Case 1:18-cv-01519-MN Document 218 Filed 11/03/20 Page 1 of 14 PageID #: 7700
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`FIN JAN LLC, a Delaware Limited Liability
`Company,
`
`Plaintiff,
`
`V.
`
`RAPID?, INC., a Delaware Corporation
`and RAPID7 LLC, a Delaware Limited
`Liability Company,
`
`Defendants.
`
`C.A. No. 1:18-cv-01519-MN
`
`Jmy Trial Demanded
`
`REDACTED VERSION
`Filed on November 3, 2020
`
`DEFENDANTS RAPID7, INC. AND RAPID7 LLC'S MOTION FOR REARGUMENT
`REGARDING THE COURT'S DENIAL OF LEA VE TO FILE
`MOTION FOR PARTIAL SUMMARY JUDGMENT
`
`Richard L. Renck (No. 3893)
`DUANE MORRIS LLP
`222 Delaware A venue, Suite 1600
`Wilmington, DE 19801-1659
`Tel.: (302) 657-4900
`Fax: (302) 657-4901
`RLRenck@duanemonis.com
`
`Counsel for Defendants
`Rapid7, Inc. and Rapid7 LLC
`
`Sealed Version
`Dated: October 27, 2020
`
`*OF COUNSEL:
`
`L. No1wood Jameson
`Matthew C. Gaudet
`David C. Dotson
`John R. Gibson
`Robin McGrath
`Jennifer H. Fo1ie
`DUANE MORRIS LLP
`1075 Peachtree Street NE, Suite 2000
`Atlanta, GA 30309
`Tel.: (404) 253-6900
`wjameson@duanemonis.com
`mcgaudet@duanemonis.com
`dcdotson@duanemonis.com
`
`Janad M. Gunther
`Joseph A. Powers
`DUANE MORRIS LLP
`30 South 17th St.
`Philadelphia, PA 19103-4196
`Tel.: (215) 979-1837
`jmgunther@duanemonis.com
`japowers@duanemonis.com
`
`

`

`Case 1:18-cv-01519-MN Document 218 Filed 11/03/20 Page 2 of 14 PageID #: 7701
`
`Jordana Garellek
`DUANE MORRIS LLP
`1540 Broadway
`New York, NY 10036-4086
`Tel.: (212) 471-1829
`jgarellek@duanemorris.com
`
`*admitted pro hac vice
`
`2
`
`

`

`Case 1:18-cv-01519-MN Document 218 Filed 11/03/20 Page 3 of 14 PageID #: 7702
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`FINJAN LLC., a Delaware Limited Liability
`Company,
`
`Plaintiff,
`
`v.
`
`RAPID7, INC., a Delaware Corporation
`and RAPID7 LLC, a Delaware Limited
`Liability Company,
`
`Defendants.
`
`C.A. No. 1:18-cv-01519-MN
`
`Jury Trial Demanded
`
`REDACTED VERSION
`
`DEFENDANTS RAPID7, INC. AND RAPID7 LLC’S MOTION FOR REARGUMENT
`REGARDING THE COURT’S DENIAL OF LEAVE TO FILE
`MOTION FOR PARTIAL SUMMARY JUDGMENT
`
`

