Case 3:17-cv-05659-WHA Document 202 Filed 10/05/18 Page 1 of 9
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`PAUL 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.
`
`
`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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`
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`
`
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`Plaintiff,
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`v.
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`JUNIPER NETWORKS, INC., a Delaware
`Corporation,
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`
`Defendant.
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`
`
`
`
`
`
`Case No.: 3:17-cv-05659-WHA
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`PLAINTIFF FINJAN, INC.’S OPPOSITION
`TO DEFENDANT JUNIPER NETWORKS,
`INC.’S 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
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`FINJAN’S OPP.TO DEF.’S MOT. FOR LEAVE TO AMEND CASE NO. 3:17-cv-05659-WHA
`ITS ANSWER TO FINJAN’S 2ND AMENDED COMPLAINT
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`Case 3:17-cv-05659-WHA Document 202 Filed 10/05/18 Page 2 of 9
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`Plaintiff Finjan, Inc. (”Finjan”) submits this Opposition to Defendant Juniper Networks, Inc.’s
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`(“Juniper”) Motion for Leave to Amend its Answer to Finjan’s Second Amended Complaint for Patent
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`Infringement and Counterclaims, filed at Dkt. 197 (“Motion”).
`I.
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`INTRODUCTION
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`The Court should deny this Motion because Juniper’s Amended Answer fails to remedy the
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`deficiencies in its prior allegations. While the Court gave Juniper the opportunity to request leave to
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`amend, the Court also ordered that Juniper “must explain why the new pleading overcomes all
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`deficiencies, including those this order need not reach.” See Dkt. No. 190. Juniper has not done so.
`First, Juniper fails to add any new facts to support its baseless inequitable conduct accusations
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`against attorney Dawn-Marie Bey. Instead, Juniper doubles down on pure speculation that an officer
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`of the Court must have had intent to deceive, and recasts Ms. Bey’s petitions as “unmistakably false”
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`and “egregious misconduct” without any new facts to support such claims. Second, with regard to Mr.
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`Touboul’s declaration, Juniper’s reliance on a one-word answer given by a lay-person, in response to a
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`vague question that did not call for a legal opinion on inventorship, does not establish that Mr. Touboul
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`himself made any sort of misrepresentation or that he intended to do so. Thus, Juniper’s amended
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`allegations of inequitable conduct still do not meet the Federal Circuit’s heightened pleading standards
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`for showing a “material misrepresentation” with a specific “intent to deceive.”
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`Juniper’s amended claim of prosecution laches fares no better. As an initial matter, due to a
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`change in the law on how patent terms are measured there is no longer any incentive for a patentee to
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`delay filing. In any event, the only new facts that Juniper alleges to support its prosecution laches
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`claim concern terminal disclaimers and Finjan’s lack of explanation to the PTO, which have nothing to
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`do with unreasonable delay. Juniper’s proposed amendments fail to address unreasonable delay or
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`demonstrate any prejudice to Juniper, and are therefore insufficient. Accordingly, the Court should
`deny Juniper’s request for leave to amend its inequitable conduct and prosecution laches claims.1
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`
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`1 Finjan does not oppose Juniper’s amendment to the ensnarement doctrine affirmative defense.
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`FINJAN’S OPP. TO DEF.’S MOT. FOR LEAVE TO AMEND CASE NO. 3:17-cv-05659-WHA
`ITS ANSWER TO FINJAN’S 2ND AMENDED COMPLAINT
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`Case 3:17-cv-05659-WHA Document 202 Filed 10/05/18 Page 3 of 9
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`II.
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`STATEMENT OF ISSUE TO BE DECIDED
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`Whether the Court should deny this Motion where Juniper’s proposed amendments to its
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`allegations of inequitable conduct and prosecution laches do not cure its prior deficiencies.
`III. ARGUMENT
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`A.
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`Alleged Inequitable Conduct of the ‘494 Patent (Fourth Counterclaim) and ‘154
`Patent (Fifth Counterclaim)
`Juniper still does not allege facts showing that Ms. Bey’s statements during prosecution of the
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`‘494 or ‘154 Patents constitute a misrepresentation, or that Mr. Touboul’s statement—that he is the
`sole inventor of certain claims of the ‘494 Patent—were false. Instead, Juniper doubles down on the
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`same deficiencies in its original answer by continuing to rely on speculation with no evidence showing
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`any false statements were made.
