Kaspersky Lab ZAO

10/1, PeNy Volokolamskiy proezd, 123060, Moscow, Russia

KA~PER~I(Y~
Te/,lFax: +7 (495) 797-87-00
E-mail: patentr2iJkaslJerskv.com
www: htto://www.kaspersky.com

January 24, 2011

United States Department of Justice

Federal Bureau of Investigation
White Collar Crime Division Headquarter
935 Pennsylvania Avenue, NW
Washington, D.C. 20535-0001

Re: Criminal Complaint

Dear Sir/Madam:

As an authorized representative of Kaspersky Lab, Inc. ("Kaspersky"), an

international technology company having its primary headquarters based in the Russian
Federation and named Kaspersky Lab ZAO, I request the Federal Bureau ofInvestigation
of the United States to intercede, using its full investigative power, and to complete a
thorough investigation of a course of conduct of employees, officers and agents of
Rational Patent X Corp. ("RPX"), a Delaware corporation based in California, in
connection with the company's practices involving the solicitation of membership fees
from major United States and foreign technology companies, including Kaspersky ZAO.

On information and belief, beginning no later than December 8, 2009, RPX,

through its employees, officers, and agents, conspired with Information Protection and
Authentication of Texas, LLC ("IPAT"), a Florida limited liability company, Global
Innovation Technology Holdings, LLC ("Global"), a Florida limited liability company,
and others to devise and carry out a scheme to wrongfully obtain from Kaspersky
"membership fees" of not less than $160,000.00 per year, and to wrongfully obtain from
Kaspersky other things of value. To accomplish this nefarious purpose, RPX threatened
to damage Kaspersky's business reputation and to embroil Kaspersky in frivolous patent
litigation that could cause Kaspersky to incur $18 million or more in litigation costs. To
further this scheme to extort from Kaspersky the aforementioned "membership fee,"
between December 9. 2009, and the present day, RPX repeatedly used mail and interstate
wire communications in violation of Title 18, United States Code, Sections 875, 1341,
1343 and 1951. Kaspersky suspects that this may amount to a violation of Title 18,
United States Code, Sections 1961-1968 (Racketeer Influenced and Corrupt
Organizations Statute).

The relevant facts are as follows:

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SUMMARY OF THE FACTS

I. PATENT LITIGATION

Kaspersky Lab ZAO is an international company that employs close to 2000

highly-qualified specialists, with offices in Moscow and regional headquarters overseeing
the activities of local representatives and partners in five global regions: North and South
America, Western Europe, Eastern Europe, the Middle East and Africa, Asia-Pacific, and
Japan. The company currently works in more than 100 countries. Kaspersky Lab ZAO's
products and technologies provide protection for over 300 million users worldwide.

RPX, a Delaware corporation based in California, is in the business of soliciting

membership fees from United Sates and foreign companies, purportedly for the purpose
of acquiring patents and licenses in different technology areas. RPX has never appeared
as a party in any patent litigation in U.S. federal court.

Addison M. Fischer, a resident of Florida, is an alleged inventor and owner of

numerous patents issued by the United States Patent and Trademark Office ("USPTO").

IPAT, a Florida foreign limited liability Company formed on December 31, 2008,
initially filed in Texas on July 22, 2008, is a non-practicing entity ("NPE") owned and
managed by Mr. Fischer.

Global, a Florida domestic limited liability company formed on September 12,

2008, is a NPE owned and managed by Mr. Fischer.

Information Protection and Authentication of West Virginia, LLC ("IPAWV"), a

Delaware limited liability company registered in West Virginia as a foreign limited
liability company, is an NPE owned and managed by Mr. Fischer.

On or about December 30, 2008, IPAT filed a civil suit in the United States
District Court for Eastern District of Texas against 23 major protection software
companies, including Kaspersky. The complaint alleged infringement of two patens,
5311591 and 5412717 issued by the USPTO, respectively, on May 10,1994, and May 2,
1995, to Addison M. Fischer. Kaspersky filed a counterclaim demanding invalidation of
these patents. Prior to this litigation, Kaspersky never received any notices claiming
violation of these patents, or any other patents owned by or assigned to said plaintiff or
any other entity.

