Case 3:17-cv-05659-WHA Document 133 Filed 06/29/18 Page 1 of 9
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`PAUL J. ANDRE (State Bar No. 196585)
`pandre@kramerlevin.com
`LISA KOBIALKA (State Bar No. 191404)
`lkobialka@kramerlevin.com
`JAMES HANNAH (State Bar No. 237978)
`jhannah@kramerlevin.com
`KRISTOPHER KASTENS (State Bar No. 254797)
`kkastens@kramerlevin.com
`KRAMER LEVIN NAFTALIS & FRANKEL LLP
`990 Marsh Road
`Menlo Park, CA 94025
`Telephone: (650) 752-1700
`Facsimile: (650) 752-1800
`
`Attorneys for Plaintiff
`FINJAN, INC.
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`
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE NORTHERN DISTRICT OF CALIFORNIA
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`SAN FRANCISCO DIVISION
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`FINJAN, INC., a Delaware Corporation,
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`Plaintiff,
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`v.
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`JUNIPER NETWORKS, INC., a Delaware
`Corporation,
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`
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`Defendant.
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`Case No.: 3:17-cv-05659-WHA
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`PLAINTIFF FINJAN, INC.’S REPLY IN
`SUPPORT OF MOTION FOR LEAVE TO
`FILE SECOND AMENDED COMPLAINT
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`Date: July 5, 2018
`Time: 8:00 am
`Judge: Honorable William Alsup
`Dept.: Courtroom 12, 19th Floor
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`REDACTED VERSION OF DOCUMENTS SOUGHT TO BE SEALED
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`FINJAN’S REPLY IN SUPPORT OF MOTION
`FOR LEAVE TO FILE SECOND AMENDED COMPLAINT
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`CASE NO.: 3:17-cv-05659-WHA
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`Case 3:17-cv-05659-WHA Document 133 Filed 06/29/18 Page 2 of 9
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`I.
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`INTRODUCTION
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`The Court should grant Plaintiff Finjan, Inc.’s (“Finjan”) motion for leave to file a second
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`amended complaint (“Motion”) because Finjan was diligent in seeking to amend and Juniper
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`Networks, Inc. (“Juniper”) will not be prejudiced by the amendment. In the absence of prejudice,
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`leave to amend is freely given. Fed. R. Civ. P. 15(a)(2).
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`Finjan was diligent in seeking to amend because it sought leave to amend within the
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`deadline set forth in the Court’s Scheduling Order, and also within a few weeks of learning new
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`information relating to the internal design of Sky ATP during a deposition, and about two months
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`after first getting access to Juniper’s source code. There is no prejudice to Juniper because Finjan
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`seeks discovery on products that are currently accused in the case. Further, there is ample time to
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`complete the discovery as fact discovery does not close for another nine months and trial is set for
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`a year away. And Finjan has already agreed to reasonable modifications to the claim construction
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`schedule to accommodate the ‘731 Patent.
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`Juniper’s arguments of prejudice and delay are without merit and illogical. First, Juniper
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`incorrectly argues that it would need to provide discovery “on a highly expedited basis” because
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`of the Court’s “showdown” procedure. This is wrong, as the ‘731 Patent is not part of the early
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`“showdown.” Next, Juniper’s argument that it would be prejudiced by modifying the claim
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`construction schedule is incorrect, as Finjan agreed to work with Juniper in providing reasonable
`adjustments to the schedule.1 Juniper is also mistaken in its assertion that Finjan was dilatory in
`seeking to amend its complaint, attempting to make much of a chart that Finjan created as a
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`starting point for licensing discussions, and that applies the ‘731 Patent to SRX Gateways.
