Cisco Wants Finjan IP Trial Pushed To January Due To Virus

By Lauren Berg
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Law360 (September 29, 2020, 11:20 PM EDT) -- Cisco asked a California federal judge Tuesday to again delay a trial in Finjan's patent infringement suit from October until January because of the coronavirus pandemic, saying the case is "purely about money" and doesn't justify risking the health of everyone involved.

In a six-page motion, Cisco Systems Inc. urged U.S. District Judge Beth Freeman to move the previously delayed trial to January 2021, saying 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. "Rather, it is purely about money."

And if Judge Freeman declines to delay the trial until January, Cisco requested that she move it to at least November to allow the company's lead trial counsel, L. Norwood Jameson of Duane Morris LLP, to have a scheduled medical procedure to address a breathing problem.

Federal court rules requiring everyone wear a mask throughout the trial presents 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.

Cisco also requested that, if the trial goes forward under the current rules for conducting trials during the pandemic, the judge should issue an order requiring all fact witnesses to testify remotely and that neither party have a corporate representative at the counsel table during the trial, according to the motion.

The company said the jurors should be able to watch witness testimony without masks obstructing the witnesses' faces to better assess their credibility.

Cisco also said that only two of its witnesses are willing to travel to the courthouse to testify, while the others are too uncomfortable to risk traveling under the current circumstances. But the company said it is concerned that the jurors will resent Cisco's witnesses who elected to testify remotely, rather than travel to the courthouse.

It would level the playing field to have all witnesses testify remotely, Cisco said.

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. Though 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 Tuesday.

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 Bruce Goldman.

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

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