Fortinet, Inc. v. Forescout Technologies, Inc.

Background

Fortinet brought patent-infringement claims against Forescout concerning five cybersecurity-related patents. Forescout filed two motions to strike Fortinet’s infringement contentions under the Northern District of California’s Patent Local Rules. This order resolved the first motion, Docket No. 46. The second motion, Docket No. 80, concerned newly asserted patent claims and was not decided in this order.

The Patent Local Rules require a patent plaintiff to identify each accused product and explain specifically where each limitation of each asserted patent claim appears in each accused product. The disclosures are intended to make the parties’ legal theories clear early in the case. Amendments generally require a court order and good cause.

First Motion to Strike

Forescout argued that Fortinet’s contentions lacked a factual basis for induced infringement, contributory infringement, and willful infringement. The court declined to strike the contentions on that ground because challenges to the sufficiency of the factual basis for those claims should be made through an appropriate dispositive motion. The court noted that Forescout had filed such a motion and that the district court had granted it as to Fortinet’s induced-infringement claim. The court deferred to those findings.

Forescout also argued that the contentions violated several Patent Local Rules. The court ruled as follows:

- Accused products under Rule 3-1(b): The court found Fortinet’s identification of the accused products sufficient. Fortinet represented that it had disclosed all product versions of which it was aware, and the court found the relevant version numbers readily ascertainable to Forescout. The court also found sufficient Fortinet’s identification of the third-party VPN Concentrator product associated with the ’299 patent because Fortinet represented that it had disclosed all information known to it. - Claim charts under Rule 3-1(c): The court found the charts deficient. Fortinet had repeated claim language and attached screenshots without adequately explaining how the screenshots related to the claim limitations. The court also found it unclear who or what was accused of performing certain limitations. Fortinet was required to amend its infringement charts to comply with Rule 3-1(c). - Priority dates under Rule 3-1(f): Fortinet had stated that the asserted claims were entitled to a priority date “at least as early as” specified dates. Because Fortinet acknowledged that its priority dates were limited to the actual dates listed in the contentions, the court struck the phrase “at least as early as.” The court stated that Rule 3-1(f) did not require disclosure of a conception date and noted that Forescout could seek an order requiring production of conception-related documents. - Practicing products and related documents under Rules 3-1(g) and 3-2(1): The court found that Forescout had not shown Fortinet’s identification of practicing products to be insufficient. The court also noted that Fortinet had since produced the document Forescout identified as required. - First infringement dates under Rule 3-1(h): The court found Fortinet’s contentions deficient because they identified the first date on which any entity infringed, rather than the date on which Forescout first infringed. Fortinet was required to amend the contentions to specify Forescout’s first infringement date for each patent at issue.

Disposition

Magistrate Judge Jacqueline Scott Corley ordered that Forescout’s first motion to strike infringement contentions was DENIED in part and GRANTED in part. The order did not decide Forescout’s second motion to strike. The court vacated the May 6, 2021 hearing on that motion and held it in abeyance while the district court considered a motion to dismiss involving the same issues. The deadline for Fortinet to file amended infringement contentions was also held in abeyance pending the ruling on the second motion. The order disposed of Docket No. 46.