Case 3:17-cv-05659-WHA Document 25 Filed 01/12/18 Page 1 of 20
`
`IRELL & MANELLA LLP
`Jonathan S. Kagan (SBN 166039)
`jkagan@irell.com
`Joshua Glucoft (SBN 301249)
`jglucoft@irell.com
`1800 Avenue of the Stars, Suite 900
`Los Angeles, California 90067-4276
`Telephone: (310) 277-1010
`Facsimile: (310) 203-7199
`
`Rebecca Carson (SBN 254105)
`rcarson@irell.com
`Nima Hefazi (SBN 272816)
`nhefazi@irell.com
`840 Newport Center Drive, Suite 400
`Newport Beach, California 92660-6324
`Telephone: (949) 760-0991
`Facsimile: (949) 760-5200
`
`Attorneys for Defendant
`JUNIPER NETWORKS, INC.
`
`
`
`
`UNITED STATES DISTRICT COURT
`
`NORTHERN DISTRICT OF CALIFORNIA
`
`SAN FRANCISCO DIVISION
`
`FINJAN, INC., a Delaware Corporation,
`
`
`Plaintiff,
`
`
`
`
`JUNIPER NETWORKS, INC., a Delaware
`Corporation,
`
`
`vs.
`
`
`
`
`
`
`
`
`Defendant.
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`IRELL & MANELLA LLP
`A Registered Limited Liability
`Law Partnership Including
`Professional Corporations
`
`10419812
`
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`
`
`Case No. 3:17-cv-05659-WHA
`
`REPLY IN SUPPORT OF JUNIPER
`NETWORKS, INC.’S MOTION TO
`DISMISS FOR FAILURE TO STATE A
`CLAIM UNDER RULE 12(b)(6)
`
`Date:
`Time:
`Judge:
`Courtroom:
`
`February 1, 2018
`8:00 a.m.
`William Alsup
`12 – 19th Floor
`
`REPLY ISO JUNIPER’S MOTION TO DISMISS
`Case No. 3:17-cv-05659-WHA
`
`
`
`

`

`Case 3:17-cv-05659-WHA Document 25 Filed 01/12/18 Page 2 of 20
`
`TABLE OF CONTENTS
`
`Page
`FINJAN’S WILLFULNESS CLAIM SHOULD BE DISMISSED .................................... 1 
`
`I. 
`
`
`
`A. 
`
`Finjan Has Not Adequately Alleged The Knowledge Elements. ............................ 1 
`
`1. 
`
`2. 
`
`3. 
`
`The Complaint Lacks Sufficient Allegations Of Actual
`Knowledge. ................................................................................................. 1 
`
`Finjan Has Not Met The High Bar To Plead Willful
`Blindness. .................................................................................................... 5 
`
`Finjan’s Attempt To Overcome Its Pleading Deficiencies
`With Phantom Allegations Is Inappropriate. ............................................... 8 
`
`B. 
`
`Finjan Improperly Attempts To Omit The “Egregious Conduct”
`Requirement. ........................................................................................................... 9 
`
`II. 
`
`FINJAN’S INDIRECT INFRINGEMENT CLAIMS SHOULD BE
`DISMISSED ...................................................................................................................... 10 
`
`A. 
`
`B. 
`
`Finjan’s Arguments Regarding The Knowledge Elements Are
`Unavailing. ............................................................................................................ 10 
`
`Finjan’s Generic Inducement Allegations Do Not Establish Specific
`Intent. ..................................................................................................................... 13 
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`IRELL & MANELLA LLP
`A Registered Limited Liability
`Law Partnership Including
`Professional Corporations
`
`10419812
`
`
`- i -
`
`REPLY ISO JUNIPER’S MOTION TO DISMISS
`Case No. 3:17-cv-05659-WHA
`
`
`
`

