Case 1:20-cv-00371-RGA-MPT Document 1 Filed 03/16/20 Page 1 of 16 PageID #: 1
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE DISTRICT OF DELAWARE
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`FINJAN, INC., a Delaware Corporation
`Plaintiff,
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`v.
`TRUSTWAVE HOLDINGS, INC., a
`Delaware Corporation and SINGAPORE
`TELECOMMUNICATIONS LIMITED, a
`Singapore Corporation,
`Defendants.
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`C.A. No. _____________
`DEMAND FOR JURY TRIAL
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`COMPLAINT FOR PATENT INFRINGEMENT
`Plaintiff Finjan, Inc. (“Finjan”), by and through its undersigned counsel,
`1.
`files this Complaint for Patent Infringement and Jury Demand against Trustwave
`Holdings, Inc. (“Trustwave”) and its parent entity, Singapore Telecommunications
`Limited (“Singtel”) (collectively, “Defendants”), and alleges as follows:
`NATURE OF THE ACTION
`This is a civil action for patent infringement arising under the patent laws
`1.
`of the United States, 35 U.S.C. § 100 et seq.
`Singtel and Trustwave have infringed literally or under the doctrine of
`2.
`equivalents, and continue to infringe, have contributed to, and continue to contribute to
`the infringement of, and have induced, and continue to induce the infringement of U.S.
`Patent No. 8,141,154 (“the ’154 Patent”) at least by making, using, selling, offering for
`sale and/or importing into the United States cybersecurity products and services that
`infringe one or more claims of the ’154 Patent. A true and correct copy of the ’154
`Patent is attached as Exhibit A.
`Finjan is the legal owner by assignment of the ’154 Patent, which was
`3.
`duly and legally issued by the United States Patent and Trademark Office (“USPTO”).
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`Finjan seeks monetary damages and injunctive relief to address ongoing and willful
`infringement by Defendants of the ’154 Patent.
`PARTIES
`Finjan is a Delaware corporation with a principal place of business at 2000
`4.
`University Avenue, Suite 600, East Palo Alto, California 94303.
`Upon information and belief, Defendant Trustwave Holdings, Inc., is a
`5.
`Delaware corporation with a principal place of business at 70 W. Madison St., Suite 600,
`Chicago, Illinois 60602.
`Upon information and belief, Defendant Singapore Telecommunications
`6.
`Limited is a corporation existing under the laws of Singapore with a principal place of
`business at 31 Exeter Road, Comcentre, Singapore, 239732, Singapore.
`JURISDICTION AND VENUE
`This is a civil action for patent action arising under the Patent Act, 35
`7.
`U.S.C. § 100 et seq. This Court has subject matter jurisdiction over this controversy
`pursuant to 28 U.S.C. §§ 1331 and 1338.
`This Court has personal jurisdiction over Defendants. This Court has
`8.
`personal jurisdiction over Trustwave because it is incorporated in the State of Delaware.
`This Court also has personal jurisdiction over Singtel because it has
`9.
`established minimum contacts with the State of Delaware, and the exercise of personal
`jurisdiction over Singtel would not offend traditional notions of fair play and substantial
`justice. Singtel has integrated its cybersecurity capabilities, technologies, and resources
`under the Trustwave brand, a wholly owned Delaware subsidiary that sells the products at
`issue in this litigation, including in this District. For example, Trustwave’s December 4,
`2018 News Release states: “Singtel … has pooled the cybersecurity capabilities,
`technologies and resources of Singtel, Optus, Trustwave and NCS into a single global
`corporate identity operating under the Trustwave brand.” See Exhibit B
`(https://www.trustwave.com/en-us/company/newsroom/news/singtel-integrates-global-
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`cybersecurity-capabilities-under-trustwave-to-create-an-industry-powerhouse/).
`Further, this Court also has personal jurisdiction over Singtel because it
`10.