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`However, Finjan did not use this theory as it required all elements of the claims of the ‘731 Patent
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`1 Juniper claims that it has been working in good faith to narrow the terms at issue before this Court,
`while at the same time flouting this Court’s order requesting that the parties to claim construction to
`six terms. Dkt. No. 35, ¶20. Instead Juniper has so far identified 14 terms for construction, including
`seven terms in the Joint Claim Construction Statement (against Finjan’s objections), three terms in its
`opening summary judgment motion on Claim 1 of the ‘780 Patent (Dkt. No. 96 at 4–10), and four
`terms in its opposition to Finjan’s motion for summary judgment on Claim 10 of the ‘494 Patent (Dkt.
`No. 126 at 7–13). Finjan has identified an additional three claims for construction, consistent with the
`Court Order.
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`FINJAN’S REPLY IN SUPPORT OF MOTION
`FOR LEAVE TO FILE SECOND AMENDED COMPLAINT
`
`CASE NO.: 3:17-cv-05659-WHA
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`Case 3:17-cv-05659-WHA Document 133 Filed 06/29/18 Page 3 of 9
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`being present on the SRX Gateways, and, according to Juniper’s own engineers, the SRX
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`Gateways
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`. As such, it was not until Finjan was provided confidential
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`discovery into the inner workings of Sky ATP that Finjan was able to confirm that Sky ATP,
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`which is used in conjunction with the SRX Gateways, included the necessary indexed file cache.
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`Therefore, given that all factors weigh in favor of granting leave for Finjan to amend, the
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`Court should grant Finjan’s Motion.
`II.
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`ARGUMENT
`A.
`Juniper does not dispute that Finjan’s proposed amendments would not be futile or brought
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`Finjan’s Proposed Amendments Are Not Futile and are Not in Bad Faith.
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`in bad faith. As such, these factors weigh in favor of granting Finjan leave to amend.
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`B.
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`Finjan Did Not Unduly Delay and There Is No Dilatory Motive in Seeking to
`Amend.
`Finjan was diligent in seeking to amend because it sought such leave (1) two weeks after
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`taking the deposition of Ms. Tenorio, (2) after only two months of reviewing the millions of pages
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`of Juniper’s source code for Sky ATP and SRX Gateways, and (3) within two days of meeting
`and conferring with Juniper—and within the Court’s deadline to file leave to amend.2 Because
`Sky ATP is a cloud-based product, Finjan did not have access to certain aspects of the internal
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`structures that are not ascertainable from public documents, including the presence and structure
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`of a file cache. It was not until the deposition of Ms. Tenorio on May 9, 2018, that Finjan
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`confirmed
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` Dkt. No. 91-1, Declaration of Kristopher Kastens
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`in Support of Finjan’s Motion for Leave to File Second Amended Complaint (“Kastens Decl.”),
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`Ex. 2 (Tenorio Tr.) at 226:16–228:10. As Finjan stated in its Motion, the
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`relates to the internal working of Sky ATP and is otherwise not publicly known. Motion at 5–6.
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`Juniper cannot credibly claim that such information was not publicly known, given that
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`Juniper submitted a declaration supporting Finjan’s motion to seal (Dkt. No. 93) information
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`2 Finjan filed its Motion on the deadline because it attempted to meet and confer with Juniper prior to
`filing its Motion in order to avoid unnecessary briefing. However, when Finjan determined that the
`parties would not reach an agreement, Finjan brought its Motion on May 31, 2018.
`2
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`FINJAN’S REPLY IN SUPPORT OF MOTION
`FOR LEAVE TO FILE SECOND AMENDED COMPLAINT
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`CASE NO.: 3:17-cv-05659-WHA
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`Case 3:17-cv-05659-WHA Document 133 Filed 06/29/18 Page 4 of 9
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`related to the operation of Sky ATP, where Juniper stated that the figures showing the file cache
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`in Sky ATP “have never been made public and contain information related to the technical
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`underpinnings and development of Juniper’s highly proprietary software—which includes much
`information that Juniper maintains as trade secrets. Juniper expends significant effort in
`maintaining the secrecy of its software architecture and development, including, for example,
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`implementing strict screening procedures for visitors to its engineering campus.” Dkt. No. 93 at
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`¶5 (emphasis added). Such admissions by Juniper highlight the fact that this information is not
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`publicly disclosed, and Finjan could not have known this information prior to Juniper’s disclosure
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`of its confidential information during discovery in this case.
