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CLOSED, CV, PATENT, PHV

U.S. District Court U.S.District Court Minnesota (DMN) CIVIL DOCKET FOR CASE #: 0:07-cv-02198-JMR-FLN

Secure Computing Corporation v. Finjan Software Ltd et al Assigned to: Chief Judge James M. Rosenbaum Referred to: Magistrate Judge Franklin L. Noel Cause: 35:183 Patent Infringement Plaintiff Secure Computing Corporation

Date Filed: 05/04/2007 Date Terminated: 08/16/2007 Jury Demand: Plaintiff Nature of Suit: 830 Patent Jurisdiction: Federal Question

represented by Christopher A Seidl Robins Kaplan Miller & Ciresi LLP 800 LaSalle Ave Ste 2800 Minneapolis, MN 55402-2015 612-349-8468 Email: [email protected] LEAD ATTORNEY ATTORNEY TO BE NOTICED Jacob M Holdreith Robins Kaplan Miller & Ciresi LLP 800 LaSalle Ave Ste 2800 Minneapolis, MN 55402-2015 612-349-8500 Fax: 612-339-4181 Email: [email protected] LEAD ATTORNEY ATTORNEY TO BE NOTICED Ronald J Schutz Robins Kaplan Miller & Ciresi LLP 800 LaSalle Ave Ste 2800 Minneapolis, MN 55402-2015 612-349-8500 Fax: 612-339-4181 Email: [email protected] LEAD ATTORNEY ATTORNEY TO BE NOTICED Trevor J Foster Robins Kaplan Miller & Ciresi LLP 800 LaSalle Ave Ste 2800 Minneapolis, MN 55402-2015 612-349-0859 Fax: 612-339-4181 Email: [email protected]

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LEAD ATTORNEY ATTORNEY TO BE NOTICED V. Defendant Finjan Software Ltd represented by James R Hannah Perkins Coie LLP 101 Jefferson Dr Menlo Park, CA 94025 650-838-4307 Email: [email protected] LEAD ATTORNEY ATTORNEY TO BE NOTICED Lisa Kobialka Perkins Coie LLP 101 Jefferson Dr Menlo Park, CA 94025 650-838-4447 Email: [email protected] LEAD ATTORNEY ATTORNEY TO BE NOTICED Meghan Ashley Wharton Perkins Coie LLP 101 Jefferson Dr Menlo Park, CA 94025 650-838-4363 Email: [email protected] LEAD ATTORNEY ATTORNEY TO BE NOTICED Paul Joseph Andre Perkins Coie LLP 101 Jefferson Dr Menlo Park, CA 94025 650-838-4370 Email: [email protected] LEAD ATTORNEY ATTORNEY TO BE NOTICED Rachel K Zimmerman Merchant & Gould 80 S 8th St Ste 3200 Mpls, MN 55402 (612) 332-5300 Fax: (612) 332-9081 Email: [email protected]

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LEAD ATTORNEY ATTORNEY TO BE NOTICED Anthony R Zeuli Merchant & Gould PC 80 S 8th St Ste 3200 Mpls, MN 55402 612-332-5300 Fax: 612-332-9081 Email: [email protected] ATTORNEY TO BE NOTICED Defendant Finjan Software, Inc. represented by James R Hannah (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Lisa Kobialka (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Meghan Ashley Wharton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Paul Joseph Andre (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Rachel K Zimmerman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Anthony R Zeuli (See above for address) ATTORNEY TO BE NOTICED

Date Filed 05/04/2007

#

Docket Text 1 COMPLAINT with Jury Demand against all defendants ( Filing fee $ 350 receipt number 12925.) assigned to Judge Patrick J. Schiltz per Patent List referred to Magistrate Judge Jeanne J. Graham, filed by Secure Computing Corporation. (Attachments: # 1 Civil Cover Sheet) (dch) QC'd by gjs. (Entered: 05/04/2007)

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Summons Issued as to Finjan Software Ltd, Finjan Software, Inc.. (dch) (Entered: 05/04/2007) 2 RULE 7.1 DISCLOSURE STATEMENT by Secure Computing Corporation that there is no such parent or publicly held corporation to report. (dch) (Entered: 05/04/2007) 3 ORDER OF DISQUALIFICATION. Patrick J. Schiltz recused and Magistrate Judge Jeanne J. Graham no longer assigned to case. Case reassigned to Chief Judge James M. Rosenbaum and Magistrate Judge Franklin L. Noel for all further proceedings. The new case number is 07cv2198 JMR/FLN. Signed by Judge Patrick J. Schiltz on 5/7/07. (JME) (Entered: 05/07/2007) Summons Reissued as to Finjan Software Ltd, Finjan Software, Inc.. (akl) (Entered: 05/09/2007) 4 AMENDED COMPLAINT against all defendants, filed by Secure Computing Corporation. (Attachments: # 1 Certificate of Service) (Holdreith, Jacob) (Entered: 05/24/2007) 5 NOTICE OF HEARING ON MOTION (Attachments: # 1 Certificate of Service)(Zeuli, Anthony) (Entered: 06/11/2007) 6 MOTION to Dismiss or, in the Alternative, Motion to Transfer Venue by Finjan Software Ltd, Finjan Software, Inc.. (Zeuli, Anthony) (Entered: 06/14/2007) 7 AMENDED NOTICE of Hearing on Motion 6 MOTION to Dismiss or, in the Alternative, Motion to Transfer Venue: Motion Hearing set for 8/14/2007 09:00 AM in Minneapolis - Courtroom 15E before Chief Judge James M. Rosenbaum. (Zeuli, Anthony) (Entered: 06/14/2007) 8 CERTIFICATE OF SERVICE by Finjan Software Ltd, Finjan Software, Inc. re 7 Amended Notice of Hearing on Motion, 6 MOTION to Dismiss or, in the Alternative, Motion to Transfer Venue (Zeuli, Anthony) (Entered: 06/14/2007) 9 MEMORANDUM in Support re 6 MOTION to Dismiss or, in the Alternative, Motion to Transfer Venue filed by Finjan Software Ltd, Finjan Software, Inc.. (Attachments: # 1 LR7.1 Word Count Compliance Certificate)(Zeuli, Anthony) (Entered: 06/29/2007) 10 Declaration of Ezra Sofer in Support of 9 Memorandum in Support of Motion filed by Finjan Software Ltd, Finjan Software, Inc.. (Zeuli, Anthony) (Entered: 06/29/2007) 11 Declaration of Anthony R. Zeuli in Support of 9 Memorandum in Support of Motion filed by Finjan Software Ltd, Finjan Software, Inc.. (Attachments: # 1 Exhibit(s) A# 2 Exhibit(s) B# 3 Exhibit(s) C part 1# 4 Exhibit(s) C part 2# 5 Exhibit(s) C part 3# 6 Exhibit(s) C part 4# 7 Exhibit(s) D part 1# 8 Exhibit(s) D part 2# 9 Exhibit(s) D part 3)(Zeuli, Anthony) (Entered: 06/29/2007)

