Mark H. Sandstrom v. International Trade Commission

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MARK H. SANDSTROM,
Appellant
v.
INTERNATIONAL TRADE COMMISSION,
Appellee
XENOGENIC DEVELOPMENT LLC,
Intervenor
______________________
2025-1269
______________________
Appeal from the United States International Trade
Commission in Investigation No. 337-TA-1391.
______________________
Decided: January 9, 2026
______________________
MARK H. SANDSTROM , Alexandria, VA, pro se.
J ONATHAN L INK, Office of the General Counsel, United
States International Trade Commission, Washington, DC,
for appellee. Also represented by MICHELLE W. K LANCNIK,
MARGARET D. MACDONALD.
J OHN CHRISTOPHER ROZENDAAL , Sterne Kessler
Case: 25-1269 Document: 56 Page: 1 Filed: 01/09/2026

-- 1 of 7 --

SANDSTROM v. ITC 2
Goldstein & Fox PLLC, Washington, DC, for intervenor.
Also represented by JOHN HYLTON, MICHAEL E. J OFFRE.
______________________
Before REYNA, WALLACH , and HUGHES , Circuit Judges.
WALLACH , Circuit Judge.
Mark Sandstrom1 appeals the final determination of
the U.S. International Trade Commission (“the
Commission”), which affirmed the Administrative Law
Judge’s (“ALJ”) summary determination of no
infringement of U.S. Patent Nos. 10,567,474 (“’474 Patent”)
and 10,848,546 (“’546 Patent”) (collectively, “the Asserted
Patents”) and no violation of Section 337 of the Tariff Act
of 1930, as amended, 19 U.S.C. § 1337 (“Section 337”). We
have jurisdiction under 28 U.S.C. § 1295(a)(6). We affirm.
This case involves optical line termination (“OLT”)
devices and optical network terminal (“ONT”) devices (“the
Accused Products”). OLT devices are utilized by network
service providers to split an incoming optical signal into
multiple signals, which can then be provided to end users
of the service provider’s network. OLTs can also multiplex
1 On December 4, 2024, the same day the Commission’s
final determination issued, Optimum Communication
Systems, Inc. (“OCS”), assigned the Asserted Patents to
Sandstrom. Sandstrom’s notice of appeal was docketed in
this Court on December 10, 2024. ECF No. 1. On July 23,
2025, the Court ordered Sandstrom to file supplemental
briefing addressing his standing to appeal. ECF No. 37.
Sandstrom filed a response asserting that he has standing,
ECF No. 38, and the Commission does not dispute that
Sandstrom has sufficiently established standing for
purposes of this appeal. We agree with the Commission
that Sandstrom has established standing to pursue his
appeal. As such, this Opinion references “OCS” when
discussing the proceedings below, and “Sandstrom” when
addressing the present appeal.
Case: 25-1269 Document: 56 Page: 2 Filed: 01/09/2026

-- 2 of 7 --

SANDSTROM v. ITC 3
incoming optical signals received from end users back into
a single optical signal. On the other hand, ONT devices are
utilized at the end user’s network to process the incoming
optical signal for use at the end user’s devices.
On January 19, 2024, OCS filed a complaint against
Changsha Silun Network Technology Co., Ltd.; Hunan
Maiqiang Network Technology Company Limited; Hunan
Zikun Information Technology Co., Ltd.; and Guangzhou
Qiton Electronics Technology Co., Ltd., alleging a violation
of Section 337 for the importation into the United
States, sale for importation, and sale within the United
States of the Accused Products. OCS alleged that the
Accused Products infringed claims 1, 2, and 4–7 of the ’474
Patent and claims 1–3 and 5–9 of the ’546 Patent.
Specifically, OCS alleged that the Accused Products comply
with specific versions of certain standards and extensions,
known as RFCs,2 and that those standards and extensions,
in turn, are covered by claims of the ’474 Patent and ’546
Patent. The standards and extensions at issue in this case
are RFC 6241 (“NETCONF”), RFC 7950 (“Yang 1.1”), RFC
8526 (“NETCONF Extension”), and RFC 8342 (“NMDA”).
On May 14, 2024, the ALJ found all four companies in
default, and on June 13, 2024, the Commission declined to
review the ALJ’s decision, making it the final
determination of the Commission. Subsequently, OCS
moved for summary determination and requested a
general exclusion order (“GEO”).3 In turn, the Office of
2 RFCs originally stood for “Requests for Comment”
and are standards promulgated by the Internet and
Engineering Task Force.
3 Because OCS requested a GEO under Section
337(g)(2), it had to establish, among other things, a
violation of Section 337, which entails demonstrating the
underlying act of infringement. See 19 C.F.R. § 210.16(c)(2)
(“The Commission may issue a general exclusion order
Case: 25-1269 Document: 56 Page: 3 Filed: 01/09/2026