`

`Case 1:18-cv-01519-MN Document 218 Filed 11/03/20 Page 4 of 14 PageID #: 7703
`
`I.
`
`INTRODUCTION
`
`Pursuant to Local Rule 7.1.5, Defendants Rapid?, Inc. and Rapid? LLC (collectively,
`
`"Rapid?") respectfully requests that the Comi reconsider its Order denying leave for Rapid? to
`
`file a motion for SUilllllaiy judgment of non-infringement. D .I. 198. In view of the dispai·ity
`
`between Rapid?' s products and the asse1ied patents in this case, Rapid? has long believed that
`
`this case should be resolved on sumrna1y judgment. Rapid7's belief is borne out by histo1y:
`
`motions for summaiy judgment of non-infringement have been at least paiiially granted against
`
`Finjan in 6 out of 7 cases in which they were filed. See, e.g., Finjan, Inc. v. Cisco Sys., Inc.,
`
`C.A. No. 17-cv-00072-BLF, D.I. 499, 3/20/20 Order at 18 (N.D. Cal. Mai·ch 20, 2020); Finjan,
`
`Inc. v. Juniper Networks, Inc., C.A. No. C 17-05659-WHA, 2019 WL 3302717 (N.D. Cal. July
`
`23, 2019); Finjan, Inc. v. Juniper Networks, Inc., C.A. No. C 17-05659-WHA, D.I. 606, Order
`
`Granting Eai·ly Motion for Summaiy Judgment on '780 Patent (N.D. Cal. Aug. 13, 2018);
`
`Finjan, Inc. v. Blue Coat Sys., LLC, C.A. No. 15-cv-03295-BLF, D.I. 276, Order Regarding
`
`Summaiy Judgment (N.D. Cal. July 28, 2017); Finjan, Inc. v. Sophos, Inc., C.A. No. 14-cv-
`
`01197-WHO, D.I. 205, Order on Matters Heard on May 11, 2016 (N.D. Cal. May 24, 2016);
`
`Finjan, Inc. v. Proo/point, Inc., et al, C.A. No. 13-cv-05808-HSG, D.I. 347, Order Granting in
`
`Paii and Denying in Paii Motions for Summaiy Judgment (N.D. Cal. Apr. 12, 2016); Finjan, Inc.
`
`v. Blue Coat Sys., Inc., C.A. No. 5:13-cv-03999-BLF, D.I. 256, Order Granting in Paii and
`
`Denying in Pait Defendant's Motion for Summaiy Judgment; Denying Plaintiffs Motion for
`
`Sumrna1y Judgment (N.D. Cal. June 2, 2015). This is hue even though these other cases actually
`
`tai·geted products that filter incoming malicious files, which is the focus of Finjan's patents. This
`
`unusually high grant rate-even for products that ai·e closer to the subject matter of Finjan's
`
`patents than Rapid7's products - confnms that this Comi should at least ente1iain full briefing
`
`here.
`
`1
`
`

`

`Case 1:18-cv-01519-MN Document 218 Filed 11/03/20 Page 5 of 14 PageID #: 7704
`
`Rapid? respectfully submits, however, that the Court's letter briefing procedure uniquely
`
`advantages Finjan in this case. The letter briefing procedure had the effect of rewarding Finjan
`
`for making voluminous asse1tions and submitting voluminous expe1t repo1ts, however factually
`
`inaccurate and concluso1y they are, with no oppo1tunity for Rapid? to file a reply.
`
`In cases
`
`where Comts have granted summaiy judgment against Finjan, the Comts sifted through such
`
`record dumps by Finjan and concluded that - in many instances - there was not a genuine issue
`
`of material fact. See, e.g., Cisco, C.A. No. 17-cv-00072-BLF, D.I. 499, 3/20/20 Order (granting
`
`paitial summa1y judgment and noting "the Comt has reviewed the voluminous (and largely
`
`unhelpful) evidence cited by Finjan to determine whether it has pointed to any evidence that
`
`when viewed in the light most favorable to Finjan, would create a triable issue of fact "). This
`
`review - which can only occur on a full sUllllnaiy judgment record - is critically impo1tant. As
`
`the Federal Circuit has noted, "[i]f all expe1t opinions on infringement ... were accepted without
`
`inquiiy into their factual basis, summa1y judgment would disappeai· from patent litigation."
`
`Novartis Corp. v. Ben Venue Labs., Inc., 271 F.3d 1043, 1051 (Fed. Cit·. 2001).
`
`As set fo1th below, Finjan's opposition letter was designed to create havoc and leave the
`
`impression of factual disputes, when a closer examination - in particulai·, the type of examination
`
`that would be possible upon full smnmaiy judgment briefing- shows that Finjan's ai·gmnents ai·e
`
`little more than a fa9ade, and do not preclude Slllllillaty judgment.
`
`II.
`
`LEGAL ST AND ARD
`
`Local Rule 7 .1. 5 addresses motions for reargument as follows:
`
`(a) Motions for reargument shall be sparingly granted. If a paity chooses to file a
`motion for reai·gument, said motion shall be filed within 14 days after the Court
`issues its opinion or decision, with the exception of motions filed pursuant to Fed.
`R. Civ. P. 59(e), which shall be filed in accordance with the time limits set fo1th in
`Fed. R. Civ. P. 59( e ). The motion shall briefly and distinctly state the grounds there
`for. Within 14 days after filing of such motion, the opposing pai·ty may file a brief
`answer to each ground asse1ted in the motion. Motions for reai·gmnent and any
`
`2
`
`