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`Juniper also argues that the Sky ATP Guide should have made Finjan aware of a file cache
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`in Sky ATP. Opp. at 2. However, Juniper’s own declaration supporting Finjan’s motion to seal
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`thoroughly refutes this allegation, showing that Juniper’s file cache is not publicly known
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`information. Further, the material Juniper cites describes “stor[ing] in the cloud emails with
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`attachments found to be malicious … The recipients are then provided a link to the Sky ATP
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`quarantine portal where the email can be previewed.” Opp. at 2. But this does not demonstrate
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`that the Sky ATP caches files or indexes the stored files, as the ‘731 Patent requires. Compare
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`Opp. at 2 with ‘731 Patent, Claim 1 at Col. 11, ll. 43-45 (requiring “a file cache for storing files
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`that have been scanned by the scanner for future access, wherein each of the stored files is
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`indexed by a file identifier”); see also id., Claim 17 at Col. 13, ll. 34-36 (“file cache” and
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`“indexing the retrieved file in the file cache with a file ID.”). Accordingly, contrary to Juniper’s
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`assertion, the internal structures of Sky ATP could not be determined from this information.
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`Contrary to Juniper’s allegation, Finjan could not have known of the “file cache”
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`immediately after Juniper made its source code available in mid-March. Finjan was reviewing
`millions of pages of source code for the accused products, which was a time consuming process,
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`particularly given the Court’s showdown schedule. Nonetheless, even if Finjan could have
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`instantly known of every aspect of the source code the moment it was made available, Finjan still
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`brought this Motion within approximately two months of starting its review, such that this factor
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`FINJAN’S REPLY IN SUPPORT OF MOTION
`FOR LEAVE TO FILE SECOND AMENDED COMPLAINT
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`3
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`CASE NO.: 3:17-cv-05659-WHA
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`Case 3:17-cv-05659-WHA Document 133 Filed 06/29/18 Page 5 of 9
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`should weigh in favor of granting Finjan leave to amend. See Motion at 7 (citing See Sage
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`Electrochromics, Inc. v. View, Inc., No. 12-cv-6441-JST, 2014 WL 1379282, at *3 (N.D. Cal.
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`Apr. 8, 2014) (granting motion to amend even though plaintiff waited approximately three months
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`to seek the Court’s permission to add new patents to the case); see also Oracle Am., Inc. v.
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`Hewlett Packard Enter. Co., No. 16-cv-01393-JST, 2017 WL 3149297, at *3-4 (N.D. Cal. Jul. 25,
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`2017) (granting motion to amend despite a delay of over six months between learning of the basis
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`for new pleadings and filing a motion to amend); Finjan v. Blue Coat Sys., Inc., No. 13-cv-03999-
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`BLF, 2014 WL 6626227, at *2 (N.D. Cal. Nov. 20, 2014) (stating that an almost two month
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`period between receiving confidential information and filing a motion to amend pleadings based
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`on that confidential disclosure demonstrates diligence, and does not demonstrate undue delay)).
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`Further, Finjan’s creation of a chart for the ‘731 Patent in 2015 for the SRX Gateways
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`alone (the “2015 SRX Gateways Chart”) to start licensing discussions with Juniper is irrelevant,
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`because it addresses different technology, and did not include components that are only present on
`Sky ATP, which is a necessary component in Finjan’s infringement position for the ‘731 Patent.3
`Opp. at 2, 4–5; Dkt. No. 113-1, Declaration of Sharon Song in Support of Juniper’s Opposition
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`(“Song Decl.”), Ex. C (‘731 Patent Chart for SRX Gateways). As such, Juniper’s claim that “the
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`acts and the theory have been known” is wrong, as Finjan was not aware that Sky ATP included
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`certain internal features that the SRX Gateways do not have—namely,
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`—
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`information which Juniper holds as a closely guarded trade secret. Motion at 3, 5–6; Opp. at 4
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`(citing Acri v. Int’l Ass’n of Machinists & Aerospace Workers, 781 F.2d 1393, 1398 (9th Cir.
