A late 2022 Federal Circuit decision overturned a Southern District of California ruling that had invalidated five Finjan, Inc. patents asserted against ESET as indefinite. Back before District Judge Cathy Ann Bencivengo went the case, the parties presenting their arguments over three of those patents to a jury earlier this month. On September 11, that jury returned its verdict, answering “no” to every question asked of it, other than what amount in damages should be awarded, which answer it left blank. Judgment has been entered (again) in favor of ESET.

On February 21, 2023, Finjan, Inc. paid Juniper Networks nearly $6M in attorney fees after the Federal Circuit summarily affirmed an award by Northern District of California Judge William Alsup. Per the parties, that case is “ready to be closed”. Still active, however, are separate suits that Finjan filed against ESET, Palo Alto Networks, Qualys, Rapid7, and Sonic Wall, each of which has had to reckon, to varying degrees, with a different Federal Circuit decision, this one reversing an errant claim construction that had led to the temporary invalidity of multiple Finjan patents, patents that are now back in the litigation game.

Two NPEs controlled by Fortress Investment Group LLC have seen unfavorable rulings in recent weeks. In late July, Finjan Holdings, Inc.—acquired by Fortress last summer—was hit with $5.9M in attorney fees due to “improper” conduct in its case against Juniper Networks. Meanwhile, a related dispute is proceeding in Delaware in the campaign waged by Fortress subsidiary VLSI Technology LLC, over arguments by Intel that its existing license with Finjan that covers Finjan “affiliates” now encompasses VLSI, as VLSI allegedly became such an affiliate when Fortress purchased Finjan. In January, Intel asserted those claims in a still-active lawsuit filed in the Delaware Court of Chancery. That same issue will now be litigated in VLSI’s Delaware District Court suit against Intel as well, following the court’s July decision to allow Intel to amend its answer to include a license defense.

Finjan Holdings, Inc. has hit another stumbling block in its infringement suit against Juniper Networks, just over six months after District Judge William Alsup ruled that the NPE’s litigation conduct had rendered the case “exceptional” under Octane. On July 26, Judge Alsup adopted the recommendation of a special master and awarded Juniper $5.9M in attorney fees, nearly all of what the defendant had originally sought. Judge Alsup also declined to impose sanctions against the plaintiff, though he emphasized that there had still been “improper conduct by Finjan and its counsel”—adding that his ruling “[i]n no way . . . vindicate[s]” the conduct of the NPE’s attorneys.

A Special Master’s report was filed last week in the case that Finjan Holdings, Inc. filed against Juniper Networks, recommending that Juniper be awarded $5.9M in attorney fees, including a relatively de minimis amount ($150K) for “fees on fees” (i.e., time spent litigating fees issues). Per that Special Master, Matthew Borden, Juniper is entitled to reimbursement of those fees, over certain Finjan objections because “[l]ike the Battle of Verdun, high-stakes patent litigation can become a costly fight over inches and yards. When engaging in such combat, each side can expect that its adversary will respond in kind”.

The second West Texas trial between VLSI Technology LLC and Intel has ended in a verdict of noninfringement for the chipmaker, capping off a closely watched proceeding before District Judge Alan D. Albright in which the plaintiff—a Fortress Investment Group LLC subsidiary—had sought damages totaling over $3B. That April 21 verdict comes just under two months after a second jury reached the opposite conclusion for another set of patents in a second case between the same parties, finding infringement and awarding $2B in damages.

Finjan Holdings, Inc. has seen a new setback in its Southern District of California lawsuit against ESET (3:17-cv-00183), roughly a year after the first wave of the COVID-19 pandemic ended a trial in the case three days in. On March 23, District Judge Cathy Ann Bencivengo invalidated five of the six anti-malware patents-in-suit, ruling that “convenient” yet unsupported testimony from the plaintiff’s expert on the meaning of the term “downloadable” failed to overcome the defendant’s argument that the patents’ claims are indefinite. That ruling follows another notable decision against Finjan in January, when Northern District of California Judge William Alsup largely granted Juniper Networks’s request for attorney fees due to the NPE’s litigation conduct in a case that he deemed a “fiasco”.

Finjan, Inc. has just seen another setback in its Northern District of California litigation against Juniper Networks (3:17-cv-05659). On January 9, District Judge William Alsup ruled that much of the NPE’s case against Juniper had been “exceptional” under Octane, due in part to Finjan’s attempt to switch out its infringement theory on the eve of trial—a misstep that led Judge Alsup to throw out its entire damages case. That decision sets the stage for an award of attorney fees against Finjan for its litigation conduct, which Judge Alsup repeatedly decried as having “wasted a great deal of everyone’s time and energy”.

As the COVID-19 pandemic forces California into a second lockdown, courts in two of the state’s federal districts have pushed back scheduled patent trials. On December 14, District Judge James V. Selna of the Central District of California vacated a jury trial previously scheduled for April in litigation between TCL and Ericsson over a standard essential patent (SEP) licensing dispute. Two days later, District Judge Beth Labson Freeman postponed a Northern District of California trial from January to June in litigation filed by NPE Finjan Holdings, Inc. against Cisco following a series of prior continuances entered due to the pandemic. These delays come as other top patent venues contend with the impact of the novel coronavirus: while Chief District Judge Rodney Gilstrap of the Eastern District of Texas recently halted all jury trials before him after an outbreak in a nearby division, District Judge Alan D. Albright of the Western District of Texas has indicated that he may still continue to hold trials.

Finjan Holdings, Inc. announced on July 24 that Fortress Investment Group LLC has completed its previously disclosed acquisition of the publicly traded NPE. “The closing of the transaction follows the successful completion of Fortress’s offer to purchase a majority of Finjan’s outstanding shares of common stock for $1.55 per share in an all-cash tender offer,” according to a press release. Upon announcement of the offer last month, Finjan had stated that it would “maintain its brand and business model post-transaction”, continuing to license and enforce the anti-malware portfolio that the NPE has been asserting in litigation since 2006. The tender offer valued Finjan at $43M, or $16M net of the company’s estimated cash balance of $27M at June 30.