`1.
`Juniper does not plead any new facts to support an allegation that Ms. Bey made any
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`Ms. Bey’s Petitions Do Not Contain Any Misrepresentations
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`misrepresentations to the PTO during prosecution of the ‘494 or ‘154 Patents. Motion at 5. Rather,
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`Juniper’s proposed amendments merely add the vague allegation that “Ms. Bey has an unusually
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`abundant history of filing petitions to accept ‘unintentionally’ delayed claims of priority” and
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`incorporate by reference its unclean hands counterclaim. Juniper, Ex. 4 at ¶231. This bare insinuation
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`does not provide any factual support for Juniper’s claims. Juniper does not make a single factual
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`allegation that would support an inference that the priority claims were not “unintentionally delayed.”
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`Juniper also fails to explain what an “unusually abundant history” means. Juniper provides no factual
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`support that Ms. Bey’s filing of an unintentionally delayed petition is anything out of the ordinary for a
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`patent prosecutor, particularly one with a docket of hundreds of patents and applications. Ms. Bey’s
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`petitions are allowed under USPTO rules and were considered and accepted by the USPTO. Further,
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`inequitable conduct, which requires pleading with “particularity,” has a higher pleading standard than
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`unclean hands. So merely incorporating by reference Juniper’s preexisting allegations for unclean
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`hands is insufficient to meet the heightened pleading standard for inequitable conduct. Exergen Corp.
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`v. Wal-Mart Stores, Inc., 575 F.3d 1312, 1328 (Fed. Cir. 2009) (“In sum, to plead the ‘circumstances’
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`FINJAN’S OPP. TO DEF.’S MOT. FOR LEAVE TO AMEND CASE NO. 3:17-cv-05659-WHA
`ITS ANSWER TO FINJAN’S 2ND AMENDED COMPLAINT
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`Case 3:17-cv-05659-WHA Document 202 Filed 10/05/18 Page 4 of 9
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`of inequitable conduct with the requisite “particularity” under Rule 9(b), the pleading must identify the
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`specific who, what, when, where, and how of the material misrepresentation or omission committed
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`before the PTO.”).
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`Juniper tries to sidestep its obligation to show but-for materiality by arguing that its inequitable
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`conduct claims fall within an exception to this requirement. While the Federal Circuit has found that
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`but-for proof of materiality is not required in certain “extraordinary circumstances,” Juniper falls far
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`short of pleading facts to show such circumstances here. Therasense, Inc. v. Becton, Dickinson & Co.,
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`649 F.3d 1276, 1292–93 (Fed. Cir. 2011). Indeed, Juniper’s pleading is devoid of facts that would
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`show that Ms. Bey’s statements were “unmistakably false” or that she engaged in “an affirmative act
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`of egregious misconduct.” Id. Thus this Motion should be denied with regard to Ms. Bey’s alleged
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`inequitable conduct.
`2.
` Mr. Kroll’s statements do not provide factual support for Juniper’s claim that Mr. Touboul
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`Mr. Touboul’s Declaration Does Not Contain Any Misrepresentations
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`made any misrepresentation to the PTO. First, the question posed to Mr. Kroll in the Blue Coat action
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`was whether he “helped come up with the idea behind claim 10.” Juniper, Ex. 1 at 460:14-15. Mr.
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`Kroll was not asked any questions about Mr. Touboul’s contribution or Mr. Touboul’s declaration. Id.
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`There is also no indication that Mr. Kroll, a layperson, understood the question to be related to the
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`legal question of inventorship of a certain claim. Motion at 4. As such, this single statement by a
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`third-party in response to a vague question does nothing to establish that Mr. Touboul himself made
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`any false statement in his declaration to the PTO, or that he had any intent to deceive the PTO.
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`Further, Juniper’s reliance on the declarations submitted for another patent (U.S. Patent No.
