DCT
2:19-cv-00300
Gigamon Inc v. Apcon Inc
I. Executive Summary and Procedural Information
- Parties & Counsel:
- Plaintiff: Gigamon Inc. (Delaware)
- Defendant: Apcon, Inc. (Oregon)
- Plaintiff’s Counsel: The Davis Firm P.C.; Desmarais LLP
- Case Identification: 2:19-cv-00300, E.D. Tex., 08/30/2019
- Venue Allegations: Plaintiff alleges venue is proper because Defendant operates a Regional Center in Plano, Texas, which is within the district and constitutes a regular and established place of business where activities such as product software development, engineering, and sales allegedly occur.
- Core Dispute: Plaintiff alleges that Defendant’s portfolio of network monitoring and visibility products infringes six patents related to technologies for packet switching, filtering, data tagging, de-duplication, and management of traffic in physical and virtualized networks.
- Technical Context: The technology domain is network visibility, a critical market for enterprises and service providers to monitor, manage, and secure high-volume data traffic across complex computer networks.
- Key Procedural History: The complaint does not reference any prior litigation, Inter Partes Review (IPR) proceedings, or licensing history between the parties.
Case Timeline
| Date | Event |
|---|---|
| 2004-05-05 | ’656 Patent Priority Date |
| 2007-02-02 | ’862 Patent Priority Date |
| 2007-10-31 | ’466 Patent Priority Date |
| 2010-02-26 | ’819 Patent Priority Date |
| 2011-04-08 | ’557 Patent Priority Date |
| 2012-07-27 | ’049 Patent Priority Date |
| 2013-10-29 | ’862 Patent Issue Date |
| 2014-09-02 | ’466 Patent Issue Date |
| 2014-09-09 | ’819 Patent Issue Date |
| 2014-10-28 | ’557 Patent Issue Date |
| 2015-07-07 | ’656 Patent Issue Date |
| 2017-09-19 | ’049 Patent Issue Date |
| 2019-08-30 | Complaint Filing Date |
II. Technology and Patent(s)-in-Suit Analysis
U.S. Patent No. 8,570,862 - Mapping A Port On A Packet Switch Appliance (Issued October 29, 2013)
The Invention Explained:
- Problem Addressed: The patent’s background section describes conventional packet switch appliance filters as being limited, typically having only a single condition to determine whether a packet is dropped or forwarded, which offers insufficient flexibility for sophisticated network monitoring (ʼ862 Patent, col. 1:42-46).
- The Patented Solution: The invention introduces a configurable "port map" that can be assigned to a network port on a packet switch appliance. This port map contains a series of rules, where each rule has a specific "criterion" (e.g., a packet's source address or VLAN ID) and an "action" (e.g., drop the packet or forward it to one or more designated monitoring tools) (ʼ862 Patent, col. 2:51-60). When a packet is received, the processing unit evaluates it against the rules in the port map to execute complex, multi-conditional traffic distribution decisions (ʼ862 Patent, col. 4:33-44).
- Technical Importance: This technology provided network administrators with more granular and powerful control over traffic visibility, allowing them to precisely steer specific data flows to specialized analysis tools while filtering out irrelevant traffic ('862 Patent, col. 2:26-36).
Key Claims at a Glance:
- The complaint asserts at least independent claim 1 (Compl. ¶36).
- Essential elements of Claim 1:
- A packet switch device comprising a processing unit, a first network port, and a plurality of instrument ports.
- The processing unit is configured to process a packet received at the network port using a first rule with a first criterion and a second rule with a second criterion.
- Each criterion specifies a packet value for comparison with a portion of the received packet.
- The processing unit is configured to drop or forward the packet based on the result of the comparison.
U.S. Patent No. 8,824,466 - Creating And/Or Mapping Meta-Data For Data Storage Devices Using A Packet Switch Appliance (Issued September 2, 2014)
The Invention Explained:
- Problem Addressed: The patent background explains that typical network packets provide limited contextual information, making subsequent forensic analysis and retrieval of specific packet traffic from large storage systems difficult, especially when data is distributed across multiple storage devices (ʼ466 Patent, col. 1:63-67).
- The Patented Solution: The invention proposes a system where a packet switch appliance creates a "meta-data tag" for a block of received packets. This tag contains useful context not present in the packets themselves, such as an identifier for the switch appliance and the specific network port where the packets were received (ʼ466 Patent, col. 11:56-63). The block of packets and its associated meta-data tag are then sent to a data storage device, enriching the archived data for more effective retrieval and analysis (ʼ466 Patent, Abstract).