Through the course of the litigation, 22 of the defendants signed confidential

settlement agreements and were released from the suit. At least eleven of the defendants
became members of RPX. Currently, only two entities, including Kaspersky, continue to
defend the allegations of infringement and demand invalidation ofthe patents in question.
The case, therefore, remains pending.

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 On or about January IS, 2009, IPAT and Global, as plaintiffs, filed a civil suit
against 17 hardware manufacturing companies claiming infringement of the same
patents. This action was originally brought in the United States District Court for the
Southern District of Florida. Venue was later changed to the United States District Court
for the Eastern District of Texas, where the two cases were consolidated. All hardware
manufacturing companies named as defendants, signed confidential settlement
agreements and were released from the suit. Kaspersky does not have information of
RPX's involvement in these settlements.

On or about June 6, 2009, Information Protection and Authentication of West

Virginia, LLC ("IPAWV") filed another civil suit against McAfee, Inc., one of the
defendants named in the first lawsuit. The plaintiff claimed an infringement of three other
patents issued by the USPTO to Mr. Fischer. No other defendants were joined in this
action. The suit was originally brought in U.S. District Court for the District of West
Virginia, but was later transferred to California. McAfee, the defendant, signed a
confidential settlement agreement almost simultaneously with the settlement of the first
lawsuit and became a member of RPX. The case was closed.

RPX refuses to disclose any details of its contractual or other relationships with
the abovementioned plaintiffs. All relevant information, if any, is protected from the
disclosure by a protective court order issued upon IPA T' s request.

Prior to this litigation, RPX was involved in another NPE patent lawsuit, Netcraft
v. AT&T Mobility, et ai, case No. 1:07-cv-0065I, under similar circumstances.

Attorneys of Ward & Olivo, a New-York City based law firm, appear on the
record representing the plaintiffs in all three cases.

II. COMMUNICATIONS BETWEEN KASPERSKY ZAO AND RPX.

On or about December 8, 2009, Mr. Skalin, a representative of Kaspersky ZAO,

received an unsolicited electronic message sent from one Geoffery Nudd's e-mail address
(gnudd@rpxcorp.com). The message, without disclosing any contractual or any other
relationship between RPX and IPAT, Global, and Mr. Fischer, introduced RPX as a
purported "solution" to the patent litigation initiated by NPEs. See attached.

Between January 14, 2010, and February 9, 2010, Kaspersky ZAO received
several electronic messages sent form Geoffery Nudd's e-mail address
(gnudd@rpxcorp.com) representing that RPX has acquired a license to the patents in
dispute and had a right to release Kaspersky from the lawsuit. In exchange, Kaspersky
had to join RPX membership for a minimum term of three years and pay annual fees of
$160,000.00. Kaspersky was also offered the benefit of "not [being] sued in connection
with all patents RPX has already acquired or will purchase in the future," with emphasis
on the significant cost of such litigation. See attached.

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 On or about March 5, 20 I 0, the CEO of Kaspersky Lab ZAO, Eugene Kaspersky,
received an unsolicited electronic message from Geoffery Nudd's e-mail address
(gnudd@rpxcorp.com) informing him that eight defendants have joined RPX and,
therefore, obtained releases from the IPAT suit. The message also suggested that by
joining RPX, Kaspersky would not only obtain a release from the pending IPAT
litigation, but also "[would] be supporting a shared resource pool with Kaspersky's
industry peers to prevent future patent litigation". The message also indicated that RPX
had the right to dismiss its members from the suit only through March, 20 I O. See
attached.

On or about April I, 2010, Eugene Kaspersky received an envelope from RPX

sent via Federal Express mail ("FedEx") to his office in Moscow containing an article
"Tech Giant's New Way to Thwart Patent Suits" reprinted from BusinessWeek Online, a
business card of Geoffrey H. Nudd, Business Develo~ment Director of RPX, and a
handwritten note stating: "E-Secure just became the 8' IPAT defendant to join RPX.
Please let me know how I can be helpful. Thank you, Geoff". See attached.

