[00:00:00] Speaker 04: The United States Court of Appeals for the Federal Circuit is now open and in session. [00:00:08] Speaker 04: God save the United States and this honorable court. [00:00:13] Speaker 03: Good morning. [00:00:13] Speaker 03: The first case for argument this morning is 191837, Finjen versus Juniper Networks. [00:00:21] Speaker 03: Ms. [00:00:21] Speaker 03: Brooks, now we're ready to hear you proceed, have you proceed. [00:00:24] Speaker 03: Thank you. [00:00:25] Speaker 05: Thank you very much, Your Honor. [00:00:26] Speaker 05: My apologies. [00:00:27] Speaker 05: This is the first time that I have done one of these. [00:00:30] Speaker 05: Certainly not my first Fed Circuit argument, but certainly the first time I have proceeded here. [00:00:35] Speaker 05: I am trying to picture all of Your Honors and pretend that I'm standing there before you. [00:00:41] Speaker 05: This particular argument will be very brief. [00:00:44] Speaker 05: It was not opposed by Juniper, so there was no opposing brief filed. [00:00:49] Speaker 05: And the only reason that we took this issue up on appeal [00:00:53] Speaker 05: is that we had essentially had expressed instructions from Judge Alsup at the district court level that if we wanted certain portions of the Daubert ruling, very small portions, to remain sealed, then we had to appeal the order or it would automatically become unsealed, or we had to appeal the issue of sealing. [00:01:15] Speaker 03: Ms. [00:01:16] Speaker 03: Brooks, this is Judge Prost. [00:01:18] Speaker 03: Let me just ask you, I know where we can... We've got a case... [00:01:22] Speaker 03: in Unalak, which seems very similar to this. [00:01:26] Speaker 03: And in that case, also with Judge Alsop, we remanded the case for him to make findings and analyze this question. [00:01:37] Speaker 03: You're asking for a reversal, but even if we agreed with you, wouldn't a remand rather than a reversal be the appropriate course? [00:01:46] Speaker 05: Yes, Your Honor, I think it would. [00:01:49] Speaker 03: Thank you. [00:01:49] Speaker 06: Okay, Ms. [00:01:49] Speaker 06: Brooks, this is Judge Wallach. [00:01:52] Speaker 06: Did the judge indicate why he didn't want those particular numbers, why he wanted them made public? [00:01:59] Speaker 05: No, unfortunately he did not. [00:02:02] Speaker 05: It was simply a broad, unless you, we articulated why we did want them to not be public. [00:02:09] Speaker 05: They are specific. [00:02:10] Speaker 05: licensing numbers for Fingin that the public should have particularly no interest in, but Fingin certainly has interest in keeping them confidential, and a judge also did not articulate why he felt that was inappropriate. [00:02:25] Speaker 06: Okay, thanks. [00:02:28] Speaker 05: And with that, I would submit. [00:02:29] Speaker 03: Thank you very much. [00:02:33] Speaker 03: The case is submitted. [00:02:35] Speaker 03: We can move on to the next case now, Christina, whenever you're ready. [00:02:41] Speaker 04: Thank you, Chief Judge Pross. [00:02:42] Speaker 04: The court will pause voluntarily to set up the next argument. [00:02:47] Speaker 03: Next case for argument is 19-2405, Finjen, Inc. [00:02:52] Speaker 03: versus Juniper Networks. [00:02:54] Speaker 03: Ms. [00:02:54] Speaker 03: Brooks. [00:02:56] Speaker 05: Thank you, Your Honor. [00:02:57] Speaker 05: I now feel like a very experienced advocate. [00:03:02] Speaker 05: My second argument over the telephone. [00:03:06] Speaker 05: May it please the court? [00:03:07] Speaker 05: Your Honors, this, as you can see, [00:03:10] Speaker 05: a very lengthy brief with five issues. [00:03:14] Speaker 05: And I only have to... This is Judge Walla. [00:03:18] Speaker 05: Yes, Your Honor. [00:03:20] Speaker 06: You're never going to have an easier one than the last one. [00:03:23] Speaker 06: This is harder. [00:03:25] Speaker 06: On page 70 of the blue brief, maybe you can clear this up for me. [00:03:31] Speaker 06: You say the district court wrongly reasoned that only by sending a complete infringement claim chart could finch and establish actual notice. [00:03:40] Speaker 06: Where in the summary judgment order did the district court conclude you were required to, but did not supply a claim chart? [00:03:48] Speaker 