`

`Case 1:18-cv-01519-MN Document 218 Filed 11/03/20 Page 6 of 14 PageID #: 7705
`
`answers thereto shall not exceed 10 pages. The Court will determine from the
`motion and answer whether reargument will be granted.
`
`D. Del. L.R. 7.1.5(a). There are three circumstances in which a motion for reargument may be
`
`granted: “(1) where the court has patently misunderstood a party, (2) where the court has made
`
`an error not of reasoning, but of apprehension, or (3) where the court has made a decision outside
`
`the scope of the issues presented to the court by the parties.” Corning Inc. v. SRU Biosystems,
`
`LLC, 2004 U.S. Dist. LEXIS 20820 at *2-3 (D. Del. Oct. 13, 2004) (citing Pirelli Cable Corp v.
`
`Ciena Corp., 988 F. Supp. 424, 445 (D. Del. 1998)). A motion for reargument “should not be
`
`used to rehash arguments already briefed or to allow a ‘never-ending polemic between the
`
`litigants and the Court.’” Oglesby v. Penn Mutual Life Ins. Co., 877 F. Supp. 872, 892 (D. Del.
`
`1995). The issue here is that the Court’s letter briefing process prevented a full presentation of
`
`arguments in the first instance.
`
`III.
`
`ARGUMENT
`
`Rapid7 respectfully submits that reargument is warranted because, as explained below,
`
`the Court’s letter briefing process, in view of Finjan’s approach to this case, has prevented the
`
`development of a record in which Rapid7 could present (and the Court could fully apprehend)
`
`the summary judgment issues. The Court’s decision to deny Rapid7 leave to file a motion for
`
`summary judgment altogether in view of Finjan’s opposition letter is tantamount to an outright
`
`denial of summary judgment based on issues that could readily be addressed during a full
`
`summary judgment briefing process.
`
`The Scheduling Order in this case, entered on February 13, 2019, permitted the Parties to
`
`file motions for summary judgment. D.I. 29 at ¶ 16. It was not until April 2020 that the Court
`
`instituted a letter briefing procedure in this matter, instructing the parties:
`
`Prior to filing any summary judgment motion, the parties must submit letter briefs
`seeking permission to file the motion. Opening letter briefs shall be no longer than
`3
`
`

