Case 3:17-cv-05659-WHA Document 24 Filed 01/05/18 Page 1 of 21
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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
`AUSTIN MANES (State Bar No. 284065)
`amanes@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
`
`FOR THE NORTHERN DISTRICT OF CALIFORNIA
`
`SAN FRANCISCO DIVISION
`
`FINJAN, INC., a Delaware Corporation,
`
`Plaintiff,
`
`
`
`v.
`
`JUNIPER NETWORKS, INC., a Delaware
`Corporation,
`
`
`
`
`
`Defendant.
`
`
`
`Case No.: 3:17-cv-05659-WHA
`
`PLAINTIFF FINJAN, INC.’S OPPOSITION
`TO DEFENDANT JUNIPER NETWORKS,
`INC.’S MOTION TO DISMISS FINJAN,
`INC.’S COMPLAINT FOR FAILURE TO
`STATE A CLAIM UNDER RULE 12(b)(6)
`
`February 1, 2018
`Date:
`Time: 8:00 a.m.
`Dept.: Courtroom 12, 19th Floor
`Judge: Hon. William Alsup
`
`
`FINJAN’S OPPOSITION TO JUNIPER’S
`MOTION TO DISMISS
`
`
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`CASE NO. 3:17-cv-05659-WHA
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`
`
`I.
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`II.
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`III.
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`IV.
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`Case 3:17-cv-05659-WHA Document 24 Filed 01/05/18 Page 2 of 21
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`TABLE OF CONTENTS
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`Page
`
`INTRODUCTION ....................................................................................................................... 1
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`STATEMENT OF ISSUES TO BE DECIDED .......................................................................... 1
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`BRIEF STATEMENT OF RELEVANT FACTS ........................................................................ 2
`
`ARGUMENT ............................................................................................................................... 4
`
`A.
`
`B.
`
`Finjan Alleged a Plausible Cause of Action for Willful Infringement .............................4
`
`Finjan Alleged Pre-Suit Knowledge and Conduct Beyond Typical Infringement ...........6
`
`1.
`
`2.
`
`Finjan Alleged Pre-Suit Knowledge of the Asserted Patents .............................. 6
`
`Finjan Alleged Conduct Beyond Typical Infringement ....................................... 8
`
`C.
`
`Finjan Adequately Pled a Plausible Cause of Action for Induced Infringement ..............9
`
`1.
`
`2.
`
`Finjan Adequately Pled Juniper’s Knowledge of the Asserted Patents ............. 10
`
`Finjan Adequately Pled Juniper Knowing and Specific Intent to Induce
`Infringement ....................................................................................................... 12
`
`D.
`
`In the Alternative, Finjan Should Be Allowed to Amend the Complaint .......................16
`
`V.
`
`CONCLUSION .......................................................................................................................... 16
`
`
`
`
`FINJAN’S OPPOSITION TO JUNIPER’S
`MOTION TO DISMISS
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`Case 3:17-cv-05659-WHA Document 24 Filed 01/05/18 Page 3 of 21
`
`TABLE OF AUTHORITIES
`
`Page(s)
`
`
`
`CASES
`
`Apple, Inc. v. Samsung Elecs. Co.,
`258 F. Supp. 3d 1013 (N.D. Cal. 2017) .............................................................................................. 9
`
`Bascom Research LLC v. Facebook, Inc.,
`No. C 12-6293 SI, 2013 WL 968210 ................................................................................................ 11
`
`Bell Atl. Corp. v. Twombly,
`550 U.S. 544 (2007) ............................................................................................................................ 4
`
`CAP Co. v. McAfee, Inc.,
`No. 14-CV-05068-JD, 2015 WL 3945875 (N.D. Cal. June 26, 2015) ............................................. 11
`
`Cascades Comp. Innov., LLC v. Samsung Elecs. Co.,
`77 F. Supp.3d 756 (N.D. Ill. 2015) ................................................................................................... 11
`
`Courtesy Prods., L.L.C. v. Hamilton Beach Brands, Inc.,
`73 F. Supp. 3d 435 (D. Del. 2014) .................................................................................................... 15
`
`DRG-Int’l, Inc. v. Bachem Ams., Inc.,
`No. CV-15-7276-MWF, 2016 WL 3460791 (C.D. Cal. Jan. 5, 2016) ................................. 13, 15, 16
`
`Evolved Wireless, LLC v. Samsung Elecs. Co.,