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`1986); Opp. at 6 (citing Slot Speaker Techs., Inc. v. Apple, Inc., No. 13-CV-01161-HSG, 2017
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`WL 4354999, at *2 (N.D. Cal. Sept. 29, 2017)). As Juniper is aware from the infringement
`contentions that Finjan served on June 8th,4 Finjan alleges infringement requires Sky ATP.
`Compare Song Decl., Ex. C (‘731 Patent Chart for SRX Gateways) with Declaration of
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`3 Finjan did not provide Juniper with the ‘731 Patent Chart in 2015 because of Juniper’s refusal to
`enter into a nondisclosure agreement with Finjan.
`4 Prior to the Court vacating its order granting Finjan leave to file a second amended complaint (Dkt.
`No. 107), Finjan served Juniper its infringement contentions for the ‘731 Patent within two days.
`Kastens Reply Decl., ¶6.
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`FINJAN’S REPLY IN SUPPORT OF MOTION
`FOR LEAVE TO FILE SECOND AMENDED COMPLAINT
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`CASE NO.: 3:17-cv-05659-WHA
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`Case 3:17-cv-05659-WHA Document 133 Filed 06/29/18 Page 6 of 9
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`Kristopher Kastens in Support of Finjan’s Reply (“Kastens Reply Decl.”) filed herewith, Ex. 1
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`(SRX Gateway and Sky ATP), and Ex. 2 (Sky ATP). In fact, Juniper’s argument that Finjan
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`should have asserted the ‘731 Patent from the outset of this case is belied by the fact that Juniper’s
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`witness, Mr. Raju Manthena, stated during his deposition that the SRX Gateways
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`, which the claims of the ‘731 Patent requires. See Kastens Reply Decl., Ex. 3 (5/30/18
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`Deposition Transcript of Raju Manthena) at 51:2–9. As such, Juniper takes the unreasonable
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`position that Finjan should have asserted the ‘731 Patent against the SRX Gateways, when
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`Juniper’s own engineers stated the SRX Gateways were missing a claim element.
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`The cases that Juniper cites support Finjan’s arguments or are inapposite to the facts of this
`case. In Eminence Capital, the Ninth Circuit reversed the district court’s denial of the plaintiff’s
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`motion to amend the complaint. Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1053
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`(9th Cir. 2003) (“district court did not appropriately exercise its discretion by denying plaintiffs
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`leave to amend”). With regard to the next set of cases, the party seeking leave to amend waited
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`years before moving to amend, compared to Finjan’s two months of purported delay, at best.
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`Boston Sci. Corp. v. Johnson & Johnson, No. C 02-00790 SI, 2006 WL 3455009, at *5 (N.D. Cal.
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`Nov. 29, 2006) (defendant waited almost four years since the deposition which provided the
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`factual basis for the new defense before moving to amend); Slot Speaker Techs., 2017 WL
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`4354999, at *2 (plaintiff had known about the facts and legal theories giving rise to its
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`amendments for several years). For the remainder of the cases, the parties filed leave to amend
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`after the deadline set forth under the scheduling order. World Wide Rush, LLC v. City of Los
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`Angeles, 606 F.3d 676, 690 (9th Cir. 2010) (the party “already had been given leave to amend the
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`complaint more than a year into the litigation and several months after passage of the scheduling
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`order’s deadline.”); Alibaba.com Hong Kong Ltd. v. P.S. Prods., Inc., No. C 10-04457 WHA,
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`2012 WL 13060303, at *2 (N.D. Cal. Mar. 19, 2012) (plaintiff waited eight months after the
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`deadline to seek leave to amend to file its motion).