- Technical Importance: This method introduced a way to systematically add critical context to raw packet data at the point of capture, enhancing the value of stored data for network forensics and performance troubleshooting in complex network environments ('466 Patent, col. 2:1-4).
Key Claims at a Glance:
- The complaint asserts at least independent claim 22 (Compl. ¶46).
- Essential elements of Claim 22:
- A packet switch appliance comprising a first network port, a first instrument port, and a processing unit.
- The processing unit is configured to create a first meta-data tag for a first packet and pass it to the first instrument port.
- The meta-data tag comprises one or both of an identifier of the packet switch appliance and information about the network port where the packet was received.
- The appliance also comprises a port for communication with an additional packet switch appliance.
Multi-Patent Capsule: U.S. Patent No. 8,830,819
- Patent Identification: U.S. Patent No. 8,830,819, Network Switch With By-Pass Tap, issued September 9, 2014 (Compl. ¶16).
- Technology Synopsis: The patent discloses a network switch apparatus containing a "by-pass device." The device can operate in a normal mode, passing network traffic to an inline monitoring tool (like an Intrusion Prevention System), or switch to a "by-pass" mode upon a triggering condition, such as a power or tool failure. In by-pass mode, traffic is routed directly between network ports, preserving network connectivity even if the monitoring tool or switch fails (ʼ819 Patent, Abs.).
- Asserted Claims: At least independent claim 1 (Compl. ¶56).
- Accused Features: The complaint accuses Apcon's network switch products that include a bypass function, such as the "IntellaFlex XR rack unit with IntellaFlex Bypass Switch," of infringing by automatically switching between operational modes in response to events like network tool failure (Compl. ¶¶ 56, 57).
Multi-Patent Capsule: U.S. Patent No. 8,873,557
- Patent Identification: U.S. Patent No. 8,873,557, Systems And Methods For Packet De-Duplication, issued October 28, 2014 (Compl. ¶18).
- Technology Synopsis: This patent addresses the technical problem of redundant or duplicate packets generated in network monitoring, which can overwhelm analysis tools. The invention describes a method for identifying duplicate packets by sequentially checking multiple fields in the packet header. A first field with a high rate of change (an "identification field") is checked first; if it matches a prior packet, a second, more stable field is checked to confirm duplication before the packet is discarded (ʼ557 Patent, Abs.; col. 13:38-52).
- Asserted Claims: At least independent claim 20 (Compl. ¶66).
- Accused Features: The complaint targets Apcon’s switches with de-duplication functionality, such as "HyperEngine Packet Processor blades." These are alleged to infringe by using a multi-field comparison process, including checking an identification field and other header fields, to identify and remove duplicate packets from a data stream (Compl. ¶¶ 66, 67).
Multi-Patent Capsule: U.S. Patent No. 9,077,656
- Patent Identification: U.S. Patent No. 9,077,656, Packet Switch Methods And Systems, issued July 7, 2015 (Compl. ¶20).
- Technology Synopsis: The patent describes a packet switch that operates "out-of-band" from a live production network to provide traffic to a monitoring instrument. The invention involves establishing a "logical connection" between a network port receiving traffic and an instrument port connected to a tool. This connection is based on a "network flow," allowing the switch to selectively forward only relevant packets belonging to that flow from the production network to the monitoring tool (ʼ656 Patent, Abstract).
- Asserted Claims: At least independent claim 14 (Compl. ¶76).
- Accused Features: The complaint accuses Apcon's "IntellaFlex XR devices and systems" of infringement. These products are alleged to be out-of-band packet switches that use "flow mapping" to establish logical connections for forwarding specific packet flows from a production network to monitoring tools (Compl. ¶¶ 76, 77).
Multi-Patent Capsule: U.S. Patent No. 9,769,049
- Patent Identification: U.S. Patent No. 9,769,049, Monitoring Virtualized Network, issued September 19, 2017 (Compl. ¶22).
- Technology Synopsis: This patent addresses challenges in monitoring virtualized networks, where original packets are often encapsulated within outer "tunnel" headers. The invention provides a method and apparatus that uses information about the virtualized network to decide how to process a packet. It can apply a first scheme that performs "header stripping" to remove the tunnel encapsulation before forwarding to a tool, or a second scheme that forwards the packet with its tunnel header intact (ʼ049 Patent, Abs.).