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`7,058,822 (the “’822 Patent”)) are a red herring and have no relationship to any purported inequitable
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`conduct for the ‘494 Patent because the declaration for the ‘822 Patent is for entirely different patent
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`claims. Juniper concedes that the ‘822 Patent and ‘494 Patent are not identical, and instead claims that
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`they are purportedly “substantially identical.” Mot. at 4 n.3. The declaration that Juniper refers to was
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`submitted by other inventors of the ‘822 Patent and is related to the claims that were set forth in the
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`‘822 Patent, with no reference to those in the ‘494 Patent. Juniper, Ex. 4 (First Amended Answer)
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`FINJAN’S OPP. TO DEF.’S MOT. FOR LEAVE TO AMEND CASE NO. 3:17-cv-05659-WHA
`ITS ANSWER TO FINJAN’S 2ND AMENDED COMPLAINT
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`Case 3:17-cv-05659-WHA Document 202 Filed 10/05/18 Page 5 of 9
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`¶226; Kastens Decl., Ex. 1 (‘822 Patent – Inventor Declaration). None of the inventors of the ‘822
`Patent, including Mr. Kroll, stated in this declaration that they are inventors of Claim 10 of the ‘494
`Patent. Thus, this declaration submitted during prosecution of the ‘822 Patent provides no factual
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`support for Juniper’s inequitable conduct claim with respect to the ‘494 Patent.
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`Again, Juniper cannot sidestep its requirement to show but-for materiality because its
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`allegations do not come close to pleading “an affirmative act of egregious misconduct.” Therasense,
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`649 F.3d at 1292–93. Juniper alleges no facts that establish Mr. Touboul made any untrue statement.
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`Motion at 5. Mr. Touboul simply stated that he is the inventor of certain claims of the ‘494 Patent, and
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`Juniper cites to no statement from Mr. Touboul that contradict his declaration to the PTO or show that
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`it was false. Therefore, because Juniper’s factual allegations are not inconsistent with Mr. Touboul’s
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`declaration, they do not give rise to an inequitable conduct claim.
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`3.
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`Juniper Still Fails to Allege Specific Intent to Deceive For Any of its
`Inequitable Conduct Allegations
`Juniper still fails to allege with “particularity” under Rule 9(b) that Ms. Bey or Mr. Touboul
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`deliberately withheld or misrepresented material information with the specific intent to deceive the
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`PTO during prosecution of the ‘494 Patent or ‘154 Patent. Exergen, 575 F.3d at 1326-27; Therasense,
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`649 F.3d at 1287 (citations omitted). Indeed, “a court must weigh the evidence of intent to deceive
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`independent of its analysis of materiality.” Id. Under prevailing law, Juniper must make allegations
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`showing specific intent by specific individuals to deceive the PTO, and must prove that deceptive
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`intent is the “single most reasonable inference able to be drawn from the evidence.” Id. at 1290
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`(citation and internal quotation omitted); see also Exergen, 575 F.3d at 1326-27; see also Zep Solar
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`Inc. v. Westinghouse Solar Inc., No. C 11-06493 JSW, 2012 WL 1293873, at *2 (N.D. Cal. Apr. 16,
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`2012) (granting motion to strike affirmative defense of inequitable conduct); BlackBerry Ltd. v. Typo
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`Prods. LLC, No. 14-cv-00023-WHO, 2014 WL 1867009, at *1-4 (N.D. Cal. May 8, 2014) (same).
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`Juniper’s Motion should be denied because Juniper does not adequately address the “specific
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`intent” element that is required to sufficiently plead inequitable conduct. See Dkt. No. 190 at 12 (“The
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`motion must include a proposed amended responsive pleading (and a redlined copy) and must explain
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`FINJAN’S OPP. TO DEF.’S MOT. FOR LEAVE TO AMEND CASE NO. 3:17-cv-05659-WHA
`ITS ANSWER TO FINJAN’S 2ND AMENDED COMPLAINT
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`Case 3:17-cv-05659-WHA Document 202 Filed 10/05/18 Page 6 of 9
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`why the new pleading overcomes all deficiencies, including those this order did not reach.”).
