Case 3:17-cv-05659-WHA Document 91 Filed 05/31/18 Page 1 of 10
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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.
`
`
`
`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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`Plaintiff,
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`v.
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`JUNIPER NETWORKS, INC., a Delaware
`Corporation,
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`
`
`
`
`
`Defendant.
`
`
`Case No.: 3:17-cv-05659-WHA
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`PLAINTIFF FINJAN, INC.’S NOTICE OF
`MOTION AND MOTION FOR LEAVE TO
`FILE SECOND AMENDED COMPLAINT
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`Date: July 5, 2018
`Time: 8:00 am
`Judge: Honorable William Alsup
`Dept.: Courtroom 12, 19th Floor
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`REDACTED VERSION OF DOCUMENT SOUGHT TO BE SEALED
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`FINJAN’S NOTICE OF MOTION AND MOTION
`FOR LEAVE TO FILE SECOND AMENDED COMPLAINT
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`Case 3:17-cv-05659-WHA Document 91 Filed 05/31/18 Page 2 of 10
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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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`NOTICE IS HEREBY GIVEN that on July 5, 2018, at 8:00 a.m., or as soon thereafter as
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`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 for Leave to File Second Amended Complaint
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`(“Motion”).
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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.
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`STATEMENT OF RELIEF REQUESTED
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`Finjan seeks leave to amend its Complaint to assert Claims 1 and 17 of U.S. Patent No.
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`7,418,731 (the “’731 Patent”) against products already named in the complaint: SRX Gateways
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`and Sky Advanced Threat Protection (“Sky ATP”). A copy of the Second Amended Complaint
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`that Finjan seeks leave to file is attached as Exhibit 1 to the Declaration of Kristopher Kastens,
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`filed in support of this Motion to Amend (“Kastens Decl.”). A redline copy of the Amended
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`Complaint showing a comparison of the First Amended Complaint and the Second Amended
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`Complaint is attached as Exhibit 5 to the Kastens 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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`the ‘731 Patent based on (1) the recent deposition of Juniper’s employee during which confidential
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`information relating to Sky ATP was revealed and (2) a review of source code of the Accused
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`Instrumentalities.
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`Case 3:17-cv-05659-WHA Document 91 Filed 05/31/18 Page 3 of 10
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`I.
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`INTRODUCTION
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`Finjan’s motion for leave to amend the complaint to assert Claims 1 and 17 of the ‘731
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`Patent (the “Motion”) should be granted because leave to amend is freely granted, particularly
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`where there are no issues of undue delay, bad faith, or futility of the proposed amendments, and
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`when requested according to the Court’s schedule. Finjan’s requested amendments are based on
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`new information that was revealed during the recent deposition of Juniper’s employee, Ms. Yuly
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`Tenorio, who was the first witness deposed in this case. In that deposition, Finjan discovered
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`information relating to the internal design of Sky ATP and the relevance of Sky ATP in
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`combination with SRX Gateways as infringing the ‘731 Patent. A few weeks after the deposition
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`of Juniper’s witness, Finjan reached out to Juniper’s counsel to amend its complaint to add the
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`‘731 Patent, and brought this Motion shortly thereafter.
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`Finjan’s amendments will cause no prejudice to Juniper given the early status of the case
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`and because Finjan seeks to assert only two claims from the ‘731 Patent against products that are
`already accused in this case—namely, the SRX gateway and Sky ATP.1 Accordingly, any
`additional discovery Finjan may need will be minimal at best. Any underlying evidence will be
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`based on Juniper’s information or facts under Juniper’s control. Furthermore, Finjan agrees to
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`limit the total number of claims in the case to 16, so the total number of claims in the case will not
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`increase. Finjan also agrees to alleviate any delay by promptly serving its infringement
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`contentions for the ‘731 Patent within three days of the Court issuing an order granting Finjan
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`leave to amend to assert the ‘731 Patent. As there is over nine months of fact discovery remaining
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`in the case, Juniper will have ample time to investigate Finjan’s claims and there will be no
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`prejudice to Juniper. The proposed amendments will also not be futile. Finjan’s amendments
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`with the ‘731 Patent are consistent with its pleadings of infringement for the patents asserted in its
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`complaint. There, Finjan sets forth how the SRX Gateway and Sky ATP meet the claim
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`limitations.