`No. 15-545-SLR-SRF, 2016 WL 1019667 (D. Del. Mar. 15, 2016) ................................................ 11
`
`Finjan, Inc. v. Cisco Sys. Inc.,
`No. 17-cv-00072-BLF, 2017 WL 2462423 (N.D. Cal. June 7, 2017) .......................................... 8, 16
`
`Fortinet Inc. v. FireEye, Inc.,
`No. 5:13-CV-02496-EJD, 2014 WL 4955087 (N.D. Cal. Sept. 30, 2014) ....................................... 12
`
`Global-Tech Appliances, Inc. v. SEB S.A.,
`563 U.S. 754 (2011) ........................................................................................................................ 5, 7
`
`Halo Elecs., Inc. v. Pulse Elecs., Inc.,
`136 S. Ct. 1923 (2016) ............................................................................................................... passim
`
`Longitude Licensing v. Apple Inc.,
`No. C-14-04275-EDL, 2015 WL 1143071 (N.D. Cal. Mar. 13, 2015) ........................................ 7, 16
`
`Nanosys, Inc., v. QD Vision, Inc.,
`No. 16-cv-01957-YGR, 2016 WL 4943006 (N.D. Cal. Sept. 16, 2016) .......................................... 16
`
`Phonometrics, Inc. v. Hospitality Intern., Inc.,
`120 Fed. Appx. 341 (Fed. Cir. 2005) .................................................................................................. 7
`
`FINJAN’S OPPOSITION TO JUNIPER’S
`MOTION TO DISMISS
`
`ii
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`Case 3:17-cv-05659-WHA Document 24 Filed 01/05/18 Page 4 of 21
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`
`
`Potter Voice Techs., LLC v. Apple Inc.,
`24 F. Supp. 3d 882 (N.D. Cal. 2014) .......................................................................................... 11, 15
`
`Radware, Ltd. v. A10 Networks, Inc.,
`No. C-13-02021-RMW, 2013 WL 5373305 (N.D. Cal. Sept. 24, 2013) .................................... 14, 16
`
`Radware, Ltd. v. F5 Networks, Inc.,
`No. 5:13-cv-02024-RMW, 2016 WL 4427490 (N.D. Cal. Aug. 22, 2016) ........................................ 7
`
`Straight Path IP Group, Inc. v. Apple, Inc.,
`No. C 16-03582 WHA, 2016 WL 8729942 (N.D. Cal. Oct. 21, 2016) ............................................ 14
`
`Straight Path IP Grp., Inc. v. Apple Inc.,
`No. C 16-03582 WHA, 2017 WL 3967864 (N.D. Cal. Sept. 9, 2017) ...................................... passim
`
`Symantec Corp. v. Veeam Software Corp.,
`No. C 12-00700 SI, 2012 WL 1965832 (N.D. Cal. May 31, 2012).................................................. 13
`
`TCL Comm’cs Tech. Holdings, Ltd. v. Telefonaktenbologet LM Ericsson,
`No. SACV 14-00341 JVS (ANx), 2014 WL 12588293, (C.D. Cal. Sept. 30, 2014) ....................... 14
`
`Unisone Strategic IP, Inc. v. Tracelink, Inc.,
`No. 3:13-cv-1743-GPC-JMA, 2013 WL 12077477 (S.D. Cal. Oct. 22, 2013) ................................ 12
`
`Unwired Planet, LLC v. Apple Inc.,
`No. 13-cv-04134-VC, 2017 WL 1175379 (N.D. Cal. Feb. 14, 2017) ................................ 5, 7, 10, 15
`
`Vasudevan Software, Inc. v. TIBCO Software Inc.,
`No. C 11-06638 RS, 2012 WL 1831543 (N.D. Cal. May 18, 2012) ............................................ 7, 16
`
`WBIP, LLC v. Kohler Co.,
`829 F.3d 1317 (Fed. Cir. 2016)........................................................................................................... 7
`
`Windy City Innovations, LLC v. Microsoft Corp.,
`193 F. Supp. 3d 1109 (N.D. Cal. 2016) ............................................................................................ 16
`
`Windy City Innovations, LLC v. Microsoft Corp.,
`No. 16-CV-01729-YGR, 2016 WL 3361858 (N.D. Cal. June 17, 2016) ................................... 12, 15
`
`XpertUniverse, Inc. v. Cisco Sys., Inc.,
`No. 17-cv-03848-RS, 2017 WL 4551519 (N.D. Cal. Oct. 11, 2017) ........................................... 9, 16
`
`STATUTES
`
`35 U.S.C. § 154(b) .................................................................................................................................. 11
`
`
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`FINJAN’S OPPOSITION TO JUNIPER’S
`MOTION TO DISMISS
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`iii
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`Case 3:17-cv-05659-WHA Document 24 Filed 01/05/18 Page 5 of 21
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`Plaintiff Finjan, Inc. (“Finjan”) hereby submits its Opposition to Defendant Juniper Networks,
`
`Inc.’s (“Defendant” or “Juniper”) Motion to Dismiss Plaintiff’s Complaint for Failure to State A Claim
`
`Under Rule 12(b)(6). Dkt. No. 23 (the “Motion”).
