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`Case 3:17-cv-05659-WHA Document 197 Filed 09/21/18 Page 1 of 11
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`IRELL & MANELLA LLP
`Jonathan S. Kagan (SBN 166039)
`jkagan@irell.com
`Joshua P. 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 L. 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.
`
`
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`SAN FRANCISCO DIVISION
`)
`Case No. 3:17-cv-05659-WHA
`)
`
`DEFENDANT JUNIPER NETWORKS,
`)
`INC.’S NOTICE OF MOTION AND
`)
`MOTION FOR LEAVE TO AMEND ITS
`)
`ANSWER TO FINJAN, INC.’S SECOND
`)
`AMENDED COMPLAINT FOR PATENT
`)
`INFRINGEMENT AND COUNTER-
`)
`CLAIMS
`)
`
`)
`
`)
`)
`Date: November 1, 2018
`)
`Time: 8:00 a.m.
`)
`Judge: William Alsup
`)
`Courtroom: 12 - 19th Floor
`
`
`
`
`
`FINJAN, INC.,
`
`Plaintiff,
`
`vs.
`
`
`JUNIPER NETWORKS, INC.,
`
`Defendant.
`
`
`
`
`
`
`
`
`
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`10451943
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`JUNIPER’S NOTICE OF MOTION AND
`MOTION FOR LEAVE TO AMEND
`(Case No. 3:17-cv-05659-WHA)
`
`

`

`Case 3:17-cv-05659-WHA Document 197 Filed 09/21/18 Page 2 of 11
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`NOTICE OF MOTION AND MOTION
`TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
`
`PLEASE TAKE NOTICE that on November 1, 2018, at 8:00 a.m., or as soon thereafter as
`
`the matter may be heard, in Courtroom 12, 19th Floor, of the San Francisco Courthouse, 450
`Golden Gate Avenue, San Francisco, California 94102, before the Honorable Williams Alsup,
`Defendant Juniper Networks, Inc. (“Juniper”) will and hereby does move for leave to amend its
`answer and counterclaims to Finjan, Inc.’s (“Finjan”) Second Amended Complaint (“SAC”) for
`patent infringement. This motion is based on this Notice of Motion, the Memorandum of Points
`and Authorities, the exhibits attached thereto, the proposed amended answer and counterclaims, all
`documents in the Court’s file, and such other written or oral argument as may be presented at or
`before the time this motion is heard by the Court.
`STATEMENT OF RELIEF REQUESTED
`Juniper seeks an order granting its motion for leave to file the proposed amended answer
`
`and counterclaims attached hereto, pursuant to the Court’s order dated August 31, 2018. See Dkt.
`No. 190.
`
`STATEMENT OF ISSUES TO BE DECIDED
`Whether Juniper’s proposed amended answer and counterclaims sufficiently address the
`issues identified by this Court in its August 31, 2018 Order Granting in Part and Denying in Part
`Motion to Dismiss Counterclaims and Strike Affirmative Defenses (Dkt. No. 190), and is thus
`ready to be filed at this time.
`
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`JUNIPER’S NOTICE OF MOTION AND
`MOTION FOR LEAVE TO AMEND
`(Case No. 3:17-cv-05659-WHA)
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`Case 3:17-cv-05659-WHA Document 197 Filed 09/21/18 Page 3 of 11
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`I.
`
`MEMORANDUM OF POINTS AND AUTHORITIES1
`INTRODUCTION
`On May 18, 2018, Finjan filed its First Amended Complaint (“FAC”) for patent
`infringement. On June 1, 2018, Juniper filed an answer and counterclaims to the FAC. On June 15,
`2018, Finjan filed a motion to dismiss certain of Juniper’s counterclaims and affirmative defenses.
`On July 27, 2018 Finjan filed its Second Amended Complaint (“SAC”), to which Juniper filed an
`initial answer and counterclaims on August 10, 2018. Subsequently, on August 31, 2018, this Court
`denied in part and granted in part Finjan’s motion to dismiss. See Dkt. No. 190. Juniper’s initial
`answer and counterclaims to the SAC asserted the same counterclaims and affirmative defenses that
`Finjan moved to dismiss2.
