Netskope, Inc. v. Fortinet, Inc.

Background

Netskope sued Fortinet, alleging infringement of nine patents. Netskope filed a second amended complaint accusing features in Fortinet products, including FortiAP, FortiGate, FortiOS, FortiGate NGFW, and FortiAuthenticator. The order states that Fortinet did not challenge Netskope’s direct-infringement allegations in this motion. Fortinet challenged indirect-infringement claims involving the ’153, ’983, and ’639 Patents, as well as contributory-infringement claims involving all of the asserted patents.

Indirect Infringement

The court rejected Netskope’s argument that Fortinet had waived its challenge by not raising it in an earlier motion. Because the earlier motion did not result in a decision on the merits and the earlier motion was terminated after Netskope filed another amended complaint, the court concluded that Fortinet had not waived its arguments.

To plead indirect infringement, Netskope needed to allege plausible facts showing that Fortinet knew about the patents and that the acts it allegedly induced would constitute infringement. The court found that the second amended complaint did not adequately allege Fortinet’s knowledge of the ’153, ’983, and ’639 Patents. Netskope relied on new exhibits attached to its opposition and sought permission to file another amended complaint, rather than defending the allegations in the operative complaint. The court therefore dismissed the indirect-infringement claims related to those three patents with leave to amend.

The court also discussed Netskope’s proposed new arguments. It explained that knowledge of a patent application generally does not establish knowledge of a later-issued patent, and that knowledge of a related or similar patent or general monitoring of a patent portfolio generally is not enough by itself to establish knowledge of a separate issued patent.

Contributory Infringement

Contributory infringement is liability for supplying a material or apparatus that is used to infringe, is important to practicing the invention, has no substantial non-infringing uses, and is known to be specially made or adapted for infringement. Fortinet argued that Netskope’s allegations were conclusory, that describing the accused products as designed for infringing use was legally insufficient, and that the accused features were not separable components.

The court denied the motion to dismiss the contributory-infringement counts. It found that Netskope alleged that the accused products included features used in combination to infringe the patents and repeatedly alleged that those features had no substantial non-infringing uses. The court concluded that the allegations were sufficient at the motion-to-dismiss stage to support an inference that the features were specially programmed or adapted for infringing use.

The court also found that materials cited by Fortinet did not establish an inherent contradiction in Netskope’s allegations. It declined to consider the contents of a lengthy administrative guide because Fortinet had not shown that the document formed the basis of Netskope’s claims. The court further rejected Fortinet’s argument that integrated features necessarily gave the products substantial non-infringing uses.

Disposition

Judge Haywood S. Gilliam, Jr. granted in part and denied in part Fortinet’s motion to dismiss. The motion was granted as to the indirect-infringement claims related to the ’153, ’983, and ’639 Patents, with leave to amend, and denied as to the contributory-infringement counts. Any amended complaint must be filed within 21 days of the order and may not add new claims or defendants.