06: I know, identify a specific patent, but I don't think that's the same thing. [00:03:53] Speaker 05: What the court said, Your Honor, and it said Appendix 18690 at Line 10 through 15. [00:04:03] Speaker 05: This is actually what the court said, which is that Stingen was, quote, going to lose the issue, absent presenting, quote, a claim chart, unquote, that, quote, showed the 780 patent. [00:04:19] Speaker 05: That was basically, essentially. [00:04:21] Speaker 05: So that's our position that the court was essentially saying that we needed that. [00:04:29] Speaker 05: There's also inferences, Your Honor, that, [00:04:32] Speaker 05: That's what the court was saying, because we looked at the dialogue back and forth between St. [00:04:39] Speaker 05: John and Cyforth. [00:04:40] Speaker 05: It went on for months. [00:04:42] Speaker 05: We had even gotten to the point where we had exchanged a term sheet. [00:04:45] Speaker 05: This was by mid-2016, I believe it was. [00:04:51] Speaker 05: My office has just gone dark, so I can't see my notes. [00:04:54] Speaker 05: There was even a term sheet exchanged, and during that time, [00:04:59] Speaker 05: All the patents in the case were discussed, the 154 was discussed, the 454 was discussed, and the 780 was actually part of a presentation. [00:05:08] Speaker 05: So one could infer that if all of that was not, and we identified the infringing device, this ATP. [00:05:16] Speaker 05: So if all of that was not enough for actual notice, [00:05:20] Speaker 05: And judge also saying from the bench that we were going to lose because this was in the form once again of a summary judgment, which is interesting because compliance with notice is a fact issue. [00:05:32] Speaker 05: And yet what the lower court found is that [00:05:35] Speaker 05: despite the fact that we'd engaged in these lengthy discussions with CIFOR, despite the fact that we had told them what the accused product was, despite the fact that we have identified pertinent patents absent, according to him, a claim chart that showed the 780 patent was violated, we would not meet in his mind as a matter of law, apparently, that our requirement to show notice, actual notice. [00:06:06] Speaker 06: Okay. [00:06:07] Speaker 06: That's very helpful. [00:06:08] Speaker 05: Thank you, Your Honor. [00:06:10] Speaker 02: Judge Stowell, wasn't that just a statement from the bench at oral argument? [00:06:16] Speaker 02: I don't think there was any reference to a claim chart in the actual written order from Judge Alsop. [00:06:23] Speaker 02: Isn't that true? [00:06:24] Speaker 05: That is true, Your Honor, but what Judge Alsop did find in the written order, so we could go, for example, to Appendix 96, [00:06:35] Speaker 05: It is part of Judge Alsop's written order on this issue. [00:06:39] Speaker 05: He talks about how Fingen is attempting to cobble together notice and that even though there was a draft license agreement and that the draft license agreement discussed specific patent rights and that the 780 patent was called out in the presentation, he lists all of that. [00:06:58] Speaker 05: He says that we needed to, and I'm trying to get his actual wording here, that since we were able to, because we did do one chart on a different patent, since we were able to do that, then we should have done it here. [00:07:14] Speaker 02: I'm sorry, I just, I don't see that, so could you show me what sentence you're relying on for that? [00:07:20] Speaker 02: Yes, I will, Your Honor, if you give me one. [00:07:22] Speaker 02: I mean, it's more of an inference, but I just, I want to know what sentence you're relying on. [00:07:28] Speaker 02: Yes, Your Honor. [00:07:29] Speaker 05: Give me one second to get there, and I will find it. [00:07:33] Speaker 05: It's in his order. [00:07:35] Speaker 05: And actually, the bottom line, Your Honors, we're talking here about a summary judgment. [00:07:44] Speaker 05: So it isn't as if the factual dispute went before the jury. [00:07:51] Speaker 02: Can I ask you a question? [00:07:52] Speaker 02: Yes, sure. [00:07:53] Speaker 02: I think that in that presentation, you were referring to? [00:07:57] Speaker 02: The patent that we're talking about here was one of 17 patents that was listed in that