`More specifically, in the August 31, 2018 Order, the Court denied Finjan’s motion to dismiss
`and strike Juniper’s allegations of unclean hands (Sixth Counterclaim and Tenth Affirmative
`Defense); granted Finjan’s motion to strike Juniper’s ensnarement defense (Twelfth Affirmative
`Defense); granted Finjan’s motion to dismiss Juniper’s allegations of prosecution laches (Third
`Counterclaim and Eleventh Affirmative Defense); and granted Finjan’s motion to dismiss and strike
`Juniper’s allegations of inequitable conduct related to the ’494 Patent and ’154 Patent (Fourth and
`Fifth Counterclaims and Fourteenth Affirmative Defense). The Court identified the additional
`allegations necessary to overcome Finjan’s objections to these counterclaims and affirmative
`defenses, and allowed Juniper to seek leave to file an amended responsive pleading within 21
`calendar days. Juniper now timely moves for leave to amend these affirmative defenses and
`
`counterclaims.
`
`
`1 All emphasis is added unless indicated otherwise.
`2 Given that Juniper’s response to the FAC and SAC assert the same counterclaims and
`affirmative defenses that Finjan moved to dismiss, the redlined copy of the proposed amended
`responsive pleading attached as Exhibit 4 hereto is relative to Juniper’s initial answer and
`counterclaims to the SAC.
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`II.
`
`ARGUMENT
`A.
`Inequitable Conduct (Fourth and Fifth Counterclaims and Fourteenth
`Affirmative Defense)
`To plead a claim of inequitable conduct, a party must allege that “(1) an individual associated
`with the filing and prosecution of a patent application made an affirmative misrepresentation of a
`material fact . . . or submitted false information; and (2) the individual did so with a specific intent
`to deceive the PTO.” Exergen Corp. v. Wal-Mart Stores, Inc., 575 F.3d 1312, 1327 n.3 (Fed. Cir.
`2009). Under Federal Circuit law a breach of the “duty to prosecute patent applications in the Patent
`Office with candor, good faith, and honesty” involves affirmative misrepresentations of material
`facts “coupled with an intent to deceive [] constitutes inequitable conduct.” Honeywell Int’l Inc. v.
`Universal Avionics Sys. Corp., 488 F.3d 982, 999 (Fed. Cir. 2007). Further, “knowledge and intent
`may be alleged more generally” as long as a party “allege[s] sufficient facts to justify an inference
`that a specific individual had knowledge of the material information withheld or the falsity of the
`material misrepresentation and withheld or misrepresented that information with the intent to
`deceive.” Oracle Corp. v. DrugLogic, Inc., 807 F. Supp. 2d 885, 896-97 (N.D. Cal. 2011); see also
`Dkt. No. 190 at 5.
`1.
`Fourth Counterclaim
`Juniper’s Fourth Counterclaim for declaratory judgment of unenforceability of the ’494
`Patent due to inequitable conduct is based in part on Juniper’s allegations that named inventor
`Shlomo Touboul submitted a false declaration to the USPTO stating that he was the “sole” inventor
`on various claims of the ‘494 Patent. Touboul submitted this declaration to allow Finjan to claim
`an earlier priority date for its patent application—which, in turn, would allow Finjan to overcome
`the Examiner’s rejection of the ’494 application based on U.S. Patent No. 5,983,348 to Ji.
`In the August 31, 2018 Order, the Court held that Juniper “adequately pled the ‘who, what,
`when, where, and why’ of Touboul’s alleged misrepresentation” that he was the “sole” inventor of
`claims 1, 3-6, 9, 10, 12-15, and 18 of the ’494 Patent, but that Juniper had not pled sufficient facts
`to show that Mr. Touboul’s statements were false. Dkt. No. 190 at 7-8. In particular, the Court
`found that Finjan’s discovery responses in the Symantec case—which stated that the other inventors
`
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`Case 3:17-cv-05659-WHA Document 197 Filed 09/21/18 Page 5 of 11
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`were involved in the conception and reduction to practice of the claims of the ’494 Patent—were
`not necessarily inconsistent with Mr. Touboul’s statement that he was the “sole” inventor of certain
`claims because “it is ambiguous whether Finjan admitted that all four of the originally named
`inventors had contributed to the conception of claims 10, 14, and 15” of the ‘494 Patent. Id.
`Juniper now seeks to amend its Fourth Counterclaim to include additional factual allegations
`that establish that Mr. Touboul’s statement to the USPTO about the inventorship of Claim 10 was
`in fact false. Specifically, Juniper now alleges that one of Mr. Touboul’s co-inventors—Mr. David
`R. Kroll—testified under oath that he contributed to Claim 10 while he was working at Finjan. Mr.
