Discontinued Products Count Towards Domestic Industry

In a recent Initial Determination ("ID"), Chief Administrative Law Judge Bullock held that the "greater weight of authority" supports the conclusion that investments in discontinued products can form the basis for an existing domestic industry. Certain Memory Modules and Components Thereof, and Products Containing Same, Inv. No. 337-TA-1023, Initial Determination (Nov. 14, 2017).

Netlist Inc. ("Netlist") filed a complaint asserting that SK hvnix Inc., SK hynix America Inc., and SK hvnix memory solutions Inc. (collectively, "SK hynix") violated a number of its patents by importing certain memory modules. To show that it had a domestic industry, Netlist submitted evidence that it had invested significantly in certain HyperCloud products and had ongoing domestic activities incorporating HyperCloud technology into Netlist's next-generation HybriDIMM products. SK hynix argued that Netlist's investments in the HyperCloud products were irrelevant, because Netlist has since