Case 3:17-cv-05659-WHA Document 77 Filed 05/01/18 Page 1 of 10
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`IRELL & MANELLA LLP
`Jonathan S. Kagan (SBN 166039)
`jkagan@irell.com
`Joshua Glucoft (SBN 301249)
`jglucoft@irell.com
`Casey Curran (SBN 305210)
`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
`Kevin Wang (SBN 318024)
`kwang@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
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`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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`JUNIPER NETWORKS, INC., a Delaware
`Corporation,
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`vs.
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`Defendant.
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`IRELL & MANELLA LLP
`A Registered Limited Liability
`Law Partnership Including
`Professional Corporations
`
`10497844
`
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`Case No. 3:17-cv-05659-WHA
`
`DEFENDANT JUNIPER NETWORKS,
`INC.’S OPPOSITION TO FINJAN, INC’S
`MOTION FOR LEAVE TO AMEND ITS
`COMPLAINT
`
`Date:
`Time:
`Judge:
`Courtroom:
`
`
`May 9, 2018
`8:00 a.m.
`Honorable William Alsup
`12 – 19th Floor
`
`OPPOSITION TO FINJAN’S MOTION FOR
`FOR LEAVE TO AMEND ITS COMPLAINT
`Case No. 3:17-cv-05659-WHA
`
`

`

`Case 3:17-cv-05659-WHA Document 77 Filed 05/01/18 Page 2 of 10
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`
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`I.
`
`INTRODUCTION
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`As Juniper explained to Finjan on April 3, 2018, Juniper is not opposed to Finjan amending
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`its complaint if the sole purpose of that amendment is to add the ATP Appliance to the list of accused
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`products in this case—the ostensible purpose of Finjan’s amendment. Unfortunately, however,
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`Finjan’s proposed amended complaint is a Trojan Horse; rather than simply adding a new accused
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`product to the case, Finjan is attempting to both: (1) revive its dismissed willfulness allegations
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`(despite its claim that it would not do so) and (2) modify the list of products that are subject to the
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`early summary judgment procedure, for which motions are due in less than four weeks. Juniper will
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`be severely prejudiced if it is suddenly forced, all in less than a month, to collect and produce
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`discovery and file and respond to motions on a product that Juniper did not even create. If Finjan is
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`willing to correct these defects with its proposed amended complaint, Juniper will withdraw its
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`objections to it. To date, however, Finjan has refused to do so. For that reason, Juniper opposes
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`allowing Finjan to amend its complaint it its current form.
`II.
`
`BACKGROUND
`A.
`Finjan was aware Juniper was acquiring Cyphort before it filed its original Complaint on
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`Finjan’s Knowledge of Cyphort Products.
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`September 29, 2017. See Ex. A. Yet Finjan’s original Complaint neither includes Cyphort as a
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`defendant, nor identifies any Cyphort products. Finjan also concedes that Juniper publicly
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`announced the completion of the Cyphort acquisition on November 7, 2017, Dkt. No. 67 at 3, and
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`that Juniper began advertising Cyphort products—specifically including the ATP Appliance— by
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`December 14, 2017. Id. at 4.
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`Despite its knowledge of the Cyphort products—including specifically the ATP Appliance—
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`Finjan elected not to amend its complaint, even as the parties engaged in discovery for the early
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`summary judgment process, despite multiple opportunities to do so. For example, on February 14,
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`2018 this Court dismissed Plaintiff’s claims of willfulness and induced infringement from the original
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`Complaint. Dkt. No. 30 at 8. The Court held that Finjan “may move for leave to file an amended
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`complaint, subject to the conditions stated herein, by February 22 at noon.” Id. The Court also found
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`that Juniper “may promptly take depositions in advance of Finjan’s motion for leave in order to test
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`IRELL & MANELLA LLP
`A Registered Limited Liability
`Law Partnership Including
`Professional Corporations
`
`10497844
`
`
`- 1 -
`
`OPPOSITION TO FINJAN’S MOTION FOR
`FOR LEAVE TO AMEND ITS COMPLAINT
`Case No. 3:17-cv-05659-WHA
`
`