`

`Case 3:17-cv-05659-WHA Document 25 Filed 01/12/18 Page 3 of 20
`
`
`
`Cases
`
`TABLE OF AUTHORITIES
`
`
`
`Page(s)
`
`Avocet Sports Tech. v. Garmin International, Inc.,
`No. C 11-04049 JW, 2012 WL 1030031 (N.D. Cal. Mar. 22, 2012) .........................................12
`
`Bascom Research LLC v. Facebook, Inc.,
`2013 WL 968210 (N.D. Cal. Mar. 12, 2013) .............................................................................12
`
`CAP Co. v. McAfee, Inc.,
`2015 WL 3945875 (N.D. Cal. June 26, 2015) ...........................................................................12
`
`CAP Co. v. McAfee, Inc.,
`No. 14-CV-05068-JD .................................................................................................................12
`
`Cascades Computer Innovation, LLC v. Samsung Elecs. Co.,
`77 F.Supp.3d 756 (N.D. Ill. 2015) .............................................................................................11
`
`CG Tech. Dev., LLC v. Big Fish Games, Inc.,
`2016 WL 4521682 (D. Nev. Aug. 29, 2016) ................................................................................9
`
`Cont’l Circuits LLC v. Intel Corp.,
`2017 WL 2651709 (D. Ariz. June 19, 2017) ................................................................................9
`
`Courtesy Products LLC v. Hamilton Beach Brands Inc.,
`No. 1:13-cv-02012-SLR-SRF ....................................................................................................15
`
`DRG-International, Inc. v. Bacehm Americas, Inc.,
`2016 WL 3460791 (C.D. Cal. Jan. 5, 2016) .........................................................................14, 15
`
`Emazing Lights, LLC v. De Oca,
`2016 WL 7507765 (C.D. Cal. June 20, 2016) ..............................................................................9
`
`Eon Corp. IP Holdings LLC v. FLO TV Inc.,
`802 F. Supp. 2d 527 (D. Del. 2011) .............................................................................................4
`
`Evolved Wireless, LLC v. Samsung Electronics Co., Ltd.,
`No. 15-545-SLR-SRF, 2016 WL 1019667 (D. Del. March 15, 2016) ...................................4, 11
`
`Finjan, Inc. v. Cisco Systems Inc.,
`2017 WL 2462423 (N.D. Cal. June 7, 2017) .................................................................2, 4, 9, 10
`
`Fortinet Inc. v. FireEye, Inc.,
`2014 WL 4955087 (N.D. Cal. Sept. 30, 2014) .....................................................................12, 13
`
`Global-Tech Appliances, Inc. v. SEB S.A.,
`563 U.S. 754 (2011) .................................................................................................................5, 7
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`IRELL & MANELLA LLP
`A Registered Limited Liability
`Law Partnership Including
`Professional Corporations
`
`10419812
`
`
`- ii -
`
`REPLY ISO JUNIPER’S MOTION TO DISMISS
`Case No. 3:17-cv-05659-WHA
`
`
`
`

