Case 2:16-cv-00480-RAJ Document 92 Filed 05/17/17 Page 1 of 10
`
`THE HONORABLE RICHARD A. JONES
`
`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF WASHINGTON
`AT SEATTLE
`No. 2:16-cv-00480-RAJ
`
`F5 NETWORKS, INC.,
`
`RADWARE’S OPPOSITION TO F5
`NETWORKS, INC.’S MOTION TO
`STRIKE
`
`Note on Motion Calendar:
`May 19, 2017
`
`Plaintiff,
`
`v.
`
`RADWARE, INC.,
`
`Defendant.
`
`RADWARE, INC. and RADWARE, LTD.,
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`Counterclaim-Plaintiffs,
`
`v.
`
`F5 NETWORKS, INC.,
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`Counterclaim-Defendant.
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`RADWARE’S OPPOSITION TO
`F5’S MOTION TO STRIKE
`No. 2:16-cv-00480-RAJ
`
`CORR CRONIN MICHELSON
`BAUMGARDNER FOGG & MOORE LLP
`1001 Fourth Avenue, Suite 3900
`Seattle, Washington 98154-1051
`Tel (206) 625-8600
`Fax (206) 625-0900
`
`Radware Exhibit 1025
`
`

`

`Case 2:16-cv-00480-RAJ Document 92 Filed 05/17/17 Page 2 of 10
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`Radware, Ltd. and Radware, Inc. (collectively, “Radware”) respectfully file this
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`Opposition to F5 Networks, Inc.’s (“F5”) Motion to Strike (Dkt No. 86) (“Motion to Strike”
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`or “Motion”) Radware’s praecipe.
`I.
`In this lawsuit F5 accuses Radware Inc. – not Radware Ltd. – of infringing its
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`INTRODUCTION
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`patents. In its Answer, Radware Inc., the only entity accused of infringement, asserted
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`customary counterclaims of declaratory judgment that it does not infringe the F5 patents
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`and that those patents are invalid. Radware, Inc. also filed petitions for inter partes review
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`(IPR) of F5’s patents, and F5 is attempting to avoid review of its patents by the U.S. Patent
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`and Trademark Office (the “Patent Office”) by mischaracterizing the record in this case.
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`According to F5, Radware (1) “intentionally brought its counterclaims for declaratory
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`judgment of invalidity and non-infringement on behalf of both Radware, Inc. and Radware,
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`Ltd.” and (2) is now claiming that the inclusion of Radware, Ltd. was a mistake to avoid a
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`statutory bar that would have otherwise prevented Radware, Ltd. from seeking an IPR.
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`Motion at 3-4. This is incorrect and belies both fact and logic. As explained in Radware’s
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`praecipe (Dkt. 84) and the Declaration of Fabio Marino (Dkt. 85), Radware, Ltd. was never
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`accused of infringement of the F5 patents and, therefore, never asserted declaratory
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`judgment counterclaims in this case. Thus, Radware filed the praecipe to correct a
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`scrivener’s error and prevent F5 from continuing to mischaracterize the record in this case
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`before the Patent Office.
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`As a result, Radware respectfully requests that the Court deny F5’s Motion to
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`Strike. Indeed, F5’s Motion to Strike is not only unfounded, but F5 failed to meet and
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`confer with Radware before filing its Motion to Strike, as this Court’s procedures regarding
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`motions practice required it to do.
`
`RADWARE’S OPPOSITION TO
`F5’S MOTION TO STRIKE
`No. 2:16-cv-00480-RAJ
`
`CORR CRONIN MICHELSON
`BAUMGARDNER FOGG & MOORE LLP
`1001 Fourth Avenue, Suite 3900
`Seattle, Washington 98154-1051
`Tel (206) 625-8600
`Fax (206) 625-0900
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`Case 2:16-cv-00480-RAJ Document 92 Filed 05/17/17 Page 3 of 10
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`
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`II.
`As a threshold matter, F5’s motion for leave should be denied because F5 violated
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`F5 FAILED TO MEET AND CONFER
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`this Court’s requirement that parties meet and confer before filing motions. The Court’s
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`Meet and Confer Requirement provides in relevant part that:
`For all cases, except applications for temporary restraining orders, counsel
`contemplating the filing of any motion shall first contact opposing counsel
`to discuss thoroughly, preferably in person, the substance of the
`contemplated motion and any potential resolution. The Court construes
`this requirement strictly. . . . Filings not in compliance with this rule
`will be denied.
