By Eric Schweibenz
On November 23, 2009, the International Trade Commission issued a notice determining to review-in-part a final initial determination (“ID”) finding no violation of Section 337 and determining to remand a portion of the investigation to ALJ Carl C. Charneski in Certain Semiconductor Integration Circuits Using Tungsten Metallization and Products Containing Same (Inv. No. 337-TA-648).

By way of background, the Complainants in this investigation are LSI Corporation and Agere Systems Inc. (collectively, “LSI”) and the Respondents are Tower Semiconductor, Ltd., Jazz Semiconductor (“Jazz”), Powership Semiconductor Corporation, Grace Semiconductor Manufacturing Corporation, Integrated Device Technology, Inc., Spansion, Inc., and Nanya Technology Corporation (collectively, the “Respondents”).  On September 21, 2009, ALJ Charneski issued an ID finding no violation of Section 337.  In the ID, ALJ Charneski concluded that each accused process was covered by one or more of asserted claims 1, 3, and 4 of U.S. Patent No. 5,227,335 (the ‘335 patent), but also that all asserted claims were anticipated under 35 U.S.C. § 102(g) in view of the IBM Process A prior art.  On October 5, 2009, LSI, the Respondents, and the Commission Investigative Staff (the “Staff”) filed petitions for review of the ID.  On October 13, 2009, LSI, the Respondents and the Staff filed responses to the other parties’ petitions.

In the November 23 notice, the Commission determined to review (1) invalidity of claims 1, 3, and 4 of the ‘335 patent under 35 U.S.C. §§ 102(g) and 103 with respect to the IBM Process A, IBM Process B, and AMD prior art; and (2) Jazz’s stipulation regarding whether its process meets the complete, third recited step of claim 1, i.e., “depositing a tungsten layer by chemical vapor deposition, said tungsten layer covering said glue layer on said dielectric and said exposed material.”  According to the notice, the “Commission has determined not to review the remainder of the ID.”

Additionally, “the Commission has determined to issue an order remanding the investigation to the ALJ for further proceedings relating to whether claim 4 is rendered obvious by IBM Process A in light of the other prior art asserted by respondents.”  In this respect, the “Commission has instructed the ALJ to make his determination on remand at the earliest practicable time, and to extend the target date of the above-captioned investigation as he deems necessary to accommodate the remand proceedings.”  The Commission further determined that the parties’ written submissions on the ALJ’s remand determination are due within fourteen days after service of the ALJ’s determination and responses to the written submissions are due within seven days after service of the written submissions.