Finjan, Inc. v. Check Point Software Technologies, Inc.

• Court: District Court, N.D. California
• Decided: April 21, 2020
• Docket: 3:18-cv-02621
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 FINJAN, INC., Case No. 18-cv-02621-WHO

8 Plaintiff, ORDER DENYING MOTION TO 9 v. CERTIFY THE ORDER ENTERED AT DKT. NO. 247 FOR INTERLOCUTORY 10 CHECK POINT SOFTWARE APPEAL TECHNOLOGIES, INC., et al., 11 Re: Dkt. No. 263 Defendants.

13 In this patent infringement case, plaintiff Finjan, Inc. (“Finjan”) accuses defendant Check 14 Point Software Technologies, Inc. and Check Point Software Technologies Ltd. (collectively 15 “Check Point”) of infringing on several of its patents related to cyber security. There have been 16 three rounds of infringement contentions in this case. On January 17, 2020, I granted in part 17 Check Point’s motion to strike Finjan’s second amended infringement contentions (“SAICs”), 18 which amounted to 5,135 charts, totaling to over 185,000 pages. See Order Granting in Part 19 Motion to Strike Second Amended Infringement Contentions; Granting in Part Motions to Seal 20 (the “SAIC Order”) [Dkt. No. 247]. Given the unmanageable size of Finjan’s SAICs, I appointed 21 a special master to determine if other contentions should be struck in accordance with the SAIC 22 Order. See Order Appointing Special Master [Dkt. No. 261]. 23 Before me is Finjan’s request that I certify the SAIC Order for interlocutory review of 24 whether Patent Local Rule 3 requires a party claiming patent infringement to provide pinpoint 25 source code citations for every element of every asserted claim. It also seeks to stay the 26 proceedings and permit it limited discovery while the appeal is pending. I conclude that Finjan 27 has failed to identify a pure question of law over which substantial grounds for difference exists 1 and that an interlocutory appeal would further prolong this already-prolonged litigation. Finjan’s 2 motion to certify the SAIC Order for interlocutory appeal is DENIED. 3 BACKGROUND1 4 In September 2018, I received briefing from the parties on how to manage this litigation in 5 compliance with Federal Rule of Civil Procedure 1’s mandate of a “just, speedy, and inexpensive 6 determination of this action[.]” Order Re Case Narrowing and Infringement Contentions (the 7 “Narrowing Order”) [Dkt. No. 29]. I then ordered Finjan to serve its infringement contentions 8 under specifications that largely follow the provisions of this District’s Patent Local Rules as well 9 as the guidance provided in the since withdrawn 2013 Model Order from the Federal Circuit. See 10 Narrowing Order. Finjan was instructed to “include pinpoint source code citations . . . 11 accompanied by the document production required by Patent Local Rule 3-2” and to also: (i) avoid open-ended citations to “exemplary” products and use of the 12 terms “such as” and “for example”; (ii) set forth any infringement theories based on the doctrine of equivalents with limitation-by- 13 limitation analyses; and (iii) for any indirect theories of infringement, identify the alleged direct infringement, the alleged acts of 14 inducement or contribution to that infringement, and the relationship between them. 15 Id. at 2. 16 On February 27, 2019, I granted in part Check Point’s motion to strike Finjan’s 17 infringement contentions (“ICs”) because they violated my Narrowing Order and the Patent Local 18 Rules. See Order Granting Motion to Strike in Part; Granting Motions to Seal; Granting Motion to 19 Amend Claim Construction Schedule (the “IC Order”) [Dkt. No. 84]. Among other things, I 20 specifically ordered Finjan to provide pinpoint source code citations that show “where and how 21 each limitation of each asserted claim is found within each Accused Instrumentality.” Id. at 12; 22 see also id. at 11 (“It is Finjan’s obligation to identify the particular claim components in each 23 claim, map those components onto the features of the allegedly infringing products, and pinpoint 24 cite source code that practices that component.”). 