Case 3:17-cv-05659-WHA Document 67 Filed 04/19/18 Page 1 of 11
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`
`PAUL J. 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.
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`
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`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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`
`
`
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`Defendant.
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`Case No.: 3:17-cv-05659-WHA
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`PLAINTIFF FINJAN, INC.’S NOTICE OF
`MOTION AND MOTION FOR LEAVE TO
`AMEND ITS COMPLAINT
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`Date: May 3, 2018
`Time: 8:00 am
`Judge: Honorable William Alsup
`Dept.: Courtroom 12, 19th Floor
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`FINJAN’S NOTICE OF MOTION AND MOTION
`FOR LEAVE TO AMEND ITS COMPLAINT
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`CASE NO.: 3:17-cv-05659-WHA
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`Case 3:17-cv-05659-WHA Document 67 Filed 04/19/18 Page 2 of 11
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`NOTICE OF MOTION AND MOTION
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`TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
`NOTICE IS HEREBY GIVEN that on May 3, 2018, at 8:00 a.m., or as soon thereafter as
`counsel may be heard by the Honorable William Alsup in Courtroom 12, 19th Floor, located at 450
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`Golden Gate Avenue, San Francisco, CA 94102, Plaintiff Finjan, Inc. (“Finjan”) will and hereby does
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`move the Court for an order granting Finjan’s Motion to Amend its Complaint (“Motion to Amend”).
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`This Motion is based on this Notice of Motion, the following Memorandum of Points and
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`Authorities, the proposed order submitted herewith, the pleadings and papers on file in this action, any
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`evidence and argument presented to the Court at or before the hearing on this motion, and all matters
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`of which the Court may take judicial notice.
`STATEMENT OF RELIEF REQUESTED
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`Finjan seeks leave to amend its Complaint to update the claims to reflect the current status
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`of the case, and to include the Advanced Threat Prevention Appliance (“ATP Appliance”) as an
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`accused product. A copy of the Amended Complaint that Finjan seeks leave to file is attached as
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`Exhibit 1 to the Declaration of Kristopher Kastens, filed in support of this Motion to Amend
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`(“Kastens Decl.”). A redline copy of the Amended Complaint showing a comparison of the
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`original Complaint and the Amended Complaint is attached as Exhibit 18 to the Kastens
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`Declaration.
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`STATEMENT OF ISSUES TO BE DECIDED
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`Whether the Court should grant Finjan’s Motion for Leave to Amend the Complaint to include
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`Juniper Networks Inc.’s (“Juniper”) ATP Appliance, which was not publicly known as a Juniper
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`product until well after Finjan filed its Complaint but includes the same type of technology as Juniper’s
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`Sky Advanced Threat Prevention service (“Sky ATP”) that was named in the Complaint.
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`FINJAN’S NOTICE OF MOTION AND MOTION
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`Case 3:17-cv-05659-WHA Document 67 Filed 04/19/18 Page 3 of 11
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`I.
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`INTRODUCTION
`Finjan seeks leave to amend the Complaint to specifically name the ATP Appliance as an
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`accused product in this case, because otherwise Finjan would be required to waste resources by
`bring a separate lawsuit regarding this product.1 Finjan’s motion should be granted because leave
`to amend is freely given and does not require a showing of good cause when done according the
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`schedule set by the Court. There is no reason to deny Finjan’s motion to amend, as Finjan
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`promptly notified Juniper and brought this motion, and Juniper will not be prejudiced because of
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`Finjan’s prompt notification.
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`Finjan could not have originally raised the ATP Appliance in its Complaint because
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`Juniper’s completion of the acquisition of Cyphort Inc. (“Cyphort”), who originally sold the ATP
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`Appliance, was first publicly announced in November 2017, over a month after Finjan filed its
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`Complaint on September 29, 2017. Furthermore, Finjan did not originally see Juniper’s
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`announcement of the acquisition because it was buried 29 pages into a 10-Q filing of Juniper.