presentation. [00:08:04] Speaker 02: You know, I might be off by one or two, but by my count, it was 17. [00:08:10] Speaker 02: So your point is that even though it was one of 17, a reasonable jury could have thought that that was notice. [00:08:22] Speaker 05: Yes, Your Honor. [00:08:23] Speaker 05: Actually, I think I have found, if I can now go back to Appendix 96, I think I have found where the line is. [00:08:32] Speaker 05: It should be at the bottom of the page. [00:08:38] Speaker 05: The third line from the bottom on Appendix 96. [00:08:42] Speaker 02: It says, this order finds Finjin's argument particularly unpersuasive where Finjin was perfectly capable of calling out other patents. [00:08:54] Speaker 02: Yes, Your Honor. [00:08:55] Speaker 02: That's exactly the language I'm talking about. [00:08:58] Speaker 02: I thought that that went to the fact that this was one of 17 patents that was identified in the presentation. [00:09:07] Speaker 05: Well, actually, the way it was identified, the way the 780 was identified in the presentation was actually only among three or four other patents where Fingen identified those patents as having been successfully litigated in the past, specifically referencing Blue Coat, for example, and identified. [00:09:27] Speaker 02: But if you look at the age you're referring to, there's other patents identified. [00:09:33] Speaker 02: There was a bunch of different patents identified further down on the page. [00:09:37] Speaker 02: I don't remember exactly what page number that was in the appendix. [00:09:42] Speaker 02: But that, I didn't see anything where that one box was called out any more than any other box listing other patents. [00:09:50] Speaker 02: And the total number of patents presented in the presentation was, like I said, it was one of 17. [00:09:57] Speaker 05: In the presentation, it was 1 of 17. [00:09:59] Speaker 05: In that particular box, and I'm trying to find it, Your Honor, I believe it was only one. [00:10:04] Speaker 05: Here we are. [00:10:07] Speaker 05: So this is going to be in our blue brief at page 69. [00:10:11] Speaker 05: We show the actual presentation. [00:10:14] Speaker 05: We have it embedded there. [00:10:16] Speaker 05: It talks about the blue coat litigation and there's only three patents that are listed, the 780 being right there in the middle of them. [00:10:24] Speaker 05: It talks about the secure litigation and there are one, two, three, four, five patents listed. [00:10:29] Speaker 05: But you have only put a certain part of this page in. [00:10:32] Speaker 02: This is a cropped part of the page. [00:10:37] Speaker 02: I'm sorry. [00:10:41] Speaker 02: If you look at the record, I believe there were other patents that are cited on that page. [00:10:48] Speaker 02: Maybe I'm misunderstanding, but when I looked at the page in the record, the presentation, there were other patents that were cited. [00:10:57] Speaker 02: I don't believe so, Your Honor. [00:11:00] Speaker 02: If we look at Appendix 16234... I see. [00:11:04] Speaker 02: I was looking at then the next page, 16235. [00:11:09] Speaker 02: Yes. [00:11:09] Speaker 02: If you look at 16234 with 16235, [00:11:14] Speaker 02: It's one of 17 pages, and this presentation was provided together, right? [00:11:19] Speaker 02: Or do you think there should be some inference that the 780 should be specifically called out because it's in a particular box? [00:11:27] Speaker 05: I certainly think the 780 is highlighted. [00:11:29] Speaker 05: When you look at this page, it does stand out as far as having been asserted in both these successful litigations. [00:11:36] Speaker 05: And then when you go to the next page, there are more patents listed as to what is planned for future litigations. [00:11:45] Speaker 05: But really, the issue here is the procedural posture. [00:11:48] Speaker 05: Perhaps this isn't sufficient. [00:11:52] Speaker 05: But not as a matter of law, it's as a matter of fact whether or not, clearly, it's not like Cyport wasn't on notice, that we believe they were infringing. [00:12:04] Speaker 05: As we say, we engaged in lengthy discussions with Cyport over the course of many months, and even got to the point in July where we were exchanging a term sheet, where they were going