`Kroll testified as follows:
`Q. Great. But you are an inventor on the ‘494 Patent; Right?
`A. Yes.
`Mr. Kroll then testified:
`Q. Yes. You helped come up with the idea behind claim 10 during
`your time at Finjan; is that right?
`A. Yes.
`See Dkt. No. 446 (Trial Transcript) at 459:23-24, 460:24-461:1, Finjan, Inc. v. Blue Coat Sys., Inc.,
`No. 5:15-cv-03295-BLF (N.D. Cal. Nov. 28, 2017) (Ex. 1). Mr. Kroll also testified that he began
`his employment at Finjan in 1999, which is at least three years after the November 18, 1996 date
`that Mr. Touboul submitted in his declaration to the USPTO. Ex. 1 at 451:11-12. Mr. Kroll’s sworn
`testimony provides additional3 factual support for Juniper’s allegation that Mr. Touboul’s
`declaration to the USPTO that he was the “sole inventor” of Claim 10 was an affirmative
`misrepresentation; if Mr. Kroll’s sworn testimony is true, then Mr. Touboul’s statement to the
`USPTO must be false. Juniper also pleads that Mr. Touboul’s misrepresentation was material
`because the USPTO would not have withdrawn the Ji reference as prior art but for Mr. Touboul’s
`false testimony that he was the sole inventor of certain claims of the ’494 Patent and that he
`
`
`3 Juniper has also added allegations that Mr. Kroll, among others, signed an inventor’s oath
`declaration stating that he was one of the original and first inventors of the subject matter
`disclosed in U.S. Patent No. 7,058,822, which has a substantially identical specification shared by
`the ‘494 Patent. These additional factual allegations further bolster the inference that at least Mr.
`Kroll was involved in the invention of claim 10 of the ‘494 Patent.
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`JUNIPER’S NOTICE OF MOTION AND
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`(Case No. 3:17-cv-05659-WHA)
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`Case 3:17-cv-05659-WHA Document 197 Filed 09/21/18 Page 6 of 11
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`conceived of those claims by no later than November 18, 1996. Thus, at least claim 10 would not
`have issued but for Mr. Touboul’s misrepresentation.
`Even if the patent would have issued over Ji regardless of Mr. Touboul’s swearing behind
`the prior art, Mr. Touboul’s affirmative misrepresentations alone support a finding of inequitable
`conduct. In Therasense, Inc. v. Becton, Dickinson & Company, the Federal Circuit expressly
`recognized that affirmative misrepresentations are not subject to any “but-for” materiality
`requirement: “When the patentee has engaged in affirmative acts of egregious misconduct, such as
`the filing of an unmistakably false affidavit, the misconduct is material.” 649 F.3d 1376, 1292
`(Fed. Cir. 2011). The Federal Circuit has since explained in Outside the Box Innovations v. Travel
`Caddy, Inc., 695 F.3d 1285 (Fed. Cir. 2012) that “a false affidavit or declaration is per se material.”
`Id. at 1294; see also Intellect Wireless v. HTC Corp., 732 F.3d 1339, 1342 (Fed. Cir. 2013) (proving
`that a declaration is unmistakably false “alone establishes materiality”).
`Juniper alleges that Mr. Touboul filed a false affidavit as evidenced by, among other things,
`the sworn testimony of his co-inventors. Juniper also alleges that the prosecuting attorney, Ms. Bey,
`filed a false certification4 that her claim of priority was “unintentionally” delayed as evidenced by,
`among other things, the unusual abundance of such petitions, four “unintentionally” delayed claims
`of priority, and Ms. Bey’s regular pattern and practice of filing such petitions for Finjan. These
`affirmative misrepresentations are per se material regardless of whether the ’494 Patent could have
`issued over prior art Ji notwithstanding these two declarations.
`Juniper’s amended allegations of inequitable conduct relating to the ‘494 Patent exceed those
`that survived motions to dismiss in cases concerning the same misrepresentations to the USPTO.
`See, e.g., Dkt. No. 25 at 15-17, Finjan, Inc. v. Bitdefender, Inc., No. 4:17-cv-04790-HSG (N.D. Cal.