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`Juniper’s allegations of purported intent—which are “under information and belief”—still fail to
`demonstrate that Mr. Touboul or Ms. Bey had any specific intent to deceive the PTO. For the ‘494
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`Patent in particular, Juniper’s claim that Mr. Touboul specifically intended to deceive the PTO based
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`on statements made by others, after the filing of his declaration during the prosecution of the ‘494
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`Patent, is based on nothing more than rank speculation. Further, for the ‘494 and ‘154 Patents, Juniper
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`fails to plead facts from which it could be reasonably inferred that Ms. Bey deliberately filed petitions
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`for priority claims that were intentionally delayed and that she knew were intentionally delayed in
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`order to deceive the PTO. Rather, the reasonable inference is that Ms. Bey filed petitions for priority
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`claims that were unintentionally delayed, particularly based on the hundreds of patent applications on
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`her docket. “When there are multiple reasonable inferences that may be drawn, intent to deceive
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`cannot be found.” Therasense, 649 F.3d at 1290–91 (citations omitted).
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` Rather than attempting to plead facts showing an intent to deceive, Juniper relies on an order
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`from Finjan, Inc. v. Bitdefender, Inc., which is unavailing because Finjan raised separate arguments
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`regarding the deficiencies in Juniper’s pleadings here that were not before Judge Gilliam while he
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`reviewed Bitdefender’s pleading. Motion at 6. While Juniper claims that its original pleadings were
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`sufficient, this Court has already determined that Juniper’s allegations for the ‘494 Patent “fail[] to
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`adequately allege misrepresentation under FRCP 9(b).’” Dkt. No. 190 at 8.
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`Therefore, Juniper’s factual allegations, taken as true, do not sufficiently plead inequitable
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`conduct of the ‘494 Patent or ‘154 Patents.
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`B.
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`Alleged Prosecution Laches (Third Counterclaim and Eleventh Affirmative
`Defense)
`In its Order striking Juniper’s original allegations of prosecution laches, the Court found that
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`Juniper failed to plead adequate facts to demonstrate unreasonable and unexplained delay in
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`prosecution that constitutes an egregious misuse of the patent system. Dkt. No. 190 at 4. Juniper’s
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`proposed amended answer fails to cure this deficiency.
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`FINJAN’S OPP. TO DEF.’S MOT. FOR LEAVE TO AMEND CASE NO. 3:17-cv-05659-WHA
`ITS ANSWER TO FINJAN’S 2ND AMENDED COMPLAINT
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`Case 3:17-cv-05659-WHA Document 202 Filed 10/05/18 Page 7 of 9
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`First, Juniper splits one paragraph reciting patent application filing dates into several
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`paragraphs, and merely adds the allegation to each that Finjan did not explain the alleged time between
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`filings to the PTO. Juniper, Ex. 4 at ¶¶152–156. The formatting change does nothing to cure the
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`deficiencies in Juniper’s original Answer, and Finjan’s alleged lack of explanations to the PTO are
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`immaterial because there was no unreasonable delay for Finjan to explain to the PTO. Even if there
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`was any such delay, there is no requirement that Finjan provide an explanation to the PTO to avoid a
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`hypothetical prosecution laches claim.
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`Next, Juniper adds allegations regarding terminal disclaimers on the ‘926, ‘633, and ‘494
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`Patents, which are inapposite because they have no relationship to an unreasonable or unexplained
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`delay. Id. at ¶157 (“The ’926 Patent, ’633 Patent, and ’494 Patent are all subject to terminal
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`disclaimers for obviousness-type double patenting over other patents in the family that were filed years
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`before. The USPTO required these terminal disclaimers because the claims in the later-filed patents
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`were substantially similar and not patentably distinct from previously allowed claims.”). Juniper’s
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`argument is unfounded as it does not allege that Finjan's use of terminal disclaimers deviates in any
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`way from routine patent prosecution. Motion at 8. Furthermore, Juniper does not allege that Finjan
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`made any misrepresentations regarding these terminal disclaimers. Id.; Juniper, Ex. 4 at ¶157.
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`Further, the case Juniper cites, Symbol Techs., is inapplicable and a red herring because Juniper does
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`not allege that Finjan has ever re-submitted “previously allowed claims” for any purpose whatsoever,
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`let alone as an attempt to delay issuance of any patent. Id.