- Asserted Claims: At least independent claim 16 (Compl. ¶86).
- Accused Features: The complaint targets Apcon's "Series 4000 platform," which allegedly monitors virtualized networks. The accused feature is the ability to perform "protocol header stripping," where the device uses filtering functions to decide whether to remove tunnel headers from packets before forwarding them to monitoring instruments (Compl. ¶¶ 86, 87).
III. The Accused Instrumentality
- Product Identification: The complaint identifies a broad range of Apcon's network visibility products, including the Apcon Series 4000 Platform, IntellaFlex XR suite, HyperEngine Packet Processor, IntellaView Management Interface, IntellaStore Platform, IntellaCloud solution, and IntellaTap-VM solution (Compl. ¶30).
- Functionality and Market Context: The complaint characterizes the Accused Products as network monitoring and packet switch systems that perform functions directly corresponding to the patented technologies, including multi-stage filtering, packet tagging, bypass switching for network resiliency, packet de-duplication, flow-based traffic mapping, and header stripping for virtualized network traffic (Compl. ¶¶ 37, 47, 57, 67, 77, 87). The complaint alleges that Apcon is a direct competitor to Gigamon in the network visibility market (Compl. ¶29).
No probative visual evidence provided in complaint.
IV. Analysis of Infringement Allegations
’862 Patent Infringement Allegations
| Claim Element (from Independent Claim 1) | Alleged Infringing Functionality | Complaint Citation | Patent Citation |
|---|---|---|---|
| A packet switch device for providing visibility of traffic in a network, comprising: a processing unit... | The Accused Devices are identified as packet switch devices containing a processing unit (e.g., IntellaFlex 3000-XR) that provide network traffic visibility. | ¶37 | col. 10:1-3 |
| a first network port...configured to communicate with the network... | The devices include a network port, such as one used for port mirroring coupled to the IntellaFlex 3000-XR. | ¶37 | col. 2:20-22 |
| a plurality of instrument ports...configured to communicate with a respective network monitoring instrument... | The devices include instrument ports, such as those on an IntellaFlex 3000-XR coupled to monitoring tools. | ¶37 | col. 2:22-26 |
| wherein the processing unit is configured to: process a packet...using a first rule with a first criterion, and process the packet...using a second rule with a second criterion... | Apcon’s IntellaFlex XR software allegedly enables "multi-stage filtering" where first and second filters are applied to the same incoming data stream. | ¶37 | col. 2:54-60 |
| wherein each of the first criterion and the second criterion specifies a packet value...for comparison with a value of a portion of the packet... | The complaint alleges the criteria specify a packet value that is compared with a value from a portion of the packet. | ¶37 | col. 11:38-44 |
| wherein the processing unit is configured to drop or forward the packet based at least in part on a result from the comparison. | Apcon’s "Multistage Filtering" is alleged to provide configurable filter programming where packets are mapped to a destination or discarded based on Boolean logic. | ¶37 | col. 4:39-44 |
- Identified Points of Contention: A primary issue may be whether Apcon’s "multi-stage filtering" technology operates by applying a "first rule" and a "second rule" as distinct, sequential logical steps contemplated by the patent. The patent specification describes an exemplary embodiment where if the first rule's criterion is met, the second is not evaluated ('862 Patent, col. 5:25-28). The dispute may center on whether the accused functionality matches this operational sequence or constitutes a single, albeit complex, filtering operation that falls outside the claim scope.