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12 RULE 7.1 DISCLOSURE STATEMENT by Finjan Software Ltd, Finjan Software, Inc. of Finjan Software, Inc. as corporate parent and/or publicly held company. (Zeuli, Anthony) (Entered: 06/29/2007) 13 RULE 7.1 DISCLOSURE STATEMENT by Finjan Software, Inc. of Cisco Systems, Inc. (NASDAQ: CSCO) as corporate parent and/or publicly held company. (Zeuli, Anthony) (Entered: 06/29/2007) 14 CERTIFICATE OF SERVICE by Finjan Software Ltd, Finjan Software, Inc. re 9 Memorandum in Support of Motion, 12 Rule 7.1 - Disclosure Statement, 11 Declaration in Support,, 13 Rule 7.1 - Disclosure Statement, 10 Declaration in Support (Zeuli, Anthony) (Entered: 06/29/2007) 15 STIPULATION PROTECTIVE ORDER by Secure Computing Corporation, Finjan Software Ltd, Finjan Software, Inc.. (Attachments: # 1 Certificate of Service)(Seidl, Christopher) (Entered: 07/23/2007) 16 DOCUMENT FILED IN ERROR: WILL REFILE. STIPULATION (Amended) Protective Order by Secure Computing Corporation, Finjan Software Ltd, Finjan Software, Inc.. (Attachments: # 1 Certificate of Service)(Seidl, Christopher) Modified text on 7/24/2007 (kt). (Entered: 07/24/2007) 17 STIPULATION (Amended) Protective Order by Secure Computing Corporation, Finjan Software Ltd, Finjan Software, Inc.. (Attachments: # 1 Certificate of Service)(Seidl, Christopher) (Entered: 07/24/2007) 18 MOTION for Admission Pro Hac Vice for Paul Joseph Andre by Finjan Software Ltd, Finjan Software, Inc.. (Zeuli, Anthony) (Entered: 07/24/2007) 19 MOTION for Admission Pro Hac Vice for Lisa Kobialka by Finjan Software Ltd, Finjan Software, Inc.. (Zeuli, Anthony) (Entered: 07/24/2007) 20 MOTION for Admission Pro Hac Vice for James R. Hannah by Finjan Software Ltd, Finjan Software, Inc.. (Zeuli, Anthony) (Entered: 07/24/2007) 21 MOTION for Admission Pro Hac Vice for Meghan Ashley Wharton by Finjan Software Ltd, Finjan Software, Inc.. (Zeuli, Anthony) (Entered: 07/24/2007) 22 STIPULATED PROTECTIVE ORDER. Signed by Judge James M. Rosenbaum on July 24, 2007. (kl) (Entered: 07/24/2007) 23 MEMORANDUM in Opposition re 6 MOTION to Dismiss or, in the Alternative, Motion to Transfer Venue [FILED UNDER SEAL] filed by Secure Computing Corporation. (Attachments: # 1 LR7.1 Word Count Compliance Certificate)(Foster, Trevor) RECEIVED SEALED DOCUMENT ON 7/25/07 Modified on 7/30/2007 (GJS). (Entered: 07/25/2007)

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24 Declaration of Paul Hawes in Support of 23 Memorandum in Opposition to Motion filed by Secure Computing Corporation. (Foster, Trevor) (Entered: 07/25/2007) 25 AFFIDAVIT of Dale Ross in OPPOSITION TO 6 MOTION to Dismiss or, in the Alternative, Motion to Transfer Venue filed by Secure Computing Corporation. (Foster, Trevor) (Entered: 07/25/2007) 26 Declaration of Trevor J. Foster in Support of 23 Memorandum in Opposition to Motion filed by Secure Computing Corporation. (Attachments: # 1 Exhibit(s) Exs A thru G# 2 Exhibit(s) Exs H thru N# 3 Exhibit(s) Ex O, part 1# 4 Exhibit(s) Ex O, part 2# 5 Exhibit(s) Exs P thru Q# 6 Exhibit(s) Ex R, part 1# 7 Exhibit(s) Ex R, part 2# 8 Exhibit(s) Ex R, part 3# 9 Exhibit(s) Ex R, part 4# 10 Exhibit(s) Ex R, part 5# 11 Exhibit(s) Ex R, part 6# 12 Exhibit(s) Exs S thru V# 13 Placeholder for Exs W and X [Filed Under Seal])(Foster, Trevor) RECEIVED SEALED DOCUMENTS ON 7/25/07 Modified on 7/30/2007 (GJS). (Entered: 07/25/2007) 27 CERTIFICATE OF SERVICE by Secure Computing Corporation re 25 Affidavit in Opposition to Motion, 24 Declaration in Support, 26 Declaration in Support,,, 23 Memorandum in Opposition to Motion (Foster, Trevor) (Entered: 07/25/2007) TEXT ONLY ENTRY - ORDER granting 18,19,20,21 Motions for Admission Pro Hac Vice of Attorneys Paul Joseph Andre, Lisa Kobialka, James R Hannah and Meghan Ashley Wharton for Finjan Software Ltd and Finjan Software, Inc. Fees paid; receipt numbers 4-014987 and 4014988. Approved by Clerk Richard D Sletten on 7/25/07. (MMC) (Entered: 07/27/2007) 28 Corrected Declaration of Trevor J. Foster in Support of 23 Memorandum in Opposition to Motion filed by Secure Computing Corporation. (Attachments: # 1 Corrected Exhibit R Part 1 of 6 # 2 Corrected Exhibit R Part 2 of 6 # 3 Corrected Exhibit R Part 3 of 6 # 4 Corrected Exhibit R Part 4 of 6 # 5 Corrected Exhibit R Part 5 of 6 # 6 Exhibit(s) R Part 6 of 6)(Foster, Trevor) Modified text on 7/26/2007 (dch). (Entered: 07/26/2007) 29 CERTIFICATE OF SERVICE by Secure Computing Corporation re 28 Declaration in Support, (Foster, Trevor) (Entered: 07/26/2007) 30 REPLY to Response to Motion re 6 MOTION to Dismiss or, in the Alternative, Motion to Transfer Venue filed by Finjan Software Ltd, Finjan Software, Inc.. (Attachments: # 1 LR7.1 Word Count Compliance Certificate)(Zimmerman, Rachel) (Entered: 08/02/2007) 31 CERTIFICATE OF SERVICE by Finjan Software Ltd, Finjan Software, Inc. re 30 Reply to Response to Motion (Zimmerman, Rachel) (Entered: 08/02/2007) 32 NOTICE of Appearance by Rachel K Zimmerman on behalf of Finjan Software Ltd, Finjan Software, Inc. (Zimmerman, Rachel) (Entered:

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08/03/2007) 08/03/2007 33 CERTIFICATE OF SERVICE by Finjan Software Ltd, Finjan Software, Inc. re 32 Notice of Appearance Rachel K. Zimmerman (Zimmerman, Rachel) (Entered: 08/03/2007) ***TEXT ONLY ENTRY*** AMENDED NOTICE of Hearing on Motion 6 MOTION to Dismiss or, in the Alternative, Motion to Transfer Venue: Motion Hearing set for 8/14/2007 10:15 AM in Minneapolis Courtroom 15E before Chief Judge James M. Rosenbaum. PLEASE NOTE CHANGE IN TIME ONLY(HLL) (Entered: 08/10/2007) 34 Minute Entry for proceedings held before Chief Judge James M. Rosenbaum : Motion Hearing held on 8/14/2007 re 6 MOTION to Dismiss or, in the Alternative, Motion to Transfer Venue filed by Finjan Software Ltd and Finjan Software, Inc. Motion to Transfer Venue is granted. Order to be issued. (Court Reporter Dawn Hansen) (HLL) (Entered: 08/14/2007) 35 ORDER granting 6 Motion to Transfer Venue to District of Delaware. Signed by Judge James M. Rosenbaum on August 15, 2007. (kl) (Entered: 08/16/2007) 36 LETTER from Clerk's Office to the District of Delaware regarding transfer. (dch) (Entered: 10/29/2007)

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UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

SECURE COMPUTING CORPORATION, Plaintiff, v.

Civil No. 07-CV-2198 (PJS/JJG)

ORDER OF DISQUALIFICATION

FINJAN SOFTWARE LTD., and FINJAN SOFTWARE, INC., Defendants.