`
`
`4 37 C.F.R. 11.18(b) (“By presenting to the Office … any paper, the party presenting such
`paper [in this case, Ms. Bey] … is certifying that (1) All statements made therein of the party’s
`own knowledge are true, all statements made therein on information and belief are believed to be
`true, and all statements made therein are made with the knowledge that whoever, in any matter
`within the jurisdiction of the Office, knowingly and willfully falsifies, conceals, or covers up by
`any trick, scheme, or device a material fact, or knowingly and willfully makes any false, fictitious,
`or fraudulent statements or representations, or knowingly and willfully makes or uses any false
`writing or document knowing the same to contain any false, fictitious, or fraudulent statement or
`entry, shall be subject to the penalties set forth under 18 U.S.C. 1001 and any other applicable
`criminal statute….”).
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`JUNIPER’S NOTICE OF MOTION AND
`MOTION FOR LEAVE TO AMEND
`(Case No. 3:17-cv-05659-WHA)
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`Case 3:17-cv-05659-WHA Document 197 Filed 09/21/18 Page 7 of 11
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`Nov. 22, 2017) (alleging inequitable conduct regarding the ’494 Patent). The Bitdefender court’s
`holding on that motion to strike is equally applicable here:
`Bitdefender asserts that Touboul made the alleged false statements
`to overcome the PTO’s rejection of the ‘494 Patent in view of U.S.
`Patent No. 5,983,348 (the “Ji Patent”). [] In response to the rejection,
`Touboul submitted a declaration stating that “claims 1, 3, 4–6, 9, 10,
`12–15 and 18” of the ‘494 Patent were conceived by him, prior to
`the filing date of the Ji Patent application. [] After receiving
`Touboul’s declaration, “[t]he Examiner allowed the claims . . .
`stating that ‘[t]he Declaration filed on May 7, 2013 under 37 CFR
`1.131(a) is sufficient to overcome the Ji, U.S. 5,983,348 reference.”
`[] According to Bitdefender, “when the ‘494 Patent was at risk, Mr.
`Touboul made a declaration to save it, claiming sole inventorship
`over 12 key claims, even though three others had previously
`declared they co-invented the ‘subject matter. . . .’” [] As alleged,
`these facts are sufficient to support an inference that Touboul acted
`with intent to deceive the PTO. The Court therefore DENIES
`Plaintiff’s motion to strike Bitdefender’s thirteenth affirmative
`defense.
`
`Dkt. No. 72 at 4-5, No. 4:17-cv-04790-HSG (N.D. Cal. Apr. 17, 2018) (some alterations in original;
`ellipses in original; citations omitted) (Ex. 2). The Bitdefender court only addressed the “but-for”
`misrepresentation by Mr. Toboul (because Bitdefender did not plead the additional allegations
`contained in Juniper’s amended pleading with respect to Ms. Bey). Thus, as the Bitdefender court
`held, even without the additional allegations concerning Ms. Bey’s behavior, Juniper’s current
`allegations are sufficient to support an inference that Finjan acted with intent to deceive the
`USPTO—and are thus per se material misrepresentations.
`2.
`Fifth Counterclaim
`The Court found that Juniper’s Fifth Counterclaim for declaratory judgment of
`unenforceability of the ’154 Patent for inequitable conduct “adequately plead[ed] the ‘who, what,
`when, where, why and how’ of Finjan’s alleged misrepresentation.” But the Court dismissed the
`claim upon a finding that “Juniper failed to allege the but-for materiality of Bey’s alleged
`misrepresentation.” Dkt. No. 190 at 8-9 (citing Therasense, 649 F.3d at 1291).
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`Case 3:17-cv-05659-WHA Document 197 Filed 09/21/18 Page 8 of 11
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`Juniper seeks to add allegations to make clear that it is alleging inequitable conduct under
`an “affirmative egregious misconduct” theory as opposed to a “but-for materiality” theory. While
`the Federal Circuit noted in Therasense that “but-for materiality generally must be proved to
`satisfy the materiality prong of inequitable conduct,” the court also stated that it “recognizes an
`exception [to but-for materiality] in cases of affirmative egregious misconduct.” Id. at 1291-92.