to be taking a license to all of the applicable patents in Finch's portfolio. [00:12:22] Speaker 05: And so it's a question of fact for a jury to decide under, you know, of course, the court will instruct them as to what the law is and whether or not that was sufficient to put side for it, which was then acquired by Juniper. [00:12:37] Speaker 05: It would be a different posture if we had had a jury verdict of no notice, insufficient notice. [00:12:43] Speaker 05: But here we had summary judgment and where it's a question of fact. [00:12:48] Speaker 02: I understand your point. [00:12:49] Speaker 02: I have a question for you, though, on that very point. [00:12:52] Speaker 02: Was there any declaration of a fact witness who was present at these negotiations who were, like, with a declaration provided to the district court so the district court would see more than just these two documents but would have a witness explaining what was discussed during those negotiations? [00:13:09] Speaker 02: Because I presume what you're saying is that you would have presented that kind of testimony to a jury. [00:13:15] Speaker 02: But did the judge get to see what kind of testimony you were relying on to say that there was a genuine issue of material fact? [00:13:21] Speaker 05: We never got that far, Your Honor, because what the judge had was, for example, if you look at Appendix 16225, this is the beginning of the discussion with CyForth. [00:13:34] Speaker 05: This is in January now of 2016, where we specifically accused ATP, and so it's a letter. [00:13:40] Speaker 05: It's as good, I guess, as a declaration, if somebody's saying, hello, Wirth Engine, CyForth, [00:13:45] Speaker 05: We're using your ATP advance, which is your advanced persistent threat, as infringing. [00:13:50] Speaker 05: And then we gave, as what we said was a representative example, the 305 and actually did a claim chart where we charted it out. [00:14:00] Speaker 05: We also then listed the 494, which was an issue in this case, and the 154. [00:14:05] Speaker 05: And I believe I heard my tone, so I think my time is up, but of course I will continue to answer any questions the court might have. [00:14:12] Speaker 03: Well, I appreciate that. [00:14:13] Speaker 03: Oddly, as you noted at the outset, you have, I guess, five issues here, and you really haven't gotten to discuss those. [00:14:19] Speaker 03: But obviously, the briefing is comprehensive, and we can easily rely on the briefs for those other issues. [00:14:25] Speaker 03: So thank you. [00:14:26] Speaker 03: We'll reserve the remainder of your bottle, and let's hear from your friend on the other side. [00:14:32] Speaker 03: Thank you, Your Honor. [00:14:33] Speaker 03: Mr. Kagan. [00:14:34] Speaker 01: Thank you, Your Honor. [00:14:37] Speaker 01: May it please the court, Jonathan Kagan of IRL and Vanilla, representing Juniper Networks. [00:14:42] Speaker 01: So let me just start with discussing the notice issues on the 780. [00:14:49] Speaker 01: As Your Honor noted, or as was mentioned by counsel, there was no declaration. [00:14:55] Speaker 01: So the notice issue with the 780 is something that this court has the full record upon which Finjian relied. [00:15:06] Speaker 03: But let me interrupt. [00:15:07] Speaker 03: This is Judge Prost, Mr. Kagan. [00:15:10] Speaker 03: But why isn't Ms. [00:15:12] Speaker 03: Brooks right that this is ultimately should have been a question for the jury? [00:15:16] Speaker 03: I mean, the issue is whether or not it was sufficiently specific to support an objective understanding that the recipient may be an infringer. [00:15:27] Speaker 03: Why isn't that a jury question? [00:15:30] Speaker 03: I mean, there were documents. [00:15:32] Speaker 03: It's not like they just said, [00:15:34] Speaker 03: we did it, and end of story. [00:15:35] Speaker 03: There were documents in the record. [00:15:37] Speaker 03: Why isn't that really feel like a jury question and not one that the judge decide on summary judgment? [00:15:44] Speaker 01: So with notice, there are two issues that need to be identified to establish notice. [00:15:52] Speaker 01: One is the identification of a product, and the other is the identification of a specific patent that one believes is being