`has purposefully availed itself of the privilege of conducting business activities in the
`State of Delaware through a number of subsidiaries besides Trustwave, including, but not
`limited to, Singtel USA, Inc. (registered agent at Corporation Trust Center, 1209 Orange
`Street, Wilmington, Delaware 19801), Singtel Enterprise Security (US), Inc. (registered
`agent at 251 Little Falls Drive, Wilmington, Delaware 19808), Singtel Communications
`LLC (registered agent at 108 West 13th Street, Wilmington, Delaware 19801), Singtel
`Innov8 Ventures LLC (registered agent at Corporation Trust Center, 1209 Orange Street,
`Wilmington, Delaware 19801), Singtel Mobile Marketing, Inc. (registered agent at 251
`Little Falls Drive, Wilmington, Delaware 19808), Amobee Inc. (registered agent at 850
`New Burton Road Suite 201), Lucid Media Networks, Inc. (registered agent at
`Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801), and
`Pixable Inc. (registered agent at Corporation Trust Center, 1209 Orange Street,
`Wilmington, Delaware 19801). Singtel places its products into the stream of U.S.
`commerce through its subsidiaries (including Trustwave, a wholly owned Delaware
`subsidiary) that are incorporated in this District, including the products at issue in this
`case.
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`11.
`1400(b).
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`Venue is proper in this Court pursuant to 28 U.S.C. §§ 1391(b)-(c) and
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`FINJAN’S INVENTIONS
`Finjan was founded in 1997 as a wholly owned subsidiary of Finjan
`12.
`Software Ltd., an Israeli corporation. In 1998, Finjan moved its headquarters to San Jose,
`California. Finjan was, and has been recognized as, a pioneer in developing proactive
`security technologies capable of detecting previously unknown and emerging
`cybersecurity threats, recognized today under the umbrella term “malware.” These
`technologies protect, among other things, networks and endpoints by identifying
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`suspicious patterns and behaviors of content delivered over the Internet. Finjan has been
`granted numerous patents covering inventions in the United States and around the world
`resulting directly from Finjan’s more than decades-long research and development
`efforts, supported by a dozen inventors and more than US $65 million in R&D
`investments.
`Finjan built and sold software, including application program interfaces
`13.
`(APIs) and appliances for network security, using these patented technologies. These
`products and related customers continue to be supported by Finjan’s licensing partners.
`At its height, Finjan employed nearly 150 employees around the world building and
`selling security products and operating the Malicious Code Research Center, through
`which it frequently published research regarding network security and current threats on
`the Internet. Finjan’s pioneering approach to cybersecurity drew equity investments from
`two major software and technology companies—the first in 2005 followed by the second
`in 2006. Finjan has generated millions of dollars in product sales and related services and
`support revenues. Additionally, Finjan has generated more than US $350 million in
`revenue from over 25 patent licenses covering Finjan’s patented inventions to date.
`In 2015, Finjan formed Finjan Mobile, Inc. (“Finjan Mobile”) to focus on
`14.
`cybersecurity in the mobile space. Finjan Mobile’s first product, released in June 2015,
`was the Finjan Mobile Secure Browser. Featuring Finjan’s patented inventions,
`including those from the ’154 Patent, the Finjan Mobile Secure Browser is a simple-to-
`use, secure browser that protects users from potentially malicious Uniform Research
`Locators (URLs).
`In October 2016, Finjan Mobile released the next version of its product—
`15.
`namely, the Gen3 VitalSecurity™ Browser. Finjan Mobile’s Gen3 VitalSecurity™
`Browser offered complete browser functionality while guarding users’ privacy by not
`collecting any personal data. It also provided detailed analyses of virus and malware
`threats aggregated from more than 60 top virus companies. It also featured biometric and
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`passcode security to further protect the users’ experience. Finjan Mobile continued to
`update its VitalSecurity™ Browser product, releasing, for example, Gen 3.5 in April
`2017, Gen 3.7 in June 2017, and Gen 4.0 in September 2017. Each upgrade to Finjan
`Mobile’s VitalSecurity™ Browser product continued to embody Finjan’s patented
`inventions, including the ’154 Patent.
`In addition to developing secure browser products, Finjan Mobile has also
`16.
`developed and released Virtual Private Network (“VPN”) products. Finjan Mobile’s first
`VPN product was incorporated into the VitalSecurity™ Gen 4.0 Secure Mobile Browser
`(also known as VitalSecurity™ VPN), which was the first fully functional browser with
`an integrated VPN for use on mobile platforms. In September 2018, Finjan Mobile
`released InvinciBull™, a stand-alone VPN mobile app that keeps global consumer data
`safe by encrypting all Internet traffic when using public Wi-Fi, such as in a coffee shop, a
`hotel, or an airport.
