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`Case 3:17-cv-05659-WHA Document 197-3 Filed 09/21/18 Page 1 of 10
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`EXHIBIT 2
`EXHIBIT 2
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`Case 4:17-cv-04790-HSG Document 72 Filed 04/17/18 Page 1 of 9
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
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`FINJAN, INC.,
`Plaintiff,
`
`v.
`
`BITDEFENDER INC., et al.,
`BITDEFENDER S.R.L.
`Defendants.
`
`Case No.17-cv-04790-HSG
`
`
`ORDER GRANTING IN PART AND
`DENYING IN PART PLAINTIFF’S
`MOTION TO STRIKE AFFIRMATIVE
`DEFENSES
`Re: Dkt. No. 33
`
`
`
`
`
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`Plaintiff Finjan, Inc. (“Finjan”) brings this action for patent infringement against
`Defendants Bitdefender Inc. (“Bitdefender”) and Bitdefender S.R.L. (collectively, “Defendants”).
`Pending before the Court is Finjan’s motion to strike Bitdefender’s fourth, fifth, ninth, tenth,
`eleventh, and thirteenth affirmative defenses. Dkt. No. 33 (“Mot.”) at 2. Briefing on the motions
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`is complete. Dkt. Nos. 46 (“Opp.”), 47 (“Reply”). After carefully considering the parties’
`arguments, the court GRANTS IN PART and DENIES IN PART Plaintiff’s motion.1
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`I.
`
`BACKGROUND
`On August 16, 2017, Finjan filed a complaint against Defendants alleging direct and
`indirect infringement of United States Patent Nos. 6,804,780 (“the ’780 Patent”), 7,930,299 (“the
`’299 Patent”), 8,141,154 (“the ’154 Patent”), and 8,677,494 (“the ’494 Patent”) (collectively, the
`“Asserted Patents”). Dkt. No. 1 (“Compl.”) ¶¶ 38, 39. Finjan is in the business of developing
`proactive security technologies that detect online security threats, also known as “malware.” Id. ¶
`8. According to Finjan, it built and sold software, including application program interfaces
`(“APIs”), using its patented technologies. Id. ¶ 9. Finjan asserts that Defendants infringed the
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`1 This matter is appropriate for disposition without oral argument. See Civil L.R. 7-1(b).
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`Asserted Patents by making and selling various products, including Defendants’ “Total Security,
`Family Pack, Internet Security, [and] Antivirus Plus [products].” Id. ¶ 38.
`On November 22, 2017, Bitdefender filed its answer to Finjan’s complaint, and asserted
`thirteen affirmative defenses. Dkt. No. 25 at 13–17. Finjan moved to strike Bitdefender’s
`inequitable conduct defense on the ground that it does not meet the heightened pleading standard
`set by Federal Rule of Civil Procedure (“Rule”) 9(b). Mot. at 5–8. Finjan also moved to strike
`Bitdefender’s affirmative defenses of prosecution history estoppel, prosecution laches, waiver,
`estoppel, and unclean hands, arguing that they do not satisfy the Twombly/Iqbal pleading standard.
`Id. at 4–5.
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`II.
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`LEGAL STANDARD
`Rule 12(f) authorizes a court to “strike from a pleading an insufficient defense or any
`redundant, immaterial, impertinent, or scandalous matter.” An affirmative defense is
`insufficiently pleaded if it fails to give the opposing party “fair notice” of the nature of the
`defense. Wyshak v. City Nat. Bank, 607 F.2d 824, 827 (9th Cir. 1979). In moving to strike, a
`party seeks “to avoid the expenditure of time and money that must arise from litigating spurious
`issues by dispensing with those issues prior to trial.” Sidney–Vinstein v. A.H. Robins Co., 697
`F.2d 880, 885 (9th Cir. 1983). In ruling on a motion to strike, a “court[ ] may not resolve disputed
`and substantial factual or legal issues . . . .” Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970,
`973 (9th Cir. 2010).
`
`III. DISCUSSION
`A.