-- 3 of 7 --

SANDSTROM v. ITC 4
Unfair Import Investigations (“OUII”) filed an opposing
motion for summary determination of no infringement and
no violation of Section 337. The ALJ granted OUII’s
motion and concluded that: (1) OCS’s evidence that the
Accused Products generically comply with the NETCONF
and YANG standards was insufficient to show compliance
with the specific standards upon which its infringement
allegations rely; (2) OCS failed to provide evidence that the
NETCONF and YANG standards require a “user
interface,” as required by all asserted claims; and (3) OCS
identified insufficient evidence that the Accused Products
meet the “a set of remote elements” limitation. On review,
the Commission affirmed the ALJ’s initial determination
of non-infringement and no violation of Section 337 and
terminated the investigation.
On appeal, Sandstrom challenges the summary
determination. Summary determination is proper “if
pleadings and any depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact
and that the moving party is entitled to a summary
determination as a matter of law.” 19 C.F.R. § 210.18(b).
“We review summary determinations de novo.” Hazani v.
U.S. Int’l Trade Comm’n, 126 F.3d 1473, 1476 (Fed. Cir.
1997) (citation omitted).
Sandstrom raises four main arguments as to why
summary determination of no infringement was improper.
First, Sandstrom argues OCS produced evidence which
proved infringement. Second, Sandstrom argues the ALJ
acted “arbitrary and capricious” by deciding OUII’s motion
for summary determination before his own. Third,
Sandstrom argues it was improper for the ALJ to rely on
“Complainant’s own [infringement allegation]” in deciding
OUII’s motion. Fourth, Sandstrom argues that the ALJ
pursuant to section 337(g)(2) . . . provided that a violation
of section 337 . . . is established by substantial, reliable,
and probative evidence . . . .”).
Case: 25-1269 Document: 56 Page: 4 Filed: 01/09/2026

-- 4 of 7 --

SANDSTROM v. ITC 5
applied an incorrect evidentiary standard under Section
337(g)(2). As Sandstrom’s last three arguments are not
persuasive, we only consider the argument that OCS
produced evidence sufficient to raise a genuine issue of fact
regarding infringement.
“An infringement analysis entails two steps. The First
step is determining the meaning and scope of the patent
claims asserted to be infringed. The second step is
comparing the properly construed claims to the device
accused of infringing.” Markman v. Westview Instruments,
Inc., 52 F.3d 967, 976 (Fed. Cir. 1995), aff’d, 517 U.S. 370
(1996) (citation omitted). As relevant to this appeal,
“[i]nfringement can be proven based on an accused
product’s use of an industry standard if the asserted claim
is standard essential.” INVT SPE LLC v. Int’l Trade
Comm’n, 46 F.4th 1361, 1377 (Fed. Cir. 2022) (citations
omitted). “Claims are standard essential if the reach of the
claims includes any device that practices the standard.” Id.
(internal quotation marks and citation omitted). However,
“[a]n accused infringer is free to either prove that the
claims do not cover all implementations of the standard or
to prove that it does not practice the standard.” Fujitsu
Ltd. v. Netgear Inc., 620 F.3d 1321, 1327 (Fed. Cir. 2010).
In moving for summary determination, OUII argued,
among other things, that OCS failed to present any
evidence that the Accused Products utilize the specific
versions of the standards on which OCS’s infringement
allegations rely. Therefore, to defeat summary
determination,4 as to this argument, OCS, as the non-
movant, had to raise a genuine issue of material fact
regarding whether the Accused Products support the
specific standards. See Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248, 251–52, 256 (1986). In responding to OUII,
4 Summary determination under 19 C.F.R. § 210.18(b)
is governed by the criteria of summary judgment. Amgen
Inc. v. Int’l Trade Comm’n, 565 F.3d 846, 849 (Fed. Cir.
2009) (citations omitted).
Case: 25-1269 Document: 56 Page: 5 Filed: 01/09/2026

