Case 3:17-cv-05659-WHA Document 113 Filed 06/22/18 Page 1 of 8
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`IRELL & MANELLA LLP
`Jonathan S. Kagan (SBN 166039)
`jkagan@irell.com
`Joshua Glucoft (SBN 301249)
`jglucoft@irell.com
`Casey Curran (SBN 305210)
`ccurran@irell.com
`Sharon Song (SBN 313535)
`ssong@irell.com
`1800 Avenue of the Stars, Suite 900
`Los Angeles, California 90067-4276
`Telephone: (310) 277-1010
`Facsimile: (310) 203-7199
`
`Rebecca Carson (SBN 254105)
`rcarson@irell.com
`Kevin Wang (SBN 318024)
`kwang@irell.com
`840 Newport Center Drive, Suite 400
`Newport Beach, California 92660-6324
`Telephone: (949) 760-0991
`Facsimile: (949) 760-5200
`
`Attorneys for Defendant
`JUNIPER NETWORKS, INC.
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`
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`SAN FRANCISCO DIVISION
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`IRELL & MANELLA LLP
`A Registered Limited Liability
`Law Partnership Including
`Professional Corporations
`
`10528593
`
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`FINJAN, INC., a Delaware Corporation,
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`Plaintiff,
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`JUNIPER NETWORKS, INC., a Delaware
`Corporation,
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`vs.
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`Defendant.
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`Case No. 3:17-cv-05659-WHA
`
`DEFENDANT JUNIPER NETWORKS,
`INC.’S OPPOSITION TO FINJAN, INC’S
`MOTION FOR LEAVE TO FILE
`SECOND AMENDED COMPLAINT
`
`Date:
`Time:
`Judge:
`Courtroom:
`
`
`July 5, 2018
`8:00 a.m.
`Honorable William Alsup
`12 – 19th Floor
`
`OPPOSITION TO FINJAN’S MOTION FOR LEAVE
`TO FILE SECOND AMENDED COMPLAINT
`Case No. 3:17-cv-05659-WHA
`
`

`

`Case 3:17-cv-05659-WHA Document 113 Filed 06/22/18 Page 2 of 8
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`
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`I.
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`INTRODUCTION
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`While Juniper did not oppose Finjan’s first motion to file an amended complaint (filed April
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`19, 2018), Juniper does oppose Finjan’s new, last-minute, second request to amend its complaint
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`(“Motion to Amend”). Juniper opposes this second motion because: (1) it would prejudice Juniper by
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`requiring it to both completely revise its claim construction strategy (well into the claim construction
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`process) and review and produce significant additional discovery on a highly expedited basis during
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`an already busy time period; and (2) it is based on a patent that Finjan knew about and charted against
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`Juniper products in 2015, but that Finjan elected not to include either in its original complaint or in its
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`first amended complaint (filed after Finjan reviewed Juniper’s source code).
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`Finjan filed this case in September of 2017, accusing Juniper of infringing eight patents.
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`Although Finjan had prepared a claim chart comparing U.S. Patent No. 7,418,731 (“the ’731 Patent”)
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`against Juniper products in 2015, Finjan elected not to include this patent in its initial complaint. On
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`March 19, 2018, six months after Finjan filed its initial complaint, Juniper produced its source code
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`to Finjan for review. After reviewing this source code, Finjan sought leave to file a First Amended
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`Complaint, which Juniper did not oppose, and which the Court granted on May 11, 2018. Like its
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`original complaint, Finjan’s First Amended Complaint did not contain any allegations involving the
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`’731 Patent.
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`Adding an entirely new patent at this point in the litigation would significantly prejudice
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`Juniper. As an initial matter, the parties have already identified the claim terms they believe are most
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`significant for claim construction (along with proposed constructions). If the ’731 Patent is added to
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`this case, Juniper will be forced to quickly identify and analyze numerous new claim construction
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`issues relating to the ’731 Patent on an extremely expedited schedule. Moreover, because Juniper has
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`designated the claim terms it believes are most important for a resolution of this case (pursuant to
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`Patent Local Rule 4-3), Juniper will then need to reassess these designations to evaluate the
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`significance of each of these terms against each of the terms from the ’731 Patent. Juniper will also
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`need to propound (and likely produce) significant additional discovery relating to the ’731 Patent
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`within the next two months, during the time when Juniper is already heavily occupied conducting
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`depositions and preparing dispositive motions and preparing for a possible trial pursuant to this
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`IRELL & MANELLA LLP
`A Registered Limited Liability
`Law Partnership Including
`Professional Corporations
`
`10528593
`
`
`- 1 -
`
`OPPOSITION TO FINJAN’S MOTION FOR LEAVE
`TO FILE SECOND AMENDED COMPLAINT
`Case No. 3:17-cv-05659-WHA
`
`