`

`Case 3:17-cv-05659-WHA Document 77 Filed 05/01/18 Page 3 of 10
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`the validity of any new allegations added ” Id. On February 12, 2018, Finjan informed Juniper that it
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`was not going to seek leave to amend its complaint related to willfulness, and Finjan did not even
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`mention the possibility of adding new products at this time. See Ex. E. Again, at the Initial Case
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`Management Conference on February 22, 2018, where the Court notified the parties of the early
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`summary judgment procedure that would be employed in this case, Finjan did not even suggest that it
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`would seek leave to amend its complaint to add new products, much less try to include them in this
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`procedure.
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`The first time Finjan accused the ATP Appliance was on March 8, 2018, when it included
`them in its infringement contentions.1 Yet at that time, Finjan still did not chose to amend its
`complaint even though Juniper specifically informed Finjan that it would need to do so if it wanted to
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`accuse the ATP Appliance in this case. Specifically, on March 15, 2018, counsel for Juniper emailed
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`counsel for Finjan, citing this Court’s ruling in Richtek Tech. Corp. v. uPi Semiconductor Corp.:
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`“the 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 . . . without the need to file a supplemental complaint—essentially sneaking new
`products into the case through the back door of infringement contentions.”
`
`
`2016 WL 1718135, at *2 (N.D. Cal. Apr. 29, 2016) (Alsup, J.).
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`On March 22, 2018, two weeks after Finjan served its infringement contentions, the parties
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`identified the claims they were selecting for early summary judgment, and Finjan still had not even
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`moved for leave to add claims against the ATP Appliance to this case.
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`On March 26, 2018, Juniper objected to Finjan’s discovery requests served on February 23,
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`2018, again notifying Finjan that discovery into ATP Appliance was improper unless and until the
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`operative complaint was amended. Dkt. No. 67 at 5. During the parties’ meet and confer over
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`discovery on April 3, 2018, Juniper stated that it was improper for Finjan to seek discovery on the
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`1 Finjan argues that it notified Juniper in its February 23, 2018 discovery requests that ATP
`Appliance was accused. Dkt. No. 67 at 4. To the contrary, Finjan merely defined in its discovery
`requests “Accused Instrumentalities” to include ATP Appliance without describing what such
`instrumentalities are even accused of (i.e., no patent numbers nor specific accused functionality).
`Such superficial mention of the ATP Appliance does not put Juniper on notice. See Dkt. No. 48-1 at
`¶ 6.
`
`IRELL & MANELLA LLP
`A Registered Limited Liability
`Law Partnership Including
`Professional Corporations
`
`10497844
`
`
`- 2 -
`
`OPPOSITION TO FINJAN’S MOTION FOR
`FOR LEAVE TO AMEND ITS COMPLAINT
`Case No. 3:17-cv-05659-WHA
`
`