`
`See Chambers Procedures, Honorable Richard A. Jones, General Motions Practice (“Meet
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`and Confer Requirement”).1 Here, F5’s counsel did not contact or even apprise Radware’s
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`counsel that it was planning to file a motion to strike Radware’s praecipe. Declaration of
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`Fabio Marino (“Marino Declaration”) at ¶ 3. F5’s failure to seek a meet and confer denied
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`Radware the opportunity “to discuss thoroughly the substance of [F5’s motion] and any
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`potential resolution,” possibly eliminating the need for this Motion—as required by the
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`Court’s Meet and Confer Requirement. Indeed, F5’s disregard of this Court’s rules is even
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`more egregious in light of the fact that F5 had previously asked the Court to deny
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`Radware’s motion for leave to file for want of a meet and confer pursuant to these rules.
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`See Dkt. 49 (F5’s Opp. to Radware’s Motion for Leave to File Multiple Dispositive
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`Motions) at 3. In response, the Court reiterated that the “meet and confer” requirement “is
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`a strict requirement.” Dkt. 54 (Order) (underline original). Accordingly, F5’s failure to
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`comply with the Court’s strict Meet and Confer Requirement is itself a sufficient reason to
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`deny F5’s Motion to Strike and allow Radware to correct a simple scrivener’s error that
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`seeks to clarify that Radware, Inc. is the correct and only party asserting Counterclaims I
`
`and II.
`
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`1 See http://www.wawd.uscourts.gov/sites/wawd/files/JonesGeneralMotionsPractice.pdf.
`
`RADWARE’S OPPOSITION TO
`CORR CRONIN MICHELSON
`BAUMGARDNER FOGG & MOORE LLP
`F5’S MOTION TO STRIKE- 2
`1001 Fourth Avenue, Suite 3900
`No. 2:16-cv-00480-RAJ
`Seattle, Washington 98154-1051
`Tel (206) 625-8600
`Fax (206) 625-0900
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`Case 2:16-cv-00480-RAJ Document 92 Filed 05/17/17 Page 4 of 10
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`
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`III. RELEVANT BACKGROUND
`
`A.
`
`F5 Sued Radware, Inc. and Radware, Inc. Asserted Declaratory
`Judgment Counterclaims
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`There is no dispute that F5 only sued Radware, Inc. of patent infringement. In its
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`Answer, Radware, Inc. asserted compulsory counterclaims pursuant to Federal Rule of
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`Civil Procedure 13(a) for declaratory judgment of non-infringement and invalidity because
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`they arose out of the same transaction/occurrence as F5’s infringement claims, and it does
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`not require adding another party. See Fed. R. Civ. P. 13(a)(1). There was no need to
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`include Radware, Ltd. for Radware, Inc. to have a basis for raising these declaratory
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`judgment counterclaims. Indeed, F5 does not dispute that Counterclaims I and II were
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`originally filed by Radware Inc. alone.
`B.
`Radware, Inc. subsequently amended its Answer to add Counterclaim III, a
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`Radware, Ltd. Joined Only Counterclaim III For Infringement
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`permissive counterclaim against F5 for infringement of Radware’s ’853 Patent, as
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`permitted by Rule 13(b). Although Radware, Inc. sells products within the United States
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`that practice the ’853 Patent and is an exclusive licensee of that patent, it is not the owner
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`of the patent. As the owner of the ’853 Patent, Radware, Ltd. was required to join
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`Counterclaim III pursuant to Rule 19. Rule 19 (a party must be joined if: “(A) in that
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`person’s absence, the court cannot accord complete relief among existing parties.”); see
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`also, Rule 13(h) (Rules 19 govern the joining of additional parties to a counterclaim). Thus,
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`it was proper for Radware, Ltd. to join only Counterclaim III.
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`C.
`
`Radware, Ltd. Did Not Seek Declaratory Relief of Non-Infringement
`and Invalidity Because F5 Did Not Accuse Radware, Ltd. of
`Infringement
`Since the suit was initiated, F5 had only accused Radware, Inc. of infringing its
`
`patents. Radware, Ltd., on the other hand, was not and has not been accused of infringing
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`F5’s patents. As such, Radware, Ltd. had no reason and no basis to assert declaratory
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`RADWARE’S OPPOSITION TO
`F5’S MOTION TO STRIKE- 3
`No. 2:16-cv-00480-RAJ
`
`
`CORR CRONIN MICHELSON
`BAUMGARDNER FOGG & MOORE LLP
`1001 Fourth Avenue, Suite 3900
`Seattle, Washington 98154-1051
`Tel (206) 625-8600
`Fax (206) 625-0900
`
`

`

`Case 2:16-cv-00480-RAJ Document 92 Filed 05/17/17 Page 5 of 10
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`
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`judgment counterclaims of non-infringement and invalidity against F5. As such, Radware,
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`Ltd. did not and has not asserted declaratory judgment counterclaims.