25 Finjan then served its amended infringement contentions (“AICs”). Check Point moved to 26 27 1 strike, arguing that they were deficient in largely the same ways as before. On August 12, 2019, I 2 granted Check Point’s motion in part. See Order Granting Motion to Strike Infringement 3 Contentions in Part (the “AIC Order”) [Dkt. No. 192]. In relevant part, I found that Finjan had 4 already been directed to provide pinpoint source code citations for each limitation and held that 5 “[t]o the extent any or all of the 30 of the accused instrumentalities lack pinpoint citations, they are 6 struck with prejudice.” Id. at 11. Where Finjan used the same source code for different things, I 7 allowed it to “amend its infringement contentions to better explain why the same source code [] 8 applies to wholly different limitations.” Id. I allowed Finjan limited leave to amend its 9 infringement contentions “one last time within fourteen days.” Id. at 18. I cautioned that “if any 10 of its infringement contentions remain deficient, they may not form the basis for relief in this 11 action.” Id. 12 On August 26, 2019, Finjan served its SAICs, containing 5,135 claim charts and totaling 13 more than 185,000 pages. SAIC Order at 7. Check Point moved to strike the SAICs for six 14 reasons. Before the hearing, I issued a tentative ruling on these six issues that was almost entirely 15 against Finjan; at the start of the hearing, Finjan abandoned its positions in response to most of the 16 tentative. Id. at 1. 17 In making my final ruling, I emphasized that “just because a contention crosses one of the 18 issue hurdles, it does not necessarily mean that it is sufficiently alleged because it could fail to 19 cross another issue hurdle.” SAIC Order at 2 n.1. Ultimately, I struck with prejudice all 20 contentions identified under Issue 1 (products and theories that were previously struck with 21 prejudice), Issue 2 (new accusations), and Issue 5 (contentions without pinpoint source code 22 citations). SAIC Order at 39. I struck with prejudice all inadequately identified and explained 23 combination contentions discussed under Issue 3, and I decided to appoint a special master to 24 determine if the other accused combinations should also be struck. Id. Finally, I struck with 25 prejudice all examples discussed under Issue 6, and referred to the master the determination of 26 whether the other contentions should also be struck for inadequate source code explanations 27 1 and/or failure to explain why the same source code applies in different cases. Id.2 2 On February 14, 2020, I appointed the Honorable Elizabeth D. Laporte, United States 3 District Court Magistrate Judge (Retired), as special master after neither party objected to my 4 notice of intent to appoint her. See Order Appointing Special Master [Dkt. No. 261]. On March 5 13, 2020, Special Master Laporte set a briefing schedule, but on the same day Finjan filed this 6 motion to certify interlocutory appeal, to stay, and to permit limited discovery. See Plaintiff 7 Finjan Inc.’s Notice of Motion and Motion to Certify the Court’s January 17, 2020 Order (Dkt. 8 No. 247) For Interlocutory Appeal, to Stay, and to Permit Limited Discovery (“Mot.”) [Dkt. No. 9 263]. 10 LEGAL STANDARD 11 Appellate review before a final judgment is appropriate “only in exceptional cases where 12 decision of an interlocutory appeal might avoid protracted and expensive litigation.” U.S. Rubber 13 Co. v. Wright, 359 F.2d 784, 785 (9th Cir. 1966). For the court of appeals to have jurisdiction 14 over an interlocutory appeal, the order must involve: (i) a controlling question of law; (ii) 15 substantial grounds for difference of opinion; and (iii) a likelihood that an immediate appeal may 16 materially advance the ultimate termination of the litigation. 28 U.S.C. § 1292(b). Section 1292 17 “was not intended merely to provide review of difficult rulings in hard cases.” Id. Certification is 18 at the discretion of the district court. Swint v. Chambers Cnty. Comm’n, 514 U.S. 35, 47 (1995). 19 A party seeking to certify an issue for interlocutory review bears the burden of showing 20 that each of the three requirements are satisfied and that a departure from long-standing policy is 21 justified. Stiner v. Brookdale Senior Living, Inc., 383 F. Supp. 3d 949, 957 (N.D. Cal. 2019). 22 Even when the moving party can meet the requirements of Section 1292(b), a district court’s 23 decision to grant or deny certification is entirely discretionary. Nat’l Fair Hous. All. v. A.G. 24 Spanos Const. Inc, No. C 07-3255 SBA, 2008 WL 5273335, at *1 (N.D. Cal. Dec. 16, 2008). A 25 decision by the district court to deny certification of an issue is unreviewable. Id. 26