The above-captioned case has been assigned to the undersigned, a Judge of the above Court. Pursuant to Title 28, United States Code, Section 455, the undersigned recuses himself from hearing this matter. Accordingly, IT IS ORDERED pursuant to this Court's Assignment of Cases Order filed June 29, 2006, the above-captioned action shall be resubmitted to the Clerk of Court for reassignment, and the Clerk is further directed to void and reuse a card on the Patent List of the automated case assignment system. IT IS FURTHER ORDERED that a copy of this Order shall be filed in the above-captioned case.

Dated: May 7, 2007

s/Patrick J. Schiltz Patrick J. Schiltz United States District Judge

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UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA Case No. 0:07-cv-2198 JMR/FLN

Secure Computing Corp., Plaintiff, v. Finjan Software Ltd., and Finjan Software, Inc. Defendants.

FIRST AMENDED COMPLAINT (DEMAND FOR JURY TRIAL)

Plaintiff Secure Computing Corp. ("Secure Computing"), as and for its First Amended Complaint against Defendants Finjan Software Ltd. and Finjan Software, Inc. (collectively "Finjan"), states and alleges as follows: PARTIES 1. Plaintiff Secure Computing is a corporation organized and existing under

the laws of the State of Delaware, with its corporate headquarters at 4810 Harwood Road, San Jose, California 95124. 2. On information and belief, Defendant Finjan Software Ltd. is a corporation

organized and existing under the laws of Israel, with its principal place of business at Harnachshev St, 1, New Industrial Area, Netanya, 42504, Israel, and its worldwide headquarters at 2025 Gateway Place, Suite 180, San Jose, California 95110. 3. On information and belief, Defendant Finjan Software, Inc. is a corporation

organized and existing under the laws of Delaware, with its principal place of business
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and its worldwide headquarters at 2025 Gateway Place, Suite 180, San Jose, California 95110. JURISDICTION AND VENUE 4. This action arises under the Acts of Congress relating to patents, Title 35

U.S.C. § 1 et seq., Acts of Congress under § 43 of the Lanham Act, the Minnesota Deceptive Trade Practices Act, and the Minnesota common law. 5. This Court has subject matter jurisdiction over this action under 28 U.S.C.

§§ 1331, 1338, and 1367. 6. This Court has personal jurisdiction over Finjan because personal

jurisdiction over Finjan comports with the United States Constitution, Finjan actively and regularly conducts business in the State of Minnesota, because Finjan has and continues to infringe, contributorily infringe and/or induce the infringement of U.S. Patent No. 7,171,681, and because Finjan has committed and continues to commit acts of unfair competition, false advertising, deceptive trade practices, and other unlawful acts, in this district. 7. Venue is proper in this judicial district under 28 U.S.C. §§ 1391(b) and (c)

and § 1400(b). COUNT I (U.S. PATENT NO. 7,171,681) 8. Secure Computing realleges each and every allegation set forth in

Paragraphs 1 through 7, inclusive, and incorporates them herein by reference.

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9.

On January 30, 2007, United States Patent No. 7,171,681 ("the `681

patent") entitled "System and Method for Providing Expandable Proxy Firewall Services" issued. William E. Duncan and Vincent Hwang are the named inventors of the `681 patent. Secure Computing is the assignee of the `681 patent. Secure Computing has been and is still the owner of the `681 patent. 10. Finjan has unlawfully infringed one or more claims of the `681 patent by

making, using, offering to sell to customers, and/or selling to customers articles which infringe the claims of the `681 patent, by making, using, licensing, offering to sell and/or selling load-balancing security solutions, including but not limited to Vital SecurityTM Load Balancer NG-5300. 11. Finjan has engaged in activities which constitute direct infringement,

contributory infringement, and/or inducement to infringe one or more claims of the `681 patent, in violation of 35 U.S.C. § 271. 12. Secure Computing has suffered damages by reason of Finjan's

infringement of the `681 patent for which Secure Computing is entitled to relief under 35 U.S.C. § 284, and will suffer additional and irreparable damages unless Finjan is enjoined by this Court from continuing their infringement. COUNT II (§ 43(a) OF THE LANHAM ACT) 13. Secure Computing realleges each and every allegation set forth in

Paragraphs 1 through 12, inclusive, and incorporates them herein by reference.

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14.

Secure Computing is in the business of developing and distributing

network, systems, and web security solutions to businesses and organizations. 15. On information and belief, Finjan is in the business of developing and

distributing network, systems, and web security solutions to businesses and organizations. 16. On information and belief, on March 28, 2007, Finjan distributed a

worldwide press release, a copy of which continues to be posted on its company website (hereinafter "the Finjan press release"). 17. The Finjan press release contains false and/or misleading statements. The

Finjan press release indicates that VirusTotal.com "benchmarked [malicious] code against 32 well-known web security products." The Finjan press release states that Finjan's Vital Security Web Appliance was "the only security solution that managed to detect and block the code in real-time, without any product update or signature." The Finjan press release further states "[t]he online VirusTotal benchmark points to the superiority of our patented real-time code inspection technology." 18. The Finjan press release states that "VirusTotal is a service developed by

Hispasec Sistemas, an independent IT Security laboratory." 19. On information and belief, Finjan also released a March 2007 marketing

brochure entitled: "Malicious Page Under Benchmark" (hereinafter "the March 2007 marketing brochure").

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20.

The March 2007 marketing brochure contains false and/or misleading

statements. The March 2007 marketing brochure states, in part, that "Virustotal.com benchmarked [malicious] code against 32 well-known web security products. The results, as obtained independently by VirusTotal (and not independently verified by Finjan), are republished in their entirety. . . ." The March 2007 marketing brochure further lists "Webwasher-Gateway" as a product that allegedly "failed to detect the code as malicious and as a result did not block it ­ meaning that businesses were still at risk." 21. On information and belief, on April 15, 2007, Hispasec Sistemas and

VirusTotal.com posted an announcement on the VirusTotal.com website addressing the Finjan press release (hereinafter "the VirusTotal announcement"). 22. The VirusTotal announcement stated, in part, that information related to the

Finjan press release "may lead to confusion, whether that was the result intended or not, and that is why we feel compelled to declare the following at Hispasec: VirusTotal has not conducted any experiment or test related to AV comparative analyses. VirusTotal has no notice whatsoever of the malicious code [Finjan] refer[s] to in this piece of news. VirusTotal has never tested nor tried Finjan's security solutions." 23. The VirusTotal announcement also states that VirusTotal is not intended to

be used to compare antivirus products and indicates that "[t]hose who use VirusTotal to perform AV comparative analyses should know that they are making many implicit errors in the methodology."

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24.

