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
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`FINJAN, INC.,
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`v.
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`Plaintiff,
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`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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` Case No.: 3:17-cv-0183-CAB-BGS
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`ORDER ON PLAINTIFF’S MOTION
`FOR RECONSIDERATION
`[Doc. No. 872]
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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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`Case 3:17-cv-00183-CAB-BGS Document 874 Filed 05/19/21 PageID.40698 Page 2 of 3
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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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`1 Finjan does not specify either rule as being the basis of its motion.
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`Case 3:17-cv-00183-CAB-BGS Document 874 Filed 05/19/21 PageID.40699 Page 3 of 3
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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
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`of the judgment. Accordingly, the motion is DENIED.
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`It is SO ORDERED.
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`Dated: May 19, 2021
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`3:17-cv-0183-CAB-BGS
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