Finjan, Inc. v. ESET, LLC et al

Filing 720

ORDER on ESET's Motion for Reconsideration [Doc. No. 708 ]. Signed by Judge Cathy Ann Bencivengo on 12/30/2019. (anh)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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FINJAN, INC.,

Case No.: 3:17-cv-0183-CAB-(BGS)
Plaintiff,

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v.

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ORDER ON ESET’S MOTION FOR
RECONSIDERATION

ESET, LLC, a California Limited Liability
and ESET SPOL. S.R.O., a Slovak
Republic Corporation,

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[Doc. No. 708]

Defendants.

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On October 16, 2019, the Court entered an order denying ESET’s motions for

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summary judgment of non-infringement of three of the patents-at-issue1 and summary

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judgment on Finjan’s claim for willful infringement. [Doc. No. 699.] ESET now moves

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for reconsideration of that order pursuant to Fed.R.Civ.P. 60(b)(6), on the grounds that

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the determination of the non-infringement motions is a matter of law, not a factual

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dispute, and that Finjan has no competent evidence to support a claim of willful

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infringement, so it is error for the Court to send these issues to the jury. [Doc. No. 708.]

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The motion for reconsideration is Denied in Part and Granted in Part.

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Specifically, ESET challenged Finjan’s expert analysis of infringement of U.S. Patents Nos. 6,154,844;
6,804,780; and 8,079,086, as legally deficient in light of the Court’s claim constructions.
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3:17-cv-0183-CAB-(BGS)

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Reconsideration of a prior order is appropriate if the district court (1) is presented

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with newly discovered evidence, (2) committed clear error or the initial decision was

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manifestly unjust, or (3) if there is an intervening change in controlling law.” Sch. Dist.

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No. 1J Multnomah Cty. V. ACandsS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). Whether to

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grant a motion for reconsideration is in the “sound discretion” of the district court. Navajo

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Nation v. Norris, 331 F.3d 1041, 1046 (9th Cir. 2003).

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In the motion for reconsideration, ESET reargues its position that the infringement

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evidence presented by Finjan’s experts does not properly apply the Court’s claim

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constructions and factually mispresents the operations of the accused systems and software.

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In the context of a motion for summary judgment the Court must not weigh the credibility

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of the evidence and determine the truth of the matter. Anderson v. Liberty Lobby, Inc., 477

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U.S. 242, 249 (1986). Further the non-movant’s evidence is to be believed and all

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justifiable inferences are to be drawn in the non-movant’s favor. Id., at 255. The Court

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concluded that “there are genuine factual issues that properly can be resolved only by a

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finder of fact because they may reasonably be resolved in favor of either party.” Id. at 250.

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The motion for reconsideration does not establish that the Court’s order denying the

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motions for summary judgment of non-infringement were clearly erroneous.

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If at trial, it becomes apparent that plaintiff has not applied the Court’s claim

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construction, as ESET contends, or that Finjan has not produced evidence upon which a

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jury could properly proceed to find a verdict of infringement by a preponderance of the

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evidence, ESET may procedurally move for a verdict pursuant to Fed.R.Civ.P. 50 (a).

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However, on the documentary evidence before the Court on the motions for summary

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judgment of non-infringement, the Court will not reconsider its determination that material

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facts are in dispute. The request for interlocutory appeal is also denied as the motions were

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denied based on factual disputes, not as a matter of law.

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Regarding the request to reconsider the dismissal of Finjan’s claim of willful

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infringement, the Court GRANTS the motion. In its opposition to ESET’s motion for

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reconsideration, Finjan has not cited to any evidence that ESET had knowledge of the
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3:17-cv-0183-CAB-(BGS)

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patents-at-issue in this litigation prior to January 2015 and the entry of the parties’

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Standstill Agreement, and that ESET acted in willful disregard of Finjan’s patent rights.

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Finjan recites again general knowledge of Finjan’s existence as a company with an

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extensive patent portfolio, a statement by outside counsel that will not be attributed to

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ESET, and Dr. Cole’s opinion, all which the Court excluded. Finjan proffered no evidence

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that ESET was aware of any of the patents-at-issue prior to January 2015 or that it entered

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licensing negotiations in bad faith. Failure to reach a licensing agreement alone is not

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evidence of bad faith.

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The Court admonished Finjan in its order on the motion for summary judgment that

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Finjan would be required “to produce evidence at trial that ESET had knowledge of each

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of the asserted patents and committed subjective willful infringement as of the dates it

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became aware of those patents.” Further, “the evidence of ESET’s knowledge cannot be

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based on disclosures made by Finjan during the Standstill Agreement, but rather must be

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independent of those discussions.” [Doc. No. 66.]

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On reconsideration, in the context of the Court’s admonitions, ESET argues that

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Finjan has produced no evidence that would sustain this claim and it should be dismissed.

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In response to the motion for reconsideration Finjan does not raise material facts, it only

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offers the same excluded evidence and opinions, and the conclusory statements of counsel

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that ESET should have known of Finjan’s patents and that it negotiated with no intent to

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enter a license agreement. Finjan has provided no evidence upon which a finder of fact

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can reasonably resolve this claim in its favor. The motion for reconsideration of Finjan’s

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willfulness claim is Granted and the claim for willful infringement is dismissed.

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IT IS SO ORDERED.
Dated: December 30, 2019

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