`

`Case 3:17-cv-05659-WHA Document 113 Filed 06/22/18 Page 3 of 8
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`Court’s “shootout” procedure. Adding the ’731 Patent at this late date would thus prejudice Juniper.
`II.
`
`BACKGROUND
`A.
`Finjan has admitted in discovery that it had prepared claim charts for the ’731 Patent by
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`Finjan’s Knowledge of its Allegations Relating to the ’731 Patent.
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`October of 2015, roughly two years before it filed its original complaint against Juniper. See Ex. B;
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`Ex. A at 5. These charts allegedly analyze each element of Claim 1 of the ’731 Patent against
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`Juniper’s SRX products. See Ex. C. Yet Finjan’s original Complaint does not assert the ’731 Patent.
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`On March 19, 2018, Juniper produced its source code to Finjan. Declaration of Sharon Song (“Song
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`Decl.”) ¶ 10. One month later, on April 19, 2018, Finjan sought leave of Court to file a First
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`Amended Complaint. See Dkt. No. 67. While this complaint added new infringement allegations
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`against Juniper, it again omitted any reference to the ’731 Patent. Instead, as Finjan concedes, it
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`waited until May 31, 2018 (the last day for the parties to seek leave to amend the pleadings), to seek
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`leave to add the ’731 Patent to this case. See Motion to Amend at 4.
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`Finjan claims that it should be able to add the ’731 Patent at this late juncture because it
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`supposedly learned about the manner in which files are stored and indexed by Sky ATP for the first
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`time on May 9, 2018, at the deposition of Ms. Yuly Tenorio. Motion to Amend at 3. But all details
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`about the operation of Juniper’s products were known to Finjan months before, when it conducted its
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`source code review. Moreover, even if Finjan did not have access to Juniper’s source code (which it
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`did), information about Sky ATP’s functions related to storing and indexing files has been publicly
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`disclosed in Sky ATP’s administration guide at least since September 8, 2017. See Ex. G at i, 51-52.
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`For example, Sky ATP’s administration guide discloses that Sky ATP stores in the cloud emails with
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`attachments found to be malicious. Id. at 51-52. The recipients are then provided a link to the Sky
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`ATP quarantine portal where the email can be previewed. Id. at 51.
`B.
`On May 7, 2018, the parties exchanged their respective lists of claim terms for construction
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`This Case’s Claim Construction Proceedings.
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`for the patents asserted in the original Complaint (excluding the ’731 Patent) pursuant to Patent Local
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`Rule (“PLR”) 4-1. See Song Decl. ¶ 12.
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`On May 22, 2018, Finjan produced to Juniper the claim charts for the ’731 Patent that it had
`
`IRELL & MANELLA LLP
`A Registered Limited Liability
`Law Partnership Including
`Professional Corporations
`
`10528593
`
`
`- 2 -
`
`OPPOSITION TO FINJAN’S MOTION FOR LEAVE
`TO FILE SECOND AMENDED COMPLAINT
`Case No. 3:17-cv-05659-WHA
`
`