27 2 I allowed Finjan to include the open-ended citations discussed under Issue 4 because it clarified 1 DISCUSSION 2 Finjan has not met its burden of satisfying all three requirements to justify the 3 extraordinary remedy it seeks. Interlocutory review is not appropriate because Finjan seeks 4 review of a mixed question of law and fact, it fails to show a substantial ground for a difference of 5 opinion, and an appeal would not materially advance this litigation. 6 I. CONTROLLING QUESTION OF LAW 7 A question of law is controlling if “resolution of the issue on appeal could materially affect 8 the outcome of the litigation.” In re Cement Litig., 673 F.2d 1020, 1026 (9th Cir. 1982). This 9 requirement helps ensure that section 1292(b) interlocutory appeals occur “sparingly and only in 10 exceptional cases” as Congress intended. See id. at 1027. A “mixed question of law and fact or 11 the application of law to a particular set of facts” by itself is not appropriate for permissive 12 interlocutory review. Johnson v. Serenity Transportation, Inc., No. 15-CV-02004-JSC, 2017 WL 13 3168491, at *1 (N.D. Cal. July 26, 2017) (citation omitted); see also Allen v. Conagra Foods, Inc., 14 No. 13-CV-01279-JST, 2013 WL 6000456, at *3 (N.D. Cal. Nov. 12, 2013) (denying 15 section 1292(b) certification because proposed appeal involved application of the relevant facts to 16 a regulation). 17 Finjan asserts that the SAIC Order raises the following controlling question of law: 18 “whether Patent Local Rule 3-1 requires pinpoint source code citations for every claim element, 19 particularly prior to the deposition phase of fact discovery, or if a Plaintiff may reasonably rely on 20 other evidence of infringement to provide the ‘where and how’ of infringement for certain 21 limitations.” Mot. 7-8. But contrary to Finjan’s formulation of the question, the SAIC Order did 22 not simply apply Patent Local Rule 3-1; it also applied the Narrowing Order, the IC Order and the 23 AIC Order. 24 I exercised my inherent broad discretion in supervising the pretrial phase of litigation and 25 managing my docket when I entered the Narrowing Order in this case. See Johnson v. Mammoth 26 Recreations, Inc., 975 F.2d 604, 607 (9th Cir.1992) (citation omitted); Dietz v. Bouldin, 136 S. Ct. 27 1885, 1892 (2016). At the Initial Case Management Conference, I directed the parties to submit 1 Federal Rule of Civil Procedure 1’s mandate of a “just, speedy, and inexpensive determination” of 2 this action. Minute Entry for Proceedings Held on August 14, 2018 [Dkt. No. 24]. After 3 considering their briefs, the Patent Local Rules, and the 2013 Model Order, I ordered Finjan to 4 identify the specific infringing products, Check Point to provide source code for these identified 5 products, and then Finjan to serve its infringement contentions that comply with Patent Local Rule 6 3-1, “include pinpoint source code citations, and be accompanied by the document production 7 required by Patent Local Rule 3-2.” Narrowing Order at 2. The Narrowing Order was a tailored 8 order made in light of the facts; it was not simply an order directing compliance with the Patent 9 Local Rules. Id. Other courts have also required the same in similar situations. See, e.g., Big 10 Baboon Corp. v. Dell, Inc., 723 F. Supp. 2d 1224, 1228 (C.D. Cal. 2010) (where the accused 11 instrumentality includes computer software based upon source code made available to the 12 patentee, the patentee must provide “pinpoint citations” to the code identifying the location of 13 each limitation). 14 In all three rounds of infringement contentions, Check Point sought to strike not only for 15 failure to comply with the Patent Local Rules but also to enforce the Narrowing Order that was 16 tailored to the facts of this case. The Narrowing Order includes a determination of how to manage 17 my docket, how to supervise pretrial litigation, or how to ensure an efficient determination, all of 18 which are not questions of law. Ellis v. Bhd. of Ry., Airline & S.S. Clerks, Freight Handlers, 19 Express & Station Emps., 685 F.2d 1065, 1071 (9th Cir.1982), rev’d in part and aff’d in part, 466 20 U.S. 435 (1984) (“A district court has wide latitude in controlling discovery; its rulings will not be 21 overturned in the absence of a clear abuse of discretion.”). The AC Order and AIC Order further 22 developed the analysis of Finjan’s contentions. 23 At best, the SAIC Order entails a mixed question of law which is inappropriate for 24 interlocutory appeal. For example, in Allen v. Conagra Foods, Inc, I denied a motion to certify an 25 order for interlocutory appeal because, among other things, the question presented was not one of 26 pure law, but rather a mixed question of law and fact. No. 3:13-cv-01279-WHO, 2019 WL 27 1466889 (N.D. Cal. Feb. 5, 2019). In ruling on a motion to dismiss, I “determined that the federal 1 defendants sought interlocutory appeal, claiming that my order turned on a question of law –the 2 interpretation of a federal regulation. Id. But I found that “[t]he facts alleged in the complaint 3 [could not] be extricated from my discussion or from any conclusion I reached.” Id. at *2. 