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`Therefore, the Court should grant Finjan’s motion to amend its complaint.
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`1 Finjan does not seek to include the ‘731 Patent as part of the early summary judgment proceedings.
`2
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`Case 3:17-cv-05659-WHA Document 91 Filed 05/31/18 Page 4 of 10
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`II.
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`BACKGROUND
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`Finjan filed its Complaint on September 29, 2017. Dkt. No. 1. The Complaint alleged that
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`a number of Juniper’s products and services infringed U.S. Patent Nos. 6,154,844; 6,804,780;
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`7,613,926; 7,647,633; 7,975,305; 8,141,154; 8,225,408; 8,677,494 (“Original Asserted Patents”).
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`On April 19, 2018, Finjan filed motion for leave to amend its complaint to include the newly
`released ATP Appliance (Dkt. No. 67), which the Court granted on May 11, 2018 (Dkt. No. 85).2
`Finjan filed its First Amended Complaint on May 18, 2018. Finjan’s amendment included
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`dropping an accused product and two of the asserted patents, narrowing the case. Dkt. No. 88.
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`Finjan took the deposition of the first Juniper witness on May 9, 2018. See Declaration of
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`Kristopher Kastens in Support of Finjan’s Motion for Leave to File Second Amended Complaint
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`(“Kastens Decl.”), Ex. 2. Non-expert discovery does not close until March 29, 2019 and trial is
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`not until July 8, 2019. Dkt. No. 35 at 1, 5.
`A.
`A series of recent events in the last month led to Finjan’s basis for this motion. Juniper
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`Recent Events are the Basis for Finjan’s Motion.
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`first produced internal design and development documents related to Sky ATP on April 30, 2018.
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`On May 9, 2018, Finjan took the deposition of Ms. Yuly Tenorio, who confirmed the relevance of
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`the ‘731 Patent to this case because she described
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`2 (Tenorio Tr.) at 226:16–227:4 (
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`. Kastens Decl., Ex.
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`). Finjan conducted its source code review from May 15,
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`22–25, 2018, to confirm the described operation in the source code. Kastens Decl., ¶8.
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`Based on these events, Finjan now brings its proposed amendments for direct infringement
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`of the ‘731 Patent. Kastens Decl., Ex. 3 (the “‘731 Patent”). Finjan accuses the same products of
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`infringing the ‘731 Patent as those accused in its complaint filed on September 29, 2017, i.e., Sky
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`ATP and the SRX Gateways. Compare Kastens Decl., Ex. 5 (Second Amended Complaint) at
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`2 Finjan’s First Amended Complaint also removed allegations of willfulness, indirect infringement, and
`two patents in the original Complaint (the ‘305 Patent and ‘408 Patent).
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`Case 3:17-cv-05659-WHA Document 91 Filed 05/31/18 Page 5 of 10
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`¶130 (identifying products infringing the ‘731 Patent) with Original Complaint, Dkt. No. 1 at
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`¶¶43–50 (identifying products infringing other Asserted Patents). The ‘731 Patent is substantively
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`different from the currently asserted claims because it includes claims directed at new
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`components, such as policy and file caches. See ‘731 Patent, Claims 1 and 17.
`B.
`This case is still in its relatively early stages. Trial for this case is not scheduled for over
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`This Case is in its Early Stages and Trial is Over a Year Away.
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`another year from now, on July 8, 2019. Dkt. No. 35 at 5. Non-expert discovery closes on March
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`29, 2019, and opening expert reports are to be served at that time. Id. at 1. Dispositive motions
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`are not due until April 11, 2019. Id. at 4.
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`Under the Court’s Scheduling Order (Dkt. No. 35), Finjan may seek to amend its
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`complaint until May 31, 2018. On May 25, 2018, in a good faith effort to avoid unnecessary
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`motion practice, Finjan contacted Juniper asking if it would stipulate to Finjan amending its
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`complaint to include the ‘731 Patent. Kastens Decl., Ex. 4. The parties met and conferred on
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`May 29, 2018, during which Juniper indicated it would consider Finjan’s amendment if Finjan
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`agreed to allow additional deposition time for the only Finjan witness who had been deposed.