`I.
`
`INTRODUCTION
`
`Finjan alleged in its Complaint (Dkt. No. 1, the “Complaint”) sufficient facts to demonstrate
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`that Juniper knowingly infringed the asserted patents, which is all that is required to state a claim for
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`willfulness at the pleading stage under the relaxed standard set forth in Halo. See Straight Path IP
`
`Grp., Inc. v. Apple Inc., No. C 16-03582 WHA, 2017 WL 3967864, at *4 (N.D. Cal. Sept. 9, 2017).
`
`Finjan alleged additional facts in support of its claim for willfulness beyond the threshold for
`
`pleadings, including that Juniper knew specifically of each asserted patent, was willfully blind to its
`
`own infringement for at least three years, and continued to manufacture and sell infringing products
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`despite its knowledge of infringement while ignoring Finjan’s attempts at licensing discussions.
`
`Finjan also alleged sufficient facts to support its claims for induced infringement, including that
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`Juniper had knowledge of its own infringement, had knowledge of each asserted patent, and knowingly
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`advertised, encouraged, promoted, and assisted its customers in infringing the patents by using the
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`products that Juniper sold them. Juniper’s attempts to reduce Finjan’s evidence of inducement to two
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`top level directories of its massive online repository for manuals, instructions, and operating guides is
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`misleading. Finjan attached those top level directories of Juniper’s repository as examples because
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`attaching the entire, extensive library is infeasible. Further, Finjan attached 28 exhibits to the
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`Complaint and cited numerous screenshots, websites, and videos across multiple platforms that
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`demonstrate Juniper’s widespread and intentional inducement of infringement using its products.
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`Thus, Finjan’s claims for willfulness and induced infringement are sufficiently pled and
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`Juniper’s Motion should be denied. In the alternative, however, Finjan requests leave to amend its
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`Complaint to cure any deficiencies regarding its claims of willful and induced infringement.
`II.
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`STATEMENT OF ISSUES TO BE DECIDED
`
`Whether Juniper’s Motion should be denied because Finjan’s Complaint alleges plausible
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`causes of action of willful and induced infringement.
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`FINJAN’S OPPOSITION TO JUNIPER’S
`MOTION TO DISMISS
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`1
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`Case 3:17-cv-05659-WHA Document 24 Filed 01/05/18 Page 6 of 21
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`
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`III. BRIEF STATEMENT OF RELEVANT FACTS
`Finjan filed the Complaint on September 29, 2017, alleging that Juniper knowingly infringed
`the Asserted Patents1 or, at the very least, was willfully blind to its infringement while actively evading
`and ignoring Finjan’s attempts at licensing discussions for over three years. Finjan further alleged that
`
`during those three years, Juniper continued to sell infringing products and inserted the infringing
`
`technology into new products that it knew infringed. Finjan alleged that these acts demonstrate
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`Juniper’s disregard for Finjan’s patent rights, and seeks in its Complaint, inter alia, enhanced damages,
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`and a finding of willful infringement.
