[Federal Register Volume 76, Number 18 (Thursday, January 27, 2011)]
[Notices]
[Pages 4936-4938]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-1706]
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INTERNATIONAL TRADE COMMISSION
[Inv. No. 337-TA-695]
Certain Silicon Microphone Packages and Products Containing the
Same; Notice of Commission Determination To Review in Part an Initial
Determination; On Review Taking No Position on Two Issues and Vacating
the Conclusion of No Domestic Industry; Termination of the
Investigation With a Finding of No Violation
AGENCY: U.S. International Trade Commission.
ACTION: Notice.
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SUMMARY: Notice is hereby given that the U.S. International Trade
Commission has determined to review in part the initial determination
(``ID'')
[[Page 4937]]
issued by the presiding administrative law judge (``ALJ'') on November
22, 2010, finding no violation of section 337 of the Tariff Act of
1930, 19 U.S.C. 1337, in this investigation. On review, the Commission
has determined to take no position on two issues, to vacate the finding
of no domestic industry, and to terminate this investigation with a
finding of no violation.
FOR FURTHER INFORMATION CONTACT: Sidney A. Rosenzweig, Office of the
General Counsel, U.S. International Trade Commission, 500 E Street,
SW., Washington, DC 20436, telephone (202) 708-2532. Copies of non-
confidential documents filed in connection with this investigation are
or will be available for inspection during official business hours
(8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S.
International Trade Commission, 500 E Street, SW., Washington, DC
20436, telephone (202) 205-2000. General information concerning the
Commission may also be obtained by accessing its Internet server
(http://www.usitc.gov). The public record for this investigation may be
viewed on the Commission's electronic docket (EDIS) at http://edis.usitc.gov. Hearing-impaired persons are advised that information
on this matter can be obtained by contacting the Commission's TDD
terminal on (202) 205-1810.
SUPPLEMENTARY INFORMATION: The Commission voted to institute this
investigation on December 16, 2009, based on a complaint filed by
Knowles Electronics LLC of Itasca, Illinois (``Knowles''). 74 FR 68,077
(Dec. 22, 2009). The complaint named as the sole respondent Analog
Devices Inc. of Norwood, Massachusetts (``Analog''). The accused
products are certain microphone packages. Knowles asserts claim 1 of
U.S. Patent No. 6,781,231, and claims 1, 2, 7, 16-18, and 20 of U.S.
Patent No. 7,242,089.
Knowles filed with its complaint in this investigation a motion for
temporary relief that requested that the Commission issue a temporary
limited exclusion order and temporary cease and desist order. The ALJ
denied Knowles' request for temporary relief in an initial
determination (``TEO ID''). Initial Determination on Complainant's
Motion for Temporary Relief (Mar. 24, 2010). In the TEO ID, the ALJ
found that all but one of the asserted patent claims were likely
anticipated by U.S. Patent No. 6,324,907 to Halteren. (Some of these
same claims were also found to be likely anticipated by U.S. Patent No.
6,594,369 to Une.) The remaining claim, while not invalid, was held not
likely infringed. For these reasons, there was no patent claim for
which Knowles demonstrated a likelihood of success on the merits (i.e.,
as to both validity and infringement).
The TEO ID also found that Knowles had not demonstrated irreparable
harm. In particular, the ID found that Analog's sales of accused
microphone packages had not caused Knowles lost sales, had not damaged
Knowles' relationships with its customers, and otherwise had no proven
detrimental effect on Knowles. The ALJ found, inter alia, that these
two factors (likelihood of success and irreparable harm) precluded
temporary relief here.
On review of the TEO ID to the Commission, the Commission noted
that the absence of irreparable harm was dispositive, and determined to
review the TEO ID in order simultaneously to take no position on the
ALJ's findings of likelihood of success. 75 FR 30,430 (June 1, 2010).
The Commission's decision enabled ``the ALJ to assess the merits'' at
the final ID stage ``unburdened by Commission impressions that may have
been formed on a limited temporary-relief record.'' Id. at 30,431.
On November 22, 2010, the ALJ issued his final Initial
Determination (``ID''). The ID found that all of the asserted patent
claims are invalid under 35 U.S.C. 102 and 103. More specifically, the
ID found claim 1 of the '231 patent to be anticipated under 35 U.S.C.
102(a) by Halteren. In the alternative, the ID found claim 1 of the
'231 patent to be obvious under 35 U.S.C. 103(a) over Halteren in view
of U.S. Patent No. 7,003,127 (Sjursen), or in the alternative over U.S.