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`Finally, Juniper offers allegations that Finjan delayed in a way that is unexplained and
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`unreasonable, which are insufficient because they are unsupported and conclusory. Id. at ¶158
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`(“Finjan’s lengthy delays in prosecuting each of these applications demonstrate a pattern and practice
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`of repetitive and successive delays that is unexplained and unreasonable”). Juniper further alleges that
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`“Finjan’s systematic strategy of first attempting to obtain a later priority date for a patent, and then
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`filing a declaration to amend the priority date only when the claims are rejected, under the guise that its
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`failure to initially claim the earlier priority date was ‘unintentional’” somehow amounts to prosecution
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`laches. Id. at ¶159. Any allegation of a “systematic strategy” of intentionally filing for an earlier
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`FINJAN’S OPP. TO DEF.’S MOT. FOR LEAVE TO AMEND CASE NO. 3:17-cv-05659-WHA
`ITS ANSWER TO FINJAN’S 2ND AMENDED COMPLAINT
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`Case 3:17-cv-05659-WHA Document 202 Filed 10/05/18 Page 8 of 9
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`priority date after the fact is not only entirely unsupported, but it also has no relevance to prosecution
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`laches because it does not show an unreasonable or unexplained delay.
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`Notably, “the doctrine [of prosecution laches] had greater application in prior decades when
`patent terms were measured from the date the application was approved.” Nomadix, Inc. v. Hosp.
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`Core Servs. LLC, No. CV 14-08256 DDP (VBKx), 2015 WL 3948804, at *11 (C.D. Cal. June 29,
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`2015) (original emphasis). Because the patent term is based on when the application is filed, not
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`approved, Finjan would have no incentive to engage in unreasonable delay. Id. (“The possibility of
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`extending the lifetime of one’s monopoly created a perverse incentive to unreasonably prolong the
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`prosecution process. That incentive has now been removed by a change to the patent statutes setting
`the term from the date of filing.”) (original emphasis). Moreover, as the court found in Nomadix,
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`when dismissing a prosecution laches counterclaim, the parent patent permits the presumption that the
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`industry was aware of the “general outline” of subsequent patent claims, “mak[ing] it less likely that
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`others in the industry could be substantially prejudiced by uncertainty as to [the patent holder]’s
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`claims.” Id. Here, Juniper makes no attempt in its Motion to explain that it has been prejudiced
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`(which the Court ordered), nor can it when Finjan’s parent patent gave Juniper a “general outline” of
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`Finjan’s patents, and “[Finjan] cannot extend its monopoly past the 20-year mark, no matter how many
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`continuation applications it files, because all those offspring patents would have a priority date that is
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`the same as the parent.” Juniper, Ex. 4 at ¶160; Nomadix, 2015 WL 3948804, at *11 (citing 35 U.S.C.
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`§ 154(a)(2)). Accordingly, Juniper’s conclusory, two sentence claims that it was prejudiced are
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`facially implausible. Id. at ¶160.
`C.
`Finjan will be prejudiced by Juniper’s amendments because it will be forced to engage in
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`Finjan Will Be Prejudiced by Juniper’s Amendments
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`discovery in order to defend against Juniper’s baseless counterclaims and affirmative defenses,
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`particularly given that there are a set number of interrogatories that each party is allotted. Contrary to
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`Juniper’s claims, Finjan has not “been on full and fair notice” of these counterclaims because Juniper’s
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`prior claims failed to give rise to a plausible claim of relief, which is why the Court granted Finjan’s
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`motion for judgment on the pleadings and to strike these counterclaims. Dkt. No. 190.
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`7
`FINJAN’S OPP. TO DEF.’S MOT. FOR LEAVE TO AMEND CASE NO. 3:17-cv-05659-WHA
`ITS ANSWER TO FINJAN’S 2ND AMENDED COMPLAINT
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`Case 3:17-cv-05659-WHA Document 202 Filed 10/05/18 Page 9 of 9
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`IV. CONCLUSION
`For the foregoing reasons, Juniper’s Motion should be denied.
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`Dated: October 5, 2018
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`Respectfully submitted,
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`By: /s/ Kristopher Kastens
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`
`Paul J. Andre (State Bar. No. 196585)
`Lisa Kobialka (State Bar No. 191404)
`James Hannah (State Bar No. 237978)
`Kristopher Kastens (State Bar No. 254797)
`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
`
`Attorneys for Plaintiff
`FINJAN, INC.
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`FINJAN’S OPP. TO DEF.’S MOT. FOR LEAVE TO AMEND CASE NO. 3:17-cv-05659-WHA
`ITS ANSWER TO FINJAN’S 2ND AMENDED COMPLAINT
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