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`There was also little public information disclosed for Finjan to see, as Juniper did not include any
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`mention of the ATP Appliance on its website until December 14, 2017. Finjan did not discover
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`that Juniper had completed its acquisition of Cyphort and was selling the ATP Appliance until
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`early February 2018, which was just before its infringement contentions were due and served on
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`March 8, 2018. At the time of this discovery, Finjan did not believe it was necessary to amend its
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`Complaint because the Complaint already named Juniper’s Sky ATP service, which included
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`substantially the same accused technology as the ATP Appliance and is part of the same ATP
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`product line. To avoid unnecessary motion practice, Finjan requested during meet and confers
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`that Juniper stipulate to allow Finjan to amend its Complaint. Juniper agreed, but only if Finjan
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`would agree that the ATP Appliance was not part of the early summary judgment process. Finjan
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`could not agree to this request because it undercut the purpose of early summary judgment – to
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`provide clarity and increase judicial economy.
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`1 As a matter of housekeeping, Finjan has also amended the Complaint to reflect the current case
`status, including that Finjan is no longer asserting willfulness, indirect infringement, and two patents in
`the original Complaint.
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`Case 3:17-cv-05659-WHA Document 67 Filed 04/19/18 Page 4 of 11
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`At the hearing on April 17, 2018, the Court stated Finjan must amend its pleadings to
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`explicitly name the ATP Appliance. Thus, Finjan diligently brings this Motion to Amend, two
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`days later, and respectfully requests that the Court grant it leave to amend the Complaint.
`II.
`BACKGROUND
`Finjan filed its Complaint on September 29, 2017. Dkt. No. 1. The Complaint alleged that
`a number of Juniper’s products and services infringed the Asserted Patents, including inter alia
`Juniper’s Sky ATP service, which offers malware detection features such as static analysis and
`dynamic analysis with sandboxing. Id. at ¶¶ 45-50. On February 22, 2018, the Court notified the
`parties that they would be involved in its “showdown” procedure involving early summary
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`judgment on a single claim, with opening summary judgment briefs to be filed June 7, 2018. On
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`February 23, 2018, the Court issued a scheduling order that specifically contemplated the early
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`summary judgment schedule while giving the parties until May 31, 2018 to seek leave to amend
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`their pleadings. Dkt. No. 35.
`A.
`Juniper’s Purchase of Cyphort
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`Juniper recently purchased Cyphort, a company that had been in negotiation with Finjan
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`for a license to its patent portfolio since approximately February 2015 and that offered and sold its
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`own advanced threat protection product. While Juniper had announced its intent to purchase
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`Cyphort by August 30, 2018, Juniper did not publicly announced that it had completed its
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`acquisition of Cyphort until page 29 of Juniper’s 10-Q that was publicly released on November 7,
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`2017. Kastens Decl., Ex. 2 at 29. In that November 2017 10-Q, Juniper stated on page 29 that the
`acquisition of Cyphort was complete and its technology would be incorporated into Juniper’s
`existing Sky ATP service:
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`We also completed the acquisition of Cyphort Inc., a software company that
`provides security analytics for advanced threat defense. This acquisition is
`expected to strengthen the capabilities of our cloud-based threat
`prevention service, Sky Advanced Threat Prevention, or Sky ATP, by
`increasing efficiency and performance and providing additional threat
`detection functionalities and analytics.
`Id. at 29 (emphasis added).
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`Case 3:17-cv-05659-WHA Document 67 Filed 04/19/18 Page 5 of 11
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`While Juniper concluded its purchase of Cyphort on September 14, 2017, and identified
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`that it had completed this acquisition deep in a November 10-Q filing, it was not until December
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`14, 2017, that Juniper first publicly advertised the ATP Appliance on its website, nearly three
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`months after Finjan had filed its Complaint. Kastens Decl., Ex. 3. Furthermore, it was not
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`immediately clear that this product was acquired from Cyphort, and it was only by looking closely
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`at images on the website that anyone could have ascertained that fact based on the inclusion of the
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`Cyphort logo. Indeed, Juniper has only recently ramped up issuing press releases, displaying at
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`conferences, and releasing promotional videos for the ATP Appliance. Kastens Decl., Ex. 4
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`(screenshot of first known Juniper video showing ATP Appliance released April 2, 2018,
`available at https://youtu.be/LCM1PRdK0Tg); id., Ex. 5 (Juniper announcing showing ATP
`Appliance at RSA 2018).