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`Thus, Finjan did not unduly delay and this factor weighs in favor of granting Finjan’s
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`request, and Finjan’s Motion should be granted because courts routinely grant leave to amend and
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`FINJAN’S REPLY IN SUPPORT OF MOTION
`FOR LEAVE TO FILE SECOND AMENDED COMPLAINT
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`5
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`CASE NO.: 3:17-cv-05659-WHA
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`Case 3:17-cv-05659-WHA Document 133 Filed 06/29/18 Page 7 of 9
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`“this policy is to be applied with extreme liberality.” Owens v. Kaiser Found. Health Plan, Inc.,
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`244 F.3d 708, 712 (9th Cir. 2001) (citations omitted).
`Juniper Will Not Be Prejudiced by Finjan’s Amendments.
`C.
`Juniper cannot meet its burden of establishing that it will be prejudiced by the inclusion of
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`the ‘731 Patent at this stage of the case because Finjan is not accusing any new products, nine
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`months of discovery are left, trial is set a year away, Finjan has not submitted its opening claim
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`construction brief, and Finjan has agreed to reasonable modifications to the claim construction
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`schedule. Sage, 2014 WL 1379282, at *3 (“The party opposing amendment bears the burden of
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`showing prejudice.”) (quoting DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 187 (9th Cir.
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`1987)). The documents concerning Juniper’s infringement of the ‘731 Patent are substantially
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`similar to documents that pertain to infringement of the Original Asserted Patents because the
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`same products are at issue. Motion at 7. Furthermore, Juniper has been in possession of Finjan’s
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`infringement theories for three weeks, as Finjan served Juniper with its infringement contentions
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`for the ‘731 Patent within two days of the Court’s original order (Dkt. No. 94) (which was
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`subsequently withdrawn) granting Finjan leave to amend. Kastens Reply Decl., ¶6. As such,
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`Juniper had nearly a week to review Finjan’s infringement theories for two claims prior to the
`Court vacating its order on June 13, 2018.5
`Despite Juniper’s cries of prejudice based on its efforts to comply with the Court’s
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`showdown procedure (Opp. at 4–5), such discussion is a red herring in this case because the ‘731
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`Patent is not part of this proceeding, nor did Finjan request that Juniper provide discovery on an
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`expedited basis. Should the Court grant Finjan’s request to assert the ‘731 Patent, Juniper will
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`have ample time to provide Finjan with any additional discovery that may be necessary because
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`fact discovery does not close until March 29, 2018—which is nine months away. Dkt. No. 35.
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`Similarly, Finjan does not seek to retake any depositions of Juniper’s witnesses that have already
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`occurred or additional depositions that exceed the number permitted by this Court. Therefore,
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`Juniper cannot credibly claim that it would be prejudiced because it does not have sufficient time
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`5 If the Court grants Finjan’s Motion, Finjan will re-serve its infringement contentions within one
`business day, which will narrow its asserted claims to 16.
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`FINJAN’S REPLY IN SUPPORT OF MOTION
`FOR LEAVE TO FILE SECOND AMENDED COMPLAINT
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`CASE NO.: 3:17-cv-05659-WHA
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`Case 3:17-cv-05659-WHA Document 133 Filed 06/29/18 Page 8 of 9
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`to prepare discovery with respect to the infringement of the ‘731 Patent, or to prepare its defenses.
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`Juniper also cannot argue that it would be prejudiced by claim construction, as Finjan has
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`not yet submitted its opening claim construction briefing, which is not due until August 6, 2018.
