Case 4:18-cv-07229-YGR Document 203 Filed 06/01/21 Page 1 of 3
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`Philip W. Goter (pro hac vice)
`goter@fr.com
`Robert P. Courtney (CA SBN 248392)
`courtney@fr.com
`FISH & RICHARDSON P.C.
`3200 RBC Plaza
`60 South 6th Street
`Minneapolis, MN 55402
`Phone: (612) 335-5070 /Fax: (612) 288-9696
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`Proshanto Mukherji (pro hac vice)
`mukherji@fr.com
`FISH & RICHARDSON P.C.
`One Marina Park Drive
`Boston, MA 02210
`Phone: (617) 542-5070/ Fax (617) 542-8906
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`Juanita R. Brooks (CA SBN 75934)
`brooks@fr.com
`Roger A. Denning (CA SBN 228998)
`denning@fr.com
`Jason W. Wolff (CA SBN 215819)
`wolff@fr.com
`Megan A. Chacon (CA SBN 304912)
`chacon@fr.com
`K. Nicole Williams (CA SBN 291900)
`nwilliams@fr.com
`FISH & RICHARDSON P.C.
`12860 El Camino Real, Suite 400
`San Diego, CA 92130
`Phone: (858) 678-5070 /Fax: (858) 678-5099
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`Aamir A. Kazi (pro hac vice)
`kazi@fr.com
`Lawrence R. Jarvis (pro hac vice)
`jarvis@fr.com
`Fish and Richardson P.C.
`1180 Peachtree Street Ne 21st Floor
`Atlanta, GA 30309
`Phone: (404) 879-7238/ Fax: 404-892-5002
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`Attorneys for Plaintiff
`FINJAN LLC
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`(OAKLAND DIVISION)
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`FINJAN LLC, a Delaware Limited Liability
`Company,
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`Case No. 4:18-cv-07229-YGR (TSH)
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`Plaintiff,
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`v.
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`QUALYS INC., a Delaware Corporation,
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`Defendant.
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`FINJAN LLC’S ADMINISTRATIVE
`MOTION FOR LEAVE TO FILE A
`COMBINED REPLY AND OPPOSITION
`TO QUALYS’S MOTION FOR
`SUMMARY JUDGMENT OF NO MORE
`THAN 25 PAGES
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`FINJAN ADMIN MOTION TO
`FILE COMBINED BRIEF
`Case No. 4:18-cv-07229-YGR (TSH)
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`Case 4:18-cv-07229-YGR Document 203 Filed 06/01/21 Page 2 of 3
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`Finjan LLC files this administrative motion seeking leave to file a combined reply and
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`opposition brief of no more than 25 pages in response to Qualys’s combined opposition and
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`motions for summary judgment. A stipulation under Civil Local Rule 7-12 could not be reached,
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`so a declaration that explains why is filed in support of this motion.
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`* * *
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`The Court’s Standing Order permits each side to file a single motion for summary
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`judgment of 25 pages or less. April 28, 2021 Order at ¶ 9.b. Such a motion must otherwise
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`conform to Civil Local Rule 7-2. The Standing Order has a different procedure where cross-
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`motions on an issue are filed. April 28, 2021 Order at ¶ 9.e.
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`Finjan filed a 10 page motion for summary judgment regarding the prior art status of three
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`references. Qualys filed a single brief both opposing Finjan’s motion for summary judgment, and
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`filing its own motions for summary judgment on at least two different issues (non-infringement
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`pertaining to the ’408, ’844 and ’494 patents and no damages pertaining to the ’844 and ’494
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`patents). Qualys combined its opposition to Finjan’s motion and its own motion into a single 25
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`page filing, with 20 pages devoted to its motions and five pages opposing Finjan’s motion.
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`Qualys called its motion a “cross-motion,” though it does not counter the same legal issue as
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`Finjan’s motion. Respectfully, Finjan disagrees Qualys’s motion is a cross-motion—it does not
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`address the same legal issue as Finjan’s motion, which concerns the prior art status for Qualys’s
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`invalidity counterclaims.1
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`The manner of Qualys’s filing creates a procedural question, which is whether two briefs
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`are required (one for the reply, one for the opposition) or one, and whether Qualys’s motion is in
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`fact a “cross-motion,” which also impacts the number of pages for Finjan’s response. Under Civil
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`Local Rule 7-3, Finjan would be allowed 25 pages for its opposition to Qualys’s motion, had it
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`been filed a standalone summary judgment motion. Further, as Qualys’s summary judgment
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`1 This Court has used the term “cross-motion” in the context indicated by Finjan. See, e.g.,
`Angioscore, Inc. v. Trireme Med., Inc., 50 F. Supp. 3d 1276 at fn 15 (N.D. Cal. 2014) (noting in a
`motion for summary judgment of non-infringement that the patentee did not filed a “cross-motion”
`for summary judgment of infringement). Similarly, Meriam Webster defines a “cross-motion” as
`“a motion that attempts to counter a similar motion filed by an opposing party.” See, e.g.,
`https://www.merriam-webster.com/legal/cross-motion.
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`1
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`FINJAN ADMIN MOTION TO
`FILE COMBINED BRIEF
`Case No. 4:18-cv-07229-YGR (TSH)
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`Case 4:18-cv-07229-YGR Document 203 Filed 06/01/21 Page 3 of 3
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`motion is 20 pages, it is unfair to limit Finjan to a total of 15 pages for both its reply and
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`opposition. There are too many factual and technical issues raised in Qualys’s motion to
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`essentially cut Finjan’s opposition to less than half the number of pages Qualys used for each
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`issue. If Qualys had filed its motion pursuant the Standing Order and Civil Local Rule 7-2, Finjan
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`would have had at least an equal number of pages for opposition.
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`Qualys disputes that its motion is not a “cross-motion” and claims that each side would get
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`an equal number of pages under the cross-motion rules in the Standing Order. This misses the
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`mark where two sides move on asymmetric legal issues and file at different times, which allows
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`the second filing party to game the system. Had Finjan not filed a motion for summary judgment,
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`it would have had 25 pages for its opposition alone under Local Rule 7-3 as opposed to 15 pages
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`for a combined reply and opposition on totally different legal issues. And if this administrative
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`motion is granted, Finjan will use no more than 35 pages of briefing on all legal issues, whereas
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`Qualys would get 40 on all legal issues. Thus, there is no harm to Qualys.
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`Accordingly, Finjan respectfully requests to file a combined responsive brief of no more
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`than 25 pages for its reply in support of its motion and opposition to Qualys’s motions for
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`summary judgment.
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`Dated: June 1, 2021
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`Respectfully Submitted
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`FISH & RICHARDSON P.C.
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`By: /s/ Jason W. Wolff
` Jason W. Wolff
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`Attorneys for FINJAN LLC
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`FINJAN ADMIN MOTION TO
`FILE COMBINED BRIEF
`Case No. 4:18-cv-07229-YGR (TSH)
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