`

`Case 3:17-cv-05659-WHA Document 113 Filed 06/22/18 Page 4 of 8
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`prepared in October 2015. See Ex. B; Ex. C. This was the first time Finjan disclosed the ’731 Patent
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`to Juniper, and the first time Juniper learned of the existence of this patent. Three days later, on
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`May 25, 2018, Finjan informed Juniper that it intended to seek leave to amend its complaint to assert
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`the ’731 Patent. See Ex. D at 2. On May 27, 2018, Finjan emailed Juniper proposing modifications
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`to the claim construction schedule to accommodate the ’731 Patent. See Ex. D at 1. Finjan’s
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`proposed schedule sought to require Juniper to serve invalidity contentions for the ’731 Patent within
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`three weeks, in the midst of the early summary judgment briefing schedule. Id. Given Finjan’s
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`unreasonable demand that Juniper serve within three weeks invalidity contentions for a patent that
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`Juniper had no knowledge of prior to May 2018, Juniper did not agree to Finjan’s proposed claim
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`construction schedule.
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`On May 28, 2018, the parties exchanged their respective proposed constructions and
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`corresponding intrinsic and extrinsic evidence for each term identified by each party for claim
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`construction from the patents asserted in the original Complaint (excluding the ’731 Patent) pursuant
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`to PLR 4-2. See Song Decl. ¶ 12.
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`On June 8, 2018, Finjan served Juniper its infringement contentions for the ’731 Patent. See
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`Ex. E. Despite the Court’s order requiring Finjan to limit the total number of claims in the case to 16,
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`see Ex. F at 9-10, Finjan’s infringement contentions assert a total of 17 claims. See Ex. E at 1-2;
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`Motion to Amend at 2.
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`On June 22, 2018, the same day this opposition is being filed, the parties will file a Joint
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`Claim Construction and Prehearing Statement identifying the 10 terms from the patents asserted in
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`the original Complaint (excluding the ’731 Patent) whose construction will be most significant to the
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`resolution of this case, pursuant to PLR 4-3. See Song Decl. ¶ 12. Because the Court has placed a
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`limit on the number of claims it will construe, Juniper’s selection of these claims reflects its
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`evaluation of the relative importance of numerous claim terms from multiple patents.
`C.
`Discovery has already progressed substantially in this case, hastened by this Court’s
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`Discovery that has already been completed
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`“shootout” procedure. Juniper has produced all source code for the accused products, more than
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`560,000 technical documents, more than 2,400 financial and marketing documents totaling about
`
`IRELL & MANELLA LLP
`A Registered Limited Liability
`Law Partnership Including
`Professional Corporations
`
`10528593
`
`
`- 3 -
`
`OPPOSITION TO FINJAN’S MOTION FOR LEAVE
`TO FILE SECOND AMENDED COMPLAINT
`Case No. 3:17-cv-05659-WHA
`
`

`

`Case 3:17-cv-05659-WHA Document 113 Filed 06/22/18 Page 5 of 8
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`60,000 pages, and more than 39,000 emails and corresponding attachments from a Juniper engineer.
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`See Song Decl. ¶ 10. Juniper has also provided four witnesses for deposition and taken the
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`deposition of Finjan’s 30(b)(6) witness. Id. at ¶ 11. None of this discovery has focused on the ’731
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`Patent.
`III. ARGUMENT
`Leave to amend may be denied where the Court finds there is “undue delay, bad faith or
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`dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments
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`previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment,
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`futility of the amendment, etc.” Boston Sci. Corp. v. Johnson & Johnson, 2006 WL 3455009, at *4
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`(N.D. Cal. Nov. 29, 2006) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)). The Ninth Circuit
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`has also noted “that late amendments to assert new theories are not reviewed favorably when the facts
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`and the theory have been known to the party seeking amendment since the inception of the cause of
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`action.” Acri v. Int'l Ass'n of Machinists & Aerospace Workers, 781 F.2d 1393, 1398 (9th Cir. 1986).
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`Moreover, “[t]he district court’s discretion to deny leave to amend is particularly broad where a
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`plaintiff previously has amended the complaint.” World Wide Rush, LLC v. City of Los Angeles, 606
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`F.3d 676, 690 (9th Cir. 2010). Nearly every one of the factors enumerated by these courts weighs
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`against allowing Finjan to file a second set of additional claims against Juniper at this late date.
`A.
`“Ultimately, prejudice is the critical factor in considering motions for leave to amend.”
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`Juniper Will Be Significantly Prejudiced by the Late Addition of the ’731 Patent
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`Alzheimer's Inst. of Am. v. Elan Corp. PLC, 274 F.R.D. 272, 276 (N.D. Cal. 2011) (emphasis added);
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`see also Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (finding that “it
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`is the consideration of prejudice to the opposing party that carries the greatest weight” for a denial of
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`leave to amend).
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`Because of this Court’s “shootout” procedure, Juniper has, for the past several months,
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`engaged in significantly high levels of litigation activity to make discovery available to Finjan on the
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`three products accused in the original Complaint on an extremely expedited schedule. For example,
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`Juniper has produced the source code for all accused products (including the late-added ATP
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`Appliance); more than 560,000 technical documents to Finjan, the majority of which were highly
`
`IRELL & MANELLA LLP
`A Registered Limited Liability
`Law Partnership Including
`Professional Corporations
`
`10528593
`
`
`- 4 -
`
`OPPOSITION TO FINJAN’S MOTION FOR LEAVE
`TO FILE SECOND AMENDED COMPLAINT
`Case No. 3:17-cv-05659-WHA
`
`