4 Similarly, even if the SAIC includes a legal question of my interpretation of a Patent Local 5 Rule, the nature of Finjan’s infringement contentions, combined with three rounds of litigation 6 relating to the sufficiency of those contentions, cannot be extricated from my discussion and 7 conclusion about them. In the AIC Order and the SAIC Order, I did not make a blanket 8 determination that all infringement contentions must include pinpoint source code citations. 9 Rather, considering the facts unique to this case, I held that pinpoint source code citations and 10 supporting explanations were required to put Check Point (and me) on notice of Finjan’s 11 infringement theories. Without a controlling question of law, interlocutory appeal is 12 inappropriate. 13 Even if I were to find that my requirement for source code citations in this case is a pure 14 question of law, Finjan has not met its burden in showing that it is a controlling question of law as 15 required by 28 U.S.C. § 1292(b). A controlling question of law is one where the “resolution of the 16 issue on appeal could materially affect the outcome of litigation in the district court.” In re 17 Cement, 673 F.2d at 1026. Finjan argues that the question of whether source code citations are 18 required by the Patent Local Rules is controlling because it materially affects the outcome of this 19 case by striking many of Finjan’s infringement contentions, thereby removing these allegations 20 from this case. Mot. 8. But it fails to consider that contentions addressed in the SAIC Order were 21 struck on multiple overlapping grounds. Check Point moved to strike the SAICs because Finjan 22 “(1) accuses products and theories struck with prejudice by the Court; (2) asserts new theories, 23 claims, and combinations; (3) continues to accuse combinations without explaining which parts of 24 the combination meet which limitation or how the combination of products act together to 25 infringe; (4) relies on new open-ended contentions and citations to the entire code base for accused 26 instrumentalities; (5) has not provided pinpoint source code citations for numerous contentions3; 27 1 and (6) still fails to specify how Check Point’s products infringe Finjan’s patents.” SAIC Order at 2 9. In deciding each of these six issues, I emphasized that “just because a contention crosses one of 3 the issue hurdles, it does not necessarily mean that it is sufficiently alleged because it could fail to 4 cross another issue hurdle.” Id. at 2 n.1. 5 Finjan has not met its burden in showing that the issue is a controlling question of law 6 appropriate for interlocutory review. 7 II. SUBSTANTIAL GROUND FOR DIFFERENCE OF OPINION 8 A substantial ground for difference of opinion exists where “novel and difficult questions 9 of first impression are presented” on which “fair-minded jurists might reach contradictory 10 conclusions.” Reese v. BP Exploration (Ak.) Inc., 643 F.3d 681, 688 (9th Cir. 2001). Some 11 examples of substantial ground for difference of opinion include cases in direct conflict with the 12 holding in the order sought for interlocutory review, or a split in authority on the questions 13 posed. See Bennett v. SimplexGrinnell LP, No. 11-cv-01854-JST, 2014 WL 4244045, at *2 (N.D. 14 Cal. Aug. 25, 2014). “A party’s strong disagreement with the Court’s ruling is not sufficient for 15 there to be a substantial ground for difference.” Couch v. Telescope Inc., 611 F.3d 629, 633 (9th 16 Cir. 2010). 17 Finjan relies on a series of cases in this District, including one before me, that it contends 18 shows a difference of opinion on “whether and to what extent Patent Local Rule 3-1 requires 19 universal pin cites to source code.” Mot. 10. But each of the cases it relies on are easily 20 distinguishable from this case because this determination is so fact dependent. 21 For example, in Finjan, Inc. v. Sophos, Inc., No. 14-CV-01197-WHO, 2015 WL 5012679, 22 at *1 (N.D. Cal. Aug. 24, 2015), I granted defendant’s motion to strike to the extent that it sought 23 to compel Finjan to amend its infringement contentions, but denied it in all other respects. I 24 refused to strike Finjan’s contentions because, unlike the third rounds of infringement contentions 25 here, it was “the first time that a court has reviewed Finjan’s contentions in [that] case, Finjan [] 26 requested leave to amend, and it appear[ed] likely that Finjan [would] be able to cure the 27 1 deficiencies.” Id. at *2. n.2. 