`

`Case 3:17-cv-05659-WHA Document 77 Filed 05/01/18 Page 4 of 10
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`ATP Appliance until and unless Finjan amended its Complaint. Declaration of Joshua Glucoft
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`(“Glucoft Decl.”) ¶ 10. Juniper also informed Finjan during this meet and confer that Juniper was
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`willing to stipulate to allow Finjan to amend its Complaint if Finjan agreed to exclude the ATP
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`Appliance from early summary judgment. Id.
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`
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`Following the April 3, 2018 meet and confer, Finjan rejected Juniper’s offer to stipulate to
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`allow Finjan to amend its Complaint, but Finjan still did not seek leave to amend. Instead, Finjan
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`filed a motion to compel production on April 6, 2018, seeking discovery on the ATP Appliance. See
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`Dkt. No. 48. At the hearing on this motion, this Court held that it was “not just going to hand over
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`the documents” relating to the ATP Appliance until Finjan decided to “replead” and “put [the ATP
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`Appliance] in the complaint as an accused product and explain[] which claims the product infringes.”
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`See Ex. C at 7-8. This Court expressly held that unless the ATP Appliance was accused in the
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`Complaint, Finjan could not obtain discovery on the product. Id.
`III. ARGUMENT
`A.
`Plaintiff Should Not Be Allowed to File an Amended Complaint Containing the
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`Same Willfulness Allegations this Court Previously Dismissed
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`On February 14, 2018 this Court dismissed Plaintiff’s claims of willfulness and induced
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`infringement from the original Complaint. Dkt. No. 30 at 8. The Court also held that Juniper “may
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`promptly take depositions in advance of Finjan’s motion for leave in order to test the validity of any
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`new allegations.” Id.
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`Although Finjan asserts it “is no longer asserting willfulness,” Dkt. No. 67 at 2 n.1, its
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`proposed amended complaint contains the very same willfulness allegations the Court previously
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`dismissed. See, e.g., Dkt. No. 67, Ex. 1 at ¶¶ 63-65. On April 24, 2018, Juniper emailed Finjan
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`asking Finjan to withdraw its current motion and file a new motion for leave to amend with a
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`proposed complaint that does not actually assert willfulness. See Ex. D; Glucoft Decl. ¶ 11. Juniper
`did not receive any response from Finjan, and to date, Finjan still has not offered to substitute its
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`proposed amended complaint to omit the renewed allegations of willfulness. Glucoft Decl. ¶ 11. As
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`Juniper argued in its motion to dismiss—and as the Court held in its Order on that motion—Finjan’s
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`willfulness allegations are inadequate because, among other things, Finjan does not adequately allege
`
`IRELL & MANELLA LLP
`A Registered Limited Liability
`Law Partnership Including
`Professional Corporations
`
`10497844
`
`
`- 3 -
`
`OPPOSITION TO FINJAN’S MOTION FOR
`FOR LEAVE TO AMEND ITS COMPLAINT
`Case No. 3:17-cv-05659-WHA
`
`

`

`Case 3:17-cv-05659-WHA Document 77 Filed 05/01/18 Page 5 of 10
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`pre-suit knowledge. Dkt. No. 30 at 4-5. Finjan has not added any allegations to cure these
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`deficiencies. As such, if Finjan is granted leave to file its proposed complaint, it will be subject to
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`another motion to dismiss.
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`Even if Finjan had tried to resolve the issues with its willfulness claims—which it did not—
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`such an amendment would violate this Court’s prior order. This Court ordered Finjan to cure the
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`defects in its willfulness allegations by February 22, 2018. Id. at 8. That deadline has long passed,
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`and any attempt by Finjan to revive its willfulness claims is tardy. See Thomas v. Fedex Freight,
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`Inc., 627 F. App’x. 635, 636 (9th Cir. 2015) (affirming district court’s denial of leave to amend on
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`the basis that Plaintiff failed to amend the complaint by the court-ordered deadline and failed to
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`establish good cause for its tardiness). Moreover, this Court ordered that Finjan should not be
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`allowed to move to amend its Complaint as to willfulness until Juniper has had an opportunity to
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`depose Finjan’s witnesses on those allegations. Id. at 8. To the extent Finjan is seeking to amend its
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`willfulness allegations now, Juniper must first be afforded an opportunity to depose the relevant
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`Finjan witnesses.
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`Finjan should not be granted leave to file its proposed amended complaint because it
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`continues to assert willfulness allegations that have already been dismissed by this Court, and
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`because Finjan has not allowed Juniper the chance to depose its witnesses on the willfulness
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`allegations. See Bonin v. Calderon, 59 F.3d 915, 845 (9th Cir. 1995) (“Futility of amendment can, by
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`itself, justify the denial of a motion for leave to amend.”); Bivolarevic v. U.S. CIA, 2010 WL 890147,
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`at *3 (N.D. Cal. Mar. 8, 2010) (denying Plaintiff’s request to file an amended complaint upon finding
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`that leave to amend would be futile); Advanced Micro Devices, Inc. v. LG Elecs., Inc., 2017 WL
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`2774339 (N.D. Cal. June 26, 2017) (same).
`B.
`In this Court’s order on Finjan’s motion to shorten time, it cautioned that “[n]either side
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`The ATP Appliance Should Be Excluded From Early Summary Judgment
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`should assume . . . that any amendment will justify expanding the universe of claims included in early
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`summary judgment.” Dkt. No. 73 at 1. Even if the Court decides to grant Finjan leave to amend, the
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`Court should order that Finjan is not allowed to seek discovery on ATP Appliance until after the early
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`summary judgment motions are filed on June 7, 2018, to prevent significant prejudice to Juniper.
`
`IRELL & MANELLA LLP
`A Registered Limited Liability
`Law Partnership Including
`Professional Corporations
`
`10497844
`
`
`- 4 -
`
`OPPOSITION TO FINJAN’S MOTION FOR
`FOR LEAVE TO AMEND ITS COMPLAINT
`Case No. 3:17-cv-05659-WHA
`
`