On information and belief, Finjan was notified of the VirusTotal

announcement at least as early as April 17, 2007. 25. 26. Finjan is still publishing the March 28, 2007 press release on its website. Finjan, through at least the aforementioned acts described in paragraphs 14-

25 including Finjan's statements regarding the alleged independent VirusTotal benchmark, and on information and belief other acts, has made false and/or misleading material statements of fact in interstate commerce that actually deceived and/or had the capacity to deceive a substantial segment of customers, in violation of § 43(a), 15 U.S.C. § 1125(a), of the Lanham Act. 27. Finjan's actual and implied misrepresentations, including at least those

about the alleged independent VirusTotal benchmark, constitute unfair competition and false advertising in violation of § 43(a), 15 U.S.C. § 1125(a), of the Lanham Act. 28. Finjan's actual and implied misrepresentations are likely to influence the

purchasing decisions of security product purchasers. 29. As a result of Finjan's aforementioned acts, including Finjan's false and/or

misleading statements regarding the alleged independent VirusTotal benchmark, and unless enjoined by this Court, Secure Computing has been and will be irreparably injured by Finjan's practices described above, as to which Secure Computing has no adequate remedy at law. In addition, as a result of Finjan's foregoing acts, including Finjan's false and/or misleading statements regarding the alleged independent VirusTotal benchmark,

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Secure Computing has been and will be damaged, in an amount to be fully determined at trial. 30. Finjan's aforementioned actions, including Finjan's false and/or misleading

statements regarding the alleged independent VirusTotal benchmark test, were and are taken in willful, deliberate and intentional disregard of Secure Computing's rights. This case is exceptional under the Lanham Act. COUNT III (Minnesota Deceptive Trade Practices Act - Minn. Stat. 325D.44) 31. Secure Computing realleges each and every allegation set forth in

Paragraphs 1 through 30, inclusive, and incorporates them herein by reference. 32. Finjan, through at least the aforementioned acts described in paragraphs 14-

25 including Finjan's statements regarding the alleged independent VirusTotal benchmark, and on information and belief other acts, has made false and/or misleading material statements of fact in interstate commerce that actually deceived and/or had the capacity to deceive a substantial segment of security product customers, in violation of the Minnesota Deceptive Trade Practices Act (Minn. Stat. 325D.44). 33. Finjan's actual and implied misrepresentations, including at least those

about the alleged independent VirusTotal benchmark, constitute unfair competition and deceptive trade practices in violation of the Minnesota Deceptive Trade Practices Act (Minn. Stat. 325D.44). 34. Finjan's actual and implied misrepresentations are likely to influence the

purchasing decisions of security product purchasers.
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35.

Secure Computing has suffered damages by reason of Finjan's false and/or

misleading statements regarding the alleged independent VirusTotal benchmark test, and will suffer additional and irreparable damages unless Finjan is enjoined by this Court from continuing to make and distribute false and/or misleading statements. 36. Finjan's aforementioned actions, including Finjan's false and/or misleading

statements regarding the alleged independent VirusTotal benchmark test, were and are taken in willful, deliberate and intentional disregard of Secure Computing's rights, knowing such actions to be deceptive. COUNT IV (Unfair Competition and Injurious Falsehood) 37. Secure Computing realleges each and every allegation set forth in

Paragraphs 1 through 36, inclusive, and incorporates them herein by reference. 38. Finjan conduct, through at least the aforementioned acts described in

paragraphs 14-25 including Finjan's statements regarding the alleged independent VirusTotal benchmark, and on information and belief other acts, constitutes unfair competition and injurious falsehood under Minnesota common law. 39. As a result of Finjan's aforementioned acts, including Finjan's false and/or

misleading statements regarding the alleged independent VirusTotal benchmark, and unless enjoined by this Court, Secure Computing has been and will be irreparably injured by Finjan's practices described above, as to which Secure Computing has no adequate remedy at law. In addition, as a result of Finjan's foregoing acts, including Finjan's false and/or misleading statements regarding the alleged independent VirusTotal benchmark,
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Secure Computing has been and will be damaged, in an amount to be fully determined at trial. JURY DEMAND A jury trial is demanded on all issues so triable, pursuant to Rule 38 of the Federal Rules of Civil Procedure and Local Rule 38.1 of the United States District Court for the District of Minnesota. PRAYER FOR RELIEF WHEREFORE, Secure Computing prays for judgment as follows: 1. 2. That Finjan has infringed U.S. Patent No. 7,171,681; That Finjan and its respective agents, servants, officers, directors,

employees and all persons acting in concert with it, directly or indirectly, be enjoined from directly infringing, inducing others to infringe, and/or contributing to the infringement of U.S. Patent No. 7,171,681; 3. That Finjan be ordered to account for and pay to Secure Computing the

damages to which Secure Computing is entitled as a consequence of the infringement of U.S. Patent No. 7,171,681; 4. That Finjan and its respective agents, servants, officers, directors,

employees and all persons acting in concert with it, directly or indirectly, be ordered to immediately take corrective action regarding Finjan's false and/or misleading statements complained of herein, including but not limited to immediately sending corrective statements in writing to all persons to whom Finjan has made the false and/or misleading
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statements and to all persons who actually received the false and/or misleading statements, and placing corrective advertisements in any and all media in which it placed the false and/or misleading statements (including without limitation on its website and in all publications in which its false and/or misleading statements appeared). Such

corrective statements shall run for an equal number of days as the March 28, 2007 press release appeared on Finjan's website and in the same number of publications and number of consecutive issues of the publications and in the same manner and frequency of dissemination as the offending statements appeared; 5. That Finjan and its respective agents, servants, officers, directors,

employees and all persons acting in concert with it, directly or indirectly, be enjoined from publishing, disseminating, distributing, or otherwise using the representations or similar representations in the advertising and promotional materials complained of herein, including its March 28, 2007 press release and its March 2007 marketing brochure; 6. That Finjan be ordered to pay to Plaintiff Secure Computing the damages to

which Secure Computing is entitled as a consequence of Finjan's false and/or misleading statements and violations of the Lanham Act, the Minnesota Deceptive Trade Practices Act, and the Minnesota common law, in an amount to be determined at trial; 7. That Plaintiff Secure Computing be awarded its costs and attorneys' fees,

including costs and attorneys' fees in accordance with Title 35 United States Code § 285; Title 15 U.S.C. § 1117(a), and Minn. Stat. 325D.45;
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8.

That Plaintiff Secure Computing be awarded all such other relief permitted

under the patent laws, the Lanham Act, the Minnesota Deceptive Trade Practices Act, and the Minnesota common law, and 9. That Plaintiff Secure Computing be awarded such other and further relief as

the Court may deem just and equitable.

Dated: May 24, 2007 ROBINS, KAPLAN, MILLER & CIRESI L.L.P.

By: _s/Jake M. Holdreith___________ Ronald J. Schutz (#130849) Jake M. Holdreith (#211011) Christopher A. Seidl (# 313439) Trevor J. Foster (#345568) 2800 LaSalle Plaza 800 LaSalle Avenue Minneapolis, MN 55402 (612) 349-8500 Counsel for Plaintiff Secure Computing Corporation

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UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA Secure Computing Corp., Plaintiff, v. Finjan Software Ltd., and Finjan Software, Inc. Defendants. CERTIFICATE OF SERVICE Case No. 0:07-cv-2198 JMR/FLN

I hereby certify that on the 24th day of May, 2007, I caused the following document: FIRST AMENDED COMPLAINT to be filed electronically with the Clerk of Court through ECF. I further certify that I caused a copy of the foregoing document and the notice of electronic filing to be mailed via Federal Express, to the following non-ECF participants: Paul Andre, Esq. Perkins Coie LLP 101 Jefferson Drive Menlo Park, CA 94025-1114 (Counsel for Finjan Software Ltd. Finjan Software, Inc.)