`B.
`Finjan’s Discovery of the ATP Appliance and Diligence Seeking to Amend.
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`In February 2018, Finjan was finalizing its infringement contentions in this case, which
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`included revisiting Juniper’s website and public documents for updated information on Juniper’s
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`products. Kastens Decl., ¶ 8. During this time, Finjan discovered that Juniper was offering the
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`ATP Appliance as a new addition to its ATP suite of products, which previously only included the
`Sky ATP service. Id. On further review, Finjan discovered that the ATP Appliance operated in a
`similar manner as the Sky ATP service, including through the use of static analysis and dynamic
`analysis in a sandbox, identical to the functionality that was included in Sky ATP. Compare
`Kastens Decl., Ex. 6 (Sky ATP Datasheet) with Ex. 7 (ATP Appliance Datasheet). Because the
`new ATP Appliance included substantially the same accused technologies as the Sky ATP service
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`that Finjan accused in its Complaint, Finjan believed the new ATP Products were covered by the
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`existing allegations in the Complaint.
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`On February 23, 2018, Finjan served its first set of Requests for Production of Documents
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`(“RFPs”) and Interrogatories, both of which identified the ATP Appliance as an accused product.
`Kastens Decl., Ex. 8 at 3, ¶ 6; id., Ex. 9 at 2, ¶ 6. On March 8, 2018, Finjan served its
`infringement contentions in this case, which again identified the ATP Appliance as an accused
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`Case 3:17-cv-05659-WHA Document 67 Filed 04/19/18 Page 6 of 11
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`product, and described how Finjan believed the ATP Appliance infringed the Asserted Patents,
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`including separate charts for the ATP Appliance. Kastens Decl., Exs. 10-12. Two weeks later, on
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`March 22, 2018, the parties identified the claims they were selecting for early summary judgment.
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`Finjan identified claim 10 of the ‘494 Patent for its early summary judgment claim and Juniper
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`selected claim 1 of the ‘780 Patent for its early summary judgment claim, both of which Finjan
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`asserted against the ATP Appliance in its infringement contentions. Kastens Decl., Exs. 13-14.
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`On March 26, 2018, Juniper objected to Finjan’s discovery requests that Finjan served on
`February 23, indicating that it would not provide discovery into the ATP Appliance. Id., Ex. 15 at
`9-10 (Juniper’s Resp. to Request for Production No. 1). The following day, Finjan requested that
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`Juniper meet and confer on Juniper’s refusal to provide discovery into the ATP Appliance.
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`Kastens Decl., Ex. 16 (email from Kastens to Glucoft requesting meet and confer with Juniper).
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`Juniper asserted that it was not available to meet and confer until the following week on April 3rd.
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`Kastens Decl., ¶ 20. During this meet and confer, Finjan explained that it properly named the
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`ATP Appliance and requested that Juniper provide its basis for refusing discovery into the
`product. Id., ¶ 21. Juniper refused to provide discovery on the ATP Appliance unless Finjan
`amended its Complaint. Id., ¶ 22. Finjan requested that Juniper stipulate to amend its Complaint
`to specifically identify the ATP Appliance, but Juniper stated that it would only stipulate to such
`an amendment if Finjan agreed to exclude the ATP Appliance from early summary judgment. Id.,
`¶ 23. Finjan could not agree because Sky ATP and ATP Appliance have similar technologies, as
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`described above, and including the ATP Appliance is necessary in order to conduct a full and
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`complete early summary judgment.
