By Eric Schweibenz
On September 14, 2012, VirnetX, Inc. of Zephyr Cove, Nevada  (“VirnetX”) and Science Applications International Corporation of McLean, Virginia (“SAIC”) (collectively, the “Complainants”) filed a complaint requesting that the ITC commence an investigation pursuant to Section 337.

The complaint alleges that Apple Inc. of Cupertino, California (“Apple”) unlawfully imports into the U.S., sells for importation, and/or sells within the U.S. after importation certain devices with secure communication capabilities, components thereof, and products containing the same that infringe one or more claims of U.S. Patent No. 8,051,181 (the ‘181 patent).

According to the complaint, the ‘181 patent generally relates to a method for establishing and/or using a secure communications link between two computer devices.  In particular, the ‘181 patent relates to a secure name service that helps establish secure communications while allegedly overcoming disadvantages associated with conventional domain name servers.

In the complaint, the Complainants state that Apple imports and sells products that infringe the ‘181 patent.  The complaint specifically refers to Apple’s iPhone 4, iPhone 4S, iPhone 5, iPad 2, new iPad, iPod Touch, and Macs running the “Lion” and “Mountain Lion” operating systems as infringing products.

Regarding domestic industry, the Complainants state that VirnetX’s GABRIEL Connection Technology practices certain claims of the ‘181 patent.  The complaint states that VirnetX has made a significant investment in plant and equipment and a significant employment of labor and capital in the U.S. with respect to technology protected by the ‘181 patent, including the GABRIEL Connection Technology.  The complaint specifically refers to VirnetX’s current facility in Zephyr Cove, Nevada and its prior facility in Scotts Valley, California.  In the alternative, the complaint states that VirnetX is taking necessary tangible steps to establish a domestic industry.  The complaint also refers to VirnetX’s engineering and research and development activities.  In addition, the complaint refers to the activities and investments of VirnetX’s licensees, including Microsoft Corporation, Aastra USA Inc., Mitel Networks Corporation, NEC Corporation, and NEC Corporation of America.  Lastly, the complaint refers to VirnetX’s licensing activities.

As to related litigation, the Complainants state that on August 11, 2010, VirnetX filed a complaint in the U.S. District Court for the Eastern District of Texas alleging that Apple and others infringe certain patents other than the ‘181 patent.  The complaint also states that on November 1, 2011, VirnetX filed a complaint in the U.S. District Court for the Eastern District of Texas alleging that Apple infringes the ‘181 patent.  Further, on November 4, 2011, VirnetX filed an ITC complaint that led to the institution of ITC Inv. No. 337-TA-818.  See our December 10, 2011 post for more details.  The 818 investigation was terminated due to the absence of an indispensible party—SAIC—who is named as a co-complainant in the instant ITC complaint.  See our August 28, 2012 post for more details.  The complaint also states that Apple has filed an inter partes reexamination of the ‘181 patent at the U.S. Patent and Trademark Office, which is currently pending.

With respect to potential remedy, the Complainants request that the Commission issue a permanent exclusion order and permanent cease and desist orders directed at Apple.