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`Specifically, Finjan alleged that it contacted Juniper in July 2014 and provided Juniper with an
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`exemplary claim chart detailing how its products relate to U.S. Patent No. 6,965,968 (the “‘968
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`Patent”), and offered to provide Juniper with additional exemplary claim charts, under a non-disclosure
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`agreement, so that Juniper could evaluate Finjan’s patent portfolio. Complaint, ¶ 35. Finjan also
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`alleged that it met with Juniper’s Senior Director of IP, Litigation and Strategy regarding Juniper’s
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`products and how they relate to Finjan’s patents. Id., ¶ 36. Juniper sent a letter to Finjan listing ten
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`patents that Juniper believed would be considered “prior art” to the ‘968 Patent, but refused to respond
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`to Finjan’s two attempts within the next week to follow up on Juniper’s letter. Id., ¶ 37. Then, Finjan
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`sent Juniper a letter distinguishing those ten patents and stating how they were not relevant to the ‘968
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`Patent. Id., ¶ 38. Juniper never responded. Id.
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`Finjan alleged that Juniper was, at the very least, willfully blind to its own infringement while
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`continuing to infringe. Specifically, Finjan alleged that it contacted Juniper’s Deputy General Counsel
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`twice to express concern that Juniper was taking Finjan’s licensing efforts seriously, and to discuss
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`how Juniper’s products related to Finjan’s patents. Complaint, ¶¶ 39, 41. On one of those occasions,
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`Juniper’s Deputy General Counsel referred Finjan back to its Senior Director of IP, Litigation and
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`Strategy. Id. Ultimately, Juniper’s IP litigation counsel told Finjan he did not think Finjan was worth
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`1 The “Asserted Patents” refer to U.S. Patent Nos. 6,154,844 (the “‘844 Patent”), 6,804,780 (the “‘780
`Patent”), 7,647,633 (the “‘633 Patent”), 7,613,926 (the “‘926 Patent”), 8,141,154 (the “‘154 Patent”),
`8,677,494 (the “‘494 Patent”), 7,975,305 (the “‘305 Patent”), and 8,225,408 (the “‘408 Patent”).
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`FINJAN’S OPPOSITION TO JUNIPER’S
`MOTION TO DISMISS
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`2
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`Case 3:17-cv-05659-WHA Document 24 Filed 01/05/18 Page 7 of 21
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`Juniper’s time, repeatedly turned the licensing discussion toward the topic of litigation, referenced his
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`own hypothetical deposition, refused to sign a non-disclosure agreement, and threatened to share any
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`additional claim charts that Finjan offered Juniper with other entities, who are defendants or potential
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`defendants in Finjan’s co-pending litigations. Id., ¶ 40. Juniper expressed no interest in understanding
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`the analysis that Finjan had prepared regarding Juniper’s products and how they relate to Finjan’s
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`patents. Id. Juniper was dismissive of Finjan’s attempts, over several years, to engage in licensing
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`discussions and expressed more interest in Finjan’s status as a practicing entity than in Finjan’s
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`analysis of how Juniper’s products read on Finjan’s patents. Id., ¶¶ 69, 85, 104, 122, 139, 154, 174,
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`191.
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`Finjan also alleged that Juniper had knowledge of each Asserted Patent and continued its
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`infringing activity despite this knowledge. Complaint, ¶¶ 68, 70, 84, 86, 103, 105, 121, 123, 138, 140,
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`153, 155, 173, 175, 190, 192. Finjan alleged that Juniper made no effort to design around the Asserted
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`Patents, but instead incorporated the infringing technology into new products. Id., ¶¶ 69, 85, 104, 122,
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`139, 154, 174, 191. Juniper never provided Finjan any explanation as to why Finjan’s analysis is
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`wrong or how any of the Accused Products do not infringe any of the Asserted Patents. Id., ¶ 42.
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`Regarding induced infringement, Finjan alleged that Juniper instructs, directs, and requires
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`others, including its customers inter alia, to perform the steps of the asserted claims. Complaint, ¶ 54.
