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`I R E L L & M A N E L L A L L P
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`A REGISTERED LIMITED LIABILITY LAW PARTNERSHIP
`INCLUDING PROFESSIONAL CORPORATIONS
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`W R I T E R ' S D I R E C T
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`April 13, 2018
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`
`
`Hon. William Alsup
`U.S. District Court
`Northern District of California
`
`
`Re:
`
`Finjan, Inc. v. Juniper Networks, Inc., Case No. 3:17-cv-05659-WHA
`
`Dear Judge Alsup:
`Finjan’s motion to compel (Dkt. No. 48) is both misleading and premature. The gravamen
`of Finjan’s motion—that “To date, Juniper has not produced a single internal technical document
`for any accused product”—is, quite frankly, absurd. Contrary to Finjan’s claim, 11 days after
`Finjan served its initial infringement contentions, Juniper produced the mother lode of technical
`documentation: the actual source code for each product identified in Finjan’s Complaint. Because
`the source code is the actual programming used to control Juniper’s products, it is the single most
`authoritative source about the functionality of Juniper’s products and is more than sufficient to
`describe their operation. In addition, Juniper has agreed to produce additional technical
`documentation for Sky ATP (and the other products identified in the Complaint) starting this week
`and which Juniper expects to complete in April. Nonetheless, Finjan has elected to file this motion
`seeking (1) documents that Juniper has already agreed to produce this month, and (2) expedited
`discovery on products that are not yet within the scope of this case. Neither request has merit.
`
`I.
`
`Finjan’s Request To Compel Sky ATP Documents Is Much Ado About Nothing.
`Although Juniper was not required to produce documents demonstrating the functionality
`of Sky ATP or the other two products identified in the Complaint until April 23, 2018, Juniper
`produced source code for all three accused products on March 19, 2018, a mere 11 days after
`Finjan served its infringement contentions. Declaration of Joshua Glucoft (“Glucoft Dec”) at ¶ 3.
`On March 7, 2018, Juniper produced an additional 160,000 pages of technical documentation
`concerning these products, including hardware and software documentation, data sheets,
`validation reports, configuration guides, and user manuals. While this documentation is more than
`sufficient to demonstrate the operation of the accused Juniper functionality in the accused
`products, Finjan insisted, and Juniper agreed, to expedite the production of thousands of additional
`technical documents—including design and development documents for Sky ATP—starting this
`week, with an expected completion date before the end of April. Glucoft Dec at ¶ 4. Thus, by the
`time the Court rules on this motion, Juniper expects that the bulk of the additional SRX, Sky ATP
`and Space Security Director documents will already have been produced, rendering Finjan’s
`motion effectively moot.
`
`Moreover, it is unclear why Finjan allegedly needs additional development and design
`documents to set forth its infringement case. Under Rule 11, Finjan should have fully vetted and
`reverse engineered Juniper’s products prior to bringing its lawsuit. See Comcast Cable
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`10486082
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`Case 3:17-cv-05659-WHA Document 53 Filed 04/13/18 Page 2 of 3
`I R E L L & M A N E L L A L L P
`
`A REGISTERED LIMITED LIABILITY LAW PARTNERSHIP
`INCLUDING PROFESSIONAL CORPORATIONS
`
`
`Communications, LLC v. OpenTV, Inc., Case No. 3:16-cv-06180-WHA, Dkt. No. 79 at 29 (N.D.
`Cal. March 8, 2017) (“Don’t give me that old ‘I need discovery’ excuse….You should have reverse
`engineered this product up and down instead of just speculating.”). By now, Finjan should have
`been able to confirm its infringement theory by reviewing Juniper’s source code. The only reason
`Finjan would need access to additional technical documents is (as Juniper suspects) if Finjan’s
`source code review did not support its infringement theory. It appears that Finjan now needs to
`“find something in [Juniper’s] files to make [its] case because [it does not] have a case.” Id. at 30.
`
`In sum, Finjan’s request to compel Sky ATP documents is both moot—because Juniper
`has already agreed to produce them—and overstated—because Finjan should be fully capable of
`making its case (if one exists) based on the source code and documents already produced.
`
`II.
`
`Finjan’s Allegations Pertaining To ATP Appliance Are Not Part Of The Operative
`Complaint Nor Timely Raised For Purposes Of Early Summary Judgment.
`Finjan’s request for expedited discovery on the ATP Appliance product is also meritless.
`As Finjan recognizes, “ATP Appliance” is the rebranded name for a product made by Cyphort,
`Inc., a company Juniper acquired last fall. Dkt. No. 48 at p. 2. Although Finjan was aware that
`Juniper acquired Cyphort, Finjan elected not to accuse any Cyphort products in its Complaint. The
`Complaint does not identify Cyphort’s SmartCore, Fabric Web Collector, or All-in-One products
`(the original branding for the product that became the ATP Appliance) by name, nor does the
`Complaint identify ATP Appliance by name, even though Finjan admits that Juniper publicly
`advertised the ATP Appliance at least as early as December 2017. See Dkt. No. 48 at p. 3, Ex. 4.
