Case 3:17-cv-05659-WHA Document 85 Filed 05/11/18 Page 1 of 5
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE NORTHERN DISTRICT OF CALIFORNIA
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`FINJAN, INC.,
`Plaintiff,
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` v.
`JUNIPER NETWORKS, INC.,
`Defendant.
` /
`
`No. C 17-05659 WHA
`
`ORDER GRANTING IN PART
`AND DENYING IN PART
`MOTION FOR LEAVE TO
`AMEND COMPLAINT
`
`INTRODUCTION
`In this patent infringement action, plaintiff moves for leave to amend the complaint.
`The motion is GRANTED IN PART and DENIED IN PART.
`STATEMENT
`Plaintiff Finjan, Inc., accuses defendant Juniper Networks, Inc., of infringing patents
`pertaining to malware-detection technology. Finjan’s allegations have been summarized in a
`prior order dated February 14, which dismissed Finjan’s claims of willfulness and induced
`infringement but allowed Finjan to move for leave to amend by February 22 (Dkt. No. 30 at 8).
`Finjan decided not to seek leave to amend to cure the deficiencies in those claims (see Dkt. No.
`31 at 2). A case management order dated February 23 then provided, among other things, that
`leave to amend pleadings must be sought by May 31 (Dkt. No. 35 at 1). The case management
`order also set forth a procedure whereby each side will move for early summary judgment on
`one claim by June 7 (id. at 4).
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`Case 3:17-cv-05659-WHA Document 85 Filed 05/11/18 Page 2 of 5
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`On April 6, Finjan moved via discovery letter to compel discovery regarding a Juniper
`product called Advanced Threat Prevention Appliance (“ATP Appliance”) (Dkt. No. 48).
`Another order denied that motion because the complaint did not properly identify ATP
`Appliance as an accused product and Finjan had not successfully amended — or even moved to
`amend — the complaint to accuse ATP Appliance (see Dkt. No. 69). Finjan then filed the
`instant motion for leave to amend the complaint and add ATP Appliance as an accused product
`(Dkt. No. 67). This order follows full briefing and oral argument.
`ANALYSIS
`Juniper does not oppose allowing Finjan to amend the complaint to add ATP Appliance
`as an accused product. Juniper protests, however, that Finjan’s proposed amendment would
`(1) improperly revive Finjan’s dismissed “willfulness” allegations and (2) unfairly prejudice
`Juniper in the early summary judgment procedure already well underway (see Dkt. No. 77 at 1).
`1.
`ALLEGATIONS OF WILLFULNESS.
`As the February 14 order noted, the original complaint alleged in boilerplate language
`that “Juniper ‘has acted recklessly and continues to willfully, wantonly, and deliberately engage
`in acts of infringement’ of all eight patents-in-suit such that enhanced damages and attorney’s
`fees are justified under Sections 284 and 285, respectively, of Title 35 of the United States
`Code” (Dkt. No. 30 at 3). That order agreed with Juniper that Finjan had not alleged sufficient
`facts to show willfulness under Section 284 (id. at 4–7). Juniper therefore takes issue with the
`fact that Finjan’s proposed amendment contains the exact same boilerplate allegations,
`complete with citations to Sections 284 and 285, despite the dismissal of Finjan’s willfulness
`allegations (compare, e.g., Dkt. No. 1 at 25–26 with Dkt. No. 67-3 at 26).
`Finjan’s reply is muddled but seems to be that, while it no longer seeks “enhanced
`damages” under Section 284 for willful infringement, it continues to seek “enhanced damages”
`under Section 284 and fee-shifting under Section 285 for Juniper’s “subjective bad faith” in this
`litigation (see Dkt. No. 78 at 1, 4). First, Finjan cannot reassert dismissed allegations verbatim
`simply by dressing them up in attorney argument and pretending this somehow qualitatively
`changes the nature of the allegations. Second, none of Finjan’s cited authorities support its
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`Case 3:17-cv-05659-WHA Document 85 Filed 05/11/18 Page 3 of 5
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`suggestion that allegations insufficient to state a claim for willful infringement under Section
`284 can nevertheless suffice to state a claim for some other kind of nebulous “willfulness”
`under the same. Neither the February 14 order nor the authorities cited therein made any such
`distinction. See WBIP, LLC v. Kohler Co., 829 F.3d 1317, 1341 (Fed. Cir. 2016) (“Knowledge
`of the patent alleged to be willfully infringed continues to be a prerequisite to enhanced
`damages.”). Under these circumstances, this order agrees with Juniper that Finjan has no
`excuse for reasserting dismissed allegations of “willfulness” in service of any supposed claim
`for “enhanced damages” under Section 284.*
`Fee-shifting under Section 285 presents a different question, and one that would be
`premature to consider at this stage. Possibly, by the end of this litigation, Finjan could emerge
`the “prevailing party” and establish entitlement to reasonable attorney’s fees by virtue of this
`having been an “exceptional” case. The allegations in question, however, nudge us no closer to
`that possibility. As the February 14 order explained, Finjan’s “willfulness” allegations simply
`fail to show that Juniper did anything wrong. “[E]ven viewed in the light most favorable to
`Finjan, [they] show at most that Juniper gave Finjan less attention than Finjan felt it deserved”
`and was unwilling “to spend more time and energy rebutting what it perceived to be meritless
`accusations of infringement” (see Dkt. No. 30 at 5–7). This remains true whether Finjan’s
`allegations are considered for “enhanced damages” purposes under Section 284 or fee-shifting
`purposes under Section 285. In short, Finjan’s intent to eventually seek attorney’s fees under
`Section 285 cannot justify its present attempt to reassert dismissed allegations of “willfulness.”
