Cisco Gets Finjan IP Trial Pushed To November Amid Virus

By Lauren Berg
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Law360 (October 5, 2020, 4:59 PM EDT) -- A California federal judge on Friday again delayed Finjan's patent infringement suit against Cisco from October until November amid the coronavirus pandemic but declined to push it to January as Cisco requested.

U.S. District Judge Beth Freeman moved the previously delayed trial from Oct. 19 to Nov. 2, according to a text docket entry, after Cisco Systems Inc. said last week that the parties shouldn't rush into a two-week trial while the pandemic still rages around the country, potentially putting at risk the health of jurors, the judge, court staff, witnesses and the legal teams for both parties.

"This case is not between competitors where one party is at risk of suffering irreparable injury," Cisco said in its motion. "Rather, it is purely about money."

Cisco also said its lead trial counsel, L. Norwood Jameson of Duane Morris LLP, needs time to have a scheduled medical procedure to address a breathing problem.

Federal court rules requiring everyone to wear a mask throughout the trial present a unique issue for Jameson, whose medical issue is exacerbated when wearing a mask or talking while wearing a mask, Cisco said. Allowing him time to have the procedure should allow him to wear a mask for extended periods without additional hardships, according to the motion.

Finjan initially hit Cisco with a lawsuit in January 2017 alleging its products infringe five Finjan patents that cover ways to protect computers from malicious software and viruses when connected to the internet. Finjan claims that Cisco's infringement began when it acquired technology from a company called Sourcefire Inc. and then refused to enter a licensing agreement with Finjan.

Cisco denies the allegations and has sought to invalidate at least some of the patents-in-suit.

In April, Judge Freeman had told the attorneys to prepare for a June 15 trial. At the time, the judge said she was "fairly confident" Finjan's patent infringement suit could go before a jury in June and July, even with social distancing restrictions in place.

But the Northern District of California's top judge issued an order in May postponing or vacating all new civil jury trials scheduled to commence through Sept. 30, citing the continued disruptions to the judicial system caused by the pandemic.

During a status conference in May, Judge Freeman pushed the start of the trial to Oct. 19, saying she had "high hopes" it would be the first civil jury trial in the district, but that the court's "enormous backlog" of criminal cases would take priority.

Judge Freeman said the district courts are currently not allowed to hold more than one jury trial in a courthouse at a time, and, therefore, the only two trial dates available to the parties are in October and January. Although the judge acknowledged that "I don't have a crystal ball," she suggested that the parties agree to an October trial date, because a January trial would coincide with the winter flu season and might be more likely to be delayed.

Representatives for the parties did not immediately respond to requests for comment Monday.

The patents-in-suit are U.S. Patent Nos. 6,154,844, 6,804,780, 7,647,633, 8,141,154 and 8,677,494.

Finjan is represented by Juanita Brooks, Roger Denning, Frank J. Albert, Megan A. Chacon, K. Nicole Williams, Oliver J. Richards, Jared A. Smith, Tucker N. Terhufen, Aamir Kazi and Alana C. Mannige of Fish & Richardson PC.

Cisco is represented by Nicole E. Grigg, D. Stuart Bartow, Joseph A. Powers, Jarrad M. Gunther, L. Norwood Jameson, Matthew C. Gaudet, David C. Dotson, John R. Gibson, Jennifer H. Forte and Alice E. Snedeker of Duane Morris LLP.

The case is Finjan LLC v. Cisco Systems Inc., case number 5:17-cv-00072, in the U.S. District Court for the Northern District of California.

--Additional reporting by Dorothy Atkins, Daniel Siegal and Khorri Atkinson. Editing by Jay Jackson Jr.

For a reprint of this article, please contact reprints@law360.com.

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