On or about April 19, 2010, Nadezhda Kashchenko, Kaspersky's Intellectual

Property Chief Counsel, received an electronic message from RPX suggesting that there
is no other option to license the IPAT patents except to join RPX, and threatening that
RPX was currently negotiating the acquisition of a portfolio that might be a threat to
Kaspersky. See attached.

On or about April 23, 2010, Nadezhda Kashchenko, received an electronic

message from RPX identifYing May 22, 2010, as the date until which RPX had the right
to grant Kaspesrky a release from the IPAT suit. See attached.

On or about May 13, 20 I0, Eugene Kaspersky received an electronic message

from RPX stating that "1.5 weeks [were] left to join" and suggesting that were Kaspersky
to ever sue an RPX member, RPX would make the patents in its pool available to that
member to defend or counterclaim against Kaspersky or to attack Kaspersky. See
attached.

On or about June 16, 20 I0, Nadezhda Kashchenko received an electronic message

from RPX suggesting that even though it pledged not to use its patens offensively, RPX
could sell its patents to third parties to be used in litigation against non-members. The
messages also stated that a company-defendant which does not contribute financially to
the release from litigation "would harm its relationships with its industry peers". See
attached.

FEDERAL CRIMINAL STATUTES

A. Title 18 U.S.C., § 875. Threatening Communications.

B. Title 18, U.S.C., §1341 and 1343. Mail and Wire Fraud.

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C. Title 18, U.S.C., §1951. Interference with Commerce by Extortion. Hobbs Act.

D. Racketeer Influenced and Corrupt Organizations Statute (18 U.S.C. §§ 1961-1968).

A. Title 18 U.S.C., § 875. Threatening Communications.

Section 875(d) provides: "whoever, with intent to extort from any person, firm,
association, or corporation, any money or other thing of value, transmits in interstate or
foreign commerce any communication containing any threat to injure the property or
reputation of the addressee or of another or the reputation of a deceased person or any
threat to accuse the addressee or any other person of a crime, shall be fined under this
title or imprisoned not more than two years, or both."

On numerous occasions, RPX transmitted electronic communication to Kaspresky

threatening it with costly litigation in connection with the patens that RPX owns now or
will acquire in the future and with other harmful consequences, unless it becomes a
member. The purpose of RPX's threatening communication was to extort membership
fees and to prevent Kaspersky from pursuing its counterclaim demanding invalidation of
the IPAT patents. An outcome favorable to Kaspersky would result in economic loss for
RPX when at least 11 companies paid significant membership fees in exchange for an
IPAT "patent license."

B. Title 18, U.S.C., §1341 and 1343. Mail and Wire Fraud.

Section 1341, in its relevant part, provides: "whoever, having devised or intending
to devise any scheme or artifice to defraud, or for obtaining money or property by means
of false or fraudulent pretenses, representations, or promises... for the purpose of
executing such scheme or artifice or attempting so to do, places in any post office or
authorized depository for mail matter, any matter or thing whatever to be sent or
delivered by the Postal Service, or deposits or causes to be deposited any matter or thing
whatever to be sent or delivered by any private or commercial interstate carrier, or takes
or receives therefrom, any such matter or thing, or knowingly causes to be delivered by
mail or such carrier according to the direction thereon, or at the place at which it is
directed to be delivered by the person to whom it is addressed, any such matter or thing,
shall be fined under this title or imprisoned not more than 20 years, or both."

The main elements of the offense of mail fraud under §1341 are (I) a scheme to
defraud, and (2) the mailing of a letter, etc., for the purpose of executing the scheme.
The elements of wire fraud under Section 1343 directly parallel those of the mail fraud
statute, but require the use of an interstate telephone call or electronic communication
made in furtherance of the scheme.

The mail fraud and wire fraud statutes do not define the terms "scheme" or
"artifice" and the courts have traditionally been reluctant to offer definitions of either
term except in the broadest and most general terms. The words "to defraud" in the mail

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fraud statute have the common understanding of "wrongdoing one in his property rights
by dishonest methods or schemes," and "usually signify the deprivation of something of
value by trick, chicane, or overreaching." McNally v. United States, 483 U.S. 350, 358
(1987).