`Bitdefender’s Thirteenth Affirmative Defense for Inequitable Conduct
`Bitdefender asserts in its thirteenth affirmative defense that “the ‘494 patent is
`unenforceable for inequitable conduct occurring during its prosecution. . . .” Dkt. No. 25 at 15–
`17. Unlike Bitdefender’s other affirmative defenses, “[i]nequitable conduct … must be pled with
`particularity under Rule 9(b).” Exergen Corp. v. Wal-Mart Stores, Inc., 575 F.3d 1312, 1326
`(Fed. Cir. 2009) (quotations and alterations omitted). To satisfy Rule 9(b)’s particularity
`requirement, a fraud claim must state “the who, what, when, where, and how” of the alleged
`conduct, Cooper v. Pickett, 137 F.3d 616, 627 (9th Cir. 1997), and “set forth an explanation as to
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`why [a] statement or omission complained of was false and misleading,” In re GlenFed, Inc. Secs.
`Litig., 42 F.3d 1541, 1548 (9th Cir. 1994) (en banc).
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`1.
`Alleged Misconduct
`Bitdefender claims that Finjan made false statements to the PTO regarding how the ’494
`Patent was conceived and invented. Dkt. No. 25 at 15–16. As set forth in Finjan’s complaint, the
`’494 Patent, titled “Malicious Mobile Code Runtime Monitoring System and Methods,” was
`issued on March 18, 2014 to Yigal Mordechai Edery, Nimrod Itzhak Vered, David R. Kroll, and
`Shlomo Touboul. Compl. ¶ 19. During the patent’s prosecution, Finjan submitted a declaration
`by inventor Touboul stating that claims 1, 3, 4–6, 9, 10, 12–15, and 18 of the ’494 Patent were
`Touboul’s sole invention. Dkt. No. 25 at 16. Touboul declared that “[his] sole invention was in
`his mind and developed by at least November 18, 1996.” Id. Bitdefender asserts that Touboul’s
`statements were false. Id. at 17.
`Finjan does not dispute that Bitdefender has pled the “who, what, when, and where” of
`Finjan’s alleged misrepresentation. Finjan does argue, however, that Bitdefender failed to
`adequately plead “how” Touboul misrepresented his contribution to the independent claims of the
`’494 Patent. Mot. at 6. Bitdefender’s assertion of fraud against Touboul rests primarily on its
`allegation that “[i]nventors other than Touboul confirmed that they contributed to the conception
`of the concept set forth in the independent claims of the ’494 patent and were also inventors.”
`Dkt. No. 25 at 17. In response, Finjan claims that Bitdefender’s allegation is unsupported and
`conclusory. Mot. at 7.
`The Court disagrees. Viewing the pleadings in the light most favorable to Bitdefender, the
`Court finds that Bitdefender’s allegations suffice to put Finjan on notice of the facts giving rise to
`Touboul’s alleged misrepresentation. To support its contention that other inventors contributed to
`the ’494 Patent, Bitdefender’s answer describes a declaration filed with the ’494 Patent
`application. Dkt. No. 25 at 16. According to Bitdefender, the declaration was signed by all
`inventors, and acknowledged that “[t]he inventor(s) named below [are] the original and first
`inventor(s) of the subject matter which is claimed and for which a patent is sought on the
`Invention entitled MALICIOUS CODE RUNTIME MONITORING SYSTEM AND
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`METHODS.” Id. While not conclusive, these facts as alleged are sufficient at this stage to
`support a reasonable inference that Touboul’s statements to the PTO were false or misleading
`insofar as he represented that: (1) he “had the ideas described in the patent application”; (2) he
`“first developed a working system described in the patent application and in claims 1, 3, 4-6, 9,
`10, 12-15 and 18” of the ’494 Patent; and (3) these ideas and the working system were Touboul’s
`“sole invention.” Dkt. No. 33-2 at 1–2 (“Touboul Decl.”).2
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`2.