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`Finjan confirmed the following day that it would agree to allow Juniper two additional hours with
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`the Finjan witness if Juniper stipulated to the amendment. Kastens Decl., ¶¶9–10. On the date of
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`Finjan bringing this Motion, Finjan provided Juniper with its proposed Second Amended
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`Complaint and requested that Juniper indicate by 2:00 p.m. whether it would stipulate to the
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`amendment given that it was the last day for the parties to seek leave to amend the pleadings. Id.,
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`¶12. Juniper did not provide Finjan with an affirmative response by that time.
`III. ARGUMENT
`Leave to amend is freely given under Federal Rule of Civil Procedure 15(a), and Finjan
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`seeks this amendment diligently and in good faith in order to assert the ‘731 Patent against
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`products that are already accused in the Complaint. Fed. R. Civ. P. 15(a)(2); Foman v. Davis, 371
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`U.S. 178, 182 (1962) (finding that refusal to grant leave without reason is inconsistent with the
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`spirit of the Federal Rules). The determination of whether to grant leave to amend according to
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`Case 3:17-cv-05659-WHA Document 91 Filed 05/31/18 Page 6 of 10
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`the schedule set forth by the Court should be “performed with all inferences in favor of granting
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`the motion.” Griggs v. Pace Am. Grp., Inc., 170 F.3d 877, 880 (9th Cir. 1999). Because Finjan
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`requests this amendment according to the Court’s schedule, Finjan is not required to show good
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`cause to modify the schedule under Federal Rule of Civil Procedure 16. See Dkt. No. 35.
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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
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`Complaint to assert Finjan’s ‘731 Patent based on the recent deposition of Juniper’s witness, Ms.
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`Tenorio, during which she described the confidential, internal structures of Sky ATP, under Rule
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`15(a). Kastens Decl., Ex. 2 (Tenorio Tr.) at 226:16–228:10; Foman, 371 U.S. at 182; Space Data
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`Corp. v. X, No. 16-cv-03260-BLF, 2017 WL 3007078, at *3 (N.D. Cal. July 14, 2017) (“Where a
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`party moves to amend its pleadings on or before the deadline to amend the pleadings, a motion for
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`leave to amend is evaluated under Fed. R. Civ. Proc. 15.”) (citation omitted). Furthermore, even
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`if Juniper argues that Finjan should have been able to determine that the structure of these
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`backend systems for Sky ATP from the source code, Finjan was still diligent because Juniper only
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`made the source code (which contained millions of pages of code) available about two months
`ago. As such, leave should be granted because Juniper will not be prejudiced.
`A.
`Finjan’s Amendments Are Made in Good Faith.
`Finjan’s proposed amendment should be granted because it is requested in good faith, and
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`there is no bad faith or dilatory motive on the part of Finjan. As described above, Finjan seeks to
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`amend to include a patent based on the recent deposition of Juniper’s employee and after a review
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`of Juniper’s source code. Because Sky ATP is a cloud-based product, Finjan did not have access
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`to certain aspects of the internal structure that are not ascertainable from public documents, such
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`as the presence and structure of a file cache. For example, Claim 1 of the ‘731 Patent require a
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`“file cache” that is “indexed by a file identifier.” See ‘731 Patent, Claim 1. Additionally, Claim
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`17 of the ‘731 Patent requires a “file cache” and “indexing the retrieved file in the file cache with
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`a file ID.” Id., Claim 17. The deposition of Ms. Tenorio confirmed the internal operation of Sky
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`ATP, and described how it infringed Claims 1 and 17 of the ‘731 Patent. In particular, Ms.
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`Case 3:17-cv-05659-WHA Document 91 Filed 05/31/18 Page 7 of 10
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`Tenorio provided information on the
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`, along with the other
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`elements of the claims. Kastens Decl., Ex. 2 (Tenorio Tr.) at 226:16–228:10. The internal
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`workings of Sky ATP related to its
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` was otherwise not publicly known until after the
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`deposition of Ms. Tenorio.
