United States District Court, S.D. California
ORDER ON ESET'S MOTION FOR RECONSIDERATION, [Doc.
No. 708]
Hon.
Cathy Ann Bencivengo United States District Judge
On
October 16, 2019, the Court entered an order denying
ESET's motions for summary judgment of non-infringement
of three of the patents-at-issue[1] and summary judgment on
Finjan's claim for willful infringement. [Doc. No. 699.]
ESET now moves for reconsideration of that order pursuant to
Fed.R.Civ.P. 60(b)(6), on the grounds that the determination
of the non-infringement motions is a matter of law, not a
factual dispute, and that Finjan has no competent evidence to
support a claim of willful infringement, so it is error for
the Court to send these issues to the jury. [Doc. No. 708.]
The motion for reconsideration is Denied in Part and Granted
in Part.
Reconsideration
of a prior order is appropriate if the district court (1) is
presented with newly discovered evidence, (2) committed clear
error or the initial decision was manifestly unjust, or (3)
if there is an intervening change in controlling law.”
Sch. Dist. No. 1J Multnomah Cty. v. ACandsS, Inc., 5
F.3d 1255, 1263 (9th Cir. 1993). Whether to grant a motion
for reconsideration is in the “sound discretion”
of the district court. Navajo Nation v. Norris, 331
F.3d 1041, 1046 (9th Cir. 2003).
In the
motion for reconsideration, ESET reargues its position that
the infringement evidence presented by Finjan's experts
does not properly apply the Court's claim constructions
and factually mispresents the operations of the accused
systems and software. In the context of a motion for summary
judgment the Court must not weigh the credibility of the
evidence and determine the truth of the matter. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
Further the non-movant's evidence is to be believed and
all justifiable inferences are to be drawn in the
non-movant's favor. Id., at 255. The Court
concluded that “there are genuine factual issues that
properly can be resolved only by a finder of fact because
they may reasonably be resolved in favor of either
party.” Id. at 250. The motion for
reconsideration does not establish that the Court's order
denying the motions for summary judgment of non-infringement
were clearly erroneous.
If at
trial, it becomes apparent that plaintiff has not applied the
Court's claim construction, as ESET contends, or that
Finjan has not produced evidence upon which a jury could
properly proceed to find a verdict of infringement by a
preponderance of the evidence, ESET may procedurally move for
a verdict pursuant to Fed.R.Civ.P. 50 (a). However, on the
documentary evidence before the Court on the motions for
summary judgment of non-infringement, the Court will not
reconsider its determination that material facts are in
dispute. The request for interlocutory appeal is also denied
as the motions were denied based on factual disputes, not as
a matter of law.
Regarding
the request to reconsider the dismissal of Finjan's claim
of willful infringement, the Court GRANTS the motion. In its
opposition to ESET's motion for reconsideration, Finjan
has not cited to any evidence that ESET had knowledge of the
patents-at-issue in this litigation prior to January 2015 and
the entry of the parties' Standstill Agreement, and that
ESET acted in willful disregard of Finjan's patent
rights. Finjan recites again general knowledge of
Finjan's existence as a company with an extensive patent
portfolio, a statement by outside counsel that will not be
attributed to ESET, and Dr. Cole's opinion, all which the
Court excluded. Finjan proffered no evidence that ESET was
aware of any of the patents-at-issue prior to January 2015 or
that it entered licensing negotiations in bad faith. Failure
to reach a licensing agreement alone is not evidence of bad
faith.
The
Court admonished Finjan in its order on the motion for
summary judgment that Finjan would be required “to
produce evidence at trial that ESET had knowledge of each of
the asserted patents and committed subjective willful
infringement as of the dates it became aware of those
patents.” Further, “the evidence of ESET's
knowledge cannot be based on disclosures made by Finjan
during the Standstill Agreement, but rather must be
independent of those discussions.” [Doc. No. 66.]
On
reconsideration, in the context of the Court's
admonitions, ESET argues that Finjan has produced no evidence
that would sustain this claim and it should be dismissed. In
response to the motion for reconsideration Finjan does not
raise material facts, it only offers the same excluded
evidence and opinions, and the conclusory statements of
counsel that ESET should have known of Finjan's patents
and that it negotiated with no intent to enter a license
agreement. Finjan has provided no evidence upon which a
finder of fact can reasonably resolve this claim in its
favor. The motion for reconsideration of Finjan's
willfulness claim is Granted and the claim for willful
infringement is dismissed.
IT IS
SO ORDERED.
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Notes:
[1] 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 ...