`Intent to Deceive
`Aside from the “how” pleading requirement, Finjan argues that the facts alleged do not
`give rise to a reasonable inference of Touboul’s intent to deceive the PTO. Mot. at 7. “Malice,
`intent, knowledge and other conditions of a person’s mind may be alleged generally” under Rule
`9(b). Fed. R. Civ. P. 9(b). But a pleading must include sufficient allegations of underlying facts
`that would allow a court to reasonably infer that the individual: “(1) knew of the withheld material
`information or of the falsity of the material misrepresentation, and (2) withheld or misrepresented
`this information with a specific intent to deceive the PTO.” Exergen, 575 F.3d at 1328–29. “[A]
`reasonable inference is one that is plausible and flows logically from the facts alleged, including
`any objective indications of candor and good faith.” Id. at 1329 n.5.3
`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”). Dkt. No. 25 at
`
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`2 In his declaration, Touboul also states that his “sole invention was in [his] mind and developed
`by at least November 18, 1996.” Touboul Decl. at 1–2. Though Touboul subsequently
`acknowledges that “the remaining pending dependent claims were co-invented by or with one or
`more of the other listed inventors,” he does not expressly reference those inventors with respect to
`the other claims listed. See id.
`3 Plaintiff contends, citing Therasense, Inc. v. Becton, Dickinson & Co., 649 F.3d 1276, 1289–90
`(Fed. Cir. 2011), that “a party alleging inequitable conduct must detail allegations showing that the
`‘single most reasonable inference’ of the alleged facts is an intent to deceive, as opposed to a
`mistake or oversight. Mot. at 7–8. This argument misstates the law. Therasense did not discuss
`pleading standards, instead describing what is required to meet a party’s ultimate burden under the
`“clear and convincing evidence” standard. 649 F.3d at1290. In Exergen, which did discuss what
`must be pled to state an inequitable conduct claim, the Federal Circuit directly explained that the
`pleading burden is different than the ultimate burden of proof. See 575 F.3d at 1329 n.5 (“In
`contrast to the pleading stage, to prevail on the merits, the accused infringer must prove both
`materiality and intent by clear and convincing evidence . . . . Whereas an inference of deceptive
`intent must be reasonable and drawn from a pleading’s allegations of underlying fact to satisfy
`Rule 9(b), this inference must be the single most reasonable inference able to be drawn from the
`evidence to meet the clear and convincing standard.”).
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`17. 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. Id. at 16; see also Touboul Decl. at 1–2. 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.” Dkt. No.
`25 at 17. 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. . . .’” Opp. at 2. 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.
`
`B.
`Bitdefender’s Remaining Affirmative Defenses
`Finjan moves to strike Bitdefender’s remaining defenses as inadequately pled under the
`Twombly/Iqbal standard. Reply at 4. As an initial matter, the parties dispute whether the
`Twombly/Iqbal plausibility standard extends to affirmative defenses, or whether a lesser showing
`is adequate. Defendant posits that the Ninth Circuit’s decision in Kohler v. Flava Enterprises, Inc.
`established that the Twombly/Iqbal standard does not apply in this context. Opp. at 3–4; see 779
`F.3d 1016, 1019 (9th Cir. 2015).
`This Court has previously applied the Twombly/Iqbal standard to affirmative defenses. See
`Fed. Trade Comm’n v. Directv, Inc., No. 15-CV-01129-HSG, 2015 WL 9268119, at *1 (N.D. Cal.
`Dec. 21, 2015) (“Although the Ninth Circuit has not yet addressed this question, the Court finds
`the reasoning of [a number of district courts] persuasive and will apply the Twombly/Iqbal
`standard. . . .”). The majority of courts in this district continue to apply this standard to
`affirmative defenses, reasoning that Kohler did not specifically address this issue. See, e.g.,
`Murphy v. Trader Joe’s, No. 16-CV-02222-SI, 2017 WL 235193, at *2–3 (N.D. Cal. Jan. 19,
`2017) (“The use of the specific phrase ‘fair notice’ prompted some district courts to reconsider the
`pleading standard for affirmative defenses . . . [but] Kohler did not directly address the pleading
`standard for affirmative defenses; the court touched on the issue only in passing. . . .”). The Court
`agrees, and continues to find that the Twombly/Iqbal standard applies. That standard does not
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`require “extensive factual allegations,” but rejects “bare statements reciting mere legal
`conclusions.” Perez v. Gordon & Wong Law Grp., P.C., No. 11-CV-3323-LHK, 2012 WL
`1029425, at *8 (N.D. Cal. Mar. 26, 2012).
