By Alex Englehart
On May 21, 2010, the International Trade Commission issued a notice determining to review in part an Initial Determination (“ID”) issued by ALJ Robert K. Rogers, Jr. on March 24, 2010 denying a motion for temporary relief in Certain Silicon Microphone Packages and Products Containing the Same (Inv. No. 337-TA-695), and on review, to take no position on likelihood of success on the merits.

By way of background, the Complainant in this investigation is Knowles Electronics LLC (“Knowles”), and the Respondent is Analog Devices, Inc. (“ADI”).  On November 12, 2009, Knowles filed a complaint requesting that the ITC commence an investigation pursuant to Section 337 concerning certain ADI silicon microphone packages and products containing the same that allegedly infringe U.S. Patent Nos. 6,781,231 and 7,242,089.  On the same day, Knowles also filed a motion for temporary relief seeking a temporary exclusion order and a temporary cease and desist order against ADI.  The investigation was formally instituted on December 17, 2009, and an evidentiary hearing regarding Knowles’s motion for temporary relief was held from February 17-19, 2010.  On March 24, 2010, ALJ Rogers issued the ID denying Knowles’s motion for temporary relief.  See our April 15, 2010 post for more details.

According to the May 21 notice, the parties each filed opening and reply comments on the ID as authorized by 19 C.F.R. § 210.66.  The comments principally dealt with Knowles’s likelihood of success on the merits, challenging various aspects of ALJ Rogers’s validity and infringement analyses.  The private parties also disputed whether the Commission should address the likelihood of success on the merits at all, as Knowles had by then already conceded to the Commission that it had not suffered irreparable harm.  Knowles believed that the question of likelihood of success was moot and urged the Commission not to reach the likelihood of success.  ADI argued that Knowles’s concession was inappropriate and that the Commission should indeed decide Knowles’s likelihood of success on the merits.

After examining the record of the investigation, including the ID and the subsequent comments and reply comments, the Commission determined to review the ID’s finding on likelihood of success but to take no position on that finding.  According to the notice, the Commission found that even absent Knowles’s concession, irreparable harm had not been demonstrated and “[b]ecause irreparable harm is dispositive here, the Commission need not evaluate the likelihood of success on the merits.”  Moreover, “[t]he Commission’s decision [to review the likelihood of success but take no position on it] enables the ALJ to assess the merits unburdened by Commission impressions that may have been formed on a limited temporary relief record.”

The notice also states that the Commission determined not to review the remainder of the ID, namely the ID’s denial of temporary relief or the ID’s findings on irreparable harm, the balance of hardships, and the public interest.