infringed. [00:16:02] Speaker 01: So the question [00:16:03] Speaker 01: The question is not, did Finjen identify the 780 patent as a patent in its portfolio, or did it identify it as a patent against which other people who make different products may infringe. [00:16:16] Speaker 01: The question is, did Finjen ever advance or put a Cypher on notice that it believed a Cypher product was infringing the 780 patent? [00:16:25] Speaker 01: And when you look at the presentation, [00:16:27] Speaker 01: in the pages that were being discussed earlier, what you saw was that FinGEN was not, it mentioned the 780 patent, but not as a patent that it believed Cypher had infringed, but as a patent that it believed other companies, some other companies had infringed, or that it had success against those other companies in obtaining licenses. [00:16:47] Speaker 01: So, on Appendix 16234 and 16235, for example, it showed that it believed BlueCode and Secure [00:16:58] Speaker 01: and Sophos were either infringing or hadn't found to infringe that patent. [00:17:06] Speaker 01: On the other hand, for Proofpoint, which is also listed, it doesn't show the 780 patent. [00:17:13] Speaker 01: So what this presentation says is different, and there's different patents there. [00:17:18] Speaker 01: Different patents in our portfolio we believe have been infringed by different ones of your competitors. [00:17:23] Speaker 01: That's not noticed to CIFOR that it believes one of the CIFOR products is infringing that patent. [00:17:29] Speaker 01: And what we do is we actually have a letter. [00:17:33] Speaker 01: And this is Appendix 16225 through 16227. [00:17:38] Speaker 01: And this is the letter that Finjin sends to CIFOR. [00:17:42] Speaker 01: And it says, these are the patents that we think are the relevant ones. [00:17:46] Speaker 01: And it identifies four patents. [00:17:48] Speaker 01: None of those patents are the 780 patents. [00:17:52] Speaker 01: So the question is, [00:17:53] Speaker 01: is there something in that record where Finjen is putting Cypher on notice that it believes that Cypher is infringing the 7-8-0 patent? [00:18:05] Speaker 01: And there was nothing there. [00:18:07] Speaker 01: And I think the reason there was such a long call with Judge Alsop at the hearing on this is Finjen kept saying, yes, we did provide specific notice about the 7-8-0 patent. [00:18:19] Speaker 01: And Judge also kept saying, where? [00:18:21] Speaker 01: You've done claim charts for these other patents. [00:18:23] Speaker 01: You've put them on notice. [00:18:24] Speaker 01: Show me where you say that you believe Cyforge infringes a 780 patent. [00:18:30] Speaker 01: And there was no evidence of that. [00:18:32] Speaker 01: And so that is why it's appropriate for summary judgment. [00:18:42] Speaker 01: There are no further questions on notice. [00:18:46] Speaker 01: There's another issue with the 780 patent as well that relates to claim construction. [00:18:49] Speaker 06: I have a question, a separate question for you, counsel. [00:18:52] Speaker 06: This is Judge Wallach. [00:18:54] Speaker 06: On page 29 of the Gray brief, addressing the district court's conclusion that Finjin's expert testimony on damages was premised on an untimely infringement theory, Finjin asserts that you and the district court were incorrect because, quote, [00:19:11] Speaker 06: Juniper was not selling SRX gateways alone. [00:19:17] Speaker 06: Juniper was selling SRX gateways in combination with free access to Sky ATP. [00:19:25] Speaker 06: By selling the combination, Juniper was selling the patented system. [00:19:30] Speaker 06: Is there any merit to that argument? [00:19:35] Speaker 01: There's not. [00:19:37] Speaker 01: And the reason is as follows. [00:19:40] Speaker 01: While there was, [00:19:42] Speaker 01: a free license that was granted to all purchasers of SRX systems. [00:19:49] Speaker 01: The SRX systems as sold could not operate with Sky ATP. [00:19:56] Speaker 01: So they were incompatible with operation with Sky ATP unless they were first modified. [00:20:02] Speaker 01: And so in order to modify the system, users could take advantage of a free license or purchase a license. [00:20:09] Speaker 01: But then what they would have to do is download a software script that