Dated: May 24, 2007

By: _s/Jake M. Holdreith___________

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UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA Secure Computing Corp., Plaintiff, v. Finjan Software Ltd., and Finjan Software, Inc. Defendants. ) ) ) ) ) ) ) ) ) )

Case No: 0:07-cv-02198-JMR-FLN

NOTICE OF HEARING ON MOTION TO DISMISS OR, IN THE ALTERNATIVE, MOTION TO TRANSFER VENUE TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that DEFENDANTS FINJAN SOFTWARE LTD. AND FINJAN SOFTWARE, INC. (collectively "Finjan"), by and through their attorneys, will move the Court to dismiss the action or, in the alternative, transfer it to another venue. The Motion will come before the Court on a date and time yet to be determined by the Court with arguments from the parties to be heard by the Honorable James Rosenbaum, U.S. District Court Judge for the District of Minnesota, Courtroom 15E, U.S. Courthouse, 300 South 4th Street, Minneapolis, Minnesota 55415. Dated: June 11, 2007 FINJAN SOFTWARE LTD., AND FINJAN SOFTWARE, INC., s/Anthony R. Zeuli Anthony R. Zeuli, MN Bar No. 0274884 J.R. Maddox, MN Bar No. 329253 Merchant & Gould P.C. 3200 IDS Center 80 South Eighth Street

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Minneapolis, MN 55402 Telephone: 612.332.5300 Facsimile: 612.332.9081 Email: [email protected] Email: mailto:[email protected] Of Counsel: Paul Andre Lisa Kobialka PERKINS COIE LLP 101 Jefferson Drive Menlo Park, CA 94025 Telephone: 650.838.4300 Facsimile: 650.838.4350 Email: [email protected] Email: mailto:[email protected]

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UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA Secure Computing Corp., Plaintiff, v. Finjan Software Ltd., and Finjan Software, Inc. Defendants. ) ) ) ) ) ) ) ) ) )

Case No: 0:07-cv-02198-JMR-FLN

CERTIFICATE OF SERVICE I hereby certify that on June 11, 2007, I caused the following documents: 1. NOTICE OF HEARING ON MOTION TO DISMISS OR, IN THE ALTERNATIVE, MOTION TO TRANSFER VENUE; 2. CERTIFICATE OF SERVICE to be filed electronically with the Clerk of Court through ECF, and that ECF will send an e-notice of the electronic filing to the following counsel of record:
Trevor J Foster [email protected] [email protected] Jacob M Holdreith [email protected] [email protected] Ronald J Schutz [email protected] [email protected];[email protected] Christopher A Seidl [email protected] [email protected]

Dated: June 11, 2007

s/Anthony R. Zeuli Anthony R. Zeuli

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UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA Secure Computing Corp., Plaintiff, v. Finjan Software Ltd., and Finjan Software, Inc. Defendants. ) ) ) ) ) ) ) ) ) )

Case No: 0:07-cv-02198-JMR-FLN

MOTION TO DISMISS OR, IN THE ALTERNATIVE, MOTION TO TRANSFER VENUE TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: THE DEFENDANTS FINJAN SOFTWARE LTD. AND FINJAN SOFTWARE, INC. (collectively "Finjan"), by and through their attorneys, hereby move the Court for an order dismissing Plaintiff's claims against Finjan on the grounds that the Court lacks personal jurisdiction over Finjan Software Ltd. and Finjan Software, Inc. and/or venue in this Court is improper or, in the alternative, an order transferring venue of this matter to the United States District Court for the District of Delaware. Finjan's motion is based upon Fed. R. Civ. P. 12(b)(3) and (6) and 28 U.S.C. § 1404(a). Dated: June 14, 2007 FINJAN SOFTWARE LTD., AND FINJAN SOFTWARE, INC., s/Anthony R. Zeuli Anthony R. Zeuli, MN Bar No. 0274884 J.R. Maddox, MN Bar No. 329253 Merchant & Gould P.C. 3200 IDS Center 80 South Eighth Street Minneapolis, MN 55402

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Telephone: 612.332.5300 Facsimile: 612.332.9081 Email: [email protected] Email: [email protected] Of Counsel: Paul Andre Lisa Kobialka PERKINS COIE LLP 101 Jefferson Drive Menlo Park, CA 94025 Telephone: 650.838.4300 Facsimile: 650.838.4350 Email: [email protected] Email: [email protected]

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UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA Secure Computing Corp., Plaintiff, v. Finjan Software Ltd., and Finjan Software, Inc. Defendants. ) ) ) ) ) ) ) ) ) )

Case No: 0:07-cv-02198-JMR-FLN

AMENDED NOTICE OF HEARING ON MOTION TO DISMISS OR, IN THE ALTERNATIVE, MOTION TO TRANSFER VENUE TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that DEFENDANTS FINJAN SOFTWARE LTD. AND FINJAN SOFTWARE, INC. (collectively "Finjan"), by and through their attorneys, will move the Court to dismiss the action or, in the alternative, transfer it to another venue. The Motion will come before the Court on August 14, 2007 at 9:00 a.m. with arguments from the parties to be heard by the Honorable James Rosenbaum, U.S. District Court Judge for the District of Minnesota, Courtroom 15E, U.S. Courthouse, 300 South 4th Street, Minneapolis, Minnesota 55415. Dated: June 14, 2007 FINJAN SOFTWARE LTD., AND FINJAN SOFTWARE, INC., s/Anthony R. Zeuli Anthony R. Zeuli, MN Bar No. 0274884 J.R. Maddox, MN Bar No. 329253 Merchant & Gould P.C. 3200 IDS Center

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80 South Eighth Street Minneapolis, MN 55402 Telephone: 612.332.5300 Facsimile: 612.332.9081 Email: [email protected] Email: [email protected] Of Counsel: Paul Andre Lisa Kobialka PERKINS COIE LLP 101 Jefferson Drive Menlo Park, CA 94025 Telephone: 650.838.4300 Facsimile: 650.838.4350 Email: [email protected] Email: [email protected]

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UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA Secure Computing Corp., Plaintiff, v. Finjan Software Ltd., and Finjan Software, Inc. Defendants. ) ) ) ) ) ) ) ) ) )

Case No: 0:07-cv-02198-JMR-FLN

CERTIFICATE OF SERVICE I hereby certify that on June 14, 2007, I caused the following documents: 1. MOTION TO DISMISS OR, IN THE ALTERNATIVE, MOTION TO TRANSFER VENUE; 2. AMENDED NOTICE OF HEARING ON MOTION TO DISMISS OR, IN THE ALTERNATIVE, MOTION TO TRANSFER VENUE and 3. CERTIFICATE OF SERVICE to be filed electronically with the Clerk of Court through ECF, and that ECF will send an e-notice of the electronic filing to the following counsel of record:
Trevor J Foster [email protected] [email protected] Jacob M Holdreith [email protected] [email protected] Ronald J Schutz [email protected] [email protected];[email protected] Christopher A Seidl [email protected] [email protected]

Dated: June 14, 2007

s/Anthony R. Zeuli Anthony R. Zeuli

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UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA Secure Computing Corp., Plaintiff, v. Finjan Software Ltd., and Finjan Software, Inc. Defendants. ) ) ) ) ) ) ) ) ) )

Case No: 0:07-cv-02198-JMR-FLN

MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS OR, IN THE ALTERNATIVE, MOTION TO TRANSFER VENUE

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I. II.

INTRODUCTION .................................................................................................1 FACTUAL BACKGROUND ..............................................................................2 A. B. The Parties. .................................................................................................2 Finjan Has Limited Contacts with Minnesota. ......................................2 1. 2. Finjan USA is a Delaware Corporation with its Principal Place of Business in the State of California. .............2 Finjan Israel, a Subsidiary of Finjan USA, is an Israeli Corporation with its Principal Place of Business in Israel. ...............................................................................................4

Substantially Similar to the Claims in the Delaware Litigation. ...................................................................................................4 III. ARGUMENT .........................................................................................................6 A. THIS COURT CANNOT CONSTITUTIONALLY EXERCISE PERSONAL JURISDICTION OVER FINJAN USA AND/OR FINJAN ISRAEL. ..........................................................6 1. 2. Applicable Law Regarding Motion to Dismiss Based on Lack of Personal Jurisdiction. ................................................6 This Court Lacks Personal Jurisdiction over Finjan USA Because Finjan USA has Insufficient Contacts with Minnesota. .............................................................................8 This Court Lacks Personal Jurisdiction over Finjan Israel Because Finjan Israel Has No Contacts with Minnesota. ....................................................................................12

3.