`IMPACT OF FINJAN’S TECHNOLOGY ON TRUSTWAVE’S SUCCESS
`One of the many companies that recognized the value of Finjan’s products
`17.
`and technology was M86 Security, Inc. (“M86 Security”). In 2009, M86 Security entered
`into an agreement with Finjan whereby M86 Security would share revenues generated
`through the use of Finjan’s technology, along with a nonexclusive license to practice
`certain Finjan patents (“Licensed Patents”) to offer products and services. The Licensed
`Patents do not include the ’154 Patent. Through this agreement, M86 Security continued
`Finjan’s success through the use of the Licensed Patents in the cybersecurity
`marketplace.
`Trustwave struggled to compete in the increasingly crowded cybersecurity
`18.
`marketplace. In 2010, Trustwave posted US $4.6 million in losses despite recording US
`$115 million in revenues and had to abandon its plans for an Initial Public Offering
`(IPO). See Exhibit C
`(https://www.chicagobusiness.com/article/20110811/NEWS01/110819976/trustwave-
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`postpones-ipo).
`In 2012, Trustwave acquired M86 Security. See Exhibit D
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`(https://www.trustwave.com/en-us/company/newsroom/news/trustwave-completes-
`acquisition-of-m86-security/). With the acquisition, Trustwave gained access to M86
`Security’s valuable limited license to practice the Licensed Patents to offer products and
`services, including “Web and email security products,” “[a]dvanced malware detection
`technology,” and “[b]roader threat intelligence and security research,” and gaining access
`to “M86 Security’s more than 25,000 customers with 26 million users.” See Exhibit E
`(https://www.trustwave.com/en-us/company/newsroom/news/trustwave-to-acquire-m86-
`security/).
`Recognizing the important role of Finjan’s patents to Trustwave’s post-
`20.
`acquisition success, in 2012, Trustwave and Finjan voluntarily amended the 2009 M86
`Security-Finjan license agreement, resulting in an Amended and Restated Patent License
`Agreement (“Limited License Agreement”). The Limited License Agreement does not
`include the ’154 Patent.
`The acquisition of M86 Security’s products and services that practice
`21.
`Finjan’s Licensed Patents catapulted Trustwave’s presence in the cybersecurity
`marketplace. Upon information and belief, Trustwave’s revenues in 2010 were US $115
`million. See Exhibit C. Within two years of the 2012 Limited License Agreement,
`Trustwave’s revenue nearly doubled to US $216 million in 2014. See Exhibit F
`(https://www.reuters.com/article/us-singtel-m-a-trustwave/singtel-buying-u-s-cyber-
`security-firm-trustwave-for-810-million-idUSKBN0MY2C820150408).
`SINGTEL’S ACQUISITION AND INTEGRATION OF TRUSTWAVE
`The cybersecurity industry began to recognize Trustwave’s success
`22.
`following its acquisition of M86 Security’s products and services that practice Finjan’s
`Licensed Patents. On or about August 31, 2015, Singtel purchased Trustwave for more
`than US $810 million (nearly four times Trustwave’s 2014 revenues) in order to enter the
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`cybersecurity and, upon information and belief, Internet-of-Things (“IoT”) markets on a
`global basis. See Exhibit F. Singtel’s purchase included the Limited License
`Agreement.
`In fact, Trustwave’s products and services were so successful that Singtel
`23.
`decided in or about 2018 to integrate all of its cybersecurity products and services under
`the brand name “Trustwave,” recognizing the value of the Trustwave brand and Finjan’s
`patented inventions. See Exhibit B (“Singtel today announced that it has pooled the
`cybersecurity capabilities, technologies and resources of Singtel, Trustwave and NCS
`into a single global corporate identity operating under the Trustwave brand.”). Today,
`Trustwave operates as “the global cybersecurity arm of Singtel.” Id. Thus, Trustwave
`and Singtel have realized and enjoyed the value of Finjan’s Licensed Patents.
`FINJAN’S U.S. PATENT NO. 8,141,154
`On March 20, 2012, the USPTO issued to David Gruzman and Yuval Ben-
`24.
`Itzhak U.S. Patent No. 8,141,154, titled “SYSTEM AND METHOD FOR INSPECTING
`DYNAMICALLY GENERATED EXECUTABLE CODE.” See Exhibit A.