Juniper created. [00:20:14] Speaker 01: And what that software script does is it modified the SRX device that they bought so that it then could be combined with the Sky ATP system. [00:20:26] Speaker 01: So what was sold essentially was not a complete system that could be used, but it's a system that could be modified if a user chose. [00:20:38] Speaker 01: to be used together. [00:20:40] Speaker 01: And in the Juniper damages model, we included all sales of all modified systems. [00:20:48] Speaker 01: So every system that was sold that could have been combined with Sky ATP, every SRX that could have been combined with Sky ATP, was included in our calculation. [00:20:58] Speaker 01: But that was only 300 systems. [00:21:01] Speaker 01: And the problem with Finjin's damages calculation is it included [00:21:07] Speaker 01: all SRX systems, whether or not they had been modified so that they could be combined with Skype EP, and even more egregiously, they included SRX systems that were actually incompatible, that could not be modified to operate with an SRX. [00:21:24] Speaker 01: And they included sales of those systems in their damages calculations. [00:21:30] Speaker 03: So is your position that those that could be modified should have been included and those that could not be should be, shouldn't be? [00:21:40] Speaker 01: Where do you draw the line? [00:21:42] Speaker 01: So this is an expired patent and we have a start date for when the SkyACP system existed. [00:21:50] Speaker 01: So we know, so it's a closed universe. [00:21:53] Speaker 01: We have a closed period of time. [00:21:55] Speaker 01: So we know exactly [00:21:57] Speaker 01: how many systems had been modified and were capable, how many SRX systems were even capable of being combined with SkyACP. [00:22:05] Speaker 01: We included every system that was sold that was capable because it was capable of being modified and it had been modified. [00:22:13] Speaker 01: So if a system had been sold during that period of time that was not capable of connecting, either because it didn't have the right hardware or because it had never been modified [00:22:26] Speaker 01: through the downloading and operation of software. [00:22:31] Speaker 01: Those systems we excluded. [00:22:34] Speaker 01: We don't know how many systems were actually combined, but we took every single system that could physically have been combined during the relevant time period. [00:22:44] Speaker 01: Those were all included in our damages calculation. [00:22:48] Speaker 01: And again, the problem with Finchens is they included systems that were incapable, either for hardware reasons or for software reasons, [00:22:56] Speaker 01: of being combined. [00:22:59] Speaker 01: And that's why they changed their theory. [00:23:02] Speaker 01: That's where Finjin said, when it came time to submit their damages report, they said, we're including sales of all SRX, even though we had only previously accused Sky ATP by itself and Sky ATP in combination with SRX. [00:23:20] Speaker 01: And Finjin's infringement expert had said, it's not the SRX by itself that infringes. [00:23:27] Speaker 01: And then their damages expert takes a different position. [00:23:29] Speaker 01: So that's why the judge found a waiver. [00:23:33] Speaker 01: And that is, and this is where I have it described, we believe that is subject to an abusive discretion review because this is a question of whether Fingen waived that argument. [00:23:42] Speaker 01: It's not a, the judge did not actually reach the details of Fingen's infringement theory, which is defective for reasons that I can explain. [00:23:53] Speaker 01: But the judge didn't get to that point because he found [00:23:56] Speaker 01: That fidget had waves, and that is subject to an abuse of discretion review. [00:24:08] Speaker 01: So I can turn to the infringement issues now relating to the 780 patent unless there are any further questions on. [00:24:18] Speaker 01: So with the 780 patent then, there's a clear dispute between the parties over [00:24:26] Speaker 01: whether over the number of hashes, over the number that are required. [00:24:33] Speaker 01: But it's sort of a fake dispute. [00:24:36] Speaker 01: What Finjen claims is that, well, the purpose of this patent is