B.

THE MINNESOTA ACTION SHOULD BE DISMISSED BECAUSE VENUE IS IMPROPER IN THIS JUDICIAL DISTRICT. ...............................................................................................14 IF THE MINNESOTA ACTION IS NOT DISMISSED FOR IMPROPER VENUE, VENUE SHOULD BE TRANSFERRED TO THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE. ............................15

C.

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1.

This Court Should Transfer the Minnesota Action to the District of Delaware because Finjan Israel Filed a Similar Action in Delaware Before Secure Computing Filed the Minnesota Action and the Minnesota Action Constitutes Wasteful Parallel Litigation. ..................................15 This Court Should Transfer the Minnesota Action to the District of Delaware because the District of Delaware is a More Convenient Forum for the Parties and the Witnesses. .......................................................................17 This Court Should Transfer the Minnesota Action to the District of Delaware in the Interest of Justice and to Preserve Judicial Resources...................................................19

2.

3.

IV.

CONCLUSION....................................................................................................20

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Cases

Bell Paper Box, Inc. v. U.S. Kids, Inc., 22 F.3d 816, 818 (8th Cir. 1994) ........................... 7 Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985) ..................................... 7, 10, 13 Coast-to-Coast Stores, Inc. v. Womack-Bowers, Inc., 594 F. Supp. 731, 734 (D. Minn. 1984). ....................................................................................................................................... 18 Codex Corp. v. Milgo Elec. Corp., 553 F.2d 735, 739 (1st Cir. 1977) ............................... 20 Cont'l. Grain Co. v. Barge F.B.L.-585, 364 U.S. 19, 26-27 (1960)) ................................... 15 Digi-Tel Holdings, Inc. v. Proteq Telecomm. (PTE), Ltd., 89 F.3d 519, 522 (8th Cir. 1996) ................................................................................................................................. passim Envtl Servs., Inc. v. Bell Lumber & Pole Co., 607 F. Supp. 851, 853 (N.D. Ill. 1984) .... 17 Helicoptors Nacionales De Colombia v. Hall, 466 U.S. 408, 416 (1984) ............................ 8 Hoppe v. G.D. Searle & Co., 683 F. Supp. 1271, 1276 (D. Minn. 1988) ........................... 17 Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) ....................................................... 8 Kaylor v. Fields, 661 F.2d 1177, 1182 (8th Cir. 1981) ........................................................... 6 Lakin v. Prudential Sec., Inc., 348 F.3d 704, 711-12 (8th Cir. 2003) ................................. 12 Land-O-Nod v, Bassett Furniture Indus., Inc., 708 F.2d 1338, 1341 (D. Minn. 1994) ....... 9 Morgan Distrib. Co., Inc. v. Unidynamic Corp., 868 F.2d 992, 995 (8th Cir. 1989) .......... 6 Morris v. Barkbuster, Inc., 923 F.2d 1277, 1280 (8th Cir. 1991)). .................................... 7, 8 Reisner v. Stoller, 51 F. Supp. 2d 430, 440 (S.D.N.Y. 1999)................................................. 6 Sybaritic, Inc. v. Interport Int'l, Inc., 957 F.2d 522, 524 (8th Cir. 1992)) ...................... 7, 10 Tuttle v. Lorillard Tobacco Co., 118 F. Supp. 2d 954, 959 (D. Minn. 2000); ..................... 6 West Publ'g Corp. v. Stanley, 2004 U.S. Dist. LEXIS 448, *12 (D. Minn. 2004) .............. 6 Wilson v. Lincoln Redev. Corp., 488 F.2d 339, 341 (8th Cir. 1973) .................................... 6 Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119, 1124 (W.D. Pa. 1997))...... 12 Zumbro, Inc. v. California Natural Prods., 861 F. Supp. 773, 777 (D. Minn. 1994)........... 7
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Statutes

28 U.S.C. § 1391(b) ................................................................................................................... 14 28 U.S.C. § 1391(b)(2) .............................................................................................................. 14 28 U.S.C. § 1391(b)(3) .............................................................................................................. 14 28 U.S.C. § 1391(c).................................................................................................................... 14 28 U.S.C. § 1406(a)................................................................................................................ 1, 14 28 U.S.C. § 1404(a)................................................................................................................ 1, 15 Minn. Stat. § 543.19(1)(b) ........................................................................................................... 7
Rules

Fed. R. Civ. P. 12(b)(6) ............................................................................................................... 1 Fed.R.Civ.P. 12(b)(3)............................................................................................................. 1, 14

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Defendants Finjan Software Ltd. ("Finjan Israel") and Finjan Software, Inc. ("Finjan USA") (collectively "Finjan") submit this Memorandum of Law in Support of Defendants' Motion to Dismiss the above-captioned action for lack of personal jurisdiction pursuant to Fed. R. Civ. P. 12(b)(6) and/or improper venue pursuant to Fed. R. Civ. P. 12(b)(3) and 28 U.S.C. § 1406(a) or, in the alternative, to transfer this action to the United States District Court for the District of Delaware pursuant to 28 U.S.C. § 1404(a). I. INTRODUCTION

This Court cannot constitutionally exercise personal jurisdiction over either Defendant in the pending action. None of the parties in this action are located in Minnesota. Plaintiff Secure Computing Corp. ("Secure Computing") and Defendant Finjan USA are Delaware corporations with their principal places of business in California. Finjan Israel is an Israeli corporation with its principal place of business in Israel. Finjan Israel has no contacts with Minnesota, and Finjan USA does not have sufficient contacts with Minnesota to warrant this Court's exercise of personal jurisdiction. In the event this Court finds that it can exercise personal jurisdiction over Finjan USA and/or Finjan Israel, Plaintiff's Complaint should be dismissed pursuant to Fed. R. Civ. P. 12(b)(3) and 28 U.S.C. §1406(a) because venue in this judicial district is improper. In the alternative, pursuant to 28 U.S.C. § 1404(a), this action should be transferred to the United States District Court for the District of Delaware. Finjan Israel filed a patent infringement action against Secure Computing on June 5, 2006 (hereinafter the "Delaware Action"). Finjan's earlier-filed action was pending in the United States District Court for the District of Delaware when Plaintiff filed the pending action (hereinafter the "Minnesota Action"). Additionally, convenience of the parties and

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witnesses favors transfer. Transfer of the case will serve the interest of justice by preserving judicial resources and avoiding the possibility of inconsistent judgments. II. A. The Parties. None of the parties in this action is located in Minnesota. Plaintiff Secure Computing is organized and existing under the laws of the State of Delaware with its corporate headquarters at 4810 Harwood Road, San Jose, California. (First Am. Compl. ¶ 1, Docket Entry No. 4 (hereinafter "Minnesota Amended Complaint".)) Secure Computing's principal place of business is in the State of California. Defendant Finjan USA is a corporation organized and existing under the laws of the State of Delaware with its principal place of business and its worldwide headquarters at 2025 Gateway Place, Suite 180, San Jose, California 95110. (Decl. of Ezra Sofer in Supp. of Defs' Mot. to Dismiss or, in the Alternative, Mot. to Transfer Venue (hereinafter "Sofer Decl.") ¶ 1.) Defendant Finjan Israel is a corporation organized and existing under the laws of Israel, with its principal place of business at Hamachshev St. 1, New Industrial Area, Netanya, 42504, Israel. Finjan Israel is a subsidiary of Finjan USA. (Sofer Decl. ¶ 2.) Finjan is in the business of selling Internet security solutions for businesses and organizations. Secure Computing is a competitor of Finjan in the relevant marketplace. (Id. ¶ 3.) B. Finjan Has Limited Contacts with Minnesota. 1. Finjan USA is a Delaware Corporation with its Principal Place of Business in the State of California. FACTUAL BACKGROUND

