13
Jul
By Eric Schweibenz
On July 12, 2010, the International Trade Commission issued a notice determining to issue a limited exclusion order (“LEO”), and a cease and desist order (“CDO”), and terminating the Investigation in Certain Optoelectronic Devices, Components Thereof, and Products Containing the Same (Inv. No. 337-TA-669).

By way of background, the Complainants in this investigation are Avago Technologies Fiber IP Pte. Ltd., Avago Technologies General IP Pte. Ltd., and Avago Technologies Ltd.  The sole Respondent is Emcore Corporation (“Emcore”).  On March 12, 2010, ALJ Essex issued the Initial Determination (“ID”) finding that a violation of Section 337 occurred in connection with the importation into the U.S., sale for importation, or sale within the U.S. after importation of certain optoelectronic devices, components thereof, and products containing same by reason of infringement of claims 1, 2, 3, and 5 of U.S. Patent No. 5,359,447 (the ‘447 patent).  See our April 1, 2010 post for more details.

On May 13, 2010, the Commission issued notice of its determination not to review the ALJ’s final ID finding a violation of section 337, and requested written submissions on the issues of remedy, the public interest, and bonding.  See our May 13, 2010 post for more details.

The Commission determined that the appropriate form of relief is an LEO and a CDO.  The LEO prohibits the unlicensed entry of optoelectronic devices, components thereof, and products containing the same that are covered by one or more of claims 1, 2, 3 and 5 of the ‘447 patent, where the infringing optoelectronic devices, components thereof, and products containing the same are manufactured abroad by or on behalf of, or are imported by or on behalf of, Emcore, or any of its affiliated companies, parents, subsidiaries, licensees, contractors, or other related business entities, or successors or assigns.  The CDO prohibits Emcore from conducting the following activities in the United States: importing, selling, marketing, advertising, distributing, offering for sale, transferring (except for exportation), and soliciting U.S. agents or distributors for, optoelectronic devices, components thereof, and products containing the same that are covered by one or more of claims 1, 2, 3, and 5 of the ‘447 patent.  The Commission further determined that the public interest factors do not preclude issuance of these LEO or CDO orders, and that the bond during the Presidential review period should be set at three percent of the entered value of the covered products.
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