Case 3:17-cv-05659-WHA Document 68 Filed 04/19/18 Page 1 of 6
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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
`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
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`Attorneys for Plaintiff
`FINJAN, INC.
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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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`Plaintiff,
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`v.
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`JUNIPER NETWORKS, INC., a Delaware
`Corporation,
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`Defendant.
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`Case No.: 3:17-cv-05659-WHA
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`PLAINTIFF FINJAN, INC.’S NOTICE OF
`MOTION AND MOTION FOR AN ORDER
`SHORTENING TIME UNDER CIVIL L.R.
`6-3.
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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 MOTION FOR AN ORDER
`TO SHORTEN TIME
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`Case 3:17-cv-05659-WHA Document 68 Filed 04/19/18 Page 2 of 6
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`TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
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`NOTICE OF MOTION AND MOTION
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`PLEASE TAKE NOTE that on May 3, 2018, at 8:00 a.m., or as soon thereafter as counsel may
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`be heard by the Honorable William Alsup in Courtroom 12, 19th Floor, 450 Golden Gate Avenue, San
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`Francisco, CA 94102, Plaintiff Finjan, Inc. (“Finjan”) will and hereby does move under Civil Local
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`Rule 6-3 for an order shortening the time to brief and hear Plaintiff Finjan, Inc.’s Motion to Amend the
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`Complaint (“Motion to Amend”), which is filed concurrently herewith.
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`This motion is based on: this Notice of Motion and the Memorandum of Points and Authorities;
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`the Declaration of Austin Manes; the Proposed Order; the Motion to Amend filed concurrently
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`herewith and Declaration of Kristopher Kastens filed therewith; and on such other written or oral
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`evidence or argument as may be considered by the Court.
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`RELIEF REQUESTED
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`Finjan respectfully requests the following briefing schedule for its Motion to Amend:
` Deadline for any Opposition to the Motion to Amend: April 25, 2018;
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` Deadline for any Reply in support of the Motion to Amend: April 30, 2018;
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` Hearing on Plaintiff’s Motion to Amend: May 3, 2018;
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`
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`If the Motion to Amend is granted, Juniper to complete discovery related to
`the ATP Appliance by: May 17, 2018.
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`MEMORANDUM OF POINTS AND AUTHORITIES
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`I.
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`INTRODUCTION
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`Finjan requests an expedited briefing schedule for its Motion to Amend the Complaint in order
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`to include Juniper’s Advanced Threat Prevention Appliance (“ATP Appliance”) in the early summary
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`judgement schedule. Opening briefs for early summary judgment are due June 7, 2018. Finjan’s
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`motion is time sensitive; it directly affects the scope of early summary judgment because the ATP
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`Appliance infringes both of the early summary judgment claims. Finjan’s Motion to Amend is likely to
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`be granted, as amendments are usually freely allowed at this stage. But under a normal 35-day briefing
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`schedule Finjan will not have time to obtain discovery on the ATP Appliance for use in early summary
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`FINJAN’S MOTION FOR AN ORDER
`TO SHORTEN TIME
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`Case 3:17-cv-05659-WHA Document 68 Filed 04/19/18 Page 3 of 6
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`judgment. Finjan will be prejudiced if it is not allowed to present evidence of the ATP Appliance on
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`early summary judgment and may suffer the detrimental effects that come with losing early summary
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`judgment for the rest of the case. Precluding the ATP Appliance from early summary judgment would
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`also waste time and judicial resources, as the ATP Appliance would need to be reheard later on the
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`same claims. Thus, Finjan requests that its Motion to Amend be heard on shortened time to avoid
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`prejudice and increase efficiency.
`II.
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`BACKGROUND
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`In November 2017, two months after Finjan filed its original complaint, Juniper publicly
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`disclosed that it had acquired Cyphort, Inc. (“Cyphort”) on page 29 of its 10-Q filing. Declaration of
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`Kristopher Kastens in Support of Motion for Leave to Amend Complaint (“Kastens Decl.”), Ex. 2.