`IMPACT ON EARLY SUMMARY JUDGMENT PROCEDURE.
`2.
`Even by Finjan’s own account, it could have sought to properly accuse ATP Appliance
`by, at the latest, February 2018 (see Dkt. No. 67 at 4). Instead, it brought the instant motion for
`leave to amend on April 19 — approximately halfway through the time allotted for early
`summary judgment motions. Although the parties do not dispute that leave to amend should be
`
`* This order recognizes that the February 14 order dismissing Finjan’s “willfulness” allegations
`applied only to products accused in the operative complaint at that time. The conclusion herein is not that
`Finjan had no way to amend to plead willful infringement as to the newly-accused ATP Appliance product, but
`rather that Finjan has not done so here because the allegations of “willfulness” in the proposed amendment
`remain identical to the dismissed allegations of “willfulness” from the original complaint.
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`Case 3:17-cv-05659-WHA Document 85 Filed 05/11/18 Page 4 of 5
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`granted, this order agrees with Juniper that allowing Finjan to shake up the playing field for the
`early summary judgment procedure at this time would be unduly prejudicial to Juniper.
`Finjan raises several arguments, none persuasive. First, Finjan contends Juniper will
`not be prejudiced because it has been aware of Finjan’s intent to accuse ATP Appliance since
`February 2018, when Finjan first mentioned the product in its infringement contentions (see
`Dkt. Nos. 67 at 8–9, 78 at 2). But Juniper had no obligation to shape its early summary
`judgment strategy around new products mentioned in infringement contentions, as opposed to
`what had actually been accused in the operative complaint. Second, Finjan contends Juniper
`will lose no preparation time because discovery has been ongoing, and the first deposition
`would not have taken place until May 9 anyway (see Dkt. No. 67 at 8–9). None of this changes
`the fact that half of Juniper’s preparation time has already elapsed, and Juniper may have used
`that time or planned its discovery strategy differently had it known it would be defending ATP
`Appliance in the early summary judgment procedure. Third, Finjan points out that Juniper
`possesses all evidence pertaining to ATP Appliance, “should be able to collect the most relevant
`evidence . . . in manner [sic] of days,” and would need to produce that evidence eventually
`anyway if leave to amend is granted (id. at 9; see also Dkt. No. 78 at 2–3). These observations
`suggest Juniper may be able to mitigate the prejudice that would flow from Finjan’s proposed
`amendment but fail to justify imposing that prejudice on Juniper in the first place. Fourth,
`Finjan contends Juniper’s opposition brief constitutes an “improper request for relief” since
`Juniper agreed to allow the proposed amendment, so any request to exclude ATP Appliance
`from the early summary judgment procedure must be teed up via a separate motion (Dkt. No. 78
`at 1–2). Nonsense. Juniper was within its rights to take the position that it would not oppose
`amendment subject to certain conditions, and it certainly remains within the purview of this
`order to grant leave to amend subject to the requested conditions.
`In summary, all agree that Finjan should be allowed to add ATP Appliance as an
`accused product. This order agrees with Juniper, however, that Finjan’s proposed amendment
`revives dismissed “willfulness” allegations, and further agrees that ATP Appliance cannot in
`fairness be included in the early summary judgment procedure already well underway —
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`Case 3:17-cv-05659-WHA Document 85 Filed 05/11/18 Page 5 of 5
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`although Finjan may of course include ATP Appliance in subsequent rounds of the early
`summary judgment procedure going forward. This order therefore GRANTS leave to amend on
`the conditions that (1) Finjan removes its dismissed “willfulness” allegations and (2) ATP
`Appliance remains excluded from the first round of the early summary judgment procedure.
`CONCLUSION
`For the foregoing reasons, plaintiff’s motion for leave to amend is GRANTED IN PART
`and DENIED IN PART. Plaintiff may file an amended complaint consistent with this order by
`MAY 18 AT NOON. Discovery that plaintiff previously propounded regarding ATP Appliance
`shall be deemed served as of the filing date of the amended complaint.
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`IT IS SO ORDERED.
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`Dated: May 11, 2018.
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`
`WILLIAM ALSUP
`UNITED STATES DISTRICT JUDGE
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