`

`Case 1:18-cv-01519-MN Document 218 Filed 11/03/20 Page 7 of 14 PageID #: 7706
`
`five (5) pages and shall be filed with the Comi no earlier than September 3, 2020.
`Answering letter briefs shall be no longer than five (5) pages and shall be filed with
`the Comi no more than seven (7) days after the Opening Letter Brief. No replies
`shall be filed. Unless the Court grants leave for additional letters to be filed, each
`side shall present all grounds on which it seeks permission to file for sUilllllaiy
`judgment in its single opening letter brief.
`
`D.I. 133 at 2. In view of the foregoing guidance, Rapid? requested permission to file a Motion
`
`for Paiiial SUilllllaiy Judgment of Non-Infringement covering most issues in the case. D.I. 191.
`
`Rapid? did not and does not understand the Comi's letter briefing process to be, in
`
`essence, an abbreviated motion for smnrnaiy judgment in which all potential ai·guments that
`
`could be raised by Finjan (however meritless) must be predicted by Rapid? and addressed in a 5-
`
`page opening letter brief with no reply permitted. Such an approach would be paiiiculai·ly
`
`problematic in a case of this scope, in which Finjan served over 1100 pages of opening technical
`
`expert repo1is, addressing seven patents and seven accused products (with additional
`
`pe1mutations of combinations of products).
`
`Finjan's approach in its opposition letter took full advantage of the above-identified
`
`issues with the letter briefing process in a case like this. Finjan's opposition letter relied upon:
`
`(1) concluso1y statements of its expe1is that are unsuppo1iable by the facts; (2) po1iions of its
`
`expert repo1is that have been stmck; and (3) emphasizing fundamentally incoITect and
`
`misleading statements containing ce1iain "buzzwords" to confuse the issues in an attempt to
`
`provide the illusion of a disputed factual issue. All of these issues could be fully addressed in the
`
`context of full smnrnaiy judgment briefing, and none of them should preclude the ability of
`
`Rapid? to file a Motion for Summaiy Judgment as a threshold issue.
`
`A.
`
`The Court Should Not Have Denied Rapid7's Motion Based on Unsupported
`Arguments by Finjan's Experts
`
`Finjan's opposition letter attempts to create factual disputes where none exist, by citing
`
`unsupported and unsuppo1iable statements of its expe1is, and ai·guing that virtually eve1ything is
`
`4
`
`

`

`Case 1:18-cv-01519-MN Document 218 Filed 11/03/20 Page 8 of 14 PageID #: 7707
`
`simply a disagreement among the expe1is. But that is not sufficient to avoid sunnnaiy judgment
`
`in a patent infringement case, and ce1iainly should not be sufficient to preclude a pa1iy leave to
`
`file a summaiy judgment motion as a threshold issue. Novartis C01p., 271 F.3d at 1051. The
`
`Federal Circuit has also explained "a paiiy may not avoid summaiy judgment simply by offering
`
`an opinion of an expe1i that states, in effect, that the critical claim limitation is found in the
`
`accused device." Arthur A. Collins, Inc. v. N Telecom Ltd., 216 F.3d 1042, 1048 (Fed. Cir.
`
`2000). Rapid? seeks the opportunity to show that, upon inquiiy into the factual basis of Finjan's
`
`cited expe1i testimony, such opinions are unsuppo1ied by the facts. That simply takes more than
`
`a 5-page letter brief in a case of this scope. Indeed, as noted above, Comis have repeatedly
`
`granted summaiy judgment of non-infringement against Finjan in other cases, upon
`
`consideration of full summaiy judgment briefing.
`
`B.
`
`The Court Should Not Have Denied Rapid7's Motion Based on Finjan's
`Reliance on Stricken Portions of its Expert Report
`
`In its opposition letter, Finjan cited to po1iions of the expert repo1i of Dr. Mitzenmacher
`
`that have been stricken, in an inappropriate attempt to generate a perceived factual dispute.
`
`Rapid? previously moved to strike po1iions Dr. Mitzenmacher's repo1i that contained new
`
`infringement theories that were not contained in Finjan's infringement contentions (despite
`
`repeated warnings from the Comi against doing so). D.I. 190, Memorandum Opinion, at 1-2.
`
`After briefing and oral ai·gument, the Special Master shuck many po1iions Dr. Mitzenmacher's
`
`repo1i, including pai·agraphs 552-554. Id. at 5, 8. Pai·agraph 552 is one of the ve1y pai·agraphs -
`
`containing a previously undisclosed infringement theo1y - that Finjan improperly cites in its
`
`Opposition letter regai·ding the '289 Patent, in an attempt to illustl'ate a disputed factual issue.
`
`D.I. 196, Opp. Letter at 5. That is improper, and full smnmary judgment briefing would show
`
`that there is no dispute of fact regai·ding the '289 Patent.
`
`5
`
`

