Case 3:17-cv-05659-WHA Document 78 Filed 05/04/18 Page 1 of 7
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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
`
`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 REPLY IN
`SUPPORT OF ITS MOTION TO AMEND
`THE COMPLAINT
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`Date: May 9, 2018
`Time: 8:00 am
`Judge: Honorable William Alsup
`Dept.: Courtroom 12, 19th Floor
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`FINJAN’S REPLY IN SUPPORT OF ITS
`MOTION TO AMEND THE COMPLAINT
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`CASE NO.: 3:17-cv-05659-WHA
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`Case 3:17-cv-05659-WHA Document 78 Filed 05/04/18 Page 2 of 7
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`I.
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`INTRODUCTION
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`Finjan’s Motion to Amend its Complaint (“Motion”) should be granted because Juniper agrees
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`that the ATP Appliance can be properly brought into the case and has no complaints that Finjan has
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`dropped an entire line of accused products and two asserted patents from the case. Rather than oppose
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`Finjan’s request for leave to amend, Juniper dedicated the majority of its opposition brief to Finjan’s
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`Motion to arguing for relief that is not appropriately raised in Juniper’s Opposition to Finjan’s Motion
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`for Leave to Amend its Complaint. Specifically, Juniper seeks to have the Court to amend the Court’s
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`Amended Case Management Order (“CM Order”) to delay discovery of the ATP Appliance and
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`exclude the ATP Appliance from the early summary judgment process. Dkt. No. 35. To the extent
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`Juniper is seeking relief from the current case schedule, Juniper is required to file a separate motion to
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`either modify the current Case Management Order case or some other motion for relief.
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`The only other issue raised in Juniper’s opposition is willfulness. Finjan has notified the Court
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`and Juniper that it is not asserting willful infringement in the case. See Dkt. No. 67 (“Motion”) at 2 n.1;
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`Dkt. No. 72. Finjan has maintained its allegations for an exceptional case and enhanced damages in the
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`case. See Dkt. No. 67-20 at ¶¶ 65, 79, 94, 109, 123, 140. Thus, the allegations that Juniper equates are
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`for a claim for willful infringement are allegations that are directed toward seeking an exceptional case
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`and enhanced damages.
`II.
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`ARGUMENT
`A. Juniper’s Opposition is an Improper Request for Relief
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`Finjan made a motion in compliance with the Court’s schedule to Amend its Complaint to
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`include the ATP Appliance. In response, Juniper concedes that it would allow the ATP Appliance to
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`be in the case but it did not want it in early summary judgment. Opp. at 1, 8; see also Ex. 1 attached
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`hereto, 4/17/18 Hearing Tr. at 5. Truly, there can be no dispute that Finjan has demonstrated the
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`necessary diligence required under the law to amend its complaint to include the ATP Appliance, as
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`Juniper concedes that it can be brought into the case and does not address any of Finjan’s case law
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`showing that much greater delays in seeking to amend were still found to be diligent.
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`FINJAN’S REPLY IN SUPPORT OF ITS
`MOTION TO AMEND THE COMPLAINT
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`Case 3:17-cv-05659-WHA Document 78 Filed 05/04/18 Page 3 of 7
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`Instead, Juniper asks to exclude the ATP Appliance from discovery and from early summary
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`judgment. However, once Finjan’s amended complaint is entered, then the ATP Appliance is in the
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`case. Juniper does not dispute that the ATP Appliance was accused of infringing claims selected for
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`early summary judgment in Finjan’s Infringement Contentions, which make it subject to the early
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`summary judgment procedure under the CM Order set forth by the Court. Additionally, requesting a
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`delay of discovery and that the ATP Appliance be excluded from early summary judgment is not a
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`basis to oppose Finjan’s Motion to Amend its Complaint and is something that Juniper needs to request
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`in a separate motion. As Juniper opposition relies on an improper request for relief from the Court, it
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`should be denied outright.
`B. There is no Prejudice to Juniper
`Juniper will not be prejudice by the inclusion of the ATP Appliance. First, Finjan dropped an
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`entire product line and two asserted patents from the case which significantly reduced the case from
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`the outset. Second, Finjan disclosed the ATP Appliance with its infringement contentions. Thus,
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`Juniper has been aware of Finjan’s infringement case for the ATP Appliance for the same amount of
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`time as the other accused products at issue in the early summary judgment. In this two month period,
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`Juniper has had sufficient time to review Finjan’s contentions with respect to the ATP Appliance.
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`Juniper’s claims of prejudice, therefore, ring hollow, as Finjan put Juniper on notice of the details of
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`such infringement when Finjan served its specific infringement contentions on March 8, 2018. Dkt.