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`Finjan filed a motion to compel production on April 6th, requesting that the Court compel
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`production for the ATP Appliance (among other issues) and provide guidance if amending the
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`Complaint was necessary. Dkt. No. 48. The Court held a hearing on April 17th, where it
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`indicated that Finjan should amend its Complaint to include the ATP Appliance if it wants to
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`assert the ATP Appliance in this case. Kastens Decl., ¶ 24. Finjan met and conferred with
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`counsel for Juniper in person immediately after the April 17th hearing and filed this motion to
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`Case 3:17-cv-05659-WHA Document 67 Filed 04/19/18 Page 7 of 11
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`amend only two days later on April 19th, seeking leave for limited amendments to its Complaint
`to include the ATP Appliance. Id., ¶ 25.
`III. ARGUMENT
`Leave to amend is freely given under FRCP 15(a), and Finjan seeks this amendment
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`diligently and in good faith in order to include a new product that includes similar technology as
`Sky ATP, which is accused in the Complaint. Fed. R. Civ. P. 15(a)(2); Foman v. Davis, 371 U.S.
`178, 182 (1962) (finding that refusal to grant leave without reason is inconsistent with the spirit of
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`the Federal Rules). The determination of whether to grant leave to amend should be “performed
`with all inferences in favor of granting the motion.” Griggs v. Pace Am. Grp., Inc., 170 F.3d 877,
`880 (9th Cir. 1999). As Finjan requests this amendment according to the Court’s schedule, Finjan
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`is not required to show good cause to modify the schedule under Federal Rule of Civil Procedure
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`16.
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`However, the Court may consider factors such as undue delay, bad faith, actual prejudice
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`to the non-moving party, and futility, all of which support granting Finjan leave to amend its
`Complaint to include Juniper’s newly released ATP Appliance under Rule 15(a). Foman, 371
`U.S. at 182; Space Data Corp. v. X, No. 16-cv-03260-BLF, 2017 WL 3007078, at *3 (N.D. Cal.
`July 14, 2017) (“Where a party moves to amend its pleadings on or before the deadline to amend
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`the pleadings, a motion for leave to amend is evaluated under Fed. R. Civ. Proc. 15.”) (citation
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`omitted). Leave should be granted because Juniper will not be prejudiced, and all parties have an
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`interest in securing the just, speedy, and inexpensive determination of this action on all infringing
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`products, rather than a separate action accusing the ATP Appliance on similar issues. Fed. R. Civ.
`Proc. 1.
`A.
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`Finjan’s Amendments Are Made in Good Faith.
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`Juniper cannot establish that Finjan is seeking this amendment in bad faith. In fact,
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`Finjan’s conduct during this litigation demonstrates that its proposed amendments are made in
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`good faith, as Finjan acted to promptly identify the ATP Appliance as an accused product.
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`Finjan’s counsel first learned that the ATP Appliance infringed the asserted patents in February
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`Case 3:17-cv-05659-WHA Document 67 Filed 04/19/18 Page 8 of 11
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`2018, and promptly notified Juniper that the ATP Appliance was an accused product by naming it
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`in its discovery requests served on February 23rd. Finjan then served its infringement contentions
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`on March 8th, which included charts specifically dedicated to the ATP Appliance, and showed on
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`an element-by-element basis how the ATP Appliance infringes the asserted patents. Kastens
`Decl., Ex. 8 at 3, ¶ 6; id., Exs. 10-13. As such, Finjan’s conduct shows that it was acting in good
`faith and it promptly apprised Juniper that the ATP Appliance was an accused product.
`B.
`Finjan Did Not Unduly Delay Because It Diligently Sought to Amend its Complaint.