`

`Case 3:17-cv-05659-WHA Document 77 Filed 05/01/18 Page 6 of 10
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`Finjan caused its own delay in seeking leave to amend its complaint, and Juniper should not have to
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`shoulder the burden and prejudice caused by Finjan’s delay.
`1.
`Juniper Will Be Significantly Prejudiced by the Late Addition of the ATP
`Appliance to Early Summary Judgment
`
`With its amendments to the Complaint, Finjan seeks to add the ATP Appliance to the early
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`summary judgment proceedings. See Dkt. No. 67 at 2, 5. This late addition would significantly
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`prejudice Juniper by imposing a tremendous extra burden on Juniper’s resources less than one month
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`before the early summary judgment procedure is set to begin, on June 7, 2018. Juniper should not be
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`made to suffer such prejudice when Finjan is solely responsible for its undue delay in seeking leave
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`to amend.
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`Because of this Court’s “shootout” procedure in this case, Juniper has expended substantial
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`resources to make discovery available to Finjan on the three products accused in the original
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`Complaint on an extremely expedited schedule. Although Juniper was not required to produce
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`documents demonstrating the functionality of Sky ATP or the other two products identified in the
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`Complaint until April 23, 2018, Juniper produced source code for all three accused products on
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`March 19, 2018, a mere 11 days after Finjan served infringement contentions. Glucoft Decl. ¶ 8.
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`Juniper also collected, reviewed, and produced more than 160,000 additional pages of technical
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`documentation on these products on March 7, 2018. Id. While this documentation is more than
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`sufficient to demonstrate the operation of the accused Juniper functionality in the three accused
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`products, upon Finjan’s request, Juniper agreed to expedite production of hundreds of thousands of
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`pages of additional confidential technical documents, including hardware and software
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`documentation, data sheets, validation reports, configuration guides, user manuals, and other highly
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`confidential technical specifications. Id. On April 30, 2018, Juniper completed its expedited
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`production of the highly confidential technical documents relating to the three accused products in
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`the original Complaint, which totaled more than 400,000 pages. Id. Juniper has also agreed to four
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`early depositions of Juniper engineers, all scheduled to occur in the month before the summary
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`judgment motions are due on June 7, 2018. See Glucoft Decl. ¶ 12.
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` Notwithstanding the already heightened level of litigation activity, Finjan seeks to suddenly
`
`IRELL & MANELLA LLP
`A Registered Limited Liability
`Law Partnership Including
`Professional Corporations
`
`10497844
`
`
`- 5 -
`
`OPPOSITION TO FINJAN’S MOTION FOR
`FOR LEAVE TO AMEND ITS COMPLAINT
`Case No. 3:17-cv-05659-WHA
`
`