2 Even though I allowed Finjan to amend its infringement contentions in that case, I still 3 required the amended contentions to include “pinpoint citations, or the substantial equivalent, to 4 source code.” 2015 WL 5012679, at *3. Finjan similarly argued “that pinpoint citations to source 5 code are not required under the patent local rules and that they are only required in response to an 6 interrogatory.” Id. But I noted that “[t]his distinction is irrelevant here because Sophos has 7 already served (nearly five months ago) an interrogatory requesting pinpoint citations to source 8 code” and “[s]everal courts have held that once a plaintiff has had a sufficient opportunity to 9 review the defendant’s source code, the plaintiff must provide citations to the source code in 10 response to an interrogatory.” Id. (collecting cases). I concluded that “[o]nce Finjan responds to 11 the pinpoint citations interrogatory, it will be required to include that information in its 12 infringement contentions as well.” Id. Here, Finjan has not only had access to the source code of 13 Check Point’s accused products for several months, but also to a source-code mapping showing 14 the relationship between the code Check Point had produced for inspection and the accused 15 products. Check Point provided this source-code mapping to Finjan well before the SAICs were 16 served.4 17 4 I briefly address Finjan’s request for limited discovery here. After receiving a source-code 18 mapping from Check Point, Finjan attempted to compel the testimony of Tamir Zegman, Check Point’s chief architect, because Finjan disagreed with his understanding with respect to what 19 source code was related to which products. Finjan complains that despite filing repeated motions to compel, it has not been able to depose Zegman. Plaintiff Finjan, Inc.’s Reply in Support of its 20 Motion to Certify For Interlocutory Appeal, to Stay, and to Permit Limited Discovery [Dkt. No. 266] 13. It contends that the court in Finjan, Inc. v. Zscaler, Inc., Case No. 17-cv-06946-JST, did 21 not allow that defendant to do the same litigation tactic and after Finjan deposed defendant’s representative on its source code, defendant no longer challenged the infringement contentions. 22 Finjan believes the same would happen here if it is allowed to depose Zegman. Finjan’s assertion is unconvincing. 23

Finjan has been provided a procedure to depose Zegman, but it has never invoked this procedure 24 and instead affirmatively declines to make use of it. At the February 13, 2019 hearing that resulted in the first IC Order, I rejected Finjan’s request for an unbounded technical deposition. 25 However, I provided Finjan with a mechanism for taking early 30(b)(6) deposition – “send me a five-page joint letter and append to it the questions that you would like to ask a 30(b)(6) witness.” 26 Transcript of Proceedings Held on February 13, 2019 [Dkt. No. 85] 4:17-20. On June 18, 2019, Chief Magistrate Judge Joseph C. Spero denied Finjan’s motion to compel deposition of Zegman, 27 noting that he “[was] not writing on a blank slate,” because I had previously specified a procedure 1 Finjan next relies on Finjan, Inc. v. Proofpoint, Inc., No. 13-cv-05808-HSG, 2015 WL 2 9023166 at *3 (N.D. Cal. Dec. 16, 2015) in which the court held that “pinpoint citations to source 3 code are not a per se requirement in patent cases involving software. Although pinpoint citations 4 to source code are one way of meeting Rule 3-1(c)’s requirement . . . the Court has not been 5 presented with any authority holding that pinpoint citations are the only way to meet its 6 requirements.” This is not inconsistent with the SAIC Order. As discussed above, Finjan’s 7 infringement contentions had to meet not only Patent Local Rule 3-1, but also the criteria specified 8 in the Narrowing Order. After receiving input from the parties on how to manage this case, and 9 the Narrowing Order directed Finjan to provide pinpoint source code citations given the 10 circumstances in this case. The SAIC Order, and my other prior orders on Finjan’s ICs and AICs, 11 merely applied that directive when it came to pinpoint source code citations. The SAIC Order did 12 not attempt to impose a blanket rule that all software cases require “universal pin cites to source 13 code,” as Finjan claims. 14 Finally, Finjan’s reliance on Vasudevan Software, Inc. v. International Business Machines 15 Corp., No. C09-05897 RS HRL, 2011 WL 940263 (N.D. Cal. Feb. 18, 2011) and Network 16 Caching Tech. LLC v. Novell Inc., No. C-01-2079-VRW, 2002 WL 32126128 (N.D. Cal. Aug. 13, 17 2002) are also misplaced. In Vasudevan, although the court did not require pinpoint citations 18 given the circumstances of that case, it nonetheless recognized that “[o]nce source code has been 19 provided to the plaintiffs . . .courts have required plaintiffs to supplement their infringement 20 charges with pinpoint citations.” 2011 WL 940263, at *7. In Network Caching, source code was 21 “solely in the defendants’ possession,” indicating that source code discovery had not yet 22

23 [Dkt. No. 161].

