Alsup Rips 'Standard Patent BS' In $8.7M Atty Fee Fight
By Hannah Albarazi
Law360, San Francisco (January 7, 2021, 8:29 PM EST) -- U.S. District Judge William Alsup appeared unlikely to let Finjan Inc. skip out on Juniper Networks' $8.65 million legal bill following its defeat at trial, calling out Finjan on Thursday for changing its patent infringement theory to inflate damages and lamenting the "standard patent BS by bought-and-paid-for experts."
Juniper, which won a judgment in 2018 that it does not infringe the patents asserted by Finjan, urged Judge Alsup to find the case exceptional and to award it attorneys fees, pointing to Finjan's attempt to change its infringement theory to one not advanced by its expert in order to increase damages.
While Finjan denied changing its infringement theory and argued that it "had a good-faith belief it wasn't changing its damages theory," Judge Alsup disagreed.
"It is absolutely true that Finjan changed its damages model and its infringement theory whenever it learned that it wasn't going to get much money out of the first one," Judge Alsup said. "I remember that. I was convinced of it at the time; I'm convinced of it now."
When Finjan's attorney, Juanita R. Brooks of Fish & Richardson P.C., tried to point to expert statements on the subject, Judge Alsup wasn't having it and described those statements as "just standard patent BS by bought-and-paid for-experts."
"The bought-and-paid-for experts will say anything. They will say anything, on both sides. I don't trust a word of that," Judge Alsup said.
After the Federal Circuit affirmed Juniper's jury win against the only patent claim that had survived to trial, Juniper asked Judge Alsup to grant it legal fees for its expenses litigating against the nine patent claims that the California-based patent licensing company lodged against it in 2017. Finjan accused Juniper of infringing patents covering technologies for storing and downloading security data.
Juniper said that as the case was nearing trial, Finjan tried 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 the remaining patent in the case, U.S. Patent No. 8,677,494.
But Finjan said it had reasonably relied on an expert damages model approved by past Federal Circuit law and aligned with an expert's damages model that the infringing act was Juniper's sale of its product.
Judge Alsup has yet to rule on Juniper's earlier allegations that Finjan's former counsel, attorneys at Kramer Levin Naftalis & Frankel LLP, ought to be sanctioned for lying and pushing "overreaching" theories, particularly about damages.
Juniper's attorney, Jonathan Kagan of Irell & Manella LLP, told Judge Alsup Thursday that Finjan is still misleading the court.
Kagan said that Finjan's "shenanigans" are "the exact type of shifting sand approach" that justifies finding a case extraordinary.
"We have this changing infringement theory just to try to artificially boost damages, the undisclosed theory that your honor [struck] and then they tried to end run the ruling by sneaking it in in a different way at trial, forcing your honor to again strike it and take the issue from the jury," Kagan said.
While Brooks argued that Finjan's position was not objectively unreasonable, she also told Judge Alsup, "This is not a hill I want to die on."
Brooks told the judge that if he ends up finding Finjan absolutely changed its damages theory, he could ask Juniper to supply the attorney fees and expenses it ran up defending that issue alone, instead of its entire litigation expenses.
Kagan, however, reminded Judge Alsup that while he has such discretion, he is also under no obligation to parse out which parts of Finjan's case are exceptional.
Judge Alsup took the matter under submission Thursday without issuing a ruling.
Representatives and counsel for the parties did not immediately respond to requests for comment Thursday.
The patents-in-suit are U.S. Patent Nos. 8,141,154; 6,804,780; and 8,677,494.
Finjan is represented by Juanita R. Brooks, Francis Joseph Albert, Robert Printon Courtney and Oliver James Richards of Fish & Richardson P.C.
Juniper is represented by Jonathan Kagan, Rebecca Carson and Ingrid Marie Haslund Petersen of Irell & Manella LLP.