`

`Case 3:17-cv-05659-WHA Document 25 Filed 01/12/18 Page 4 of 20
`
`Longitude Licensing v. Apple Inc.,
`2015 WL 1143071 (N.D. Cal. Mar. 13, 2015) .........................................................................2, 4
`
`Page
`
`MONEC Holding AG v. Motorola Mobility, Inc.,
`897 F.Supp.2d 225 (D. Del. 2012) ...............................................................................................9
`
`Potter Voice Technologies, LLC v. Apple Inc.,
`24 F.Supp.3d 882 (N.D. Cal. 2014) .....................................................................................11, 12
`
`Radware Ltd. v. A10 Networks, Inc.,
`No. C-13-02021-RMW, 2013 WL 5373305 (N.D. Cal. Sept. 24, 2013) ...................................15
`
`Radware, Ltd. v. F5 Networks, Inc.,
`No. 5:13-cv-02024-RMW, 2016 WL 4427490 (N.D. Cal. Aug. 22, 2016) .................................3
`
`Reddy v. Litton Indus., Inc.,
`912 F.2d 291 (9th Cir. 1990) ........................................................................................................5
`
`Rembrandt Social Media, LP v. Facebook, Inc.,
`950 F. Supp. 2d 876 (E.D. Va. 2013) ...........................................................................................4
`
`Straight Path IP Group, Inc. v. Apple Inc.,
`2016 WL 8729942 (N.D. Cal. Oct. 21, 2016) ..................................................................3, 12, 13
`
`Straight Path IP Group, Inc. v. Apple Inc.,
`2017 WL 3967864 (N.D. Cal. Sept. 9, 2017) .............................................................3, 10, 12, 15
`
`Symantec Corp. v. Veeam Software Corp.,
`No. 3:12-cv-00700-SI, Dkt. No. 20 (N.D. Cal. Feb. 29, 2012) ..................................................15
`
`TCL Communications Technology Holdings Ltd v. Telefonaktenbologet LM
`Ericsson, 2014 WL 12588293 (C.D. Cal. Sept. 30, 2014) .........................................................14
`
`Unwired Planet, LLC v. Apple Inc.,
`2017 WL 1175379 (N.D. Cal. Feb. 14, 2017) .................................................................... passim
`
`Varian Med. Sys., Inc. v. Elekta AB,
`2016 WL 3748772 (D. Del. July 12, 2016) ..................................................................................9
`
`Vasudevan v. TIBCO Software Inc.,
`2012 WL 1831543 (N.D. Cal. May 18, 2012) .............................................................3, 4, 10, 11
`
`Warner-Lambert Co. v. Apotex Corp.,
`316 F.3d 1348 (Fed. Cir. 2003) ..................................................................................................13
`
`WBIP, LLC v. Kohler Co..
`829 F.3d 1317 (Fed. Cir. 2016) ....................................................................................................3
`
`Windy City Innovations, LLC v. Microsoft Corp.,
`No. 4:16-cv-01729-YGR ............................................................................................................15
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`IRELL & MANELLA LLP
`A Registered Limited Liability
`Law Partnership Including
`Professional Corporations
`
`10419812
`
`
`- iii -
`
`REPLY ISO JUNIPER’S MOTION TO DISMISS
`Case No. 3:17-cv-05659-WHA
`
`
`
`

`

`Case 3:17-cv-05659-WHA Document 25 Filed 01/12/18 Page 5 of 20
`
`Windy City Innovations, LLC v. Microsoft Corp.,
`No. 16-CV-01729-YGR .............................................................................................................12
`
`Page
`
`XpertUniverse Inc. v. Cisco Systems Inc.,
`2017 WL 4551519 (N.D. Cal. Oct. 11, 2017) ........................................................................9, 10
`
`Other Authorities
`
`Rule 12(b)(6) ......................................................................................................................................9
`
`
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`IRELL & MANELLA LLP
`A Registered Limited Liability
`Law Partnership Including
`Professional Corporations
`
`10419812
`
`
`- iv -
`
`REPLY ISO JUNIPER’S MOTION TO DISMISS
`Case No. 3:17-cv-05659-WHA
`
`
`
`