`

`Case 1:18-cv-01519-MN Document 218 Filed 11/03/20 Page 9 of 14 PageID #: 7708
`
`C.
`
`The Court Likely Misconstrued Finjan's Use of "Buzzwords"
`
`Finjan relies on a misapplication of "buzzwords" quoted from its expert repo1is, devoid
`
`of the proper context, to attempt to avoid summa1y judgment. Again, Finjan's approach can be
`
`fully addressed in sUilllllaiy judgment briefing, but one example is Finjan's ai·gument that
`
`"Finjan's expe1is have opined that the accused products detect hostile operations". Opp. Letter
`
`at 2. Finjan cites, e.g., the Cole Repo1i at ,r 220, discussing
`
`. D.I. 196, Opp. Letter at 2. Regai·dless of how Finjan (or Dr. Cole)
`
`mischai·acterizes
`
`, there is no factual dispute that
`
`ai·e not "hostile operations" that exist within any incoming content, which is the
`
`focus of Finjan's patents. This is confnmed repeatedly and unambiguously in the factual record,
`
`and there is no evidence to the contraiy. See, e.g., D.I. 191, Ex. C, Green Tr. 58:14-17; Ex. D,
`
`Giakouminakis Tr. 55:15-23. These expe1i opinions ai·e unsuppo1iable, concluso1y, and not
`
`based on the factual record, which Federal Circuit has found is insufficient to avoid summa1y
`
`judgment in a patent case (or there would be no SUilllllaIY judgment in patent cases). Novartis,
`
`271 F.3d 1043, 1051.
`
`D.
`
`Specific Issues In Finjan's Opposition
`
`The below examples further illustrate the problem with the Comi's decision to deny
`
`Rapid7 the opportunity to even move for summa1y judgment based on Finjan's Opposition letter.
`
`These examples focus on a subset of the issues raised in Rapid7's Letter Brief.
`
`1.
`
`Vulnerabilities vs. Computer Exploits/Hostile or Potentially Hostile
`Operations ('305, '408, '494, and '086 Patents)
`
`Finjan attempts to generate a/actual dispute with respect to the Nexpose and AppSpider
`
`products by arguing that its expe1is state that the accused products "detect hostile operations."
`
`D.I. 196, Opp. Letter at 2. Finjan cites four paragraphs of Dr. Cole's repo1i and three paragraphs
`
`6
`
`

`

`Case 1:18-cv-01519-MN Document 218 Filed 11/03/20 Page 10 of 14 PageID #: 7709
`
`of Dr. Mitzenmacher's repo1i relating to Nexpose and AppSpider in suppo1i, followed by
`
`unsuppo1ied attorney argument. 1
`
`Each of these paragraphs is insufficient to avoid summa1y judgment. Paragraph 220 of
`Dr. Cole's repo1i talks about a'- component ofNexpose's Security Console, which Dr.
`
`Cole alleges '
`
`." D.I. 196, Ex. 1, Cole Rep. ,r 220. Here, Finjan
`attempts to generate a factual dispute by flagging the buzzwords '- and '-.
`
`However, it is undisputed as a factual matter that the '- and '
`
`" discussed by
`
`Dr. Cole are not within any incoming content under evaluation by the accused products, which is
`
`what the patents address. Instead, the accused products use intelligence Rapid? has about­
`
`, e.g., available on the internet, that hackers can acquire and potentially use
`
`against the identified vulnerabilities. In that manner, Rapid? is able to help customers prioritize
`
`which vulnerabilities a customer should remediate first.
`
`In paragraphs 181-183, Dr. Cole simply makes concluso1y asse1iions restating the claim
`
`language, and his own parenthetical descriptions of the documents he string cites belie his
`
`concluso1y statements, making no mention of AppSpider detecting exploits or hostile operations
`
`within the content it evaluates. Id. at ,r,r 181-183. Again, such unsuppo1ied and concluso1y
`arguments by an expe1i are not sufficient to avoid sUIIllnaiy judgment. Novartis Corp., 271 F.3d
`
`at 1051; Arthur A. Collins, 216 F.3d at 1048. Paragraphs 797-799 of Dr. Mitzenmacher's Repo1i
`
`1 For example, Finjan ai·gues "what Rapid? calls a 'vulnerability' is potentially malicious and
`suspicious because it behaves in malicious ways when presented with a triggering input." D.I.
`196, Opp. Letter at 2. Finjan cites no suppo1i (factual or even expe1i statement) for this attorney
`argument.
`
`7
`
`