-- 5 of 7 --

SANDSTROM v. ITC 6
OCS produced three pieces of evidence: (1) advertisements
of the Accused Products, (2) three claim charts, and (3) a
legal opinion. We address each piece of evidence in turn.
First, while the advertisements produced by OCS do
state that the devices support “NETCONF” and “YANG,”
they give no additional detail as to what specific versions
of the standards they support. As opined by OUII’s expert,
Dr. Simon, in his report:
In my opinion, based at least on the
information identified above, a person of skill
would not know merely from the labels
“NETCONF” and “YANG” what versions of the
standards are supported by a device. Rather,
persons of skill would understand that the device
could support older or newer versions of the
standards and may in fact use standards that are
the result of industrial consortiums or proprietary
standards and capabilities.
Although Sandstrom takes issue with Dr. Simon’s expert
report, he has failed to rebut it in any way.5 As such,
without more, these advertisements are insufficient to
raise a genuine issue as to whether the Accused Products
utilize the specific versions of the standards on which
OCS’s infringement allegations rely.
Second, the three claim charts produced by OCS also
fail to raise a genuine issue of material fact regarding
infringement because they fail to disclose whether the
Accused Products practice the specific versions of the
various standards. The claim charts simply compare the
5 A majority of Sandstrom’s arguments regarding the
expert report are that he “was not given the opportunity to
cross-examine the [expert].” This is incorrect. During a
case management conference, on October 8, 2024, Judge
Bhattacharyya specifically asked Sandstrom if he had been
given an opportunity to depose Dr. Simon, to which
Sandstrom answered in the affirmative.
Case: 25-1269 Document: 56 Page: 6 Filed: 01/09/2026

-- 6 of 7 --

SANDSTROM v. ITC 7
language of the standards to the language of the asserted
claims without showing that the Accused Products practice
the standards. Simply put, the claim charts fail to raise a
genuine issue as to whether the Accused Products practice
the specific versions of the standards OCS’s infringement
allegations rely on. Third, OCS’s produced legal opinion,
regarding infringement, amounts to nothing more than
unsworn attorney argument, which is not evidence. See
Gemtron Corp. v. Saint-Gobain Corp., 572 F.3d 1371, 1380
(Fed. Cir. 2009) (noting that “unsworn attorney
argument . . . is not evidence”).
We have considered Sandstrom’s remaining arguments
but do not find them persuasive. For the foregoing reasons,
we affirm the Commission’s final determination of no
infringement and no violation of Section 337.6
AFFIRMED
6 Sandstrom’s reply brief, ECF No. 40, incorporated a
motion to strike the Commission’s response brief because
“it extensively relies on its ‘Appx’ that was not filed with
the Court or served on [him].” ECF No. 40-1 at 5. On
October 23, 2025, the Commission was granted leave to file
a response, and the motion to strike was deferred for
consideration by the merits panel assigned to this appeal.
ECF No. 49. In its response, the Commission asserts that
Sandstrom was given a working appendix on September 3,
2025, and informed him that he would be allowed to amend
his reply brief and refile by the original deadline of
September 18, 2025. ECF No. 43. Based on the foregoing,
Sandstrom’s motion to strike is denied.
Case: 25-1269 Document: 56 Page: 7 Filed: 01/09/2026

-- 7 of 7 --