`

`Case 3:17-cv-05659-WHA Document 25 Filed 01/12/18 Page 6 of 20
`
`Finjan’s willful and induced infringement claims fail on multiple counts. As an initial
`
`matter, Finjan has not adequately pled knowledge of the Patents-in-Suit or the alleged
`
`infringement, which are critical elements to both willfulness and inducement. Finjan points to
`allegations that it provided Juniper with pre-suit notice of its patent portfolio and a non-asserted
`patent, but it is well-settled that this is not sufficient to establish the requisite knowledge related to
`the specific Patents-in-Suit. The only allegation in the Complaint that mentions the specific
`
`Patents-in-Suit is a conclusory statement that Finjan “informed Defendant of its patent portfolio,
`
`including the Asserted patents.” Numerous courts have found that such allegations are insufficient
`
`without underlying factual support. Finjan’s attempt to rely on willful blindness as a fallback does
`
`not help because the Complaint does not adequately set forth either of the elements: (1) that
`
`Juniper had a subjective belief that there was a high probability that it was infringing the Patents-
`
`in-Suit, and (2) that Juniper took deliberate actions to avoid learning of that fact.
`
`Finjan’s willfulness claims also fail because it has not adequately alleged “egregious”
`
`conduct. Finjan tries to erase this requirement by claiming that it merely needs to allege that
`
`Juniper knew of the patents (or was willfully blind to them) and continued infringing. But this is
`
`contrary to the post-Halo case law in this District and others, which makes clear that a plaintiff
`
`must allege conduct “beyond typical infringement”—something Finjan has not done here.
`
`Finally, Finjan’s inducement claims fail on the independent ground that it has not
`
`adequately alleged specific intent. Finjan’s attempt to rely on generic inducement allegations that
`Juniper instructs third parties how to use the accused products generally is not sufficient in this
`
`case, where there is no allegation that the accused products have no substantial non-infringing
`
`uses. Instead, Finjan must set forth factual allegations to support an inference that Juniper has
`instructed customers to use the products specifically in an allegedly infringing manner. Finjan
`
`has not done so, and its allegations are therefore inadequate.
`I.
`
`FINJAN’S WILLFULNESS CLAIM SHOULD BE DISMISSED
`A.
`
`Finjan Has Not Adequately Alleged The Knowledge Elements.
`1.
`The Complaint Lacks Sufficient Allegations Of Actual Knowledge.
`Contrary to Finjan’s arguments, Finjan has not adequately alleged that Juniper had actual
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`IRELL & MANELLA LLP
`A Registered Limited Liability
`Law Partnership Including
`Professional Corporations
`
`10419812
`
`
`- 1 -
`
`REPLY ISO JUNIPER’S MOTION TO DISMISS
`Case No. 3:17-cv-05659-WHA
`
`
`
`

`

`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`IRELL & MANELLA LLP
`A Registered Limited Liability
`Law Partnership Including
`Professional Corporations
`
`Case 3:17-cv-05659-WHA Document 25 Filed 01/12/18 Page 7 of 20
`
`pre-suit knowledge of the Patents-in-Suit. As a preliminary matter, the only allegation that Finjan
`identifies in its 70-page Complaint that specifically references knowledge of the Patents-in-Suit—
`
`as opposed to Finjan’s patent portfolio generally or the non-asserted ’968 patent—is a conclusory
`
`statement that “[o]n or about June 10, 2014, Finjan informed Defendant of its patent portfolio,
`including the Asserted patents and Defendant’s infringement thereof.” Complaint ¶ 68.1 This
`allegation is ambiguous in that it does not make clear whether Finjan is alleging that Juniper had
`
`constructive knowledge of the Patents-in-Suit through knowledge of Finjan’s patent portfolio
`
`generally, or whether Juniper had actual knowledge of each specific Patent-in-Suit. If Finjan
`
`means the former, it is insufficient as a matter of law. Longitude Licensing v. Apple Inc., 2015
`
`WL 1143071, at *2 (N.D. Cal. Mar. 13, 2015); Finjan, Inc. v. Cisco Systems Inc., 2017 WL
`
`2462423, at *5 (N.D. Cal. June 7, 2017). Even assuming that the statement is intended to mean
`
`the latter, however, it is nothing more than a conclusory allegation devoid of any underlying
`
`factual support. Multiple courts in this jurisdiction have rejected nearly identical allegations.
`
`Longitude, 2015 WL 1143071, at *2 (allegation that “[Apple] had knowledge of the Patents-in-
`
`Suit as part of the SanDisk patent portfolio” was inadequate as knowledge of a patent portfolio “is
`
`insufficient to allege Apple’s pre-lawsuit knowledge of the specific patents-in-suit” and “[e]ven if
`
`it could be construed as a general allegation that Apple had knowledge of the patents-in-suit prior
`
`to the lawsuit, it fails as a recitation of the legal standard for willful infringement without
`
`underlying factual support”); Finjan, 2017 WL 2462423, at *2, *5 (allegation that Cisco was “well
`
`aware of Finjan’s patents, including the [patent-in-suit]” insufficient without underlying facts).
`
`Finjan’s attempts to distinguish the cases cited by Juniper on this issue are unavailing. For
`
`example, Finjan claims that Longitude is inapplicable because “Finjan alleged specifically that
`
`Juniper had knowledge of each asserted patent.” Opposition at 7. But this reasoning is circular.
`
`As noted, the Complaint’s only reference to Juniper’s knowledge of the Patents-in-Suit is a bare
`
`bones assertion that is almost identical to the allegation in Longitude. The whole point of the
`
`Longitude holding is that a plaintiff must allege underlying facts to support such a conclusory
`
`
`1 Finjan’s allegations regarding willful infringement are identical for each of the Patents-
`in-Suit. Accordingly, Finjan’s allegations in Count I are cited in representatively.
`REPLY ISO JUNIPER’S MOTION TO DISMISS
`Case No. 3:17-cv-05659-WHA
`
`10419812
`
`
`- 2 -
`
`
`
`