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`However, as explained in the praecipe and the Marino Declaration, in amending the
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`Answer to add Counterclaim III for infringement and adding Radware, Ltd. as a necessary
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`party to Counterclaim III, the defined term “Radware” was modified giving rise to an
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`unintentional ambiguity as to whether Radware, Ltd. was joining Counterclaims I and II
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`for declaratory judgment. In fact, Radware, Ltd. did not join Counterclaims I and II and
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`now wishes to conform the pleading to reflect the record. For the reasons discussed below,
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`F5’s arguments to strike should be rejected.
`IV. ARGUMENT
`The Plain Language of the Allegations in Counterclaims I and II
`Clearly Reflect Radware, Inc. as the Only Declaratory Judgment
`Plaintiff
`Radware’s Amended Counterclaims (Dkt. 58) added Counterclaim III for
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`A.
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`infringement of Radware’s patent. The allegations in Counterclaims I and II (which were
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`previously undisputedly filed by Radware Inc. alone) were not amended and are, in fact, a
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`verbatim copy of the allegations filed in Radware, Inc.’s original Answer and
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`Counterclaims (Dkt. 55). The introductory remarks in the Amended Counterclaims not
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`only identified Radware Ltd. as an additional party but also redefined the term “Radware”
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`to include Radware, Ltd. However, in doing so, it inadvertently created the incorrect
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`impression that Radware, Ltd could also be a Counterclaim-Plaintiff to Counterclaims I
`
`and II:
`
`RADWARE’S OPPOSITION TO
`F5’S MOTION TO STRIKE- 4
`No. 2:16-cv-00480-RAJ
`
`
`
`
`CORR CRONIN MICHELSON
`BAUMGARDNER FOGG & MOORE LLP
`1001 Fourth Avenue, Suite 3900
`Seattle, Washington 98154-1051
`Tel (206) 625-8600
`Fax (206) 625-0900
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`Case 2:16-cv-00480-RAJ Document 92 Filed 05/17/17 Page 6 of 10
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`
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`However, the plain language of the allegations in the declaratory judgment counterclaims
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`of non-infringement and invalidity clearly reflect that only Radware, Inc. is the declaratory
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`judgment plaintiff, not Radware, Ltd. For example, Counterclaim I for declaratory
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`judgment of non-infringement refers to the Radware entity that has been accused of
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`infringing F5’s patents (which, again, is indisputably only Radware Inc.), giving rise to an
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`actual and justiciable controversy:
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`Dkt. 58 (Amended Counterclaims, Counterclaim I). Similarly, Counterclaim II for
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`declaratory judgment of invalidity clearly refers to the Radware entity that has been
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`accused of infringing valid claims of F5’s patents (again, Radware Inc. only), giving rise
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`to an actual and justiciable controversy:
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`Dkt. 58 (Amended Counterclaims, Counterclaim II). The plain language of the allegations
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`themselves therefore refers to and presupposes a party that has already been accused of
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`infringement. Here, there is absolutely no dispute that F5 has only accused Radware, Inc.
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`of infringement. Indeed, as further evidence that Radware, Ltd. never asserted declaratory
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`judgment counterclaims for invalidity is the fact that Radware, Ltd. never served invalidity
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`RADWARE’S OPPOSITION TO
`F5’S MOTION TO STRIKE- 5
`No. 2:16-cv-00480-RAJ
`
`
`CORR CRONIN MICHELSON
`BAUMGARDNER FOGG & MOORE LLP
`1001 Fourth Avenue, Suite 3900
`Seattle, Washington 98154-1051
`Tel (206) 625-8600
`Fax (206) 625-0900
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`Case 2:16-cv-00480-RAJ Document 92 Filed 05/17/17 Page 7 of 10
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`
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`contentions as would have been required pursuant to the Court’s Local Patent Rules had it
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`been an actual Counterclaim-Plaintiff as F5 now contends. Marino Declaration at ¶ 4. Yet,
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`only Radware, Inc. served invalidity contentions and F5 never objected. Id.
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`Thus, contrary to F5’s unfounded allegations, Radware, Ltd. was never a
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`declaratory judgment counterclaim plaintiff and any ambiguity in the pleading was simply
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`the result of a scrivener’s error caused by the redefinition of the term “Radware” in the
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`introductory remarks.