Finjan USA is a Delaware corporation with its principal place of business in the State of California. (Id. ¶ 1.) Finjan USA is not licensed to do business in Minnesota and does not have offices or employees in Minnesota. (Id. ¶ 4.) Finjan USA has been operating in the United States since 1997, and over the past ten years, Finjan USA has

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had minimal direct sales to customers in Minnesota.1 (Id. ¶ 5.) In the past ten years, only four Finjan customers had a billing address in Minnesota and the total revenues generated from those sales amounted to $98,131.90 (hereinafter the "Finjan Minnesota Sales"). (Id. ¶ 5.) None of the Minnesota sales involve the accused product. (Id. ¶7.) The Finjan Minnesota Sales accounted for an insignificant portion of Finjan's worldwide revenue during this time period. (Id. ¶ 6.) Furthermore, Finjan USA does not advertise in publications that are specifically published in Minnesota and is unaware of soliciting business from Minnesota in any other manner. (Id. ¶ 8.) Finjan USA operates a website at http://www.finjan.com ("Finjan USA Website"). On the Finjan USA website, Finjan USA makes information regarding its various products available to the general public. Finjan USA does not solicit or engage in direct commercial transactions with customers through the Finjan USA Website. The Finjan USA Website allows for a very limited exchange of information between Finjan USA and the general public in only two limited circumstances. First, members of the general public can complete and transmit a form available on the Finjan USA Website to request contact from a Finjan USA representative or a Finjan representative located in a different country. Further, by clicking a link on the Finjan USA Website, members of the general public can initiate an outgoing email addressed to Finjan. This feature of the Finjan USA Website does not generate an Internet-based communication with Finjan but rather generates an outgoing email using the operator's existing email account. This function can only be executed when the operator is accessing the Finjan USA Website using a computer that has email software associated with an active email account. (Id. ¶ 9.)

1

Finjan USA does not track its products after they are sold to customers. (Id. ¶ 7.) Finjan cannot "reasonably anticipate being haled into court" in Minnesota because a customer brought Finjan's products into Minnesota. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980).
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2.

Finjan Israel, a Subsidiary of Finjan USA, is an Israeli Corporation with its Principal Place of Business in Israel.

Finjan Israel is an Israeli corporation with its principal place of business in Israel. As a foreign legal entity, Finjan Israel does not do business in the United States and is unaware of having any contact with Minnesota. It is not licensed to conduct business in Minnesota and does not have offices or employees in Minnesota. Finjan Israel is not aware of engaging in any business transactions with customers in Minnesota or in any other way soliciting business from Minnesota individuals or entities. (Id. ¶ 10.) The Finjan USA Website lists the Finjan Israel contact information on its "Contact Us" webpage. (Id. ¶ 9.) C. The Claims in the Minnesota Action are Substantially Similar to the Claims in the Delaware Litigation. Secure Computing filed its original complaint on May 4, 2007, which comprised of a single patent infringement cause of action. (Compl. for Patent Infringement ("Minnesota Compl."), Docket Entry No. 1.) The Complaint alleges that Finjan's product, namely Vital SecurityTM Load Balancer NG-5300, infringes U.S. Patent No. 7,171,681 ("the `681 patent"), entitled "System and method for providing expandable proxy firewall services." (Id. ¶ 9.) Notably, none of the Minnesota sales involve the accused infringing product, Vital SecurityTM Load Balancer NG-5300. (Id. ¶7.) William E. Duncan and Vincent Hwang are the named inventors of the `681 patent. (Id.) On its face, the `681 patent states that William E. Duncan resides in Frederick, Maryland and that Vincent Hwang resides in Potomac, Maryland. Secure Computing, a Delaware corporation, is the assignee of the `681 patent. (Id.) On May 24, 2007, Secure Computing filed the Minnesota Amended Complaint, amending its original Complaint to add three additional causes of action: unfair trade practices under § 43(a) of the Lanham Act, unfair trade practices under the Minnesota Deceptive Trade Practices Act, and common law unfair competition and injurious falsehood. (Minnesota Am. Compl. ¶¶ 13-39.) Each new cause of action is based on the
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allegation that Finjan's March 2007 press release and March 2007 marketing brochure allegedly (a) contained false and/or misleading statements regarding the ability of Finjan products to detect and block malicious code, and (b) listed Secure Computing's Webwasher-Gateway product among other third party products that failed to do so. (Id. ¶¶ 13-39.) The March 2007 press release and the March 2007 marketing brochure are posted on the Finjan Website. (Id.) An earlier-filed patent infringement action has been pending between the parties in the United States District Court for the District of Delaware for more than one year (the "Delaware Action"). (Decl. of Anthony R. Zeuli in Supp. of Defs' Mot. to Dismiss or, in the Alternative, Mot. to Transfer Venue ¶ 2 ("Zeuli Decl.").) Finjan Israel initiated the action on June 5, 2006, by filing its complaint ("Finjan Delaware Complaint") against Secure Computing, Cyberguard Corporation and Webwasher AG (the latter two defendants are now wholly-owned subsidiaries of Secure Computing and are now referred to as "Secure Computing"), alleging that Secure Computing's products, including but not limited to the Webwasher suite of products, infringed and continue to infringe Finjan's U.S. Patent No. 6,092,194 ("`194 Patent"). (Id.) Secure Computing filed its answer and declaratory judgment counterclaims on July 26, 2006. (Id. ¶ 3.) On April 5, 2007, before the agreed upon deadline to amend the pleadings, Finjan Israel amended its complaint alleging that defendants have infringed and continue to infringe Finjan's U.S. Patent No. 6,804,780 ("`780 Patent") and U.S. Patent No. 7,058,822 ("`822 Patent") in addition to the `194 Patent ("Delaware Amended Complaint"). (Id. ¶ 4.) Secure Computing subsequently filed its answer and counterclaims on April 20, 2007, adding two counterclaims accusing Finjan Israel of infringing its U.S. Patent No. 7,185,361 ("`361 Patent") and U.S. Patent No. 6,357,010 ("`010 Patent") ("Delaware Answer and Counterclaims"). (Id. ¶ 5.) However, Secure Computing did not include a counterclaim for infringement of its '681 patent.

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III. A.

ARGUMENT

THIS COURT CANNOT CONSTITUTIONALLY EXERCISE PERSONAL JURISDICTION OVER FINJAN USA AND/OR FINJAN ISRAEL. 1. Applicable Law Regarding Motion to Dismiss Based on Lack of Personal Jurisdiction.