`

`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`IRELL & MANELLA LLP
`A Registered Limited Liability
`Law Partnership Including
`Professional Corporations
`
`Case 3:17-cv-05659-WHA Document 25 Filed 01/12/18 Page 8 of 20
`
`statement. Finjan has not—and cannot—point to any such underlying factual allegations here.
`
`Finjan attempts to distinguish Vasudevan v. TIBCO Software Inc., 2012 WL 1831543
`
`(N.D. Cal. May 18, 2012) on the same grounds, but the complaint in Vasudevan contained a very
`
`similar conclusory allegation to the one in the Complaint in this case. Vasudevan, No. C 11-06638
`
`RS, Dkt. No. 55 (First Amended Complaint) at ¶ 11 (“Upon information and belief, Defendant
`
`also had actual knowledge of VSi’s patent portfolio, including the invention claimed in the ’864
`
`Patent, prior to the filing of VSi’s initial complaint.”). The Vasudevan court dismissed the
`
`willfulness claim, even though the plaintiff included a conclusory statement of knowledge,
`because the underlying factual allegations could not support a plausible inference of knowledge
`
`as those underlying facts were limited to knowledge of a substantially related patent and patent
`
`portfolio. Vasudevan, 2012 WL 1831543, at *3. Similarly, in this case, Finjan’s factual
`
`allegations are limited to “Finjan’s patents,” “patent portfolio,” or the “’968 Patent.” Complaint
`
`¶¶ 34-42. Just as in Vasudevan, this is inadequate because “[t]he requisite knowledge of the patent
`
`allegedly infringed simply cannot be inferred from mere knowledge of other patents, even if
`somewhat similar.” Vasudevan, 2012 WL 1831543, at *3 (emphasis in original).2
`Finjan’s reliance on Straight Path IP Group, Inc. v. Apple Inc., 2017 WL 3967864 (N.D.
`
`Cal. Sept. 9, 2017) is also misplaced. Unlike here, there was no dispute in Straight Path that the
`
`plaintiff had adequately alleged the knowledge elements because Straight Path had filed a previous
`lawsuit involving the same patents against the same defendant, Apple. Id. at *1.3 Moreover, that
`court’s decision addressed different arguments. Apple had objected to the willfulness claim on the
`
`grounds that “Straight Path’s allegations ‘do not add up to’ willful infringement ‘without detailed
`
`allegations . . . as to how Apple supposedly infringed.’” Id. at *4. The Court rejected Apple’s
`
`argument “[s]ince Straight Path adequately alleged infringement.” Id. By contrast, Juniper’s
`
`
`2 Finjan challenges WBIP, LLC v. Kohler Co., and Radware, Ltd. v. F5 Networks, Inc.
`solely on the ground that they were decided on a summary judgment. Opposition at 7-8. These
`cases were cited merely for the proposition that “[k]nowledge of the patent alleged to be willfully
`infringed continues to be a prerequisite to enhanced damages,” (WBIP, LLC v. Kohler Co.. 829
`F.3d 1317, 1341 (Fed. Cir. 2016)) a point which Finjan does not dispute.
`3 See also Straight Path IP Group, Inc. v. Apple Inc., 2016 WL 8729942, at *3 (N.D. Cal.
`Oct. 21, 2016) (allegations were sufficient to support Apple’s pre-suit knowledge of patents
`asserted against it in a prior lawsuit, but not a related patent that was not previously asserted).
`REPLY ISO JUNIPER’S MOTION TO DISMISS
`Case No. 3:17-cv-05659-WHA
`
`10419812
`
`
`- 3 -
`
`
`
`

