Netskope, Inc. v. Fortinet, Inc.

Background

Netskope filed a lawsuit seeking a declaration that it did not infringe several Fortinet patents. Fortinet asserted counterclaims alleging infringement. After a stay related to review proceedings before the Patent Trial and Appeal Board, the case resumed. Several patents were removed from the dispute, leaving the ’825, ’601, and ’968 patents at issue according to the opinion.

Fortinet served its original infringement contentions and claim charts in January 2025. Infringement contentions are the required early disclosures identifying the accused products and explaining where and how each patent claim is allegedly infringed. Netskope argued that Fortinet’s original disclosures were not specific enough. During discovery, Netskope produced technical documents and source code. Fortinet later sought permission to amend its contentions, but the revised case schedule stated that no new contentions would be allowed and that fact discovery would not be extended.

Legal standard

Patent Local Rule 3-6 permits amendment of infringement contentions only upon a timely showing of good cause. The moving party must show diligence in discovering the basis for amendment and diligence in seeking amendment after discovering that basis. The court may also consider whether amendment would cause undue prejudice, including disruption to the case schedule or prior court orders.

Court’s analysis

The court found that the amended contentions included at least some new infringement theories. Examples included expressly identifying Netskope’s Cloud Firewall as an accused product for the ’825 patent; changing the alleged “first” and “second” network security appliances from Netskope microservices to NSProxy and a third-party Partner Cloud Proxy; adding a new doctrine-of-equivalents theory for the ’968 patent; and changing how certain service systems and subsystems were identified for the ’601 patent.

The court rejected Fortinet’s request because Fortinet did not show good cause. Although Fortinet argued that later-produced source code and technical documents supported the amendments, the court found that nearly half of the newly cited nonpublic materials had been produced in August or earlier, and the amended charts also relied on materials produced in March or June. The court concluded that Fortinet was not diligent in seeking amendment because it waited until after the original fact-discovery deadline.

The court also found prejudice to Netskope. The proposed changes came after claim construction and close to the end of fact discovery. The court determined that Netskope might have proposed different claim terms and constructions if it had received earlier notice of Fortinet’s new theories, and that Netskope lost time it could have used to investigate those theories, take discovery, prepare responses, and develop invalidity arguments. The court noted that the scheduling order foreclosed further extensions of discovery.

Disposition

Judge Alex denied Fortinet’s motion for leave to amend its infringement contentions. The opinion classified the request as one governed by the Patent Local Rules and resolved it without reaching whether Fortinet’s infringement theories were legally or factually correct.