Pursuant to Federal Rule of Civil Procedure 12(b)(6), this case should be dismissed for lack of personal jurisdiction because Secure Computing fails to make a "prima facie showing of personal jurisdiction" over the Finjan USA and/or Finjan Israel in the Minnesota Amended Complaint. Digi-Tel Holdings, Inc. v. Proteq Telecomm. (PTE), Ltd., 89 F.3d 519, 522 (8th Cir. 1996), see West Publ'g Corp. v. Stanley, 2004 U.S. Dist. LEXIS 448, *12 (D. Minn. 2004). This Court must view the evidence "in the light most favorable to the plaintiff and resolve all factual conflicts in the plaintiff's favor." Digi-Tel Holdings, 89 F.3d at 522. However, "conclusory allegations or legal conclusions [made by Secure Computing] masquerading as factual conclusions [regarding jurisdiction] will not suffice to prevent a motion to dismiss." Reisner v. Stoller, 51 F. Supp. 2d 430, 440 (S.D.N.Y. 1999) (internal quotations omitted); see also Kaylor v. Fields, 661 F.2d 1177, 1182 (8th Cir. 1981); Wilson v. Lincoln Redev. Corp., 488 F.2d 339, 341 (8th Cir. 1973). Further, in considering the present motion, this Court must "look[] only to the factual allegations in the complaint[as]. . . [a]ny allegations made in subsequent legal memoranda cannot correct inadequacies within a complaint." Tuttle v. Lorillard Tobacco Co., 118 F. Supp. 2d 954, 959 (D. Minn. 2000); See Morgan Distrib. Co., Inc. v. Unidynamic Corp., 868 F.2d 992, 995 (8th Cir. 1989) ("[I]t is axiomatic that the complaint may not be amended by the briefs in opposition to a motion to dismiss.") (internal quotations omitted). This Court engages in a two-step process to determine whether personal jurisdiction may properly be exercised over non-resident Defendants Finjan USA and

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Finjan Israel. Zumbro, Inc. v. California Natural Prods., 861 F. Supp. 773, 777 (D. Minn. 1994) (citing Morris v. Barkbuster, Inc., 923 F.2d 1277, 1280 (8th Cir. 1991)). First, this Court determines whether the exercise of personal jurisdiction over Finjan USA and/or Finjan Israel is permitted under Minnesota's long-arm statute. Id. Second, the Court determines whether the exercise of personal jurisdiction over Finjan USA and/or Finjan Israel by courts in Minnesota comports with constitutional due process. Id. Because Minnesota interprets its long-arm statute, Minn. Stat. § 543.19(1)(b), to extend personal jurisdiction to the fullest extent permitted by due process, "the inquiry collapses into a single question of whether exercising personal jurisdiction [over Finjan USA and/or Finjan Israel] comports with due process." Id. (citing Bell Paper Box, Inc. v. U.S. Kids, Inc., 22 F.3d 816, 818 (8th Cir. 1994) and Sybaritic, Inc. v. Interport Int'l, Inc., 957 F.2d 522, 524 (8th Cir. 1992)). The Due Process Clause of the United States Constitution requires that this Court determine whether Finjan USA and/or Finjan Israel have sufficient "minimum contacts" with Minnesota before exercising personal jurisdiction over either Defendant. Id. (citing Bell Paper, 22 F.3d at 818). In order to exercise personal jurisdiction over Finjan USA and/or Finjan Israel in this matter, this Court must find that each Defendant's contact with Minnesota is more than "random," "fortuitous," or "attenuated." Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985). This Court should not exercise personal jurisdiction over Finjan USA or Finjan Israel unless it finds that Finjan USA's and/or Finjan Israel's contacts with Minnesota constitute "conduct and connection with [Minnesota] such that [either Defendant] should reasonably anticipate being haled into court" in Minnesota. World-Wide Volkswagen, 444 U.S. at 297. Jurisdiction is proper if Finjan USA's or Finjan Israel's contacts proximately result from actions that create a "substantial connection" with Minnesota. Burger King, 411 U.S. at 475. In addition to sufficient contacts, due process also requires that this Court's exercise of jurisdiction over Finjan USA and/or Finjan Israel "not offend `traditional notions of fair play and
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substantial justice.'" Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)). 2. This Court Lacks Personal Jurisdiction over Finjan USA Because Finjan USA has Insufficient Contacts with Minnesota. a. This Court Cannot Exercise General or Specific Personal Jurisdiction over Finjan based on the Finjan Minnesota Sales.

This Court cannot exercise general jurisdiction over Finjan USA unless it determines that Finjan USA maintained "continuous and systematic" contacts with the forum state, regardless of whether Secure Computing's claims are related to those contacts. Helicoptors Nacionales De Colombia v. Hall, 466 U.S. 408, 416 (1984). Finjan USA's contacts with Minnesota can in no way be characterized as "continuous and systematic." Finjan USA is not licensed to do business in Minnesota and does not have offices or employees in Minnesota. Finjan USA has had only four customers with billing addresses in Minnesota over the past 10 years. The Finjan Minnesota Sales accounted for an insignificant portion of Finjan's worldwide revenue during this time period. Such minimal relations with Minnesota entities and individuals are far short of the quantity and quality of contacts that would be considered "continuous and systematic." Secure Computing's conclusory allegation that "Finjan actively and regularly conducts business in the State of Minnesota" is without support and does not suffice to establish general jurisdiction over Finjan USA. (Minnesota Am. Compl. ¶ 6.) As general jurisdiction is inappropriate in this matter, the personal jurisdiction question at issue is reduced to whether this Court may exercise specific jurisdiction over Finjan USA. This Court can only exercise personal jurisdiction over Finjan USA if it premises jurisdiction over Finjan USA upon the relationship between Secure Computing's claims and Finjan USA's forum state activities. Morris v. Barkbuster, Inc., 923 F.2d 1277, 1280 (8th Cir. 1991). In order to exercise specific jurisdiction over

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Finjan USA, this Court must determine that the Finjan Minnesota Sales relate to Secure Computing's claims in the Minnesota Amended Complaint. To the best knowledge of Finjan, Finjan USA's forum state activities over the past ten years are composed entirely of the Finjan Minnesota Sales. Finjan's Vital SecurityTM Load Balancer NG-5300 product, the only accused product identified by Secure Computing in the Minnesota Amended Complaint, was not sold in the Finjan Minnesota Sales. (Sofer Decl. ¶ 7.) Accordingly, the Finjan Minnesota Sales are unrelated to Secure Computing's patent infringement claim (Claim I of the Minnesota Amended Complaint). See Zumbro, 861 F.Supp. at 780 n.13 (citing Land-O-Nod v, Bassett Furniture Indus., Inc., 708 F.2d 1338, 1341 (D. Minn. 1994), and stating that "[p]romoting and selling products not covered by any of the patents at issue are acts unrelated to the subject matter of Zumbro's patent claims") (emphasis in original). Secure Computing's trade practices claims (Claims II, III and IV of the Minnesota Amended Complaint) are similarly unrelated to the Finjan Minnesota Sales. The alleged misrepresentations are not part of any publications that are or were ever published in Minnesota or aimed at customers in Minnesota. Further, the trade practices claims assert harm to Secure Computing as a corporation. Secure Computing is not a Minnesota

corporation, and any alleged harm incurred by Secure Computing as a result of Finjan USA's alleged misrepresentations will not constitute an injury to a Minnesota entity or individual. The alleged misrepresentation simply has no relation to Minnesota or the Finjan Minnesota sales. Therefore, this Court should decline to exercise specific

jurisdiction over Finjan USA. Application by this Court of the detailed analysis set out by the Eighth Circuit Court of Appeals in the Digi-Tel Holdings case will also result in the conclusion that this Court should not exercise specific jurisdiction over Finjan USA. Digi-Tel Holdings, 89 F.3d 522-23. Pursuant to Digi-Tel Holdings, this Court may examine five factors when determining whether the exercise of personal jurisdiction over Finjan USA comports with
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constitutional due process: (1) the nature and quality of Finjan USA's contacts with Minnesota; (2) the quantity of Finjan's contacts with Minnesota; (3) the relation of the cause of action to Finjan USA's Minnesota contacts; (4) the interest of Minnesota in providing a forum for its residents; and (5) the convenience of the parties. Id. The Court of Appeals has stated that the above considerations incorporate the notions of both "minimum contacts" and "fair play and substantial justice." Sybaritic, Inc., 957 F.2d at 524. According to the Court of Appeals,