to identify products and malware that is potentially coming into a system that may try to disguise themselves by having certain components removed and downloaded separately. [00:24:58] Speaker 01: at a later period in time. [00:25:02] Speaker 01: And the way that the patent describes getting around this problem is by performing a hash function on the downloadable, which is the main program, together with the fetched component. [00:25:19] Speaker 01: And when you perform a hash function on that, you will generate a particular unique identification number, like a fingerprint for that file. [00:25:31] Speaker 01: What hackers would do, according to FinGen, is sometimes they would take some of the components outside of the downloadable. [00:25:39] Speaker 01: Because then when the downloadable comes in and it's hashed, it's going to have a different value than the complete combined hash. [00:25:46] Speaker 01: So it will slip through. [00:25:47] Speaker 01: And later on, it will get the fetched component. [00:25:51] Speaker 01: So the whole purpose of FinGen's invention is that you take the fetched components [00:25:59] Speaker 01: You grab them and you perform the hash on it together. [00:26:02] Speaker 01: And this is what they said in the prosecution history. [00:26:06] Speaker 01: They explained that this is exactly what happened and this is why their invention works. [00:26:10] Speaker 01: This is that appendix 4253 where they say the same downloadable may be delivered with some required software components included and others missing. [00:26:23] Speaker 01: And in each case, the generated downloadable ID will be the same in their invention. [00:26:28] Speaker 01: The reason is because [00:26:29] Speaker 01: this is a little bit further up on the page, still 4253, is that the present invention produces the same ID for a downloadable, regardless of which software components are included with the downloadable and which software components are only referenced. [00:26:53] Speaker 01: So that is their statement in the prosecution history. [00:26:57] Speaker 01: And that is what this court relied on [00:26:59] Speaker 01: And it's also what the Blue Coat Court relied on. [00:27:02] Speaker 01: So Bingen cites to Judge Freeman's opinion in the Blue Coat case as supporting their position. [00:27:07] Speaker 01: And I would invite this court to read that opinion. [00:27:10] Speaker 01: I'm not going to read it here. [00:27:11] Speaker 01: But she squarely rejects Bingen's view of this patent and says that you need to generate a unique and reproducible downloadable ID for each downloadable, which cannot happen if you are separately hashing [00:27:29] Speaker 01: the downloadable and the components. [00:27:32] Speaker 01: It can only happen if you fetch the components and hash together. [00:27:41] Speaker 01: If there are no other questions, that's all I have for the 780 patent. [00:27:47] Speaker 01: I can address. [00:27:48] Speaker 01: I can turn to the 154 patent unless there are any further questions on this. [00:27:54] Speaker 03: Well, just you're opening up all of these doors for Ms. [00:27:57] Speaker 03: Brooks on rebuttal for matters that she didn't raise, but you're free to use your time if you wish. [00:28:04] Speaker 01: Well, uh, I will, uh, I will, I will submit on the papers then your honor, unless you're anyone on the panel has any further questions. [00:28:16] Speaker 03: Colleagues. [00:28:18] Speaker 03: Thank you. [00:28:19] Speaker 03: Um, we'll hear from Ms. [00:28:20] Speaker 03: Brooks on rebuttal. [00:28:23] Speaker 05: Thank you, Your Honor. [00:28:24] Speaker 05: I am not going to go revisit the 154 and the 780 claim construction hearing issues. [00:28:29] Speaker 05: Those are de novo review and I know this court is perfectly capable of doing a de novo review on those issues. [00:28:35] Speaker 05: And to be candid with the court, even if we found got relief on the 154 or the 780 or the 454 and we were remanded for either a trial or even a summary judgment and Juniper was found to infringe, [00:28:49] Speaker 05: If the court does not deal with what the lower court did as far as the damage is concerned, we will have a wrong with no remedy. [00:28:57] Speaker 05: Juniper will be liable of infringement, and