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`In light of this deadline—which was over two months away when Finjan brought its Motion—
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`Finjan proposed a possible schedule to Juniper, and also requested Juniper provide an alternate
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`proposal to the extent Juniper did not agree with Finjan’s proposal. Song Decl., Ex. D (“If
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`Juniper has an alternative proposal, please provide it and Finjan will consider it.”). Accordingly,
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`although Juniper relies on the claim construction process as a means to establish prejudice, any
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`such prejudice could be addressed by Juniper engaging with Finjan in good faith on a revised
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`schedule. Sage, 2014 WL 1379282, at *3 (granting leave to amend in more egregious of
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`circumstances, where “[plaintiff] sat silently through the claim construction process, during which
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`the parties had to jointly identify which ten terms were most significant to the resolution of this
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`case, without disclosing that it knew it would be introducing new patents to the overall mix of the
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`case.”). In fact, Juniper’s new claim of prejudice based on modifying the claim construction
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`schedule seem to be manufactured in order to prevent Finjan from asserting the ‘731 Patent
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`against it, as Juniper has twice requested that this Court postpone claim construction. See Dkt.
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`No. 52 (Juniper’s Administrative Motion to Defer Patent Local Rule 4); Dkt. No. 31 (Joint Case
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`Management Statement & [Proposed] Order) at 13, Appendix A at ii–iii.
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`Juniper’s reliance on Alzheimers to establish prejudice based on claim construction is
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`inapplicable because that case does not state that requiring additional claim construction is per se
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`prejudicial. Rather, there were multiple defendants in that case and the Court recognized that it
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`could be prejudicial when other defendants have already taken positions on the construction of
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`claim terms contrary to the prejudiced party. Alzheimer's Inst. of Am. v. Elan Corp. PLC, 274
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`F.R.D. 272, 276 (N.D. Cal. 2011) (“Jackson also persuasively argued that it will be prejudiced
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`because it has not participated in the claim construction process regarding the ′169 Patent to date,
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`and the other defendants have taken positions contradictory to its tentative position regarding
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`construction of a key, non-overlapping claim term.”). That simply is not an issue here where
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`FINJAN’S REPLY IN SUPPORT OF MOTION
`FOR LEAVE TO FILE SECOND AMENDED COMPLAINT
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`7
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`CASE NO.: 3:17-cv-05659-WHA
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`Case 3:17-cv-05659-WHA Document 133 Filed 06/29/18 Page 9 of 9
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`Juniper is the only defendant in this case.
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`Finally, Juniper’s argument that it is prejudiced because Finjan has already sought leave to
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`amend once is irrelevant, as Finjan filed its first Motion to Amend the Complaint (Dkt. No. 67) on
`April 19, 2018, prior to the May 9th deposition of Juniper’s witness, Ms. Yuly Tenorio. Motion
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`at 3; Kastens Decl., Ex. 2 (5/9/18 Deposition Transcript of Yuly Tenorio).
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`As such, Finjan’s amendments to the Complaint to assert the ‘731 Patent will not prejudice
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`Juniper, and this factor weighs in favor of granting Finjan leave to amend.
`III. CONCLUSION
`For the foregoing reasons, Finjan respectfully requests that the Court grant Finjan’s Motion
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`to Amend its Complaint.
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`Dated: June 29, 2018
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`Respectfully submitted,
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`By: /s/ Kristopher Kastens
`Paul J. Andre
`Lisa Kobialka
`James Hannah
`Kristopher Kastens
`KRAMER LEVIN NAFTALIS
`& FRANKEL LLP
`990 Marsh Road
`Menlo Park, CA 94025
`Telephone: (650) 752-1700
`Facsimile: (650) 752-1800
`pandre@kramerlevin.com
`lkobialka@kramerlevin.com
`jhannah@kramerlevin.com
`kkastens@kramerlevin.com
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`Attorneys for Plaintiff
`FINJAN, INC.
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`FINJAN’S REPLY IN SUPPORT OF MOTION
`FOR LEAVE TO FILE SECOND AMENDED COMPLAINT
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`8
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`CASE NO.: 3:17-cv-05659-WHA
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