`
`Finjan acknowledges that its Complaint did not accuse the ATP Appliance by name and
`instead argues that “the technology of ‘ATP Appliance’ was identified in the complaint as Sky
`ATP.” Dkt. No. 48 at p. 2 (emphasis added). This is completely false: The ATP Appliance and
`Sky ATP are two distinct products with difference code bases and fundamentally different
`functionality, and a reference to one is simply not an identification of the other. Glucoft Dec at
`¶ 5. Indeed, as shown in Finjan’s own exhibits, the ATP Appliance is a physical good developed
`by Cyphort (see picture in Dkt. No. 48-2 at p. 2), in contrast to Sky ATP, which is a cloud-based
`service developed internally by Juniper. Finjan’s Complaint clearly identifies Sky ATP as the
`infringing product through, among other things, headings such as “Sky ATP.” See Dkt. No. 1 at
`¶¶ 45-50 (emphasis in original). Finjan’s Complaint is devoid of any reference to the ATP
`Appliance or any other Cyphort product or service, and the Complaint contains no allegation that
`all products purportedly offering “dynamic analysis through sandboxing” functionality infringe
`the asserted patents. See generally Dkt. No. 1. Without any doubt, neither ATP Appliance nor all
`products purportedly offering “dynamic analysis through sandboxing” were accused in Finjan’s
`Complaint.
`
`Finjan has never sought leave to amend its Complaint to add any Cyphort products
`(including the ATP Appliance) to the case, even though Finjan was aware that Juniper acquired
`Cyphort last fall and was aware that Juniper was publicly selling Cyphort’s product (rebranded as
`ATP Appliance) at least as early as December 2017. See Dkt. No. 48 at p. 3, Ex. 4. Rather than
`seeking leave from this Court to amend its Complaint and add new products to this case, Finjan
`attempts to add ATP Appliance by simply identifying it in Finjan’s infringement contentions,
`which Finjan served just 14 days before the parties were required to select claims to address in the
`early summary judgment proceedings. This is improper. See Richtek Tech. Corp. v. uPi
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`Case 3:17-cv-05659-WHA Document 53 Filed 04/13/18 Page 3 of 3
`I R E L L & M A N E L L A L L P
`
`A REGISTERED LIMITED LIABILITY LAW PARTNERSHIP
`INCLUDING PROFESSIONAL CORPORATIONS
`
`
`Semiconductor Corp., No. C 09-05659 WHA, 2016 WL 1718135, at *2 (N.D. Cal. Apr. 29, 2016)
`(Alsup, J.) (“[T]he filing of a complaint sets the cut-off date for the scope of a case, subject to the
`possibility of supplementation. Nevertheless, for some time, patent owners have made open-ended
`allegations in their complaint that do not specifically identify the accused products and used
`amendments to their infringement contentions to expand the scope of the case to encompass
`products developed or released after the date of the complaint without the need to file a
`supplemental complaint—essentially sneaking new products into the case through the back door
`of infringement contentions.”).
`
`Juniper has tried to cooperate with Finjan regarding the ATP Appliance by, among other
`things, agreeing not to oppose Finjan’s request to amend its Complaint so long as Finjan would
`not try to add claims against ATP Appliance to the early summary judgment proceedings. Finjan,
`however, refused this compromise proposal (though it remains open).
`
`Juniper would be prejudiced if Finjan is allowed to add the ATP Appliance to the early
`summary judgment procedure, which is set to begin on June 7, 2018, for at least two reasons:
`
`1. Finjan has had since at least the end of 2017 to prepare for early summary judgment
`regarding the ATP Appliance, but Juniper could not have even started evaluating ATP
`Appliance until Finjan served its infringement contentions on March 8, 2018.1
`2. By omitting any reference to the ATP Appliance in its Complaint and even through the
`Case Management Conference, Finjan concealed its intentions about ATP Appliance until
`two weeks before the parties were required to elect the claim on which they would move
`for early summary judgment. Finjan thus effectively prevented Juniper from fully
`evaluating the impact of ATP Appliance on the early summary judgment procedure.
`
`In short, Juniper requests that the Court deny as moot Finjan’s motion to compel production
`of additional technical documentation regarding Sky ATP and also deny Finjan’s motion to compel
`production of documentation regarding ATP Appliance because Finjan has not satisfied its
`procedural obligations to amend its Complaint to properly accuse that product. To the extent that
`Finjan’s motion to compel is understood to also be a motion for leave to amend its Complaint,
`Juniper requests that the Court deny Finjan’s motion as improperly noticed under L.R. 7. See
`L.R. 7-1(a)(1) (“Any written request to the Court for an order must be presented by one of the
`following means: (1) Duly noticed motion pursuant to Civil L.R. 7-2”).
`
`Respectfully submitted,
`/s/ Joshua Glucoft
`Joshua Glucoft
`IRELL & MANELLA LLP
`Attorneys for Defendant Juniper Networks, Inc.
`
`
`
`
`1 Defining “Accused Instrumentalities” in a request for production to include ATP
`Appliance does not put Juniper on notice; indeed, there is no description in Finjan’s RFPs of what
`such instrumentalities are even accused of. See Dkt. No. 48-1 at ¶ 6.
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