Patent No. 4,533,795 (Baumhauer) in view of Sjursen. The ALJ found
claims 1, 2, 7, 16, 17, 18 and 20 of the '089 patent to be obvious over
Halteren in view of Une, or in the alternative over Halteren in view of
U.S. Patent No. 7,080,442 (Kawamura).
The ID found that Analog infringed all of the asserted patent
claims. The ID further found that if any of the patent claims had been
valid that Knowles had demonstrated the existence of a domestic
industry relating to the articles protected by the patents. 19 U.S.C.
1337(a)(1)(B), (a)(2). However, the ID concluded that because Knowles
had not demonstrated the existence of a valid patent claim that there
could be no domestic industry.
On December 6, 2010, Knowles petitioned for review of the ID. The
petition challenged certain of the ALJ's claim constructions, and based
substantially on those claim constructions argued, inter alia, that the
prior art did not anticipate or render obvious any of the asserted
patent claims. That same day, Analog filed a contingent petition for
review. Analog's petition raised theories of anticipation and
obviousness that the ALJ rejected, and made, inter alia,
noninfringement arguments based on disputed claim constructions. The
Commission investigative attorney filed a response in support of the
ID, and each of the private parties opposed the other's petition in its
entirety.
Having examined the record of this investigation, including the
ALJ's ID, the petitions for review, and the responses thereto, the
Commission has determined to review the ID in part. In particular the
Commission has determined to review and take no position on the
construction of the term ``attached'' in claims 1 and 7 of the '089
patent. The only dispute, raised by Knowles in its petition, is whether
the ALJ was correct to find that the prosecution history requires a
certain meaning for ``attached'' and whether that meaning is narrower
than the ordinary meaning of the term. Construction of the term is not
now necessary because the infringement, invalidity, and domestic
industry arguments do not turn on the difference between the ALJ's
construction and Knowles' proposed construction.
The Commission also has determined to review and take no position
on whether a certain journal article by Premachandran, Si-based
Microphone Testing Methodology & Noise Reduction, Proceedings of SPIE,
vol. 4019, at 588-92 (2000), is prior art under 35 U.S.C. 102 for
either of the asserted patents. The ID did not rule any patent claim
invalid as a result of this article.
The Commission has determined to review and vacate the ID's
conclusion that the technical prong of the domestic industry
requirement, 19 U.S.C. 1337(a)(2) & (a)(3), is not met where all the
asserted patent claims are found invalid. It is Commission practice not
to couple an analysis of domestic industry to a validity analysis. See,
e.g., Certain Removable Electronic Cards and Electronic Card Reader
Devices and Products Containing Same, Inv. No. 337-TA-396, Comm'n Op.
at 17 (Aug. 13, 1998) (``before considering the validity of claim 8 of
the '464 patent and possible infringement of it, we address whether the
required domestic industry exists or is in the process of being
established''); Certain Encapsulated Integrated Circuit Devices and
Products Containing Same, Inv. No. 337-TA-501 (remand), Initial
Determination at 104-105 (Nov. 9, 2005), review denied, Notice, 75 FR
43553, 43554 (July 26, 2010). The only instance in which the
[[Page 4938]]
Commission has recognized such a connection involved invalidity for
indefiniteness, 35 U.S.C. 112 ] 2, and the Commission did so in that
context because indefiniteness there made it impossible for the
complainant to demonstrate whether a patent claim was practiced.
Notice, Certain Video Graphics Display Controllers and Products
Containing Same, Inv. No. 337-TA-412, 64 FR 40042, 40043 (July 23,
1999). There is no such difficulty with regard to invalidity under 35
U.S.C. 102 and 103. Thus, under the technical prong, the complainant
bears the burden of proving that its domestic industry practices a
claim of each asserted patent. The Commission has determined not to
review the remainder of the ID's domestic industry analysis, which
found the existence of a domestic industry without regard to the
validity of the asserted patent claims.
The Commission has determined not to review the remainder of the
ID. Accordingly, the Commission has terminated this investigation with
a finding of no violation.
The authority for the Commission's determination is contained in
section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and
in sections 210.42-46 of the Commission's Rules of Practice and
Procedure (19 CFR 210.42-46).
Issued: January 21, 2011.
By order of the Commission.
Marilyn R. Abbott,
Secretary to the Commission.
[FR Doc. 2011-1706 Filed 1-26-11; 8:45 am]
BILLING CODE 7020-02-P