24 In any event, the SAIC Order did not solely rely on how Check Point mapped its source code. As explained above, products were struck for multiple reasons. For example, in evaluating Finjan’s 25 contentions against the Capsule Cloud product, I noted that parties disagreed on whether the cited source code belonged to that product. Regardless, I found that “[e]ven if Finjan was attempting to 26 claim that non-Capsule Cloud code shows infringement, it does not explain that theory and instead simply provides a one-sentence incorporation by reference placeholder for Capsule Cloud.” SAIC 27 Order at 12; see also id. at 34 (“The parties dispute whether the source code cited on pages 7 and 8 1 commenced. 2002 WL 32126128, at *7. 2 Finjan fails to meets its burden in showing that there are substantial grounds for a 3 difference of opinion pertaining to the alleged “question of law”. 4 III. MATERIAL ADVANCEMENT 5 An appeal must be “likely to materially speed the termination of the litigation.” Ambrosio 6 v. Cogent Commc’ns, Inc., No. 14-cv-02182-RS, 2016 WL 777775, at *3 (N.D. Cal. Feb. 29, 7 2016). Considering the effect of a reversal in the case, an interlocutory appeal materially advances 8 the termination of the litigation where it “promises to advance the time for trial or to shorten the 9 time required for trial.” Dukes v. Wal-Mart Stores, Inc., 01-cv-02252-CRB, 2012 WL 6115536, at 10 *5 (N.D. Cal. Dec. 10, 2012) (quoting 16 Federal Practice & Procedure § 3930 at n. 39 (2d ed.)). 11 “The ultimate question is whether permitting an interlocutory appeal would minimize the total 12 burdens of litigation on parties and the judicial system by accelerating or at least simplifying trial 13 court proceedings.” Id. (internal quotation marks and formatting omitted). 14 Finjan’s three reasons on how an interlocutory appeal will advance this case are 15 unpersuasive. First, it contends that interlocutory appeal “will avoid the risk of wasting time and 16 resources by conducting two successive rounds of expert reports and trials with significantly 17 overlapping issues in the event of a remand on the stricken infringement claims.” Mot. 13. I find 18 that risk is low given the multiple opportunities I have given Finjan to comply with Patent Local 19 Rules and my Narrowing Order. 20 Second, it asserts that “guidance from the Federal Circuit will assist the Special Master in 21 determining whether Finjan’s outstanding contentions should also remain in the case.” Mot. 13. 22 The Special Master was appointed to evaluate the remaining charts in light of the SAIC Order. In 23 particular, I appointed the master to “determine if other contentions should also be struck for 24 inadequate source code explanations and/or failure to explain why the same source code applies in 25 different cases.” SAIC Order at 39. Special Master Laporte will not be determining whether 26 contentions should be struck for failure to provide pinpoint source code citations (the alleged 27 “question of law” here) but rather for failure to explain those pinpoint citations. These are two 1 (discussing Issue 5 failure to provide pinpoint source code citations); id. at 29-39 (discussing Issue 2 6 failure to explain how cited source code shows infringement). A ruling from the Federal Circuit 3 || before the Special Master provides a recommendation will not necessarily materially advance this 4 case. 5 Third, Finjan argues that an interlocutory appeal would “help narrow the issues by 6 || finalizing the list of contentions to be tried.” Mot. 13. “While this argument may provide 7 additional support for certification in cases where the first two factors are indisputably met, it is 8 || insufficient to carry the entire weight of the certification requirements.” Chiron Corp. v. Abbott 9 || Labs., No. C-93-4380 MHP, 1996 WL 15758, at *3 (N.D. Cal. Jan. 3, 1996). 10 Interlocutory appeal is to be reserved for exceptional circumstances. This is not one. It 11 would certainly not accelerate trial court proceedings. Almost two years have passed since Finjan 12 || initiated this patent infringement case, yet it is still at the infringement contentions stage. 5 13 CONCLUSION 14 For the foregoing reasons, Finjan’s motion to certify the SAIC Order for interlocutory 3 15 appeal is DENIED. z 16 IT IS SO ORDERED. 5 17 Dated: April 21, 2020 18 . 19 Iam H. Orrick 20 United States District Judge 21 22 23 24 25 26 27 28