`

`Case 3:17-cv-05659-WHA Document 113 Filed 06/22/18 Page 6 of 8
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`confidential technical documents; and agreed to four early depositions of Juniper engineers, all before
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`summary judgment motions were due on June 7, 2018.
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`In addition to the early summary judgment procedure, Juniper has expended substantial time
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`to comply with the requirements of PLR 4-1, 4-2, and 4-3. As of June 22, 2018, the parties will have
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`completed the exchange requirements of PLR 4-1 and 4-2, and filed the Joint Claim Construction and
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`Prehearing Statement, as prescribed in PLR 4-3. In particular, Juniper has expended significant
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`resources to analyze the claim terms of the patents asserted in the original Complaint to identify the
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`10 terms whose construction will be most significant to the resolution of this case.
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`Notwithstanding the already heightened level of litigation activity, Finjan seeks to add a new
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`patent to the case a mere six weeks after it filed its first motion for leave to amend. The late addition
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`of the ’731 Patent will essentially require Juniper to re-do significant portions of the work it has
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`already completed for this case over the past three months. For example, PLR 4-3 requires the parties
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`to jointly identify the 10 most important claim terms from all asserted claims in the case, including
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`the claims of the ’731 Patent if Finjan’s Motion to Amend is granted. Allowing the late addition of
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`the ’731 Patent will require Juniper to re-do its comparative analysis of the claim terms, repeat its
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`multiple meet and confers with Finjan, and create a new strategy for identifying and agreeing upon
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`the 10 claim terms most significant to this case. Moreover, the addition of the ’731 Patent will
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`require Juniper to prepare invalidity contentions for the ’731 Patent within a short period of time in
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`the midst of the early summary judgment briefing schedule. The ’731 Patent will impose an
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`expedited claim construction schedule upon Juniper that overlaps substantially with the expedited
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`schedule imposed by the early summary judgment procedure. See Alzheimer’s, 274 F.R.D. at 278
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`(denying motion for leave to amend in part because “amendment would de-rail the existing claim
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`construction schedule”); Alibaba.com Hong Kong Ltd. v. P.S. Prod., Inc., 2012 WL 13060303, at *2
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`(N.D. Cal. Mar. 19, 2012) (denying plaintiffs’ motion to file a second amended complaint in part
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`because the amendment was likely to require extension of deadlines and additional claim
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`construction, which were deemed to be undue prejudice to defendants).
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`Finjan could have filed this motion, at the very least, well over three months ago in March
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`2018, when it gained access to Juniper’s source code for the accused products. See Song Decl. ¶ 10.
`
`IRELL & MANELLA LLP
`A Registered Limited Liability
`Law Partnership Including
`Professional Corporations
`
`10528593
`
`
`- 5 -
`
`OPPOSITION TO FINJAN’S MOTION FOR LEAVE
`TO FILE SECOND AMENDED COMPLAINT
`Case No. 3:17-cv-05659-WHA
`
`