`

`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`IRELL & MANELLA LLP
`A Registered Limited Liability
`Law Partnership Including
`Professional Corporations
`
`Case 3:17-cv-05659-WHA Document 25 Filed 01/12/18 Page 9 of 20
`
`Motion is not based on the argument that Finjan did not adequately allege direct infringement, and
`
`Juniper is not arguing that Finjan must prove its claim with “detailed allegations.” Instead,
`
`Juniper is arguing that—consistent with the body of case law in this District and others—Finjan
`
`must provide at least some factual basis to support a plausible inference that Juniper had pre-suit
`
`knowledge of the specific Patents-in-Suit and its alleged infringement of those patents.
`
`To distract from its failure to allege this underlying factual support, Finjan goes on at
`
`length about alleged conversations between Finjan and Juniper concerning “Finjan’s patents” or
`
`the “’968 Patent.” Opposition at 4. But Finjan did not actually allege that any of these purported
`
`conversations were directed to the specific Patents-in-Suit. Complaint ¶¶ 34-42. And, Courts
`
`have consistently recognized that “[t]he requisite knowledge of the patent allegedly infringed
`
`simply cannot be inferred from mere knowledge of other patents, even if somewhat similar.”
`
`Vasudevan, 2012 WL 1831543, at *3, *6 (dismissing claims because knowledge may not be
`
`inferred from “TIBCO’s alleged awareness of the ’006 patent [a family member of the asserted
`
`patent], or, more generally, VSI’s ‘patent portfolio,’ whatever it may include”); Finjan, 2017 WL
`
`2462423, at *5; Longitude, 2015 WL 1143071, at *2; Unwired Planet, LLC v. Apple Inc., 2017
`
`WL 1175379, at *2 (N.D. Cal. Feb. 14, 2017). Finjan fails to cite any authority to the contrary.
`
`Finjan is relegated to arguing that its identification of the non-asserted ’968 patent suffices
`
`because the ’968 patent “lists the asserted ’844 Patent.” Opposition at 4. But numerous courts
`
`have found that merely having knowledge of a document (i.e., the unasserted patent) that cites to
`
`the asserted patent is not enough. Rembrandt Social Media, LP v. Facebook, Inc., 950 F. Supp. 2d
`
`876, 883 (E.D. Va. 2013) (no knowledge where defendant owned a patent citing to the patent-in-
`
`suit); Eon Corp. IP Holdings LLC v. FLO TV Inc., 802 F. Supp. 2d 527, 532-34 (D. Del. 2011) (no
`knowledge where defendant took licenses to patents that cited the patents-in-suit).4 Moreover,
`
`
`4 It is also implausible to suggest that Juniper would have specific knowledge of the ’844
`patent on these grounds because it is just one of thirty-eight patents cited in the ’968 patent.
`Numerous courts have recognized that merely listing an asserted patent among dozens of others
`does not plausibly show knowledge. See Evolved Wireless, LLC v. Samsung Electronics Co., Ltd.,
`2016 WL 1019667, at *4 (D. Del. March 15, 2016) (“[A] patent included in an appendix containing
`dozens of patents does not place a defendant on notice of the patents-in-suit”); Cascades Computer
`Innovation, LLC v. Samsung Elecs. Co., 77 F.Supp.3d 756, 766 (N.D. Ill. 2015) (listing of patent-in-
`suit in the appendix of thirty-nine patents was insufficient to create a triable issue as to knowledge).
`REPLY ISO JUNIPER’S MOTION TO DISMISS
`Case No. 3:17-cv-05659-WHA
`
`10419812
`
`
`- 4 -
`
`
`
`