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`Finjan did not unduly delay its request for leave to amend because it promptly sought such
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`leave within days of being apprised by the Court that amendment was necessary, and within two
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`months of first learning of the ATP Appliance’s infringement. As described above, until the
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`Court’s April 17th hearing, Finjan reasonably believed that the ATP Appliance was properly
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`identified in its Complaint for infringement and that an amendment was not necessary. Finjan
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`filed this motion just two days after the hearing, which certainly does not qualify as an undue
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`delay. Finjan’s belief that the ATP Appliance was adequately disclosed in its original Complaint
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`was reasonable because Finjan included allegations against Sky ATP, which contains the same
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`type of technology that was accused in ATP Appliance, namely static and dynamic analysis in a
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`sandbox. Kastens Decl., Ex. 6 (Sky ATP Datasheet); Ex. 7 (ATP Appliance Datasheet). Further,
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`Finjan diligently sought Court intervention when Juniper stated in its March 26, 2018, discovery
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`responses that it would not provide discovery into the ATP Appliance. In fact, Finjan requested a
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`meet and confer the next day, met with Juniper on the first day that Juniper’s counsel was
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`available, and filed a discovery letter brief with the Court only two days after that meet and
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`confer, when Juniper maintained that it would not provide discovery on the ATP Appliance.
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`Finjan did not unduly delay even if the Court concludes that Finjan should have been
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`aware that it needed to amend its Complaint when it learned of the ATP Appliance, because
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`Finjan did not discover that Juniper was offering the ATP Appliance until Finjan was finalizing its
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`infringement contentions in February 2018, a mere two months ago. Kastens Decl., ¶ 8. Juniper
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`did not provide any discovery into the ATP Appliance to make Finjan aware earlier, and Juniper
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`Case 3:17-cv-05659-WHA Document 67 Filed 04/19/18 Page 9 of 11
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`has issued very little advertising or other public material on its website for Finjan to discover this
`product. See Sage Electrochromics, Inc. v. View, Inc., No. 12-cv-6441-JST, 2014 WL 1379282,
`at *3 (N.D. Cal. Apr. 8, 2014) (granting motion to amend even though plaintiff waited
`approximately three months to seek the Court’s permission to add new patents to the case); see
`also Oracle Am., Inc. v. Hewlett Packard Enter. Co., No. 16-cv-01393-JST, 2017 WL 3149297, at
`*3-4 (N.D. Cal. Jul. 25, 2017) (granting motion to amend despite a delay of over six months
`between learning of the basis for new pleadings and filing a motion to amend); Finjan v. Blue
`Coat Sys., Inc., No. 13-cv-03999-BLF, 2014 WL 6626227, at *2 (N.D. Cal. Nov. 20, 2014)
`(stating that an almost two month period between receiving confidential information and filing a
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`motion to amend pleadings based on that confidential disclosure demonstrates diligence, and does
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`not demonstrate undue delay). In fact, Juniper has only recently ramped up issuing press releases
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`and promotional material for the ATP Appliance. Kastens Decl., Ex. 4 (screenshot of first known
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`Juniper video showing ATP Appliance released April 2, 2018, available at
`https://youtu.be/LCM1PRdK0Tg); id., Ex. 5 (Juniper announcing showing ATP Appliance at
`RSA 2018). Thus, Finjan did not unduly delay given the circumstances and release date of the
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`ATP Appliance. The fact that there was no undue delay weighs in favor of granting Finjan’s
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`request.
`C.
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`Juniper Will Not Be Prejudiced by Finjan’s Amendments
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`Finjan’s proposed amendments will not prejudice Juniper because Juniper has been aware
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`that Finjan accuses the ATP Appliance of infringing its patents since at least February 23rd, and
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`because Finjan’s infringement contentions served March 8th detailed how the ATP Appliance
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`infringes the asserted claims. Furthermore, Finjan’s original Complaint outlined how the same
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`technology found in the ATP Appliance—static and dynamic analysis with sandboxing—
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`infringes in Juniper’s Sky ATP. As such, Juniper has long been on notice of Finjan’s allegations
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`and had ample time to prepare its defenses. Additionally, discovery is ongoing in the case and
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`will not need to be reopened, and depositions will not be retaken since the first deposition is not
`scheduled until May 9th. Kastens Decl., ¶ 26; Finjan, Inc. v. Proofpoint, Inc., No. 13-cv-05808-
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`Case 3:17-cv-05659-WHA Document 67 Filed 04/19/18 Page 10 of 11
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`BLF, 2014 WL 6386727, at *3 (N.D. Cal. Nov. 14, 2014) (no prejudice because case is still in
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`early stages). As such, Juniper cannot credibly claim that it does not have sufficient time to
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`prepare discovery with respect to the ATP Appliance, or to prepare its defenses.
