Netskope, Inc. v. Fortinet, Inc.

Background

Netskope’s complaint alleged infringement of nine patents by Fortinet products, including FortiGate, FortiAP, FortiOS, FortiAuthenticator, FortiWeb Cloud, and FortiEDR. Netskope initially asserted 176 claims. After the Court ordered the parties to identify representative claims or otherwise narrow the case, Netskope dropped some claims and narrowed the case to 135 claims across eight patents.

Motion to Sever Counterclaims

The parties agreed that Fortinet’s counterclaims should be severed into a separate action. Their only dispute was whether the new case should be randomly reassigned under the district’s assignment plan or remain with the undersigned judge.

The Court concluded that the interests of justice and efficient use of judicial resources favored retaining the new case. The Court had already invested substantial time and resources in the litigation, and neither party claimed that retaining the severed case would cause prejudice. The Court granted Netskope’s motion to sever Fortinet’s counterclaims and retained jurisdiction over the new case.

The Clerk was ordered to open a new case with a separate case number for Fortinet’s counterclaims. Fortinet was ordered to file an amended complaint in that new case within seven days of the order.

Motion to Amend Infringement Contentions

The Patent Local Rules allow amendment of infringement contentions only upon a timely showing of good cause. The good-cause inquiry considers whether the moving party acted diligently and whether the opposing party would suffer prejudice. The party seeking amendment has the burden to show diligence.

Netskope argued that it acted diligently because Fortinet produced a large amount of source code, Fortinet sent a deficiency letter, and Netskope discovered that charts had accidentally omitted several asserted claims. Fortinet argued that Netskope had delayed reviewing the source code, that many proposed amendments relied on public information, and that Netskope should have discovered the omissions earlier.

The Court found that Netskope was not diligent. Netskope took nearly seven weeks to acknowledge Fortinet’s deficiency letter and another 22 weeks to file the motion. The Court also found that Netskope performed most of its source-code review in March 2026, after substantial unexplained gaps in its earlier review. The Court concluded that Netskope could have discovered the missing contentions earlier through reasonable diligence.

The Court further found that many proposed amendments did more than add detail to existing theories. At least for the ’936 and ’710 Patents, the amendments accused new products of infringement and relied on public materials that were available when Netskope filed its original contentions. The Court also found prejudice to Fortinet because the amendments could require changes to Fortinet’s invalidity contentions, affect claim-construction choices, and force the parties and Court to restart the claim-construction process.

The Court therefore denied Netskope’s motion for leave to amend its infringement contentions.

Motions to Seal

Netskope asked the Court to consider sealing Fortinet material contained in Fortinet’s opposition to the amendment motion. Fortinet separately moved to seal its opposition and an exhibit. Because the materials were attached to nondispositive motions, the Court applied the requirement that the parties show good cause, specific potential harm, and why narrower redactions would not be sufficient.

Fortinet sought to seal several exhibits containing Netskope’s claim charts in their entirety, even though some information was publicly available. Fortinet also sought to seal an exhibit containing source-code citations, folder sizes, and file counts, along with references in its opposition to the number of files cited in Netskope’s contentions. The Court found that Fortinet had not narrowly tailored its requests or adequately explained why disclosure of the information would cause harm. A protective-order designation alone did not establish that the material was sealable.

The Court denied Netskope’s and Fortinet’s motions to seal without prejudice. The Court stated that some material might qualify for sealing, but counsel needed to provide a more specific explanation and limit the requests to material that required protection. Fortinet was ordered to refile its response to Netskope’s sealing motion and its own sealing motion within 21 days.