`

`Case 3:17-cv-05659-WHA Document 25 Filed 01/12/18 Page 10 of 20
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Finjan does not—and indeed, could not—contend that the fact that the ’844 patent is referenced by
`
`the ’968 patent somehow put Juniper on notice of its purported infringement of the ’844 patent.
`Finally, Finjan’s allegations make clear that Juniper did not have notice of any alleged
`
`infringement of the Patents-in-Suit. Indeed, Finjan admits that the only infringement chart it
`
`provided Juniper prior to this lawsuit concerned the ’968 patent, which is not asserted. Opposition
`at 4. Finjan further admits that it made the business decision not to provide claim charts for any
`other patents because Juniper did not want to sign a non-disclosure agreement. Id. at 4-5; see also
`
`Complaint ¶¶ 34-42. As such, even if Finjan has adequately alleged knowledge of the Patents-in-
`
`Suit, there can be no question that Finjan has not alleged actual knowledge of the purported
`
`infringement of those patents. And, Finjan’s admissions suggest that any attempts to amend
`
`would be futile. Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 (9th Cir. 1990) (denying leave to
`
`amend because “[i]t would not be possible for Reddy to amend . . . without contradicting any of
`
`the allegations of [the] original complaint”).
`2.
`Finjan Has Not Met The High Bar To Plead Willful Blindness.
`Finjan next resorts to claiming it has adequately alleged the requisite knowledge elements
`
`under a “willful blindness” theory. Opposition at 5. But Finjan did not explicitly assert willful
`
`blindness in the context of its willfulness claims. Instead, its allegations of willful infringement
`
`are based on the theory that Juniper had actual knowledge of the Patents-in-Suit and acted in
`“reckless disregard.” See, e.g., Complaint ¶ 70.5 This is not sufficient to allege willful blindness.
`Indeed, the Supreme Court has expressly held that willful blindness “surpasses recklessness” and
`
`that “deliberate indifference” to a “known risk” (i.e., reckless disregard) does not meet the “willful
`
`blindness” standard. Global-Tech Appliances, Inc. v. SEB S.A., 563 U.S. 754, 770 (2011).
`
`There is a “high bar” for pleading willful blindness, and Finjan’s allegations unequivocally
`
`fall short. Unwired Planet, 2017 WL 1175379, at *1. To assert a claim of willful blindness:
`
`“(1) the defendant must subjectively believe that there is a high probability that a fact exists and
`
`(2) the defendant must take deliberate actions to avoid learning of that fact.” Id. (quoting Global-
`
`
`5 By contrast, Finjan explicitly asserted willful blindness in the context of inducement.
`See, e.g., Complaint ¶ 73.
`
`IRELL & MANELLA LLP
`A Registered Limited Liability
`Law Partnership Including
`Professional Corporations
`
`10419812
`
`
`- 5 -
`
`REPLY ISO JUNIPER’S MOTION TO DISMISS
`Case No. 3:17-cv-05659-WHA
`
`
`
`

`

`Case 3:17-cv-05659-WHA Document 25 Filed 01/12/18 Page 11 of 20
`
`Tech, 563 U.S. at 769). Finjan’s complaint fails to adequately allege either of these requirements.
`
`With respect to the subjective belief element, Finjan never alleges that Juniper subjectively
`
`held a belief that there was a high probability that it was infringing any Finjan patents, much less
`
`the Patents-in-Suit. See Complaint ¶¶ 34-42, 68-70. To the contrary, the Complaint’s allegations
`
`suggest that Juniper subjectively believed that Finjan’s patents were invalid and that they were not
`
`relevant to Juniper’s business. See id. at ¶ 37 (Juniper “sent a letter to Finjan listing ten patents
`
`that [Juniper] believed would be considered ‘prior art’ to the ’968 Patent”); ¶ 40 (Juniper’s in-
`
`house counsel told Finjan that “he did not think Finjan was worth Defendant’s time”). Moreover,
`
`there can be no question that Finjan failed to plead that Juniper had any subjective beliefs about
`
`the Patents-in-Suit, as opposed to holding beliefs about a patent that is not asserted in this
`
`litigation. See id. at ¶¶ 34-42. Allegations regarding Finjan’s patent portfolio generally and a
`
`patent that is not asserted in this case do not create a plausible inference that Juniper believed that
`
`there was a high probability that it was infringing the Patents-in-Suit. This is a critical distinction
`
`between the facts here and the facts in the Unwired Planet case cited by Finjan. See Opposition at
`5. In Unwired Planet, the court found that defendant Apple was “specifically apprised of the
`
`[asserted] patents during licensing negotiations, and given enough detail about the substance of the
`
`[asserted] patents that Apple might have been on notice of the mechanism of infringement.”
`
`Unwired Planet, 2017 WL 1175379, at *1. By contrast, Finjan never alleges that Juniper was
`specifically apprised of the Patents-in-Suit. See supra § I.A.1.
`
`With respect to the deliberate action element, Finjan has not pled any deliberate action by
`
`Juniper to avoid learning that it infringed the Patents-in-Suit. Finjan appears to imply that
`
`Juniper’s business decision to not enter into an NDA agreement for Finjan’s benefit constituted a
`
`deliberate action by Juniper to avoid learning about additional Finjan patents or infringement
`
`allegations. Opposition at 5. This is a red herring. Finjan has not alleged that the lack of an NDA
`
`prevented Finjan from specifically apprising Juniper of the Patents-in-Suit—nor could it allege
`
`this. Finjan was free to provide Juniper with notice of whatever patents and infringement
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`IRELL & MANELLA LLP
`A Registered Limited Liability
`Law Partnership Including
`Professional Corporations
`
`10419812
`
`
`- 6 -
`
`REPLY ISO JUNIPER’S MOTION TO DISMISS
`Case No. 3:17-cv-05659-WHA
`
`
`
`