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`Further demonstrating that there is no real prejudice to Juniper is the fact that Juniper
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`stated it would not oppose Finjan’s Motion to Amend the Complaint so long as Finjan does not
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`include the ATP Appliance in early summary judgment, where opening motions are due on June
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`7th. Kastens Decl., ¶ 23; Dkt. No. 53 (Juniper’s Opp. to Motion to Compel) at 3. Juniper’s
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`primary objection to including the ATP Appliance in early summary judgment is that it does not
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`have time to provide discovery into the ATP Appliance. Declaration of Austin Manes in Support
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`of Motion to Shorten Time (“Manes Decl.”), ¶¶ 15-16. However, Juniper has known since
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`February 23rd that Finjan sought discovery into the ATP Appliance, and the underlying evidence
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`is all in Juniper’s possession. Kastens Decl., Exs. 8-9. Moreover, Juniper should be able to
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`collect the most relevant evidence for the ATP Appliance, its source code, in manner of days.
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`And Finjan has already noticed the deposition of the only Juniper employee that it intends to
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`depose in the next month related to the ATP Appliance.
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`As such, Finjan’s amendments to the Complaint to include the ATP Appliance will not
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`prejudice Juniper.
`D.
`Finjan’s Amendment is not Futile
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`Finjan’s proposed amendment to include the ATP Appliance is not futile because Finjan’s
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`allegations can survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6).
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`Finjan’s direct infringement allegations based on the ATP Appliance contain sufficient facts that,
`when accepted as true, state a claim of relief that is plausible on its face under the Twombly/Iqbal
`pleading standard. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The claims of infringement
`sufficiently provide notice to Juniper, as they identify and describe how the ATP Appliance
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`infringes the Asserted Patents. Ex. 1, Amended Complaint, ¶¶ 46-53, 60-61, 66-75 84-85, 89, 99,
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`104-105, 114-118, 128-129, 135-136. Furthermore, and as discussed above, Finjan has also
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`already provided Juniper with detailed infringement contentions demonstrating how the ATP
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`9
`FINJAN’S NOTICE OF MOTION AND MOTION
`FOR LEAVE TO AMEND ITS COMPLAINT
`
`CASE NO.: 3:17-cv-05659-WHA
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`Case 3:17-cv-05659-WHA Document 67 Filed 04/19/18 Page 11 of 11
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`Appliance meets every claim limitation of every asserted claim in this case. As such, Finjan has
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`properly pleaded facts stating a plausible claim for relief. The “denial of a motion for leave to
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`amend on the ground of futility ‘is rare and courts generally defer consideration of challenges to
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`the merits of a proposed amended pleading until after leave to amend is granted and the amended
`pleading is filed.’” Oracle, 2017 WL 3149297, at *4 (citation omitted).
`Finally, this is not the situation where the proposed amendment is clearly insufficient or
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`frivolous such that the Court should deny Finjan’s motion to amend. Because “the underlying
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`facts or circumstances relied upon by [Finjan] may be a proper subject of relief, [Finjan] ought to
`be afforded an opportunity to test [its] claim on the merits.” Id. Thus the Court should grant
`Finjan’s motion for leave to amend its Complaint to include the ATP Appliance.
`IV. CONCLUSION
`For the foregoing reasons, Finjan respectfully requests that the Court grant Finjan’s Motion
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`to Amend its Complaint.
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`Dated: April 19, 2018
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`Respectfully submitted,
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`
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`By: /s/ Kristopher Kastens
`Paul J. Andre
`Lisa Kobialka
`James Hannah
`Kristopher Kastens
`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
`
`Counsel for Plaintiff
`FINJAN, INC.
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`10
`FINJAN’S NOTICE OF MOTION AND MOTION
`FOR LEAVE TO AMEND ITS COMPLAINT
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`CASE NO.: 3:17-cv-05659-WHA
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