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`1.
`Prosecution History Estoppel
`Bitdefender asserts in its fourth affirmative defense that:
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`The Plaintiff is estopped from asserting any interpretation of any
`valid claim of the ’780, ’299, ’154, or ’494 Patent to cover any of
`Bitdefender Inc.’s products used, imported, sold, or offered for sale,
`services, and/or methods of manufacture, and the Plaintiff’s claims
`are barred, in whole or in part, due to prosecution history estoppel
`and/or disclaimer,
`including statements,
`representations, and
`admissions made during prosecution and/or reexaminations of the
`’780, ’299, ’154, or ’494 Patent and/or any related patents or patent
`applications.
`Dkt. No. 25 at 14. Prosecution history estoppel applies when a patentee attempts to assert
`infringement over certain subject matter that was surrendered during the patent prosecution
`process. Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., 535 U.S. 722, 733–34 (2002).
`Such subject matter was likely surrendered in response to the PTO’s rejection of a broad claim. Id.
`Thus, after narrowing the claim in order to receive approval, a patentee may not later claim
`infringement over the surrendered subject matter. Id.
`Bitdefender adequately pleads this affirmative defense. Bitdefender’s point that it had only
`twenty-one days to respond to Plaintiff’s complaint, while Plaintiff had unlimited time to draft the
`complaint, is well taken. Under the circumstances, Bitdefender’s allegations are sufficient, and the
`Court does not believe that a defendant is required to recount each patent’s prosecution history at
`length in its affirmative defense pleading, as Plaintiff suggests. The Court therefore DENIES
`Plaintiff’s motion to strike this defense.
`
`2.
`Prosecution Laches
`Bitdefender asserts in its fifth affirmative defense solely that “[t]he Plaintiff’s claims are
`barred, in whole or in part, by prosecution laches.” Dkt. No. 25 at 14. This affirmative defense is
`entirely devoid of factual content. The Court therefore finds that it does not meet the
`Twombly/Iqbal standard. See Murphy, 2017 WL 235193 at *3. Though Bitdefender refers to
`additional facts in its opposition to Plaintiff’s motion to strike, those facts are not pled in the
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`answer, and the Court thus cannot consider them in ruling on Plaintiff’s motion. See Schneider v.
`California Dep’t of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998) (finding that arguments in an
`opposition motion “are irrelevant for Rule 12(b)(6) purposes”). The Court GRANTS Finjan’s
`motion to strike this defense.
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`3. Waiver
`Bitdefender’s ninth affirmative defense is again limited to one sentence: “The Plaintiff’s
`claims are barred, in whole or in part, by waiver.” Dkt. No. 25 at 15. A party asserting a waiver
`defense must allege that a plaintiff intentionally relinquished or abandoned a known right. Catch
`a Wave, Inc. v. Sirius XM Radio, No. C 12-05791 WHA, 2013 WL 1996134, at *2 (N.D. Cal. May
`13, 2013).
`On the face of Bitdefender’s pleading, it is entirely unclear what right Bitdefender alleges
`Finjan waived. Bitdefender suggests that “facts supporting [its] waiver defense can be established
`through discovery.” Opp. at 9. For that proposition, Bitdefender relies on Synopsys, 2017 WL
`3485881 at *19. But Synopsys involved substantially fuller allegations. In Synopsis, the
`defendant alleged in its waiver defense that the plaintiff “waived the rights underlying its
`counterclaims . . . by [c]onsenting to the complained of conduct in agreeing to Synopsys’
`websites’ terms of use. . . .” Id. at 18. The court reasoned that the fine print of the alleged
`agreement—“the applicable terms of use, when they were agreed to, and by whom”—would be
`determined in discovery. Id. at 19. Unlike Bitdefender’s assertions in this case, the defendant in
`Synopsis at least presented facts supporting an inference that the plaintiff intentionally
`relinquished a known right by agreeing to the terms of use on the defendant’s website. Synopsys,
`2017 WL 3485881 at *19. Bitdefender, in contrast, alleges no facts supporting its waiver defense.