`

`Case 3:17-cv-05659-WHA Document 77 Filed 05/01/18 Page 7 of 10
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`add a new and different product to the case less than four weeks before summary judgment motions
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`must be filed. Finjan indicated in its motion to shorten time that it will need Juniper to complete
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`discovery related to the ATP Appliance by May 17, 2018 in order to include the ATP Appliance in
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`early summary judgment. See Dkt. No. 68 at 1. But even Finjan’s counsel admits that, “[t]wo weeks
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`is not enough time” to “process, review, and analyze” the discovery on the ATP Appliance (Dkt. No.
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`68-1 at ¶ 17), which Juniper will need to do itself before it can even begin producing documents on
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`the ATP Appliance to Finjan (e.g., reviewing for relevance and privilege). The burden on Juniper is
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`particularly acute because (at Finjan’s request) Juniper has labored to expedite production of
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`hundreds of thousands of confidential documents related to the three accused products in the original
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`Complaint, and because Juniper has already agreed to four depositions (again at Finjan’s request)
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`scheduled to occur in the month before early summary judgment motions are due. Given that Finjan
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`could have filed this motion, at the very least, well over two months ago in February 2018, when it
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`allegedly discovered that Juniper was offering the ATP Appliance, see Dkt. No. 67 at 4, imposing
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`this extra burden on Juniper by allowing Finjan to add the ATP Appliance to early summary
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`judgment is unfair, unreasonable, and highly prejudicial.
`2.
`Finjan is Solely Responsible for its Undue Delay in Seeking Leave to Amend
`Finjan unduly delayed the filing of this motion for leave to amend. Finjan knew that Juniper
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`was acquiring Cyphort before September 29, 2017, when Finjan filed its Complaint in this case. See
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`Ex. A. Finjan also admits that Juniper publicly advertised the ATP Appliance in 2017. See Dkt. No.
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`67 at 3, 4. In short, Finjan could either have identified Cyphort products when it initially filed this
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`action, or it could have sought leave to amend its Complaint last year when Juniper first advertised
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`Cyphort products under the Juniper name. In both instances, Finjan made the decision not to include
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`(or even seek to include) Cyphort products in this case.
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`Even more striking is Finjan’s decision not to seek leave to amend its Complaint about two
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`months ago, on March 8, when it first accused the ATP Appliance in its infringement contentions.
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`Instead, Finjan chose to unduly delay seeking leave of Court until the end of April—after the parties
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`identified their respective claims for early summary judgment and a mere six weeks before early
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`summary judgment motions are due.
`
`IRELL & MANELLA LLP
`A Registered Limited Liability
`Law Partnership Including
`Professional Corporations
`
`10497844
`
`
`- 6 -
`
`OPPOSITION TO FINJAN’S MOTION FOR
`FOR LEAVE TO AMEND ITS COMPLAINT
`Case No. 3:17-cv-05659-WHA
`
`

`

`Case 3:17-cv-05659-WHA Document 77 Filed 05/01/18 Page 8 of 10
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`In fact, Finjan concealed its intentions about the ATP Appliance completely, even through the
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`Case Management Conference, until it served its infringement contentions two weeks before the
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`parties were required to elect the claims on which they would move for early summary judgment.
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`With such actions, Finjan prevented Juniper from fully evaluating the impact of ATP Appliance on
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`the early summary judgment procedure. Indeed, only when the Court rejected its attempts to “sneak[]
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`new products into the case through the back door of infringement contentions,” Richtek, 2016 WL
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`1718135, at *2, did Finjan seek leave to amend as a late attempt to squeeze the ATP Appliance into
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`the early summary judgment proceedings.
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`Finjan’s only excuse for its undue delay is that it believed the “ATP Appliance was
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`adequately disclosed in its original Complaint,” even though it was not specifically named in the
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`Complaint. In support of its argument, Finjan asserts that its infringement contentions on March 8
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`“showed an element-by-element basis how the ATP Appliance infringes the asserted patents.” Dkt.
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`No. 67 at 7. This excuse, though flimsy, might have been plausible had this Court not expressly
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`addressed this precise issue in the 2016 case of Richtek Tech. v. uPi Semiconductor Corp., 2016 WL
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`1718135. As this Court explained, “the 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 . . . without the need to file a supplemental complaint—essentially sneaking new products
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`into the case through the back door of infringement contentions.” Id. at *2. Given this express
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`guidance from the Court, it is unclear how Finjan can claim that it thought identifying the ATP
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`Appliance in infringement contentions rather than its Complaint is legally sufficient.
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`Nor can Finjan seek to claim ignorance of the law: the week after Finjan served infringement
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`contentions, Juniper expressly informed Finjan that it would need to amend its Complaint if it wanted
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`to add ATP Appliance to the case and pointed Finjan to the Richtek case. See Ex. B. Again—for its
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`own reasons—Finjan elected not to seek leave to amend at that time.
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`Finjan also argues that it was “reasonable” to believe that it was not required to identify the
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`ATP Appliance in its Complaint because it includes “the same type of technology” as products it did
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`IRELL & MANELLA LLP
`A Registered Limited Liability
`Law Partnership Including
`Professional Corporations
`
`10497844
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`OPPOSITION TO FINJAN’S MOTION FOR
`FOR LEAVE TO AMEND ITS COMPLAINT
`Case No. 3:17-cv-05659-WHA
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`