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`Juniper’s announcement stated only that Juniper would incorporate Cyphort’s advanced threat
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`protection technology into Juniper’s preexisting Sky ATP service, which Finjan had already named in
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`the Complaint. Id.; Dkt. No. 1. Finjan first determined that Juniper acquired Cyphort in February
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`2018, while it was finalizing its infringement contentions with updated public information. Kastens
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`Decl., ¶ 8. Finjan did not immediately move to amend its complaint because Finjan reasonably
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`believed in good faith that its original Complaint properly addressed the ATP Appliance and that no
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`amendment was necessary, as the ATP Appliance included overlapping technology with Sky ATP.
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`Compare Kastens Decl., Ex. 6 with Ex. 7. In particular, Finjan believed that the ATP Appliance was
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`properly identified in the Complaint because both it and Sky ATP were identified as infringing based
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`on their static and dynamic analysis with sandboxing technologies. When Finjan served its
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`infringement contentions on March 8, 2018, it included separate charts devoted to showing how the
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`ATP Appliance infringed Finjan’s patents.
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`On March 26, 2018, Juniper refused to provide any discovery into the ATP Appliance. Kastens
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`Decl., Ex. 15. Finjan, believing that the ATP Appliance was properly identified if not explicitly named
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`in the Complaint, asked to meet and confer with Juniper on March 27, 2018, and promptly sought to
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`compel discovery into the ATP Appliance when Juniper did not agree to provide discovery. On April
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`17, 2018, the Court held a hearing where it ruled on Finjan’s motion to compel and ordered that Finjan
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`FINJAN’S MOTION FOR AN ORDER
`TO SHORTEN TIME
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`Case 3:17-cv-05659-WHA Document 68 Filed 04/19/18 Page 4 of 6
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`was required to amend its complaint to specifically name the ATP Appliance in order to obtain
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`discovery on it. That same day Finjan requested that Juniper stipulate to an expedited schedule for this
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`motion, so that if Finjan’s Motion to Amend is granted the ATP Appliance could be included in early
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`summary judgment. Manes Decl. in Support of Motion for An Order Shortening Time (“Manes
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`Decl.”) at ¶ 12. Juniper refused, arguing that while it would not oppose Finjan amending its complaint
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`to add the ATP Appliance, it would only agree if the ATP Appliance was not part of early summary
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`judgment. Id. at ¶ 16. Because ATP Appliance includes overlapping concepts and evidence with the
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`other products that are already undisputedly part of early summary judgment, and to exclude it would
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`result in an incomplete verdict on early summary judgment, Finjan did not agree to Juniper’s demand.
`III. ARGUMENT
`A. Early Summary Judgment Will Be Incomplete And Finjan Will Be Harmed
`if the Motion to Amend is Not Heard on Shortened Time
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`The Court should grant this motion to ensure that the early summary judgment proceedings are
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`complete, fair, and efficient, because an order shortening time is the only way that Finjan can obtain
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`discovery on the ATP Appliance in time for those proceedings. The Court instituted early summary
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`judgment to increase judicial efficiency and economy. Kastens Decl., Ex. 17 at 5 (“it just cuts to the
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`heart of the case so quickly”). Hearing the Motion to Amend on shortened time will accomplish that
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`goal because the ATP Appliance is accused of infringing both claims selected for early summary
`judgment.1 Requests to change time should “be granted in the absence of bad faith or prejudice to the
`adverse party.” Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1259 (9th Cir. 2010) (also noting
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`the “general purpose of seeing that cases are tried on the merits”). This is true for shortening time
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`where a particularized showing of reasons and prejudice is made, as it is here. Civil L.R. 6-3. Finjan’s
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`Motion to Amend should also be granted because Finjan diligently sought to amend in good faith
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`according to the Court’s schedule. See Motion to Amend at 6.
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`Finjan’s claim against the ATP Appliance should be heard on early summary judgment because
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`it will provide clarity in those early proceedings and ensure a comprehensive determination on the two
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`1 Specifically, Finjan seeks discovery on the ATP Appliance in order to prove that it infringes Claim
`10 of the ‘494 Patent, and rebut Juniper’s argument that it does not infringe Claim 1 of the ‘780 Patent.