`All rights, title, and interest in the ’154 Patent have been assigned to
`25.
`Finjan, who is the sole owner of the ’154 Patent. Finjan has been the sole owner of the
`’154 Patent since its issuance. The ’154 Patent has been posted on Finjan’s website since
`as early as December 1, 2013.
`The ’154 Patent is generally directed towards a gateway computer
`26.
`protecting a client computer, such as a laptop, from dynamically generated malicious
`content. One of the ways this is accomplished is by using a content processor to process
`a first function and invoke a second function if a security computer indicates that it is safe
`to invoke the second function. The ’154 Patent discloses and specifically claims
`inventive concepts that represent significant improvements over conventional network
`security technology that was available at the time of filing of the ’154 Patent and are
`more than just generic software components performing conventional activities.
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`The ’154 Patent has successfully withstood multiple invalidity challenges
`27.
`over a number of years. To date, Finjan has successfully defended against seven petitions
`for Inter Partes Review (“IPR”) filed before the USPTO’s Patent Trial and Appeal Board
`(“PTAB”) challenging various claims of the ’154 Patent. Of those seven IPR petitions,
`four had all challenged claims upheld by the PTAB, and in some cases, by the Federal
`Circuit (IPR2015-01979, IPR2016-00151, IPR2016-01071, IPR2016-00919); two were
`denied institution (IPR2015-01547 and IPR2019-00031); and one was terminated due to
`settlement prior to institution (IPR2016-00937).
`The ’154 Patent has also withstood validity challenges in another District
`28.
`Court. See e.g., Finjan, Inc. v. Sophos Inc., Case No. 14-cv-1197-WHO, ECF No. 407
`(N.D. Cal. Oct. 31, 2016) (finding claim 1 of the ’154 Patent not invalid and directly
`infringed).
`The ’154 Patent is also being litigated before the Honorable Maryellen
`29.
`Noreika. Judge Noreika recently issued a Claim Construction Order construing certain
`terms of the ’154 Patent. Finjan, Inc. v. Rapid7, Inc. et al., Case No. 18-cv-1519-MN,
`ECF No. 123 (D. Del. Feb. 5, 2020).
`ACTS GIVING RISE TO THIS ACTION
`As detailed below, Singtel and Trustwave have infringed literally or under
`30.
`the doctrine of equivalents, and continue to infringe, have contributed to, and continue to
`contribute to the infringement of, and have induced, and continue to induce the
`infringement of the ’154 Patent at least by making, using, selling, offering for sale, and/or
`importing into the United States cybersecurity products and services that infringe one or
`more claims of the ’154 Patent. Defendants’ cybersecurity products and services sold
`under the Trustwave brand include, but are not limited to, Trustwave Secure Web
`Gateway and Trustwave Secure Email Gateway (“Accused Products”). Discovery may
`reveal additional Singtel or Trustwave products and services that practice the ’154 Patent,
`and Finjan hereby reserves the right to assert its patent infringement claims against such
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`Singtel or Trustwave products and services.
`Singtel and Trustwave received additional actual notice of the ’154 Patent
`31.
`on or around November 1, 2015. On November 1, 2015, Finjan provided Trustwave a
`list of Finjan’s patents for potential further licensing, which specifically identified the
`’154 Patent, as well as the Trustwave products that practiced such patents. Despite
`having knowledge that their products and services infringed unlicensed Finjan patents,
`Singtel and Trustwave have ignored, among others, Finjan’s ’154 Patent rights since that
`time.
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`On or around December 13, 2019, Finjan again communicated to
`32.
`Trustwave and Singtel that their products and services infringed and continue to infringe
`Finjan’s ’154 Patent. In a letter dated December 23, 2019, Finjan enclosed a proof chart
`setting forth in reasonable detail how the Accused Products infringed the ‘154 Patent. To
`date, neither Singtel nor Trustwave has responded to Finjan’s letters or emails
`substantively.
`COUNT I: DIRECT INFRINGEMENT OF U.S. PATENT NO. 8,141,154
`Finjan re-alleges and incorporates by reference the allegations of the
`33.
`preceding paragraphs of this Complaint as if fully set forth herein.