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`Finjan alleged that Juniper was at least willfully blind to its inducement of others to infringe. Id.,
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`¶¶ 73, 89, 108, 126, 158, 178, 195. Finjan also alleged that Juniper knowingly aided and abetted others
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`in using its products to infringe. Id., ¶¶ 74, 90, 109, 127, 159, 179, 196. Juniper updates and maintains
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`an HTTP site called the “Technical Assistance Center,” which is a massive online repository of user
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`manuals and operating instructions for Juniper’s accused products. Id., ¶¶ 75, 110, 127, 159, 179, 197.
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`Finjan attached the top level directories for Juniper’s Technical Assistance Center as examples of the
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`numerous articles and materials that Juniper provides its customers at that site. Id. Finjan also
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`attached over 14 exhibits and cited numerous websites and documents demonstrating that Juniper
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`provides instructions and advertising to induce infringement of the accused products across multiple
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`platforms, including YouTube and its own public websites. See, e.g., Complaint, Exs. 9-20, 23-25.
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`FINJAN’S OPPOSITION TO JUNIPER’S
`MOTION TO DISMISS
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`3
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`Case 3:17-cv-05659-WHA Document 24 Filed 01/05/18 Page 8 of 21
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`Finally, Finjan seeks injunctive relief, a finding that Juniper induced infringement of each of
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`the Asserted Patents aside from the ‘154 Patent, and a “determination that [Juniper’s] infringement has
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`been willful, wanton, and deliberate and that the damages against it be increased up to treble on this
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`basis.” Complaint at 68-69.
`IV. ARGUMENT
`
`A.
`Finjan Alleged a Plausible Cause of Action for Willful Infringement
`Finjan alleged sufficient facts to demonstrate that Juniper knowingly infringed the Asserted
`
`Patents, which is all that is required to support a claim for enhanced damages on the pleadings. See
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`Halo Elecs., Inc. v. Pulse Elecs., Inc., 136 S. Ct. 1923, 1926, 1933, 1936 (2016) (holding “subjective
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`willfulness, whether intentional or knowing, may warrant enhanced damages”); Bell Atl. Corp. v.
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`Twombly, 550 U.S. 544, 555-56 (2007) (holding a complaint “does not need detailed factual allegations”
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`but must only contain “enough fact to raise a reasonable expectation that discovery will reveal evidence” of
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`the claim); Straight Path IP, 2017 WL 3967864, at *4 (holding that “a patent infringement plaintiff
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`‘does not have to prove willfulness at the pleading stage.’”). Here, Finjan pled multiple meetings with
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`Juniper’s Deputy General Counsel and its Senior Director of IP, Litigation and Strategy to discuss
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`specifically how Juniper’s products related to Finjan’s patents. Complaint, ¶¶ 36, 39-41. Finjan
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`provided an exemplary claim chart showing how Juniper’s products read on Finjan’s ‘968 Patent,
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`which also lists the asserted ‘844 Patent. Id., ¶ 35, Ex. 1. And after Juniper’s counsel sent Finjan a
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`letter listing ten patents as purported “prior art” to the ‘968 Patent, Finjan responded with a letter
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`detailing why each of those ten patents is not prior art to Finjan’s patented technology. Id., ¶¶ 37-38.
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`Further, Finjan pled that Juniper had knowledge of each individual Asserted Patent and continued its
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`infringing activity despite this knowledge. Id., ¶¶ 68, 70, 84, 86, 103, 105, 121, 123, 138, 140, 153,
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`155, 173, 175, 190, 192. Under the standard set forth in Halo, this is sufficient to support willfulness
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`at the pleading stage. Halo, 136 S. Ct. at 1933, 1936 (holding willful infringement alone may warrant
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`enhanced damages).
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`FINJAN’S OPPOSITION TO JUNIPER’S
`MOTION TO DISMISS
`
`4
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`Case 3:17-cv-05659-WHA Document 24 Filed 01/05/18 Page 9 of 21
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`Finjan also alleged additional facts that rise above the threshold set by Halo, including
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`Juniper’s willful blindness to its own infringement for three years. Specifically, Finjan alleged that
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`Juniper refused to sign a non-disclosure agreement in 2014, even after Finjan informed it that these
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`claim charts would demonstrate how its products read on the Asserted Patents. Complaint, ¶ 40.