we will not be able to recover one penny. [00:29:02] Speaker 05: So instead, what I'd like to do is take my remaining time and address Judge Wallach's question. [00:29:07] Speaker 05: Is there any merit to our damages argument? [00:29:09] Speaker 05: The answer is most assuredly yes. [00:29:11] Speaker 05: Council just now cited multiple facts about STP devices that are incapable of interfacing with SCI ATP with no record citation whatsoever. [00:29:24] Speaker 05: So at a minimum, we appear to have a dispute, a factual dispute about that. [00:29:29] Speaker 05: Now I'll give the court very quickly the actual record citations we are relying on. [00:29:34] Speaker 05: Dr. Eric Cole and his expert report, an appendix citation 10648, [00:29:41] Speaker 05: Footnote 1 specifically lists, and these are his words, SRX gateways that are capable of interfacing with Sky ATP. [00:29:51] Speaker 05: And then he lists only those gateways. [00:29:54] Speaker 05: Our damages expert at Appendix 9901 [00:29:58] Speaker 05: then list those specific and only those specific SRX gateways that are capable of interfacing with Skype ATP. [00:30:07] Speaker 05: So that takes that issue off the table. [00:30:09] Speaker 05: So the remaining question is, well, what does it mean to be capable? [00:30:14] Speaker 05: Don't you have to? [00:30:14] Speaker 05: And I think, Council, you had to download some software and modify the SRX device. [00:30:21] Speaker 05: According to their own documents that they cite, specifically at their red brief at pages 52 and 53, they cite appendix 24483 for that proposition. [00:30:33] Speaker 05: And I would quote verbatim from that document, quote, you do not need to install the SCI ATP free license as these are included in your basic software, unquote. [00:30:46] Speaker 05: So apparently if you want some kind of a premier package, you might have to do something. [00:30:51] Speaker 05: But they're saying, Juniper is saying, you don't need to download anything. [00:30:56] Speaker 05: Your Sky ATP free license is included with your SRX device. [00:31:03] Speaker 05: Their own marketing materials say it, appendix 10439. [00:31:08] Speaker 05: And it says, note, colon, you do not need to download any additional software to run Sky ATP. [00:31:16] Speaker 05: So Juniper is telling the public, [00:31:19] Speaker 05: that Sky ATP is included in their SRX devices. [00:31:23] Speaker 05: Juniper is telling internally that you do not need to install your free Sky ATP. [00:31:30] Speaker 05: It comes with your SRX device. [00:31:32] Speaker 05: And so a system claim, the law is very clear on that. [00:31:36] Speaker 05: The infringement occurs at the time of sale. [00:31:39] Speaker 05: If that device has the capability of infringing, [00:31:43] Speaker 05: even if it never actually does the interfacing that is infringement. [00:31:48] Speaker 05: Sadly, the court misunderstood our infringement theory. [00:31:52] Speaker 05: It never changed. [00:31:53] Speaker 05: It was in Dr. Cole's expert report from the beginning. [00:31:57] Speaker 05: The court misunderstood it and thought we were accusing Sky, excuse me, the SRX devices alone of infringement. [00:32:05] Speaker 05: We never did. [00:32:06] Speaker 05: It was always those that worked in conjunction with Sky ATP. [00:32:10] Speaker 05: Thank you very much. [00:32:12] Speaker 02: Could I ask one question? [00:32:14] Speaker 02: Yes. [00:32:14] Speaker 02: So I just want to know, on the damages issue, Ms. [00:32:18] Speaker 02: Brooks, does it relate to all the patents in suit or just to the 494 patent? [00:32:23] Speaker 05: It would relate to all the patents in suit, Your Honor, because all of them are systems claims. [00:32:28] Speaker 05: So unless the district court is told by this court that what the district court did [00:32:34] Speaker 05: by granting Ms. [00:32:35] Speaker 05: Galbert was wrong, then we're going to go back and we're going to end up with the exclusion of our damages expert in its entirety for any of the past. [00:32:44] Speaker 02: Okay. [00:32:44] Speaker 02: Thank you. [00:32:46] Speaker 05: Thank you very much. [00:32:46] Speaker 05: Thank you. [00:32:48] Speaker 05: Thank you. [00:32:49] Speaker 03: We thank both counsel and the cases submitted.