`This exception embraced a long line of cases holding that “[w]hen the patentee has engaged in
`affirmative acts of egregious misconduct, such as the filing of an unmistakably false affidavit,
`the misconduct is material.” Id. at 1292 (citing Rohm & Haas Co. v. Crystal Chem Co., 722 F.2d
`1556, 1571 (Fed. Cir. 1983) (“In contrast to cases where allegations of fraud are based on the
`withholding of prior art, there is no room to argue that submission of false affidavits is not
`material.”)). The Federal Circuit has made clear (in post-Therasense decisions) that “a false
`affidavit or declaration is per se material.” Outside the Box Innovations, 695 F.3d at 1294; see
`also Intellect Wireless, 732 F.3d at 1342 (proving that a declaration is unmistakably false “alone
`establishes materiality”).
`Juniper seeks to add allegations to its Fifth Counterclaim for inequitable conduct
`describing Finjan’s overarching pattern of misrepresentations of material facts made to the
`USPTO for allegedly “unintentionally” delayed claims of priority. See Ex. 3 and 4. Juniper also
`incorporates by reference the factual allegations in its Fourth and Sixth Counterclaims for
`inequitable conduct relating to the ’494 Patent and unclean hands, respectively. As described
`above, this Court already held that the factual allegations asserted by Juniper which evidence
`Finjan’s overarching scheme—trying to get a later priority date for a patent, and (if and only if the
`USPTO rejected this effort) claiming that it made an innocent mistake about proper priority date,
`and seeking to “correct” its “unintentionally” delayed priority —sufficiently plead “an abuse of
`the prosecution system, which [the court] finds would amount to ‘egregious misconduct.’”
`Dkt. No. 190 at 11-12. Juniper alleges “affirmative egregious misconduct” by Finjan that is per se
`material because Ms. Bey filed an “unmistakably false affidavit” stating that the delay in claiming
`priority was “unintentional” as part of a pattern of abuse of the patent system, and these
`allegations are sufficient to establish inequitable conduct.
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`A.
`Prosecution Laches (Third Counterclaim and Eleventh Affirmative Defense)
`In its August 31, 2018 Order, the Court found that Juniper failed to plead adequate facts to
`show unreasonable and unexplained delay in prosecution to support its allegations of prosecution
`laches. Dkt. No. 190 at 4 (citing Cancer Research Tech. Ltd. v. Barr Labs., Inc., 625 F.3d 724, 728
`(Fed. Cir. 2010) (“The doctrine of [prosecution laches] ‘may render a patent unenforceable when it
`has issued only after an unreasonable and unexplained delay in prosecution’ that constitutes an
`egregious misuse of the statutory patent system under the totality of the circumstances.”)).
`Specifically, the Court noted that Juniper’s allegations at oral argument of Finjan’s “systematic
`strategy of delayed prosecution” were not actually properly included in Juniper’s pleading. Dkt. No.
`190 at 5.
`Juniper now seeks leave to add allegations to its prosecution laches affirmative defense and
`counterclaim regarding Finjan’s systematic strategy of delayed prosecution. Juniper has alleged
`that this is not simply a single instance of delayed prosecution, but instead is a pattern of delay on a
`series of related patents. “Taken singly, the delay in the prosecution on any one particular
`application will surely not appear to merit relief by the courts in equity. On the other hand, an
`examination of the totality of the circumstances, including the prosecution history of all of a series
`of related patents and overall delay in issuing claims, may trigger laches.” Symbol Techs., Inc. v.
`Lemelson Med., Educ. & Research Found., 422 F.3d 1378, 1385-86 (Fed. Cir. 2005). Juniper seeks
`to add allegations that, although Finjan’s years-long delay in prosecuting the patents may not be
`indicative of unreasonable and unexplained delay when viewed individually, in aggregate they
`evidence an abuse of the patent system. Juniper also adds allegations that many of the patents-at-
`issue were subject to terminal disclaimers because the USPTO already found that many of these
`later applications were substantially similar to earlier issued claims, and “refiling an application
`solely containing previously-allowed claims for the business purpose of delaying their issuance can
`be considered an abuse of the patent system.” Id.
`Juniper has also incorporated by reference Juniper’s allegations regarding Finjan’s repeated
`petitioning for the USPTO to accept allegedly “unintentionally” delayed claims of priority. The
`Court has already found that Juniper’s allegations (now incorporated by reference) regarding
`
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`Finjan’s scheme of waiting to see if a patent would be granted or validated with a later priority date
`and only “correcting” its “unintentionally” delayed priority claim if the USPTO would have rejected
`the patent based on the initial date submitted by Finjan sufficiently pleads “an abuse of the
`prosecution system, which [the court] finds would amount to ‘egregious misconduct.’” Id. at 11-
`12. In sum, these allegations of “unintentionally” delayed claims of priority along with Finjan’s
`years-long delay in prosecuting a large number of applications, many of which were held by the
`USPTO to be substantially similar to previously issued patents, are sufficient to plead the requisite
`“unreasonable and unexplained delay in prosecution” that “constitutes an egregious misuse of the
`statutory patent system.” Cancer Research, 625 F.3d at 728.