`Defendants infringed, and continue to infringe, at least Claim 1 of the ’154
`34.
`Patent in violation of 35 U.S.C. § 271(a).
`Defendants’ infringement is based upon literal infringement or, in the
`35.
`alternative, infringement under the doctrine of equivalents.
`Defendants’ acts of making, using, importing, selling and offering for sale
`36.
`infringing products and services were without the permission, consent, authorization, or
`license of Finjan.
`Defendants’ infringement includes the manufacture, use, offer for sale,
`37.
`sale, and importation of Defendants’ Accused Products.
`As shown below, the Accused Products practice the patented invention of
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`the ’154 Patent and infringed, and continue to infringe, at least Claim 1 of the ’154 Patent
`because they comprise, include or utilize a system for protecting a computer from
`dynamically generated malicious content, comprising (1) a content processor for
`processing content received over a network, the content including a call to a first
`function, and the call including an input, and for invoking a second function with the
`input, only if a security computer indicates that such invocation is safe; (2) a transmitter
`for transmitting the input to the security computer for inspection, when the first function
`is invoked; and (3) a receiver for receiving an indicator from the security computer
`whether it is safe to invoke the second function with the input.
`For example, as shown below, the Trustwave Secure Email Gateway
`39.
`includes or utilizes a system for protecting a computer from dynamically generated
`malicious content.
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`Exhibit G
`(https://www.trustwave.com/en-us/services/technology/secure-email-gateway/)
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`Exhibit G
`The Trustwave Secure Email Gateway includes or utilizes a content
`40.
`processor (i) for processing content received over a network, the content including a call
`to a first function and the call including an input; and (ii) for invoking a second function
`with the input, only if a security computer indicates that such invocation is safe.
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`Exhibit H
`(https://www3.trustwave.com/software/MailMarshal_SMTP/SEG_BTM_FAQ.pdf)
`The Trustwave Secure Email Gateway includes or utilizes a transmitter for
`41.
`transmitting the input to the security computer for inspection when the first function is
`invoked.
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`Exhibit H
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`Exhibit H
`The Trustwave Secure Email Gateway includes or utilizes a receiver for
`42.
`receiving an indicator from the security computer whether it is safe to invoke the second
`function with the input.
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`Exhibit H
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`Exhibit H
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`Exhibit H
`To the extent the Accused Products used and/or use a system that includes
`43.
`modules, components or software owned by third parties, the Accused Products still
`infringe the ’154 Patent because Defendants are vicariously liable for the use of the
`patented system by controlling the entire system and deriving a benefit from the use of
`every element of the entire system.
`Defendants’ infringement has damaged and continues to damage Finjan in
`44.
`an amount yet to be determined, of at least a reasonable royalty. Further, Defendants’
`infringement also caused and continues to cause irreparable harm for which there is no
`adequate remedy at law. Finjan, Finjan’s licensees, and Defendants all compete in the
`cybersecurity marketplace. Defendants’ continued infringement is severely impeding
`Finjan’s efforts to develop and provide competitive products and services in the
`cybersecurity marketplace. Defendants’ continued infringement is also eroding the value
`of the patent licenses Finjan has conferred to its licensees.
`Defendants have been aware of Finjan’s patents, including the ’154 Patent,
`45.
`for years and continued their unauthorized infringing activity despite this knowledge. As
`discussed above, Finjan notified Trustwave and Singtel regarding Defendants’
`infringement of the ’154 Patent as early as November 2015. Even after being shown that
`their products infringe the ‘154 Patent, on information and belief, Defendants made no
`effort to avoid infringement. Instead, Defendants continued to incorporate their
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`infringing technology into their products and services, such as those identified in this
`Complaint. All of these actions demonstrate the Defendants’ disregard for Finjan’s
`patent rights. As such, Defendants acted recklessly, willfully, wantonly, and deliberately
`engaged in acts of infringement of the ’154 Patent, justifying an award to Finjan of
`increased damages under 35 U.S.C. § 284, and attorneys’ fees and costs incurred under
`35 U.S.C. § 285.
`COUNT II: INDIRECT INFRINGEMENT OF U.S. PATENT NO. 8,141,154
`Finjan realleges and incorporates by reference the allegations of the
`46.
`preceding paragraphs of this Complaint as if fully set forth herein.