`B.
`Radware’s Praecipe is Not Motivated By a Desire to Circumvent the
`Preclusive Effect or to Avoid the Statutory Bar to Maintaining IPRs
`Against F5—Because Such Restrictions Do Not Apply
`F5’s objections to Radware’s praecipe are premised on the incorrect allegation that
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`Radware Ltd. is precluded from filing an IPR against the Asserted Patents because it also
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`filed a declaratory judgment action regarding the Asserted Patents. F5 is not only legally
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`incorrect, but also raises arguments that confirm that the error was inadvertent.
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`1.
`
`The preclusive effect of 35 U.S.C. §315(a)(1) does not apply to
`declaratory judgment counterclaims
`
`According to 35 U.S.C. §315(a)(1),
`An inter partes review may not be instituted if, before the date on
`which the petition for such a review is filed, the petitioner or real
`party in interest filed a civil action challenging the validity of a claim
`of the patent.
`
`F5 incorrectly argues that the filing of declaratory judgment counterclaims triggers Section
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`315(a)(1), precluding the institution of the IPR petitions filed against the Asserted Patents.
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`This argument, however, is directly refuted by Section 315(a)(3), which specifically
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`addresses the treatment of the counterclaims at issue here:
`
`A counterclaim challenging the validity of a claim of a patent does not
`constitute a civil action challenging the validity of a claim of a patent for
`purposes of this subsection.
`
`RADWARE’S OPPOSITION TO
`F5’S MOTION TO STRIKE- 6
`No. 2:16-cv-00480-RAJ
`
`
`CORR CRONIN MICHELSON
`BAUMGARDNER FOGG & MOORE LLP
`1001 Fourth Avenue, Suite 3900
`Seattle, Washington 98154-1051
`Tel (206) 625-8600
`Fax (206) 625-0900
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`Case 2:16-cv-00480-RAJ Document 92 Filed 05/17/17 Page 8 of 10
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`
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`35 U.S.C. §315(a)(3) (emphasis added). Section 315(a)(3) expressly exempts this precise
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`situation from being precluded. See e.g., Ariosa Diagnostics v. Isis Innovation Ltd.,
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`IPR2012-00022, Paper No. 22 (PTAB, Decision on Rehearing) at 3 (Mar. 12, 2013) (“The
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`language of the statute is clear. To be barred, a party must have ‘filed’ a civil action
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`challenging the validity of a claim. The statute does not read ‘or raising a challenge to the
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`validity of a claim of the patent during the course of a civil action.’”).
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`2.
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`F5 conceded that only Radware Inc. could have filed Counterclaims
`I and II
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`To prevent the Court from having to decide what appeared to be a meritless motion,
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`Radware reached out to F5 explaining the flaw in F5’s legal theories and asking F5 to
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`withdraw its motion. Specifically, Radware explained to F5 that because Counterclaim II
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`does not constitute an estoppel-inducing civil action challenging the validity of the
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`Asserted Patents, the legal theory underlying F5’ Motion to Strike was faulty. Marino
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`Decl., Ex. A (5/10/2017 Letter to R. Al-Salam). In response, not only did F5 refused to
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`withdraw its Motion but, without citing any authority, it took the position that Radware
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`Ltd.’s declaratory judgment claims were not “counterclaims” within the meaning of
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`Section 315(a)(3) because F5 had not previously sued Radware Ltd. Marino Decl., Ex. B
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`(5/11/2017 Email from R. Al-Salam to F. Marino). But that only confirms Radware’s
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`point: there is no dispute that Counterclaim II is styled as a counterclaim. Thus, even
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`assuming F5 were correct that only a party sued for infringement of a patent can file a
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`counterclaim for declaratory judgment of non-infringement and invalidity, then only
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`Radware Inc. could have filed such counterclaims, which is exactly what Radware’s
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`praecipe sought to clarify.
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`As a result, F5’s Motion to Strike should be denied.
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`RADWARE’S OPPOSITION TO
`F5’S MOTION TO STRIKE- 7
`No. 2:16-cv-00480-RAJ
`
`
`CORR CRONIN MICHELSON
`BAUMGARDNER FOGG & MOORE LLP
`1001 Fourth Avenue, Suite 3900
`Seattle, Washington 98154-1051
`Tel (206) 625-8600
`Fax (206) 625-0900
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`Case 2:16-cv-00480-RAJ Document 92 Filed 05/17/17 Page 9 of 10
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`
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`F5 Will Suffer No Prejudice in the District Court Litigation
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`C.