`

`Case 3:17-cv-05659-WHA Document 25 Filed 01/12/18 Page 12 of 20
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`contentions that Finjan wanted.6 Instead, Finjan chose to keep the Patents-in-Suit and its related
`infringement allegations a secret. Juniper should not be punished for Finjan’s business decision to
`
`only provide Juniper with a claim chart for a patent that Finjan ultimately decided not to assert,
`while hiding the ball on the Patents-in-Suit.7 Finjan inappropriately clouds the issues by
`conflating Juniper’s purported refusal to negotiate a portfolio license with possible deliberate
`
`actions by Juniper to avoid learning about whether it infringed the specific Patents-in-Suit; those
`
`issues are not the same, and for all of Finjan’s attempts to paint Juniper in a negative light with
`
`respect to business negotiations, the Complaint fails to plead the facts actually necessary to satisfy
`
`the deliberate action element.
`
`This second pleading deficiency—i.e., that there are no allegations that Juniper took the
`
`requisite deliberate action—is another critical distinction between the facts here and the cases
`
`cited by Finjan. For example, in Global-Tech, the defendant copied a patented deep fryer but had
`
`deliberately purchased a non-U.S. version of the deep fryer to avoid seeing the U.S. patent
`
`markings that appeared on the U.S. version of the product. 563 U.S. at 758, 771. The defendant
`
`also specifically chose not to inform its patent counsel about the copying, making it less likely that
`
`counsel would identify patents related to the copied deep fryer. Id. at 771. Those are the types of
`
`affirmative steps necessary to conclude that deliberate action has been taken to avoid learning
`
`about infringement. Finjan’s allegations here are fundamentally different because they merely
`
`suggest that Juniper declined to negotiate a license to Finjan’s patent portfolio (which is irrelevant
`
`to willful blindness), not that Juniper took affirmative steps to avoid learning about its purported
`
`infringement of the specific Patents-in-Suit (which is a key element of willful blindness). The
`
`
`6 Nor is Finjan’s allegation that Juniper stated it would share the claim charts with other
`entities evidence of the requisite “deliberate action.” Contrary to Finjan’s suggestion, there is no
`legitimate reason why Finjan would need to conceal such charts from other defendants. Indeed,
`they would merely reveal how Juniper’s products supposedly infringe the Patents-in-Suit, and
`would not involve any of Finjan’s confidential information.
`7 Accepting Finjan’s argument may create an inappropriate motivation for patentees to
`withhold their strongest infringement claims during pre-suit negotiations as a mechanism to
`manufacture willfulness and inducement claims. For example, if a patentee only discloses its
`weakest patents during negotiations, the accused infringer may (rightfully) conclude that it need
`not obtain a license or design-around, only to be surprised with a lawsuit on ot