However, the gist of the offenses is not the scheme to defraud, but the use of the
mails or interstate wire communications. Accordingly, each use of the mails (in the case
of mail fraud) and each separate wire communication (in the case of wire fraud)
constitutes a separate offense. United States v. Pazos, 24 F.3d 660,665 (5th Cir. 1994).

The requisite intent under the federal mail and wire fraud statutes may be inferred
from the totality of the circumstances and need not be proven by direct evidence. United
States v. Alston, 609 F.2d 531, 538 (D.C. Cir. 1979).

Facts indicate that RPX has used mail and interstate wire communications on
numerous occasions in furtherance of a scheme to extort from Kaspersky "membership
fees". RPX's communications solicited from Kaspersky membership fee under false
pretenses of membership benefits, and threatened Kaspersky with detrimental
consequences of not joining.

C. Title 18, U.S.C., §1951.lnterference with commerce by extortion consisting of

threats, violence or fear. The Hobbs Act

The Hobbs Act regulates extortion and robbery, which Congress has determined
to have a substantial effect on interstate and foreign commerce by reason of their
repetition and aggregate effect on the economy.

Section 1951(a) provides "Whoever in any way or degree obstructs, delays, or

affects commerce or the movement of any article or commodity in commerce, by robbery
or extortion or attempts or conspires so to do, or commits or threatens physical violence
to any person or property in furtherance of a plan or purpose to do anything in violation
of this section shall be fined under this title or imprisoned not more than twenty years, or
both".

As used in this section- the term "extortion" means obtaining of property from
another, with his consent, induced by wrongful use of actual or threatened force,
violence, or fear, or under color of official right. Extortion by the use of fear includes
fear of economic harm. In the case of fear of economic harm the defendant must intend to
take advantage of the victim's fear.

Facts indicate that RPX intended to extort a membership fee by causing

Kaspersky fear of economic harm from frivolous patent litigation.

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D. Racketeer Influenced and Corrupt Organizations Act (18 U.S.C. §§ 1961-1968).

Violations of 18 U.S.C. §§1341, 1343, and 1951 may be used by prosecutors as

the predicate offenses necessary to establish a RICO violation. See 18 U.S.C.
§ 196I(l)(B) ("racketeering activity" defined to include "any act which is indictable
under .... section 1341 (relating to mail fraud), section 1343 (relating to wire fraud) ...
and section 1951 (relating to interference with commerce by robbery, or extortion).
RICO requires that the government prove that the defendant, through commission
of two or more acts constituting a pattern of racketeering activity, directly or indirectly
invested in, or maintained an interest in, or participated in an enterprise, the activities of
which affected interstate or foreign commerce. In summary, the elements of a RICO
offense are:

(A) two or more predicate acts of racketeering activity as defined above;

(B) a pattern of criminal activity, or related and continuous criminal actions involving the
same victims, the same participants, have the same methods of commission, or related in
some other fashion. A pattern may be sufficiently continuous if the criminal actions
occurred over a substantial period of time or posed a threat of indefinite duration;

(C) an enterprise, which term includes any legally formed entity;

(D) and effect on interstate or foreign commerce.

Beginning no later than December 8, 2009, and continuing through the present
day, employees, officers, and agents of RPX were involved in a course of conduct in
violation of sections 1341, 1343 and 1951 of Title 18 of the United States Code, using a
legally formed entity, RPX, as a vehicle for receiving financial gain from their wrongful
activities. Their actions pose a threat of indefinite duration to non-members, including
Kaspersky, of incurring significant economic harm from frivolous patent litigation.
Furthermore, the actions ofRPX significantly affect interstate and foreign commerce.

Wherefore, I ask the Federal Bureau of Investigation to investigate the activities

of the aforementioned parties.

Euge Ka persky
CEO Kaspersky Lab ZA 0 .
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t;ii::ra?C-:--/ .
Nadezhda Kashchenko
ChiefIntellectual Property Counsel
Kaspersky Lab ZA 0