`No. 77 (“Opp.”) at 2, n.1.1
`Juniper’s argument that it will be burdened by producing discovery on the ATP Appliance for
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`early summary judgment is also misplaced because Juniper is in possession of all the relevant
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`documents. Opp. at 5-6. Juniper should be able to make the ATP Appliance’s source code available in
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`only a few days and Juniper’s counsel has demonstrated that it is capable of producing technical
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`documents on the ATP Appliance in a timely manner. Indeed, Juniper claims it is possible to produce
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`source code on three accused products “a mere 11 days after Finjan served infringement contentions”
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`1 Juniper’s claim that Finjan’s discovery requests did not put it on notice is specious. Juniper offers no
`support for this position and admits that the February 23 requests specifically named the ATP
`Appliance as an accused product. Opp. at 2.
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`FINJAN’S REPLY IN SUPPORT OF ITS
`MOTION TO AMEND THE COMPLAINT
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`Case 3:17-cv-05659-WHA Document 78 Filed 05/04/18 Page 4 of 7
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`and produced “more than 160,000 pages of technical documents related to these products” just thirteen
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`days after the parties learned of the Court’s early summary judgment procedure. Dkt. No. 77-1
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`(“Glucoft Decl.”) at ¶ 8; Opp. at 5. As such, Juniper cannot claim an actual inability to produce these
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`documents quickly, only that it would be burdensome to require it to do so. Opp. at 6. Juniper’s
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`argument is hollow, because by its own admission, it will have to review and produce these documents
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`eventually, whether the ATP Appliance is added now or later, so reviewing those documents now will
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`impose no additional cost. Thus, Juniper fails to show any actual prejudice it would suffer if the ATP
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`Appliance is litigated in early summary judgment.
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`Juniper also ignores the purpose of early summary judgment – to clarify the issues and increase
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`judicial efficiency – claiming instead that Finjan “would be free to pursue those claims at a later stage
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`in this case.” Id. Thus, Juniper fails to refute that Finjan should be permitted to include the ATP
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`Appliance in early summary judgment.
`C. Juniper’s Arguments Regarding Willfulness Are A Red-Herring
`Juniper’s argument that Finjan is attempting to reallege willfulness is a red herring, as Finjan
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`expressly affirmed that it no longer seeks to assert willfulness or indirect infringement in the
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`Complaint, in accordance with the Court’s order striking those claims. Motion at 2, n.1. Furthermore,
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`the Court has specifically stated that willfulness under 35 U.S.C. § 284 is no longer in the case, and
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`Finjan does not seek to change this order, nor could it do so without specifically asking for leave of the
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`Court. Dkt. No. 30. Finjan has been explicit that it was not asserting willfulness. Dkt. 67-3, Kastens
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`Decl., Ex. 1 at 59.
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`In fact, Finjan was surprised when Juniper alleged in its Opposition to Finjan’s Motion to
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`Shorten Time that Finjan was re-raising willfulness, and Finjan promptly filed a request for judicial
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`notice highlighting the fact that it was doing no such thing. Dkt. No. 72. Despite these assurances,
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`Juniper’s Opposition leads with the baseless accusation that Finjan’s Motion to Amend is a “Trojan
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`Horse” intended to “revive” a claim for willfulness after the Court struck those allegations. Opp. at 1,
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`3-4. This argument is designed to distract from the real reason Juniper opposes this Motion — that the
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`FINJAN’S REPLY IN SUPPORT OF ITS
`MOTION TO AMEND THE COMPLAINT
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`Case 3:17-cv-05659-WHA Document 78 Filed 05/04/18 Page 5 of 7
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`ATP Appliance should be in early summary judgment as Finjan has clearly stated it does not allege
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`willfulness.
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`The crux of Juniper’s argument is that Finjan’s Amended Complaint includes the word
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`“willfully” and “35 U.S.C. § 284” in its amended complaint. However, this relates to Finjan’s request
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`for enhanced damages under 35 U.S.C. § 284 and for an exceptional case, which relates to a wide
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`range of facts. Read Corp. v. Portec, Inc., 970 F.2d 816, 826 (Fed. Cir. 1992). Thus, Finjan only used
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`“willfully” as a factual term describing Juniper’s conduct, which is relevant to Finjan’s current claim
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`of “enhanced damages,” which can be based on a party litigating in subjective bad faith. See, e.g.,
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`Octane Fitness, LLC v. ICON Health & Fitness, Inc., 134 S. Ct. 1749, 1754-59 (2014) (holding
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`willfulness can be a factor in fee-shifting for an exceptional case under § 285, which is separate from
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`egregiousness under § 284 and can be based on “subjective bad faith”). Furthermore, this language is
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`related to a request for shifting attorneys’ fees under the common-law to show that Juniper has acted in
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`“bad faith, vexatiously, wantonly, or for oppressive reasons.” Id. at 1758 (quoting Alyeska Pipeline
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`Service Co. v. Wilderness Society, 421 U.S. 240, 258-259 (1975)). These allegations are appropriate
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`because Juniper’s Motion to Dismiss Finjan’s willfulness claims was based solely on striking Finjan’s
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`claim for treble damages for willful infringement under 35 U.S.C. § 284, which Finjan no longer
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`alleges. See Dkt. No. 23 at 1 and 6-11 (discussing only willful patent infringement and egregious
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`conduct); Dkt. No. 25 at 9-10 (arguing willfulness should be struck because Finjan did not plead
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`“egregious conduct”).