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`Juniper refused to consider Finjan’s analysis of Juniper’s infringement of the Asserted Patents,
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`expressing more interest in whether Finjan practiced its patents, presumably in an attempt to willfully
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`ignore Finjan’s identification of Juniper’s infringement. Id., ¶¶ 69, 85, 104, 122, 139, 154, 174, 191.
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`Juniper refused to respond to Finjan’s letter detailing why Juniper’s ten “prior art” patents were
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`irrelevant, yet again avoiding further the validity of Finjan’s asserted patents and its relationship to
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`Juniper’s technology. Id., ¶ 38. Juniper said Finjan was not worth Juniper’s time, pushed licensing
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`conversations toward litigation, and referenced conversations with other defendants in Finjan’s
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`litigations. Id., ¶ 40. Importantly, Juniper threatened to share claim charts that detailed how its
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`products read on the Asserted Patents with other accused infringers, while refusing to sign a non-
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`disclosure agreement in order to view those claim charts. Id. “Refusing to respond to an infringement
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`allegation is no less a ‘deliberate action’ than responding with a refusal” and can constitute willful
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`blindness to infringement. Unwired Planet, LLC v. Apple Inc., No. 13-cv-04134-VC, 2017 WL
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`1175379 at *1 (N.D. Cal. Feb. 14, 2017); see also Global-Tech Appliances, Inc. v. SEB S.A., 563 U.S.
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`754, 770 (2011) (finding willful blindness where the infringer believed there was a high probability
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`that a patent existed on its product and took active steps to avoid discovering that patent). All of these
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`allegations demonstrate Juniper’s willful blindness to its infringement and its subjective intent to
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`ignore Finjan’s patent rights, while continuing to sell products that it knew infringed.
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`This Court recently construed Halo in Straight Path IP Group, Inc. v. Apple Inc., No. C 16-
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`03582 WHA, 2017 WL 3967864 (N.D. Cal. Sept. 9, 2017). There, the complaint alleged only that the
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`defendant “was aware of four of the asserted patents and their infringement since at least September
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`24, 2014, and that [the defendant] nonetheless continued to sell the accused products and induce
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`infringement by its customers after that date.” Id., at *4. Based on that allegation of knowing
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`infringement and continued infringing sales, as well as on general allegations as to each patent that the
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`FINJAN’S OPPOSITION TO JUNIPER’S
`MOTION TO DISMISS
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`Case 3:17-cv-05659-WHA Document 24 Filed 01/05/18 Page 10 of 21
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`defendant was “at the very least willfully blind” to infringement and “took no steps” to prevent it, this
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`Court found it was “premature to enter judgment of no enhanced damages” on the pleadings. Id. This
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`Court recognized that Halo provided a “more flexible standard for enhanced damages,” and that a
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`plaintiff does not have to prove willfulness in a pleading. Id., at *1, 4 (citing Twombly, 550 U.S. at
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`546 (“[A] complaint should not be dismissed . . . unless it appears beyond doubt that the plaintiff can
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`prove no set of facts in support of his claim which would entitle him to relief.”)). The Straight Path IP
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`decision is in accord with Halo, which set the standard for awarding enhanced damages on all of the
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`facts presented at trial, not the standard for pleading willfulness. Halo, 136 S. Ct. at 1931.
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`Ultimately, Finjan alleged that Juniper knew it infringed the Asserted Patents and continued to
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`sell infringing products. See, e.g., Complaint, ¶¶ 68, 70. Under Straight Path IP and Halo, this is all
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`that is required for willfulness claims to survive the pleading stage. Finjan also alleged facts that rise
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`above the threshold set in Straight Path IP and Halo, including a subjective intent to ignore Finjan’s
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`attempts at licensing discussions for three years, all while continuing to sell products that it knew
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`infringed and inserting infringing technology into new products that it also sold and knew infringed.
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`See, e.g., id., ¶¶ 38-40, 68-70. Thus, Finjan alleged more than what was found sufficient to survive a
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`motion to dismiss in Straight Path IP, and Finjan’s willfulness claims should likewise proceed.
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`B.