`The Court therefore GRANTS Finjan’s motion to strike this defense.
`
`4.
` Estoppel
`Defendant asserts in its tenth affirmative defense that “[t]he Plaintiff’s claims are barred, in
`whole or in part, by principles of estoppel, including equitable estoppel.” Dkt. No. 25 at 15.
`“Estoppel is an equitable defense to a charge of patent infringement and, if proven, may entirely
`bar an infringement suit.” ABB Robotics, Inc. v. GMFanuc Robotics Corp., 52 F.3d 1062, 1063
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`(Fed. Cir. 1995). Three elements are required to prove estoppel. Id. “The first is that the
`patentee, through misleading conduct, leads the alleged infringer to reasonably infer that he does
`not intend to enforce the patent against the alleged infringer.” Id. “The conduct may include
`specific statements, action, inaction, or silence where there was an obligation to speak.” Id.
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`Second, the alleged infringer must have substantially relied on the patentee’s misleading conduct.
`Id. Third, the alleged infringer must show that it will be “materially prejudiced if the patentee is
`permitted to proceed with its infringement suit.” Id. “Being an equitable doctrine, estoppel is
`committed to the sound discretion of the trial judge.” Id.
`Bitdefender’s answer fails to plead facts supporting its estoppel claim. Though
`Bitdefender again references additional facts in its opposition, none of those facts are pled in its
`answer. The Court accordingly GRANTS Finjan’s motion to strike this defense.
`
`5.
`Unclean Hands
`In its eleventh affirmative defense, Bitdefender claims that “the Plaintiff’s claims are
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`barred, in whole or in part, by unclean hands.” Dkt. No. 25 at 15. “[A] defendant asserting that a
`plaintiff’s claim is barred by unclean hands must show that the plaintiff acted unfairly or
`fraudulently respecting the matter in controversy.” Oracle Am., Inc. v. Hewlett Packard Enter.
`Co., No. 16-CV-01393-JST, 2017 WL 2311296, at *2 (N.D. Cal. May 26, 2017) (citing Ample
`Bright Dev., Ltd. v. Comis Int’l, 913 F. Supp. 2d 925, 940 (C.D. Cal. 2012)). “To establish
`unclean hands, a defendant must demonstrate (1) inequitable conduct by the plaintiff; (2) that the
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`plaintiff’s conduct directly relates to the claim which it has asserted against the defendant; and (3)
`plaintiff’s conduct injured the defendant.” Id. at 2.
`Bitdefender asserts that “its extensive factual pleading in support of its . . . inequitable
`conduct [defense] . . . is . . . sufficient to meet the heightened pleading standard.” Opp. at 8. But
`Bitdefender fails to allege any facts to show how Finjan’s alleged misconduct relates to the
`underlying infringement claim, or how the alleged misconduct harmed Bitdefender. The Court
`GRANTS Plaintiff’s motion to strike this defense.
`
`IV.
`
`LEAVE TO AMEND
`A court “should grant leave to amend even if no request to amend the pleading was made,
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`unless it determines that the pleading could not possibly be cured by the allegation of other facts.”
`Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (quotation and citation omitted). Because it
`is possible that Bitdefender can allege additional facts to remedy the shortfalls discussed above,
`the Court grants Bitdefender leave to amend those affirmative defenses the Court found
`insufficiently pled. See id. Any amended answer must clearly and concisely state the basis for all
`affirmative defenses alleged as required by Twombly/Iqbal.
`
`V.
`
`CONCLUSION
`For the reasons stated above, the Court GRANTS IN PART and DENIES IN PART
`Plaintiff’s motion to strike Bitdefender’s affirmative defenses. Any amended answer must be filed
`within 21 days of the date of this order.
`IT IS SO ORDERED.
`Dated:
`4/17/2018
`
`
`
`HAYWOOD S. GILLIAM, JR. HAYWWWWWWWWWWWOOD S. GILLIAM, JR.
`United States District Judge
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