`B.
`Ensnarement (Twelfth Affirmative Defense)
`The Court dismissed Juniper’s affirmative defense of ensnarement because it found that no
`facts were alleged. Id. at 3. In its proposed amended answer and counterclaims, Juniper adds
`extensive factual allegations to specifically identify how Finjan’s claims of infringement under the
`doctrine of equivalents encompass, or “ensnare,” the prior art for each asserted patent in this case.
`Juniper has, for example, identified specific pieces of prior art that would be ensnared by adopting
`Finjan’s doctrine of equivalents theories for specific claim limitations. Juniper has also specifically
`incorporated by reference its Invalidity Contentions served pursuant to Patent Local Rule 3-3 as
`additional allegations of how the prior art would be ensnared by Finjan’s theories under the doctrine
`of equivalents. There do not appear to be any courts that have ever dismissed the defense of
`ensnarement where the defendant has identified specific examples of prior art as allegedly ensnared
`when applying the doctrine of equivalents.
`C.
`There Is No Prejudice to Finjan
`Courts in this district have held that if a defense is stricken, “[i]n the absence of prejudice to
`the opposing party, leave to amend should be freely given.” Powertech Tech., Inc. v. Tessera, Inc.,
`No. C 10-945, 2012 WL 1746848, at *3 (N.D. Cal. May 16, 2012) (quoting Wyshak v. City Nat’l
`Bank, 607 F.2d 824, 826 (9th Cir.1979)) (alteration in Tessera order); Maquet Cardiovascular LLC
`v. Saphena Med., Inc., No. C 16-07213 WHA, 2017 WL 3215355, at *1 (N.D. Cal. July 27, 2017)
`
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`JUNIPER’S NOTICE OF MOTION AND
`MOTION FOR LEAVE TO AMEND
`(Case No. 3:17-cv-05659-WHA)
`
`

`

`Case 3:17-cv-05659-WHA Document 197 Filed 09/21/18 Page 11 of 11
`
`
`(“Absent prejudice or a strong showing of another factor, there is a presumption under Rule 15(a)
`in favor of granting leave to amend.”).
`In its Reply in support of its Motion to Dismiss, Finjan identified no potential prejudice in
`permitting Juniper to amend. See Dkt. No. 150 at 15. Finjan’s inability to identify any potential
`prejudice is not surprising given that: (A) fact discovery does not close until the end of March 2019,
`giving Finjan more than six months to conduct relevant discovery; and (B) Finjan has been on full
`and fair notice of Juniper’s defenses and counterclaims since Juniper first pled them back in
`February (Dkt. No. 42 at 19-36) as evidenced by the fact that Finjan previously answered these
`counterclaims (Dkt. No. 45), which is why Finjan’s untimely motion to strike was converted by the
`Court to a motion for judgment on the pleadings (Dkt. No. 190 at 3). In other words, the relatively
`early stage of the case and the fact that Finjan has had fair notice of these allegations for months
`strongly weigh against a finding of prejudice to Finjan.
`III. CONCLUSION
`Juniper respectfully requests that the Court grant Juniper leave to amend certain of its
`affirmative defenses and counterclaims to incorporate substantial new factual allegations, and
`because there is no legitimate prejudice to Finjan.
`
`Dated: September 21, 2018
`
`
`
`Respectfully submitted,
`IRELL & MANELLA LLP
`By: /s/ Rebecca L. Carson
`Rebecca L. Carson (SBN 254105)
`rcarson@irell.com
`840 Newport Center Drive, Suite 400
`Newport Beach, CA 92660-6324
`Tel: (949) 760-0991 | Fax: (949) 760-5200
`
`Attorneys for Defendant
`JUNIPER NETWORKS, INC.
`
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`JUNIPER’S NOTICE OF MOTION AND
`MOTION FOR LEAVE TO AMEND
`(Case No. 3:17-cv-05659-WHA)
`
`