By Dorothy Atkins

Law360 (April 30, 2020, 10:05 PM EDT ) A California federal judge told counsel for Finjan and Cisco on Thursday to prepare for a June 15 trial, saying she is "fairly confident" Finjan's patent infringement suit could come before a jury in June and July, even with COVID-19 social distancing restrictions in place.

Finjan Inc.'s case, which currently involves 13 patent claims asserted against Cisco Systems Inc., was initially slated to go to a jury trial June 1, which is the day federal courts in California's Northern District are slated to reopen.

During a pretrial conference held over the Zoom Video Communications platform, U.S. District Judge Beth Freeman said she thinks it will be virtually impossible to call in potential jurors that day, so she pushed back the trial two weeks to June 15 and emphasized that she plans for the trial to proceed.

"I am fairly confident we could get this case to trial in June and July and I'd like to do that," the judge said. "This case is old, and I think we're all ready."

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

On Thursday, counsel for both sides said they would be prepared to go to trial in June, although they noted that some witnesses might have health risks that could make traveling to the courthouse problematic.

Judge Freeman acknowledged that the schedule could be subject to change, but she laid out the ground rules based on the expectation that in June a 50-member jury panel will be called in.

She said potential jurors will fill out their hardship questionnaires at home and the court will only call in jurors 10 at a time to conduct peremptory challenges. She said the trial itself will be held in the courthouse's ceremonial courtroom, which is larger than the other courtrooms, and space will be measured inside the courtroom so that everyone is maintaining social distancing.

Judge Freeman also said she suspects a number of jurors will have hardships. She said she'll plan to seat nine jurors, so that there won't be a mistrial if a juror gets sick. Instead of a jury room, she said, the panel will probably meet in another courtroom that is not being used in order to give jurors more space.

The judge gave each side 18 hours to argue its case, with each party getting 45 minutes for openings and 1.5 hours for closings. She added that she wants the case to go to the jury within two weeks.

Aside from logistics, Judge Freeman told Cisco's counsel that she wasn't pleased to see that Cisco suggested that the jury decide whether a patent claim is invalid by prior art under Section 101 of the Patent Act, since she considers the issue a threshold matter that should be resolved before trial by the judge.

"Just because there may be some factual issue doesn't necessarily mean that it's entitled to a jury," the judge said.

Judge Freeman told Cisco counsel Matthew C. Gaudet of Duane Morris LLP to brief the issue and cite any cases in which such a question has been sent to a jury to decide or in which the Federal Circuit has reversed a ruling for failure to send the issue to a jury.

Gaudet agreed to submit additional briefs on the matter, and he explained that Cisco raised the issue after U.S. District Judge William Alsup sent a similar question to a jury in a patent case involving Finjan and Juniper Networks Inc.

"If it turns out that this is not a fact issue, then this issue is gone," Gaudet said.

Judge Freeman replied that she has "high regard" for Judge Alsup, but she said the Juniper case was "one of a kind." The judge added that in the Juniper case, Judge Alsup implemented his novel "showdown" procedure, in which each side offers only one claim that illustrates whether he should toss the case.

"I don't do my cases that way," Judge Freeman said.

Judge Freeman also prohibited the parties from using pejorative terms like "patent troll" or "nonpracticing entity" to refer to Finjan during trial and prohibited the parties from diving into details of ongoing litigation involving the parties.

"I don't want to get into a tangent of litigating those other cases in front of the jury," she said.

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 Albert, Megan Chacon, Aamir Kazi and Nicole Williams of Fish & Richardson PC.

Cisco is represented by Woody Jameson, Matthew C. Gaudet, Robin L. McGrath, David Carl Dotson and Alice E. Snedeker of Duane Morris LLP.

The case is Finjan Inc. 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 Bonnie Eslinger. Editing by Gemma Horowitz.

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