’466 Patent Infringement Allegations
| Claim Element (from Independent Claim 22) | Alleged Infringing Functionality | Complaint Citation | Patent Citation |
|---|---|---|---|
| A packet switch appliance, comprising: a first network port for receiving a first packet... | The Accused Devices are alleged to be packet switch appliances with a network port for receiving packets, such as through port mirroring. | ¶47 | col. 11:46-47 |
| a first instrument port for communication with a first device... | The devices allegedly include an instrument port for communicating with tools, such as ports on an IntellaFlex 3000-XR. | ¶47 | col. 11:48-49 |
| a processing unit configured to create a first meta-data tag for the first packet, and to pass the first meta-data tag to the first instrument port... | The processing unit is alleged to create and pass a meta-data tag to the instrument port. | ¶47 | col. 11:51-55 |
| wherein the first meta-data tag comprises one or both of an identifier of the packet switch appliance, and information about the first network port... | Apcon's software for IntellaStore II is alleged to insert a "Port Tag" at the ingress port, which allegedly contains the required identifying information. | ¶47 | col. 6:18-24 |
| a port for communication with an additional packet switch appliance. | Apcon's hardware, which mounts in a chassis and shares a "common management backplane," is alleged to meet this limitation. | ¶47 | col. 11:64-66 |
- Identified Points of Contention: The analysis may focus on two key areas. First, a factual question is whether Apcon’s "Port Tag" actually contains the information required by the claim—an identifier of the appliance and/or the ingress port. Second, a legal question of claim scope is whether a "common management backplane" shared between blades in a chassis can be construed to be a "port for communication with an additional packet switch appliance," which may suggest a more conventional external-facing interface.
V. Key Claim Terms for Construction
Term: "process a packet ... using a first rule ... and ... using a second rule" (’862 Patent, Claim 1)
- Context and Importance: This term is central to the infringement theory against Apcon's "multi-stage filtering." Its construction will determine whether a single, complex filtering configuration meets the claim's requirement for two distinct "rules." Practitioners may focus on this term because it addresses the core operational principle of the invention.
- Intrinsic Evidence for a Broader Interpretation: The claim language itself does not explicitly require sequential or independent application of the rules. The specification also refers to one implementation where rules are applied in a predetermined order as an "optional implementation" ('862 Patent, col. 5:19-20), which may suggest other non-ordered implementations are also covered.
- Intrinsic Evidence for a Narrower Interpretation: The primary embodiment described in the detailed description implies a sequential process where "if the first criterion is met, then the first action of the first map rule is performed" and "the second criterion or any other criterion in the port map is not evaluated" ('862 Patent, col. 5:23-28). This language could support an argument that "using a first rule and... a second rule" requires a specific, ordered evaluation logic.
Term: "port for communication with an additional packet switch appliance" (’466 Patent, Claim 22)
- Context and Importance: The complaint alleges this limitation is met by a "common management backplane" within a chassis (Compl. ¶47). The definition of "port" will be critical to determining if an internal backplane architecture satisfies a limitation that could also be read to mean an external interface for stacking separate physical devices.
- Intrinsic Evidence for a Broader Interpretation: The term "port" is not explicitly defined in the patent, which could allow for a broader interpretation encompassing any point of electrical or logical connection, including an internal backplane, that facilitates communication.
- Intrinsic Evidence for a Narrower Interpretation: The specification's figures and description of stacking multiple appliances (e.g., '466 Patent, FIG. 7) depict distinct physical appliances connected, which may imply that a "port" is an external-facing interface for connecting separate devices, not an internal backplane connecting modules within a single chassis.
VI. Other Allegations
- Indirect Infringement: For all asserted patents, the complaint alleges induced and contributory infringement. The allegations are based on Defendant making, selling, and offering for sale the Accused Products to its customers, and providing "technical materials and promotional literature describing and instructing in the infringing use" of the products (e.g., Compl. ¶¶ 38-40, 48-50).
- Willful Infringement: The complaint alleges that Defendant's infringement will be willful upon service of the complaint, establishing post-suit knowledge of the patents-in-suit (e.g., Compl. ¶40). The prayer for relief requests a judgment that the infringement has been willful and seeks treble damages accordingly (Compl. ¶93(g), (j)).
VII. Analyst’s Conclusion: Key Questions for the Case
- Functional Operation vs. Claim Language: A central theme across multiple patents will be whether the accused features, described by Defendant in marketing terms like "Multistage Filtering," "Port Tag," and "flow mapping," perform the specific technical functions recited in the patent claims. The case will likely require a deep technical dive to compare the actual operation of the accused software and hardware against the patented methods and systems.
- Definitional Scope: The dispute may turn on the construction of key claim terms. A core question will be whether terms rooted in the patent's specific embodiments, such as the sequential application of "rules" ('862 Patent) or a "port" for connecting appliances ('466 Patent), can be construed broadly enough to read on the architecture and functionality of the accused products.
- Aggregation of Features: Plaintiff asserts six distinct patents covering a range of features common in modern network visibility platforms. A key question will be whether the accused product line, as a whole, practices the combination of these patented technologies, from basic filtering and tagging to more advanced functions like de-duplication and virtual network monitoring.