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`IRELL & MANELLA LLP
`A Registered Limited Liability
`Law Partnership Including
`Professional Corporations
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`Case 3:17-cv-05659-WHA Document 77 Filed 05/01/18 Page 9 of 10
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`accuse. Dkt. No. 67 at 7. This argument is legally and factually flawed. The law requires patent
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`plaintiffs to specifically identify the products they are accusing of infringement. See Richtek, 2016
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`WL 1718135 at *2. Defendants cannot be made to guess which specific technology within a product
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`plaintiffs will claim is infringed and what other products plaintiffs may later claim encompass this
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`technology. Even if Finjan’s legal argument were correct (and it is not), the suggestion that ATP
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`Appliance and Sky ATP have “the same type of technology” such that an allegation against one is
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`sufficient to accuse another is false: Sky ATP was developed by Juniper, while the ATP Appliance
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`was developed by Cyphort when they were separate companies. They do not share source code, and
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`they contain fundamentally different functionality. Glucoft Decl. ¶ 9. Indeed, Finjan’s own exhibits
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`confirm that the ATP Appliance is a physical good developed by Cyphort, Dkt. No. 48-2 at 2, while
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`Sky ATP is a cloud-based service developed by Juniper. Moreover, Finjan’s Complaint contained no
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`allegation that all products purportedly including “the same type of technology” as Sky ATP infringe
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`the asserted patents. See Dkt. No. 1.
`3.
`Finjan is not prejudiced by the exclusion of the ATP Appliance from early
`summary judgment
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`Finjan would not be prejudiced if its claims against the ATP Appliance are not heard during
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`early summary judgment. The exclusion of the ATP Appliance from the early summary judgment
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`proceedings would not limit Finjan’s claims against the ATP Appliance, and Finjan would be free to
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`pursue those claims at a later stage in this case. Finjan can hardly claim any urgency in resolving
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`claims against the ATP Appliance when Finjan itself chose: (1) not to bring any claims against
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`Cyphort when it sold the product; and (2) not to seek leave to amend its complaint to add these
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`products until now.
`IV. CONCLUSION
`For the foregoing reasons, Juniper respectfully requests that the Court (1) deny Finjan leave to
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`file its proposed amended complaint, which continues to assert previously dismissed willfulness
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`allegations and (2) exclude the ATP Appliance from early summary judgment.
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`[Signature page follows]
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`10497844
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`OPPOSITION TO FINJAN’S MOTION FOR
`FOR LEAVE TO AMEND ITS COMPLAINT
`Case No. 3:17-cv-05659-WHA
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`

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`Case 3:17-cv-05659-WHA Document 77 Filed 05/01/18 Page 10 of 10
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`Dated: May 1, 2018
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`Respectfully submitted,
`IRELL & MANELLA LLP
`
`By: /s/ Joshua Glucoft
`Joshua Glucoft
`Attorneys for Defendant
`JUNIPER NETWORKS, INC.
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`IRELL & MANELLA LLP
`A Registered Limited Liability
`Law Partnership Including
`Professional Corporations
`
`10497844
`
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`- 9 -
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`OPPOSITION TO FINJAN’S MOTION FOR
`FOR LEAVE TO AMEND ITS COMPLAINT
`Case No. 3:17-cv-05659-WHA
`
`