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`Finjan Alleged Pre-Suit Knowledge and Conduct Beyond Typical
`Infringement
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`1.
`Finjan Alleged Pre-Suit Knowledge of the Asserted Patents
`Beyond meeting the threshold standard for willfulness at the pleading stage, as shown above,
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`Finjan also alleged that Juniper had pre-suit knowledge of each Asserted Patent specifically.
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`Complaint, ¶¶ 68, 84, 103, 121, 138, 153, 173, 190. Further, Finjan alleged that it engaged in multiple
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`discussions with Juniper to discuss the accused products and how they relate to Finjan’s patents,
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`including providing an exemplary claim chart to Juniper of the ‘968 Patent which references the ‘844
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`Patent. Id., ¶¶ 36, 39-41. This presuit knowledge extends to the correspondence that Finjan engaged
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`in with Juniper about alleged prior art and its lack of relevance to Finjan’s patented technology. Id.,
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`¶¶ 36, 37. Finjan also alleged Juniper’s conversations with other infringers who are defendants in
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`FINJAN’S OPPOSITION TO JUNIPER’S
`MOTION TO DISMISS
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`Case 3:17-cv-05659-WHA Document 24 Filed 01/05/18 Page 11 of 21
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`Finjan’s co-pending cases, all of which involve most, if not all of the same patents, demonstrating that
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`Juniper was well aware of Finjan’s asserted patents, as the point of Juniper’s discussions was going to
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`be about the Asserted Patents in those co-pending cases with those defendants. Id., ¶ 40; see also, e.g.,
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`Finjan, Inc. v. Cisco Sys., Inc., No. 5:17-cv-00072-BLF, Dkt. No. 45 at *2 (N.D. Cal. Jun. 7, 2017)
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`(Notice of Related Cases indicating Finjan also asserted against Cisco the ‘844, ‘780, ‘633, 154 and
`‘494 Patents asserted here).2 Moreover, Finjan alleged facts establishing that Juniper was willfully
`blind to its own infringement and repeatedly refused to consider Finjan’s infringement analysis.
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`Complaint, ¶¶ 38-40, 69; see also Unwired Planet, LLC v. Apple Inc., 2017 WL 1175379 at *1;
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`Global-Tech Appliances, Inc. v. SEB S.A., 563 U.S. at 770. An infringer must not be allowed to bury
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`its head in the sand as a litigation tactic so that later it can claim the plaintiff does not have enough
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`evidence of pre-suit knowledge at the pleading stage to support a claim for willful infringement. That
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`is the definition of willful blindness, and at minimum that is what Juniper did under the facts alleged.
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`The cases Juniper cites do not support its position regarding pre-suit knowledge. Unlike in
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`Longitude Licensing v. Apple Inc., No. C-14-04275-EDL, 2015 WL 1143071, at *2 (N.D. Cal. Mar.
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`13, 2015), a case on which Juniper relies where SanDisk alleged only that Apple had knowledge of the
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`asserted patents “as part of the SanDisk patent portfolio,” Finjan alleged specifically that Juniper had
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`knowledge of each asserted patent. Complaint, ¶¶ 68, 84, 103, 121, 138, 153, 173, 190. Besides, the
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`SanDisk patent portfolio was “extensive” and Finjan’s portfolio is small by comparison. Longitude,
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`2015 WL 1143071, at *2. For the same reasons, Vasudevan Software, Inc. v. TIBCO Software Inc.,
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`No. C 11-06638 RS, 2012 WL 1831543 (N.D. Cal. May 18, 2012) is distinguishable because Finjan
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`alleged Juniper’s specific knowledge of each asserted patent. Juniper also relies on WBIP, LLC v.
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`Kohler Co., 829 F.3d 1317, 1341 (Fed. Cir. 2016) and Radware, Ltd. v. F5 Networks, Inc., No. 5:13-
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`cv-02024-RMW, 2016 WL 4427490, at *3 (N.D. Cal. Aug. 22, 2016) for the position that a finding of
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`willfulness requires pre-suit knowledge of the patents. But both WBIP and Radware concerned
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`2 Courts may take judicial notice of filings in another case. See Phonometrics, Inc. v. Hospitality
`Intern., Inc., 120 Fed. Appx. 341, 344-45 (Fed. Cir. 2005).
