suit, it did win "a number of battles along the way," including beating Juniper Networks' motions to invalidate its patents and getting to trial on one of its patents.
"Contrary to Juniper's contention, this case was resolved on entirely unexceptional grounds, and though Juniper ended up prevailing in the end, Finjan vigorously pursued claims it reasonably and in good faith believed were meritorious," Finjan said. "Nothing about this case calls for fee shifting."
Last month, Juniper Networks asked U.S. District Judge Alsup to grant it legal fees for its expenses litigating against the nine patent claims that Finjan had lodged against Juniper in 2017.
The fee claims came less than two months after the Federal Circuit affirmed Juniper's win before a jury against the only patent claim that had survived to trial in a one-line order.
In Juniper's telling on Monday, Finjan had threatened "a multi-headed hydra of lawsuit[s]" if Juniper didn't agree to license an array of Finjan's alleged inventions. These were patents on technologies for storing and downloading security data and were allegedly owned by the Palo Alto, California-based patent licensing company.
But Juniper didn't think that its technology used those inventions at all. Finjan then said it would hit Juniper with a world of legal expenses in which its "best-case scenario would be to spend millions upon millions of dollars defeating each of Finjan's meritless claims."
Now, Juniper wants those millions from Finjan.
Juniper drew particular attention to an effort by Finjan, as the case was about to head to trial, to claim $142 million in damages after Juniper provided evidence in discovery that, at most, Juniper would owe less than $1.8 million if the jury found its products infringed on the remaining patent in the case, U.S. Patent No. 8,677,494.
Judge Alsup had rejected Finjan there, too, Juniper's filing recollected. Reviewing Finjan's new theory of damages, he called the numbers "eyepopping" and ultimately "preposterous."
Finjan responded Monday that the court's disagreement with the damages doesn't make the position frivolous.
"Finjan reasonably relied on an expert damages model approved by past Federal Circuit law and aligning with a reasonable interpretation that the infringing act was Juniper's sale of its product — not the consumers' post-sale use," it said.
The trial has had its odd moments. Interrogating the jurors, Judge Alsup had asked about their belief in aliens and forms of telekinesis. Finjan had rejected two jurors who expressed a dim view of so-called patent trolls, a pejorative term for nonpracticing entities that make a business of suing for patent infringement. In another filing, Juniper would note that the company is, elsewhere, suing some 20 other companies for patent infringement.
Nonetheless, the jury had found no infringement. The saga, however, only came to an end this October after a Federal Circuit panel responded with skepticism to Finjan's appeal of an earlier ruling that Finjan didn't properly notify Juniper about its alleged infringement, a finding of Judge Alsup's court.
Among other things, Juniper played up, in its bid for fees, its trial win.
Finjan shot back Monday that the court granted summary judgment in its favor that Juniper's products infringed all but one element of the claim at issue in the '494 patent — whether the products had a database.
"Juniper also ignores that Finjan presented evidence (including documents from Juniper's marketing materials and Juniper's own engineers) confirming that Juniper's product uses a database," Finjan said Monday. "While Juniper ended up prevailing with the jury, this evidence at a minimum shows Finjan's case was far from frivolous."
The tone of Juniper's November filing seemed at times incredulous about Finjan's legal strategy during the trial, which was handled by its former counsel, the New York firm Kramer Levin Naftalis & Frankel LLP.
"It is difficult to conceive of a weaker case," Juniper said about the suit, as it landed at the company's door. Following a few early summary judgment wins in 2018, Juniper said there was no reason for Finjan not to simply give up.
Judge Alsup has yet to rule on Juniper's earlier allegations that lawyers on the case at Kramer Levin ought to be sanctioned for lying in Judge Alsup's court and pushing "overreaching" theories, particularly about damages. Last month, Juniper again urged Judge Alsup to finally rule on those sanctions.
In the midst of that trial, Judge Alsup shook his head and remarked that he was convinced one side in the case must be lying to his face. He said that the case was, in his mind, indicative of "all the BS that goes on" in patent litigation.
Juniper said last month that the liars were Finjan and its legal team.
Finjan's Monday filing makes little mention of its former counsel but did ask that the firm be involved if the court does opt to award attorneys' fees.
"Even if the court were inclined to award any attorney fees, pursuant to the court's order of October 22, 2020 retaining jurisdiction over Kramer Levin for the purpose of sanctions motions, Finjan respectfully submits that further discussions concerning potential fee-shifting or sanctions require participation from Kramer Levin," it said.
The patents-in-suit are U.S. Patent Nos. 8,141,154; 6,804,780; and 8,677,494.
Finjan was represented by Francis Joseph Albert, Juanita R. Brooks, Robert Printon Courtney and Oliver James Richards of Fish & Richardson P.C.
Juniper was represented by Rebecca Carson, Dennis Joseph Courtney, Alexis Paschedag Federico, Alan J. Heinrich, Jonathan Kagan and Ingrid Marie Haslund Petersen 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.
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