`

`Case 1:18-cv-01519-MN Document 218 Filed 11/03/20 Page 11 of 14 PageID #: 7710
`
`do not even address the accused products identifying exploits or potentially hostile operations
`
`within content being evaluated. Instead, they describe the identification of vulnerabilities
`
`susceptible to attack by certain types of potentially hostile operations. D.I. 196, Ex. 2, Mitz.
`
`Rep. ,r,r 797-799.
`
`Finally, in an apparent keyword matching exercise, Finjan attempts to map po1tions of
`
`the specification of the '305 Patent to the concluso1y statements made by its expe1ts. D.I. 196,
`
`Opp. Letter at 3-2. However, paragraph 907 of Dr. Cole's repo1t, which Finjan cites, is
`
`addressing the claim element of the '305 Patent requiring "updating the database of parser and
`
`analyzer mles," which Rapid? did not even address in its Letter, and thus is nTelevant. D.I. 196,
`
`Ex. 1, Cole Rep.if 907. In Paragraph 346 of Dr. Cole's repo1t, he simply adds the word
`
`"/exploit" to the word "vulnerability", and, in a concluso1y manner, alleges that there is
`
`identification of "suspicious computer operations". Id. at ,r 346. Again, that is not enough to
`
`avoid summaiy judgment.
`
`All of these issues can be readily addressed dming full summaiy judgment briefing, but
`
`not at the motion for leave stage in a 5-page letter brief with no reply. Fmther, it is noteworthy
`
`that none of the above claim elements for Nexpose and AppSpider ai·e implicated by Finjan's
`
`Doctrine of Equivalents positions.
`
`2.
`
`Finjan's Citation to Stricken Portions of Its Expert Report ('289
`Patent)
`
`Finjan ai·gues that
`
`- which ai·e the result of a vulnerability scan - ai·e
`
`"created in precise ways necessa1y to make inspection possible." D.I. 196, Opp. Letter at 5.
`
`This pmpo1ted factual discrepancy is i1Televant, and this issue is pmely an issue of claim
`
`inte1pretation that should be resolved on summa1y judgment. The asse1ted claims have nothing
`
`to do with "mak[ing] inspection possible". Instead, they explicitly requiI·e inse1ting a "substitute
`
`8
`
`

`

`Case 1:18-cv-01519-MN Document 218 Filed 11/03/20 Page 12 of 14 PageID #: 7711
`
`function" into a received input that is "operational to send the input for inspection" (which is
`
`functionality that by definition did not exist prior to the inse1iion of the claimed "substitute
`
`function"). D.I. 1-1, '289 Patent, cl. 41. Neither Finjan nor its expe1is explain any way in which
`
`this allegedly occurs, much less any way suppo1ied by the factual record.
`
`Finjan first cites a po1iion of Dr. Mitzenmacher's repo1i for Nexpose relating to
`
`"no1malizing and deobfuscating", which Dr. Mitzenmacher himself acknowledged does not
`
`change the functionality of the code. D.I. 191, Ex. I, Mitz. Tr. 147:11-148:19. The only
`
`outstanding issue is one of claim inte1pretation- i.e., whether a process (i.e., n01malizing and
`
`deobfuscating) that does not change the functionality of the code, can be a "substitute function"
`
`that includes new functionality- namely, being "operational to send the input for inspection," as
`
`required by the claim. The remaining citation Finjan provides from Dr. Mitzenmacher's repo1i
`
`(i.e., paragraph 552) has been stricken by the Comi, and thus has no bearing on this issue. D.I.
`
`190 at 5.
`
`Once again, the issues raised by Finjan could be easily addressed during summaiy
`
`judgment briefing, and the fact that Finjan cited po1iions of its expe1i repo1i that have been
`
`shuck raises issues that should not have been considered by the Court in denying Rapid?' s
`
`motion.
`
`3.
`
`Finjan Identifies No Factual Dispute For The '918 Patent
`
`Finjan does not raise any pmported factual dispute with respect to the '918 Patent. D.I.
`
`196, Opp. Letter at 5. Instead, Finjan mischaracterizes Rapid7's position as "rehashing" a
`
`"rejected claim construction ai·gument". Id. As there is no factual dispute, the only remaining
`
`issue is the legal question of whether a simple "association" between two things - as Finjan
`
`alleges - is "combined code," as required by the claim.
`
`4.
`
`Recent Change in Authority for '154 Patent
`
`9
`
`

