Finjan, Inc. v. ESET, LLC et al

Filing 874

ORDER on Plaintiff's Motion for Reconsideration [Doc. No. 872 ]. Signed by Judge Cathy Ann Bencivengo on 5/19/2021. (anh)

Case 3:17-cv-00183-CAB-BGS Document 874 Filed 05/19/21 PageID.40697 Page 1 of 3

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA
FINJAN, INC.,

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

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v.

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ORDER ON PLAINTIFF’S MOTION
FOR RECONSIDERATION
[Doc. No. 872]

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

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Defendants.

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On March 29, 2021, the Court granted a motion for summary judgment brought by

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defendants ESET, LLC and ESET SPOL, S.R.O. (jointly “ESET”) invalidating plaintiff

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Finjan LLC’s patents based on indefiniteness. [Doc. No. 869.] Finjan filed a motion for

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reconsideration of that order on April 12, 2021. [Doc. No. 872.] The time for submitting a

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response to the motion has expired, and ESET has elected not to file an opposition. The

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Court finds the motion suitable for determination without argument. The motion for

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reconsideration is denied.

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A district court may reconsider its grant of summary judgment under either Federal

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Rule of Civil Procedure 59(e) (motion to alter or amend a judgment) or Rule 60(b) (relief

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from judgment). See Sch. Dist. No. 1J, Multnomah Cty., Or. V. ACandS, Inc., 5 F.3d

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1255, 1262 (9th Cir. 1993).1 “Reconsideration is appropriate if the district court (1) is

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

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decision was manifestly unjust, or (3) if there is an intervening change in controlling

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law.” Id. at 1263.

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Finjan contends that the Court’s judgment was clear error and manifestly unjust and

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should be reversed. The district court has “considerable discretion” in deciding whether to

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grant or deny the motion, but “amending a judgment after its entry remains an extraordinary

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remedy which should be used sparingly.” Allstate Ins. Co. v. Herron, 634 F.3d 1101, 1111

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(9th Cir. 2011) (internal citations omitted). Thus, a motion for reconsideration “should not

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be granted, absent highly unusual circumstances, unless the district court is presented with

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newly discovered evidence, committed clear error, or if there is an intervening change in

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the controlling law.” McDowell v. Calderon, 197 F.3d 1253, 1255 (9th Cir. 1999)

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(emphasis in original) (internal citations omitted); see also Allstate, 634 F.3d at 1111 (“In

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general, there are four basic grounds upon which a Rule 59(e) motion may be granted: (1)

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if such motion is necessary to correct manifest errors of law or fact upon which the

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judgment rests; (2) if such motion is necessary to present newly discovered or previously

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unavailable evidence; (3) if such motion is necessary to prevent manifest injustice; or (4)

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if the amendment is justified by an intervening change in controlling law.”).

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Finjan argues that the Court clearly erred by shifting the burden to Finjan to prove

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the validity of their patents and the decision granting the motion was therefore manifestly

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unjust. This is incorrect. ESET filed a motion of summary judgment arguing that Finjan’s

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evidence, specifically the Rule 26 reports and deposition testimony of Finjan’s experts

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demonstrated by clear and convincing evidence that one of skill in the art would not know

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with reasonable certainty what constitutes a “small executable or interpretable application

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program.” Each of Finjan’s experts had offered widely varying characterizations of the

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Finjan does not specify either rule as being the basis of its motion.
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scope of “small.” Although each expert opined on infringement or invalidity based on his

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own characterization of this claim limitation (including ESET’s own experts), there was

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no consensus among them as to the scope of the claim term to establish that the public

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would have notice with any reasonable certainty.

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The Court initially denied the motion without prejudice to allow for testimony at

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trial on this subject. At trial Finjan offered the testimony of one of its experts on

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infringement. To establish that the accused systems were covered by the limitation at issue,

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the expert provided yet another, previously undisclosed, interpretation of the construction

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of a small application program that was not in accordance with his prior interpretation or

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the opinions of any of Finjan’s other experts. ESET therefore renewed its motion for

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summary judgment arguing that this testimony further demonstrated that there was no

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reasonable certainty among those of skill in the art as to what constitutes “small” in the

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context of the asserted patents. The Court agreed.

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The Court did not shift the burden of proving validity to Finjan, but rather concluded

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that ESET demonstrated by clear and convincing evidence that Finjan’s inconsistent

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interpretations of a claim term employed in its infringement analyses established that the

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term was indefinite. Finjan’s proffer that it could offer still further testimony to explain

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the lack of consensus among its own experts in construing the term only serves to

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underscore the lack of certainty among those of skill in the art, making the term indefinite

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and the Court’s entry of summary judgment correct.

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Finjan disagreement with the Court’s conclusions is not grounds for reconsideration
of the judgment. Accordingly, the motion is DENIED.
It is SO ORDERED.
Dated: May 19, 2021

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