`D. Finjan Did Not Delay in Seeking to Amend
`While ultimately irrelevant, as Juniper concedes that it would allow the ATP Appliance in this
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`case, Juniper still accuses Finjan of delaying in seeking to amend its complaint. However, the
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`undisputed facts show that Finjan did not delay, and that the parties simply disagreed on whether the
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`ATP Appliance was accused by the Complaint. Motion at 3-5; Opp. at 1-3. Once Juniper definitively
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`refused to provide discovery into the ATP Appliance, Finjan promptly requested a meet and confer (as
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`required by this Court’s Standing Supplemental Order at ¶ 34) and moved to compel discovery three
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`days after that meet and confer. Opp. at 3; Glucoft Decl. at ¶ 10; Dkt. 48. Then, once the Court ruled
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`FINJAN’S REPLY IN SUPPORT OF ITS
`MOTION TO AMEND THE COMPLAINT
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`Case 3:17-cv-05659-WHA Document 78 Filed 05/04/18 Page 6 of 7
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`on Finjan’s motion to compel on April 17, Finjan filed this Motion to Amend two days later. Glucoft
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`Decl. ¶ 5; id. at Ex. D. Thus, Finjan was diligent in seeking to include the ATP Appliance in the
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`action.
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`Contrary to the Opposition’s misstatements, the facts show that Finjan did not conceal any
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`intentions, but rather diligently notified Juniper and sought to amend. Opp. at 1-3. Juniper’s sole
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`support that Finjan knew of the acquisition before it was publicly announced was an email from Julie
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`Mar-Spinola of Finjan to Juniper discussing this prospective acquisition. However, Juniper cannot
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`dispute that Finjan could not include the ATP Appliance in its complaint, as Juniper did not publicly
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`disclose that the acquisition was complete until over a month later, which would have been required
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`for Finjan to include the ATP Appliances in the complaint. Id. at 1-3, 7.
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`Furthermore, Juniper cannot reasonably fault Finjan for assuming that the ATP Appliance was
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`originally named in the Complaint as part of Sky ATP, since Juniper’s own legal documents, filed with
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`the SEC, demonstrate that Juniper intended to make the technology part of the Sky ATP Products,
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`which were already specifically named in the complaint. Juniper’s November 2017 10-Q specifically
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`stated that the Cyphort acquisition was “expected to strengthen the capabilities of our cloud-based
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`threat prevention service, Sky Advanced Threat Prevention, or Sky ATP, by increasing efficiency and
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`performance.” See Motion at 3 (citing Kastens Decl., Ex. 2 at 29). Juniper’s Opposition wholly
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`ignores this fact, which refutes its argument that Finjan could have known in November 2017 that the
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`ATP Appliance was a separate product not already covered by Finjan’s complaint. Opp. at 1.
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`Juniper’s Opposition also makes no attempt to address the case law cited in Finjan’s Motion,
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`holding that the two-months between when Finjan learned of the ATP Appliance, moved to compel
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`discovery on it, and moved to add it to the Complaint does not demonstrate undue delay, but rather
`demonstrates that Finjan was diligent. Motion at 6-8.2 Instead, Juniper relies on a single case, Richtek
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`2 Citing 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 though plaintiff waited many months); 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 six months between learning of the basis for new
`pleadings and moving 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 a two month period between receiving confidential
`information and filing a motion to amend pleadings demonstrates diligence, not undue delay)
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`CASE NO.: 3:17-cv-05659-WHA
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`FINJAN’S REPLY IN SUPPORT OF ITS
`MOTION TO AMEND THE COMPLAINT
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`Case 3:17-cv-05659-WHA Document 78 Filed 05/04/18 Page 7 of 7
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`Tech. Corp. v. uPi Semiconductor Corp., No. C 09-05659 WHA, 2016 WL 1718135, at *2 (N.D. Cal.
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`Apr. 29, 2016), for its argument that Finjan should have known to amend. Opp. at 7-8. However,
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`Richtek is inapplicable because it involves unusual fact, which included a delay of seven years between
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`the filing of the complaint and the plaintiff’s motion to file its second amended infringement
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`contentions. Richtek, 2016 WL 1718135, at *1-3. Finjan notes that the Court found no prejudice to
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`the Richtek defendants, stating: “Rather, it appears that defendants are simply latching on to an
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`opportunity to obstruct the progress of this case.” Id. at *3. The Court should not allow Juniper to
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`continue to latch on to any opportunity to obstruct the progress of this case, this time under the guise of
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`an “undue burden” of producing discovery that Juniper has known would be relevant for months.
`III. CONCLUSION
`For the foregoing reasons, the Court should grant Finjan’s Motion to Amend its complaint.
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`Dated: May 4, 2018
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`Respectfully submitted,
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`By: /s/ Lisa Kobialka
`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
`
`Counsel for Plaintiff
`FINJAN, INC.
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`FINJAN’S REPLY IN SUPPORT OF ITS
`MOTION TO AMEND THE COMPLAINT
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