`F5 asserts that allowing Radware to correct a typo would “work substantial
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`prejudice to F5.” The Ninth Circuit explained that “legal prejudice does not result merely
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`because the defendant will be inconvenience by having to defend in another forum or where
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`a plaintiff would gain a tactical advantage by that dismissal.” Smith v. Lenches, 263 F.3d
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`972, 976 (9th Cir. 2001). However, F5 provides no explanation or argument outlining the
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`nature of that prejudice. Suffice it to say, F5 will suffer no prejudice.
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`As explained above, the original two declaratory judgment counterclaims for non-
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`infringement and invalidity were unchanged and copied over verbatim to the Amended
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`Counterclaim. The correction will simply make clear which party, Radware, Inc., is
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`asserting Counterclaims I and II, and which party is not, Radware, Ltd. Simply put, there
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`is no prejudice whatsoever to F5 for dropping a claim Radware, Ltd. never asserted.
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`Indeed, it would be two less issues for F5 and the Court to manage.
`V.
`Radware respectfully requests that the Court deny F5’s Motion to Strike.
`Dated: May 17, 2017
`
`CONCLUSION
`
`
`
`s/ David B. Edwards
`David B. Edwards, WSBA No. 44680
`CORR CRONIN MICHELSON
`BAUMGARDNER FOGG & MOORE LLP
`1001 Fourth Avenue, Suite 3900
`Seattle, Washington 98154-1051
`Telephone: (206) 625-8600 Fax: (206) 625-0900
`E-mail:
`dedwards@corrcronin.com
`
`
`
`
`
`Fabio E. Marino (Admitted Pro Hac Vice)
`Nitin Gambhir (Admitted Pro Hac Vice)
`McDermott Will & Emery LLP
`275 Middlefield Road, Ste. 100
`Menlo Park, CA 94025
`Telephone: 650-815-7400
`Facsimile: 650-815-7401
`E-mail:
`fmarino@mwe.com
`ngambhir@mwe.com
`Attorneys for Defendant and Counter-Claim
`Plaintiffs Radware, Inc. and Radware, Ltd.
`
`CORR CRONIN MICHELSON
`BAUMGARDNER FOGG & MOORE LLP
`1001 Fourth Avenue, Suite 3900
`Seattle, Washington 98154-1051
`Tel (206) 625-8600
`Fax (206) 625-0900
`
`RADWARE’S OPPOSITION TO
`F5’S MOTION TO STRIKE- 8
`No. 2:16-cv-00480-RAJ
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`Case 2:16-cv-00480-RAJ Document 92 Filed 05/17/17 Page 10 of 10
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`CERTIFICATE OF SERVICE
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`The undersigned declares as follows:
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`1.
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`I am employed at Corr Cronin Michelson Baumgardner Fogg & Moore LLP,
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`attorneys of record for Defendant and Counter-Claim Plaintiffs Radware, Inc. and
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`Radware, Ltd. herein.
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`2.
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`On this date, I filed the foregoing document through the Court’s ECF
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`system, which will send notification to the following parties indicated below:
`
`Nathaniel Eli Durrance
`NEWMAN DU WORS LLP
`2101 Fourth Avenue, Suite 1500
`Seattle, WA 98121
`nate@newmanlaw.com
`
`Ramsey M. Al-Salam
`Christina J. McCullough
`Lane Polozola
`Steven Richard Stark, Jr.
`Antoine M. McNamara
`PERKINS COIE (SEA)
`1201 Third Avenue, Suite 4900
`Seattle, WA 98101-3099
`ralsalam@perkinscoie.com
`cmccullough@perkinscoie.com
`lpolozola@perkinscoie.com
`ndurrance@perkinscoie.com
`sstark@perkinscoie.com
`amcnamara@perkinscoie.com
`
`
`I declare under penalty of perjury under the laws of the United States that the
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`foregoing is true and correct.
`
`DATED this May 17th day of March 2017 at Seattle, Washington.
`
`
`
`
`
`s/ Leslie Nims
`Leslie Nims
`
`
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`RADWARE’S OPPOSITION TO
`F5’S MOTION TO STRIKE- 9
`No. 2:16-cv-00480-RAJ
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`1194 01 he172911fs
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`
`CORR CRONIN MICHELSON
`BAUMGARDNER FOGG & MOORE LLP
`1001 Fourth Avenue, Suite 3900
`Seattle, Washington 98154-1051
`Tel (206) 625-8600
`Fax (206) 625-0900
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