Finjan Owes $5.9M In Patent 'Fiasco,' Special Master Says
By Lauren Berg
Law360 (May 24, 2021, 9:05 PM EDT) -- Finjan Inc. should foot a $5.9 million portion of Juniper Networks' legal bill, a special master has determined, after U.S. District Judge William Alsup said Finjan repeatedly "wasted everyone's time and energy" by flip-flopping on its patent infringement theory in an attempt to artificially boost damages.
In a 21-page report Thursday, special master Matthew Borden of Braunhagey & Borden LLP recommended that patent licensing company Finjan pay networking infrastructure provider Juniper nearly $6 million in reasonable fees for work done that culminated in winning two summary judgment motions, defeating a summary judgment motion and prevailing in a five-day jury trial in California federal court.
Juniper asked for a little more than $6.2 million after writing off more than $2.4 million in fees and organizing its billing into 133 separate projects, according to the report. Finjan objected to nearly every project, arguing that Juniper's senior attorneys spent too much time on the case and that it should only get fees for work on the two patents at issue, rather than all the patents-in-suit, the report states.
"From a review of both sides' billing records, it appears that Juniper's defense was proportional to the intensity with which Finjan prosecuted the case," Borden said. "It does not appear that Juniper overreached on its claimed fees, such that any penalty should be assessed against it."
Juniper is entitled to recover reasonable fees except those "bearing little or no relation" to U.S. Patent Nos. 8,677,494 and 6,804,780, the special master said, but said the company's apportionment of fees for its work on other patents is fair and accurate.
Special master Borden's report comes after Judge Alsup in January ordered Finjan to pay a portion of Juniper's legal fees. He said Finjan "flip-flopped" on the eve of trial when it sought to put forth a new infringement theory over one of its malware detection patents after realizing its original one only covered a small part of Juniper's revenue.
"Finjan tried to sneak this theory in with its expert-damages report, but we caught it, and the Daubert order excluded that trick," Judge Alsup said.
Finjan, which brought suit in 2017 alleging Juniper infringed nine patents covering technologies for storing and downloading security data, 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 a jury found its products infringed the remaining patent in the case, U.S. Patent No. 8,677,494.
"Finjan's first-round '494 patent damages fiasco wasted a great deal of everyone's time and energy," Judge Alsup wrote in his order.
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.
At a hearing on Juniper's bid for attorney fees in January, Finjan pointed to its expert testimony, but Judge Alsup lamented the "standard patent BS by bought-and-paid-for experts." Finjan pushed back, saying it had a good-faith belief it wasn't altering its damages theory.
Judge Alsup appointed Borden, his former law clerk, to sort out the fee dispute and instructed Juniper to resubmit billing records distinguishing between time spent by its attorneys on the '494 and '780 patents and time spent on other facets of the litigation.
In his report and recommendation on Thursday, special master Borden rejected Finjan's argument that Juniper's senior attorneys spent too much time on the case, finding that a comparison between the parties' billing for 16 projects showed their staffing was generally proportional.
For example, Juniper's staffing for the summary judgment motions on the '780 and '494 patents was similar to, if not more efficient than, Finjan's, the special master said. He said Juniper had three fewer timekeepers and spent less time overall: 644.8 hours by Juniper compared to 696.5 hours by Finjan.
The special master also said the record doesn't support Finjan's argument that Juniper's senior lawyers spent too much time on the case.
Representatives for the parties did not immediately respond to requests for comment Monday.
The patents-in-suit are U.S. Patent Nos. 6,804,780 and 8,677,494.
Finjan is represented by Juanita Brooks, Frank J. Albert, Rob Courtney and Oliver J. Richards of Fish & Richardson PC.
Juniper is represented by Jonathan S. Kagan, Rebecca Carson and Ingrid Petersen of Irell & Manella LLP.
The case is Finjan Inc. v. Juniper Network Inc. et al., case number 3:17-cv-05659, in the U.S. District Court for the Northern District of California.
--Additional reporting by Hannah Albarazi and Britain Eakin. Editing by Michael Watanabe
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