`

`Case 3:17-cv-05659-WHA Document 113 Filed 06/22/18 Page 7 of 8
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`Finjan could also have sought leave to add the ’731 Patent six weeks ago, when it filed its first
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`motion for leave to amend the complaint. Instead, Finjan waited until literally the last possible day to
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`try to expand this case yet again. Imposing this significant prejudice on Juniper by allowing Finjan to
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`add the ’731 Patent to the case is unfair, unreasonable, and highly prejudicial.
`B.
`Finjan unduly delayed the filing of this second motion for leave to amend. As Finjan admits,
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`Finjan Unduly Delayed in Seeking Leave to Amend, Acting with Dilatory Motive
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`it was aware of its infringement allegations for the ’731 Patent since October 2015, roughly two years
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`before the original Complaint was filed in this case. See Ex. B; Ex. A at 5. In fact, in October 2015,
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`Finjan had already created claim charts for the ’731 Patent that it chose not to share with Juniper. See
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`Slot Speaker Techs., Inc. v. Apple, Inc., No. 13-CV-01161-HSG, 2017 WL 4354999, at *2 (N.D. Cal.
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`Sept. 29, 2017) (denying leave to amend the complaint in part because Plaintiff had known about the
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`facts and legal theories giving rise to its amendments for several years).
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`Even more striking is Finjan’s decision not to seek leave to amend months ago after March
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`19, when Juniper made the source code for the accused products available for review. Indeed, Finjan
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`did make a motion to amend its complaint on April 19, 2018—after it reviewed Juniper’s source
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`code—but it decided not to identify the ’731 Patent at that time. In short, Finjan could have asserted
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`the ’731 Patent either in the original Complaint or sought leave to include the ’731 Patent in this case
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`in its first motion to amend. In both instances, Finjan chose not to disclose the ’731 Patent, even
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`though it had prepared claim charts for this patent years ago.
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`Finjan offers no explanation for its delay in seeking leave to add the ’731 Patent to this case.
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`See Alzheimer’s, 274 F.R.D. at 277 (finding that plaintiff’s failure to address the reason for its delay
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`in seeking leave to amend indicated the delay was undue, justifying denial of the leave to amend). In
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`fact, given the timing of Juniper’s source code production, Finjan cannot offer a reasonable
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`explanation for its undue delay. To the contrary, the record demonstrates that Finjan concealed its
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`intentions about the ’731 Patent completely until May 22, 2018, when Finjan produced to Juniper, for
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`the first time, documents (the claim charts from October 2015) relating to the ’731 Patent. See Ex. B;
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`Ex. C. Juniper did not know of the existence of the ’731 Patent until that time.
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`Because Finjan fails to account for its undue delay, and this undue delay causes significant
`
`IRELL & MANELLA LLP
`A Registered Limited Liability
`Law Partnership Including
`Professional Corporations
`
`10528593
`
`
`- 6 -
`
`OPPOSITION TO FINJAN’S MOTION FOR LEAVE
`TO FILE SECOND AMENDED COMPLAINT
`Case No. 3:17-cv-05659-WHA
`
`

`

`Case 3:17-cv-05659-WHA Document 113 Filed 06/22/18 Page 8 of 8
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`prejudice to Juniper, Finjan’s Motion to Amend should be denied.
`IV. CONCLUSION
`Because the addition of the ’731 Patent at this stage of litigation would substantially prejudice
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`Juniper, and because Finjan can offer no explanation for failing to seek leave to add the ’731 Patent
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`to this case shortly after Juniper produced its source code, Juniper respectfully requests that this
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`Court deny Finjan’s motion to amend its complaint for a second time..
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`
`
`Dated: June 22, 2018
`
`Respectfully submitted,
`IRELL & MANELLA LLP
`
`By: /s/ Rebecca Carson
`Rebecca Carson
`Attorneys for Defendant
`JUNIPER NETWORKS, INC.
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`IRELL & MANELLA LLP
`A Registered Limited Liability
`Law Partnership Including
`Professional Corporations
`
`10528593
`
`
`- 7 -
`
`OPPOSITION TO FINJAN’S MOTION FOR LEAVE
`TO FILE SECOND AMENDED COMPLAINT
`Case No. 3:17-cv-05659-WHA
`
`