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`FINJAN’S OPPOSITION TO JUNIPER’S
`MOTION TO DISMISS
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`Case 3:17-cv-05659-WHA Document 24 Filed 01/05/18 Page 12 of 21
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`whether or not sufficient evidence was presented at trial to support jury verdicts of willfulness, not
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`whether willfulness was sufficiently pled in the complaints. Finally, Juniper’s reliance on Finjan, Inc.
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`v. Cisco Sys. Inc., No. 17-cv-00072-BLF, 2017 WL 2462423, at *2 (N.D. Cal. June 7, 2017) is
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`misplaced because in Cisco, the allegations of pre-suit knowledge were based on businesses contacts
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`between the two companies beginning as early as 2004. Id., at *5. The Cisco Court found that these
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`business contacts were insufficient to infer knowledge of any specific patents, especially because many
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`of them occurred before some of the asserted patents issued in 2010 or later. Id. By contrast, here
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`Finjan alleged three years of licensing discussions with Juniper’s top intellectual property and
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`litigation attorneys beginning in 2014. Moreover, Cisco pre-dates this Court’s ruling in Straight Path
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`IP, which correctly interpreted Halo to hold that general allegations of knowing infringement or willful
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`blindness and continued sales of infringing products are sufficient to survive the pleading stage. 2017
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`WL 3967864, at *4.
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`2.
`Finjan Alleged Conduct Beyond Typical Infringement
`Juniper’s arguments regarding egregiousness are equally unavailing. Juniper relies on the oft-
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`cited refrain from Halo that “[t]he sort of conduct warranting enhanced damages has been variously
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`described in our cases as willful, wanton, malicious, bad-faith, deliberate, consciously wrongful,
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`flagrant, or—indeed—characteristic of a pirate.” Motion at 6 (citing Halo, 136 S. Ct. at 1932). But
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`these exemplary descriptions in Halo are connected with the disjunctive “or” and thus only one of
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`them needs to be met to warrant enhanced damages. Here, Finjan alleged willful infringement, which
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`is sufficient to award enhanced damages on its own without regard to whether the infringement was
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`also “characteristic of a pirate.” Halo, 136 S. Ct. at 1932, 1933, 1936 (holding willful infringement
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`alone may warrant enhanced damages). Moreover, both the Halo majority and dissent agreed that
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`“intentional or knowing infringement may warrant a punitive sanction,” and it is circumstance “that
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`makes all the difference.” Id. at 1933, 1936 (“[t]he subjective willfulness of a patent infringer,
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`intentional or knowing, may warrant enhanced damages”) (emphasis added). And as discussed above,
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`Halo concerned the standard for awarding enhanced damages after trial, not the pleading standard.
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`FINJAN’S OPPOSITION TO JUNIPER’S
`MOTION TO DISMISS
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`Case 3:17-cv-05659-WHA Document 24 Filed 01/05/18 Page 13 of 21
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`Juniper’s reliance on XpertUniverse, Inc. v. Cisco Sys., Inc., No. 17-cv-03848-RS, 2017 WL
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`4551519 (N.D. Cal. Oct. 11, 2017) is also inapt because there, the plaintiff alleged that future versions
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`of a product must infringe merely because past versions of that product infringed, while the defendant
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`argued that it had designed around the patent in its new products. Id., at *6. By contrast, Finjan
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`specifically alleged that Juniper knowingly infringed the asserted patents and identified at least four
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`infringing product groupings or services by name. See Complaint, ¶¶ 43-52. The Complaint also
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`attaches over 14 exhibits, sourced from Juniper’s own websites and public documents, which identify
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`the infringing products and show that Juniper currently sells those products. See, e.g., id., Exs. 9-20,
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`23-25. Thus, XpertUniverse is inapposite. Juniper’s reliance on Cisco regarding egregiousness is also
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`misplaced for many of the same reasons discussed above – the Cisco Court overemphasized the need
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`for allegations of egregiousness to support a claim for willfulness at the pleading stage. The Halo
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`decision explained that an infringer’s subjective bad faith alone may support an award of enhanced
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`damages, which is what Finjan pled here. Complaint,