`

`Case 1:18-cv-01519-MN Document 218 Filed 11/03/20 Page 13 of 14 PageID #: 7712
`
`With respect to the '154 Patent, an additional issue has arisen since the Parties submitted
`
`their letter briefs seeking leave to file motions for summa1y judgment. The Paiiies previously
`
`disputed the constrnction of the te1m "content processor", which Rapid? proposed should have
`
`the same constrnction as adopted by the court in the Finjan v. Juniper matter, a constrnction
`
`which ultimately resulted in a finding of summaiy judgment of non-infringement. Juniper
`
`Networks, Inc., 2019 WL 3302717. The Jun;per matter was on appeal at the time, and the Comi
`
`declined to adopt Rapid7's proposed construction. D.I. 123 at 2, 12-13. On October 9, 2020, the
`
`Federal Circuit affmned the summaiy judgment rnling. Finjan, Inc. v. Juniper Networks, Inc.,
`
`Case 19-2405, Document 59 (Fed. Cir. Oct. 9, 2020). Rapid? is in the process of meeting and
`
`confening with Finjan on this issue in order to raise it with the Comi by separate motion.
`
`IV.
`
`CONCLUSION
`
`For the foregoing reasons, Rapid? respectfully requests that the Comi reconsider its
`
`Order denying Rapid? leave to file a motion for pa1iial summa1y judgment of non-infringement.
`
`Rapid? respectfully submits that resolution of full summaiy judgment briefing will streamline
`
`the issues for tI'ial, for the Comi, the jmy, and the Pa1iies.
`
`Dated: October 27, 2020
`
`DUANE MORRIS LLP
`
`OF COUNSEL:
`
`L. No1wood Jameson
`Matthew C. Gaudet
`David C. Dotson
`John R. Gibson
`Robin McGrath
`Jennifer H. Fo1ie
`DUANE MORRIS LLP
`1075 Peachti·ee StI'eet NE, Suite 2000
`Atlanta, GA 30309
`Tel.: (404) 253-6900
`Fax: (404) 253-6901
`wjameson@duanemonis.com
`
`10
`
`Isl Richard L. Renck-
`Richai·d L. Renck (I.D. No. 3893)
`222 Delawai·e A venue, Suite 1600
`Wilmington, DE 19801
`Tel.: (302) 657-4900
`Fax: (302) 657-4901
`rh-enck@duanemonis.com
`
`Counsel for Defendants
`Rapid7, Inc. and Rapid7 LLC
`
`

`

`Case 1:18-cv-01519-MN Document 218 Filed 11/03/20 Page 14 of 14 PageID #: 7713
`
`mcgaudet@duanemoITis.com
`dcdotson@duanemoITis.com
`jrgibson@duanemoITis.com
`rlmcgrath@duanemoITis.com
`jhfo1ie@duanemo1Tis.com
`
`Ja1Tad M. Gunther
`Joseph A. Powers
`DUANE MORRIS LLP
`30 South 17th St.
`Philadelphia, PA 19103-4196
`Tel.: (215) 979-1837
`Fax: (215) 689-4921
`jmgunther@duanemoITis.com
`japowers@duanemoITis.com
`
`Jordana Garellek
`DUANE MORRIS LLP
`1540 Broadway
`New York, NY 10036-4086
`Tel.: (212) 471-1829
`Fax: (212) 214-0889
`jgarellek@duanemoITis.com
`
`*admitted pro hac vice
`
`11
`
`