By John Presper
On August 10, 2021, the ITC issued a Notice of Investigation in Certain Networking Devices, Computers, and Components Thereof (Inv. No. 337-TA-1275).

By way of background, this investigation is based on a June 1, 2021 complaint (as amended) filed by Proven Networks, LLC of Los Angeles, California (“Proven”) alleging a violation of section 337 by Respondent F5 Networks, Inc. of Seattle, Washington (“F5”) in the unlawful importation and/or sale in the U.S. of certain networking devices, computers, and components thereof by reason of infringement of one or more claims of U.S. Patent No. 8,687,573 (“the ’573 patent”).

According to the complaint, the ʼ573 patent relates to allocating resources in a communications system, and more specifically to allocating resources based upon priorities for services at different user levels. The accused products are networking appliances (e.g., switches, gateways, and application delivery controller products) that manage the flow of traffic and bandwidth for application quality of service, policy management, and security over a network, and related software. Proven is requesting that the Commission issue a limited exclusion order and permanent cease-and-desist order directed to F5. According to the Notice of Investigation, the Office of Unfair Import Investigations will participate as a party in the investigation. Lastly, Chief ALJ Charles E. Bullock issued a notice indicating that ALJ Cameron R. Elliot will preside in the investigation.

Further, F5 had requested that the Commission utilize the Early Disposition Program to adjudicate issues of patent validity (limited to one prior art reference) and domestic industry.  Specifically, F5 asserted that the '573 patent is invalid based on a prior art reference published by one of the inventors years before the priority date. F5 also argued that the Proven will not be able to establish a domestic industry based on its licensee’s (Extreme Network, Inc. (“Extreme”)) activities/investments because (a) Extreme obtained the license to the '573 patent through a litigation-based settlement that did not involve the '573 patent, which was lumped into the settlement as part of a portfolio license; and (b) therefore no inference can be drawn that Extreme practices the '573 patent for purposes of the technical prong of the domestic industry requirement.  The Commission issued an order denying F5's request "because the invalidity issue may not be case dispositive, and both the invalidity and domestic industry issues may be too complex to be decided within 100 days of institution."

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