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`Further, there have been no contentions of bad faith in seeking to amend the complaint and
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`no such facts exist. Finjan is not seeking to add the ‘731 Patent for any oppressive reasons, but
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`has the legitimate reason of seeking amendment because the ‘731 Patent includes claims with a
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`different scope from what is already included in the case, including claims covering components
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`like a policy cache and file cache that are otherwise not discussed in the asserted claims. See ‘731
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`Patent, Claims 1 and 17. Furthermore, Finjan has the legitimate reason of adding the ‘731 Patent
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`because it does not expire for two or more years after four of the six patents currently asserted.
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`Finjan’s good faith is also shown by its willingness to work with Juniper to address
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`changes in discovery based on Finjan’s addition of the ‘731 Patent. For example, Juniper
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`requested additional deposition time of one of Finjan’s witnesses, Mr. Garland, to discuss issues
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`related to notice specific to the ‘731 Patent. Finjan agreed to make Mr. Garland available for an
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`additional two hours of deposition if Juniper agreed to Finjan’s amendment. Kastens Decl., ¶¶9–
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`10. Furthermore, Finjan agreed to work with Juniper to adjust the claim construction schedule to
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`accommodate Juniper and the inclusion of the ‘731 Patent. Id., ¶11. Finjan requested a schedule
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`that Juniper believed would allow it sufficient time to address the ‘731 Patent for claim
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`construction.
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`Thus, Finjan, in good faith, seeks to amend its Complaint based on recent discovery of
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`information, and this factor weighs in favor of granting Finjan leave to amend.
`B.
`Finjan did not unduly delay its request for leave to amend because it promptly sought such
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`Finjan Did Not Unduly Delay Because It Diligently Sought to Amend its Complaint.
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`leave within two days of meeting and conferring with Juniper, two weeks after taking the
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`deposition of Ms. Tenorio, and after only two months of reviewing the millions of pages of
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`Juniper’s source code for Sky ATP and SRX Gateways, during which Finjan confirmed Juniper’s
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`Case 3:17-cv-05659-WHA Document 91 Filed 05/31/18 Page 8 of 10
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`infringement. Kastens Decl., ¶8. Shortly after the deposition of Ms. Tenorio, Finjan met and
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`conferred with Juniper on May 29th, in order to determine whether Juniper would stipulate to
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`Finjan’s amendments. Id., ¶9. Finjan then immediately filed its Motion two days after the meet
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`and confer. Thus, this factor weighs in favor of granting leave to amend. See Sage
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`Electrochromics, Inc. v. View, Inc., No. 12-cv-6441-JST, 2014 WL 1379282, at *3 (N.D. Cal.
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`Apr. 8, 2014) (granting motion to amend even though plaintiff waited approximately three months
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`to seek the Court’s permission to add new patents to the case); see also Oracle Am., Inc. v.
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`Hewlett Packard Enter. Co., No. 16-cv-01393-JST, 2017 WL 3149297, at *3-4 (N.D. Cal. Jul. 25,
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`2017) (granting motion to amend despite a delay of over six months between learning of the basis
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`for new pleadings and filing a motion to amend); Finjan v. Blue Coat Sys., Inc., No. 13-cv-03999-
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`BLF, 2014 WL 6626227, at *2 (N.D. Cal. Nov. 20, 2014) (stating that an almost two month
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`period between receiving confidential information and filing a motion to amend pleadings based
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`on that confidential disclosure demonstrates diligence, and does not demonstrate undue delay).
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`Further, under the Court’s Scheduling Order, the deadline for the parties to file leave to amend is
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`May 31, 2018. Dkt. No. 35. As such, Finjan did not unduly delay given the circumstances and
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`the recent deposition of Ms. Tenorio. Thus, this factor weighs in favor of granting Finjan’s
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`request.
`C.
`Juniper will not be prejudiced because the documents concerning Juniper’s infringement of
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`Juniper Will Not Be Prejudiced by Finjan’s Amendments.
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`the ‘731 Patent are in its possession and are substantially similar to documents that pertain to
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`infringement of the Original Asserted Patents given the same set of accused products is at issue.