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`CASE NO.: 3:17-cv-05659-WHA
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`TO SHORTEN TIME
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`Case 3:17-cv-05659-WHA Document 68 Filed 04/19/18 Page 5 of 6
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`claims selected. Otherwise, the early summary judgment proceedings will be incomplete and the Court
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`will have to rehear arguments on the ATP Appliance for the same claims, regardless of the early
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`outcome. Finjan will also be substantially prejudiced if it is not able to obtain discovery on the ATP
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`Appliance in time for early summary judgment because it will be forced to present a limited version of
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`its infringement analysis, and noninfringement rebuttal analysis, for the selected claims. In fact, the
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`ATP Appliance comprises one third of Finjan’s infringement case and is only one of three product
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`groups identified as infringing the early summary judgment claims. As the Court noted, losing early
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`summary judgment proceedings may lead to extreme consequences. Kastens Decl., Ex. 17 at 5. If
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`Finjan loses early summary judgment because of its inability to present evidence of the ATP
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`Appliance, it may be unfairly subjected to these extreme consequences.
`B. No Prejudice Will Result to Juniper As A Result of Shortening Time
`During the meet and confer, Juniper was unable to identify any prejudice that would accrue
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`from hearing Finjan’s Motion to Amend on an expedited basis. Manes Decl. at ¶ 14. For example,
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`Juniper identified no scheduling conflict that would prevent it from responding on a shortened briefing
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`schedule. Id. Further, Juniper has been on notice that Finjan accuses the ATP Appliance since
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`February 23, 2018 (Manes Decl. at ¶ 5), has had the benefit of Finjan’s infringement contentions on the
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`ATP Appliance since March 8, 2018 (id., at ¶ 6) and Finjan identified its basis for seeking to amend
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`the Complaint in its Letter Brief to Compel Discovery on the ATP Appliance on April 6, 2018. See
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`Dkt No. 48. Juniper does not need additional time to respond and has no basis for opposing this
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`request to expedite briefing and hearing on the Motion to Amend.
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`Instead of providing reasons that it opposes expediting briefing, Juniper instead identified two
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`grounds on which it substantively opposes Finjan’s Motion to Amend – both of which are aimed solely
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`at precluding the ATP Appliance from early summary judgment. First, Juniper complained that Finjan
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`has had more time to prepare to assert the ATP Appliance than Juniper has had to prepare for its
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`defense. Manes Decl. at ¶ 15. But this is not true. Juniper has had the benefit of Finjan’s
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`infringement contentions on the ATP Appliance since March 8, 2018, while Finjan still has no
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`discovery into the product. Juniper also has unfettered access to the ATP Appliance, its source code,
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`FINJAN’S MOTION FOR AN ORDER
`TO SHORTEN TIME
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`Case 3:17-cv-05659-WHA Document 68 Filed 04/19/18 Page 6 of 6
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`and the engineers that work on the product, while Finjan only has access to public materials until
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`Juniper produces its documents and source code. Thus, Juniper’s argument that Finjan somehow has a
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`head start on analyzing the ATP Appliance or gathering discovery rings hollow, as Juniper will has had
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`much more time with the relevant evidence than Finjan. Second, Juniper alleged that it may have
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`selected a different claim for early summary judgment if it knew the ATP Appliance was accused. Id.
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`But this argument ignores the fact that Finjan notified Juniper in its February 23, 2018 discovery
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`requests that the ATP Applicant was accused, and again with its infringement contentions for the ATP
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`Appliance on March 8, 2018 that the product was accused. Id. at ¶¶ 5-6. Further, Juniper did not seek
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`clarification from Finjan or raise the issue in any form before selecting its early summary judgment
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`claim on March 22, 2018. As such, Juniper had notice and plenty of time to review or engage Finjan
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`for clarity regarding its infringement allegations before identifying an early summary judgment claim.
`IV. CONCLUSION
`For the foregoing reasons, the Court should grant Finjan’s Motion for an Order Shortening
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`Time to Brief and Hear its Motion to Amend the Complaint.
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`Dated: April 19, 2018
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`Respectfully submitted,
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`By: /s/ Austin Manes
`Paul J. Andre
`Lisa Kobialka
`James Hannah
`Kristopher Kastens
`Austin Manes
`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
`amanes@kramerlevin.com
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`Counsel for Plaintiff
`FINJAN, INC.
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`FINJAN’S MOTION FOR AN ORDER
`TO SHORTEN TIME
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