`Defendants have indirectly infringed and continue to indirectly infringe—
`47.
`either by having induced or contributed to, and continuing to induce or contributing to the
`infringement of—at least Claim 1 of the ’154 Patent in violation of 35 U.S.C. § 271(b)
`for inducement of infringement and § 271(c) for contributory infringement.
`Defendants indirectly infringe the ’154 Patent by instructing, directing
`48.
`and/or requiring others, including, but not limited to, its customers, users and developers
`to use or include some of the components of the system claims, either literally or under
`the doctrine of equivalents, of the ’154 Patent, where all components are included or
`utilized by Defendants or their customers, users, or developers, or some combination
`thereof.
`Defendants knew or were willfully blind to the fact that they were
`49.
`inducing others, including customers, users, and developers, to infringe by practicing,
`either themselves or in conjunction with Defendants, one or more claims of the ’154
`Patent.
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`Defendants knowingly and actively aided and abetted the direct
`50.
`infringement of the ’154 Patent by instructing and encouraging its customers, users and
`developers to use the Accused Products, including the Trustwave Secure Email Gateway.
`Such instructions and encouragement include, but are not limited to, advising third parties
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`to use the Accused Products in an infringing manner, providing a mechanism through
`which third parties may infringe the ’154 Patent (e.g., through the use of the Trustwave
`Secure Email Gateway), advertising and promoting the use of the Accused Products in an
`infringing manner, and distributing guidelines and instructions to third parties on how to
`use the Accused Products in an infringing manner.
`For example, Defendants provide customers, users and developers with
`51.
`case studies, e-books, datasheets, whitepapers, overviews, perspectives, tips and tricks,
`and other instructions advertising, promoting and encouraging the use of the Accused
`Products on its websites at trustwave.com and singtel.com (which redirects to
`trustwave.com). See e.g., Exhibit I
`(https://trustwave.azureedge.net/media/16574/secure-email-gateway-spe_letter-
`final.pdf?rnd=132260111910000000), Exhibit J
`(https://trustwave.azureedge.net/media/16425/secure-email-gateway-
`cloud.pdf?rnd=132180474070000000).
`PRAYER FOR RELIEF
`WHEREFORE, Finjan respectfully requests entry of judgment as follows:
`Declaring that Defendants have infringed U.S. Patent No. 8,141,154,
`A.
`directly and indirectly, by way of inducement or contributory infringement, literally or
`under the doctrine of equivalents;
`Declaring that Defendants and all affiliates, employees, agents, officers,
`B.
`directors, attorneys, successors and assigns and all those acting on behalf of or in active
`concert or participation with any of them, be enjoined from infringing U.S. Patent No.
`8,141,154 and from inducing the infringement of U.S. Patent No. 8,141,154, and for all
`further and proper injunctive relief pursuant to 35 U.S.C. § 283;
`An award of such past damages, not less than a reasonable royalty, that is
`C.
`sufficient to fully compensate Finjan for Defendants’ infringement under 35 U.S.C.
`§ 284;
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`A finding that Defendants’ infringement has been willful, wanton and
`D.
`deliberate, and that the damages against Defendants be increased up to treble on this basis
`or for any other basis in accordance with the law;
`A finding that this case is “exceptional” and an award to Finjan of its costs
`E.
`and reasonable attorneys’ fees, as provided by 35 U.S.C. § 285;
`An accounting of all infringing sales and revenues, together with
`F.
`prejudgment and post-judgment interest from the first date of infringement of U.S. Patent
`No. 8,141,154; and
`Such further and other relief as the Court may deem proper and just.
`G.
`DEMAND FOR JURY TRIAL
`Finjan hereby demands a jury trial on all issues so triable.
`Respectfully submitted,
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`OF COUNSEL:
`Bijal Vakil
`WHITE & CASE LLP
`3000 El Camino Real
`2 Palo Alto Square, Suite 900
`Palo Alto, CA 94306
`(650) 213-0300
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`Dated: March 16, 2020
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`/s/ Karen E. Keller
`Karen E. Keller (No. 4489)
`SHAW KELLER LLP
`I.M. Pei Building
`1105 North Market Street, 12th Floor
`Wilmington, DE 19801
`(302) 298-0700
`kkeller@shawkeller.com
`Attorneys for Plaintiff Finjan, Inc.
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