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`Compare Kastens Decl., Ex. 5, Second Amended Complaint at ¶130 (identifying products
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`infringing the ‘731 Patent) with Original Complaint, Dkt. No. 1 at ¶¶43–50 (identifying products
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`infringing other asserted patents). In addition, Finjan agrees to provide Juniper with supplemental
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`infringement contentions within three days after the Court grants leave to file the Second
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`Amended Complaint regarding the newly asserted patent so that it will not affect the Court’s
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`current schedule. Kastens Decl., ¶13.
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`Case 3:17-cv-05659-WHA Document 91 Filed 05/31/18 Page 9 of 10
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`Moreover, discovery is ongoing in the case. Non-expert discovery does not close until
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`March 29, 2019 (Dkt. No. 35), and therefore will not need to be reopened. Finjan, Inc. v.
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`Proofpoint, Inc., No. 13-cv-05808-BLF, 2014 WL 6386727, at *3 (N.D. Cal. Nov. 14, 2014) (no
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`prejudice because case still in early stages). There is no additional burden on Juniper’s witnesses,
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`as Finjan does not seek to retake any depositions of Juniper witnesses. Additionally, Juniper has
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`only taken the deposition of a single Finjan witness to date and Finjan offered to allow additional
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`time with this witness to specifically address the ‘731 Patent. Kastens Decl., ¶¶9–10, 14.
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`Accordingly, Juniper cannot credibly claim that it would be prejudiced because it does not have
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`sufficient time to prepare discovery with respect to the infringement of the ‘731 Patent, or to
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`prepare its defenses.
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`As such, Finjan’s amendments to the Complaint to assert the ‘731 Patent will not prejudice
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`Juniper, and this factor weighs in favor of granting Finjan leave to amend.
`D.
`Finjan’s proposed amendment to assert the ‘731 Patent is not futile because Finjan’s
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`Finjan’s Amendment is not Futile.
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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 of the ‘731 Patent based on Sky ATP and the SRX
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`Gateways contain sufficient facts that, when accepted as true, state a claim of relief that is
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`plausible on its face under the Twombly/Iqbal pleading standard. Ashcroft v. Iqbal, 556 U.S. 662,
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`678-79 (2009). The claims of infringement sufficiently provide notice to Juniper, as they identify
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`and describe how Juniper’s Sky ATP and SRX Gateways infringe the Asserted Patents. Kastens
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`Decl., Ex. 1 (Second Amended Complaint) at ¶¶ 126–136. Courts routinely hold that such
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`allegations more than satisfy the pleading requirements of Iqbal and Twombly. See, e.g., Windy
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`City Innovations, LLC v. Microsoft Corp., No. 16-cv-01729-YGR, 2016 WL 3361858, at *4-5
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`(N.D. Cal. June 17, 2016) (finding direct infringement adequately pled by identification of
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`accused instrumentalities and description of how claim elements are satisfied); Iqbal, 556 U.S. at
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`678. Indeed, Finjan’s claims of direct infringement parallel its claims of infringement of the
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`Original Asserted Patents in the Original Complaint (Dkt. No. 1) and First Amended Complaint
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`FINJAN’S NOTICE OF MOTION AND MOTION
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`CASE NO.: 3:17-cv-05659-WHA
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`Case 3:17-cv-05659-WHA Document 91 Filed 05/31/18 Page 10 of 10
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`(Dkt. No. 88). As such, Finjan has properly pleaded facts stating a plausible claim for relief.
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`Further, 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
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`be afforded an opportunity to test [its] claim on the merits.” Foman, 371 U.S. at 182. Indeed, the
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`“denial of a motion for leave to amend on the ground of futility ‘is rare and courts generally defer
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`consideration of challenges to the merits of a proposed amended pleading until after leave to
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`amend is granted and the amended pleading is filed.’” Oracle, 2017 WL 3149297, at *4 (citation
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`omitted). Thus the Court should grant Finjan’s motion for leave to amend its Complaint to assert
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`direct infringement of Finjan’s 731 Patent.
`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: May 31, 2018
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`Respectfully submitted,
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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
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`Attorneys for Plaintiff
`FINJAN, INC.
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`9
`FINJAN’S NOTICE OF MOTION AND MOTION
`FOR LEAVE TO FILE SECOND AMENDED COMPLAINT
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`CASE NO.: 3:17-cv-05659-WHA
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