By Eric Schweibenz
On December 1, 2009, Analog Devices, Inc. of Norwood, Massachusetts (“Analog”) filed a complaint requesting that the ITC commence an investigation pursuant to Section 337.

The complaint alleges that Knowles Electronics LLC of Itasca, Illinois (“Knowles”) and Mouser Electronics, Inc. of Mansfield, Texas (“Mouser”) (collectively, the “Proposed Respondents”) unlawfully import into the U.S., sell for importation, and/or sell within the U.S. after importation certain surface mount MEMS (Micro-Electro-Mechanical System) microphones, as well as certain products that incorporate those microphones which allegedly infringe certain claims of U.S. Patent Nos. 7,220,614 (the ‘614 patent) and 7,364,942 (the ‘942 patent).

According to the complaint, the “patents-in-suit relate generally to forming durable anti-stiction surfaces on micromachined structures.”  Further, Analog alleges in its complaint that the asserted patents (i) “provide a solution to the problem of stiction, including in MEMS devices,” (ii) “disclose and claim processes and devices that utilize vapor deposition of a material having anti-stiction properties to produce a low stiction surface on a MEMS device,” and (iii) “disclose and claim chemicals that are effective in imparting the anti-stiction property to a surface for a MEMS device.”

In the complaint, Analog alleges that “the Accused Products are manufactured entirely outside of the United States in China and/or Japan and are then imported into the United States, sold for importation, and/or sold after importation, in the United States by Knowles and its U.S. distributors, including Mouser.”  Analog further alleges that a “representative of Analog purchased, in the United States, a Nokia 3600 cell phone containing a Knowles surface mount MEMS microphone, bearing identification number ‘S310 3745 V11’” and such Knowles surface mount MEMS microphone “was manufactured, at least in part, in China.”

With respect to related litigation, Analog asserts in its complaint that it filed suit on November 3, 2009 against Knowles in the U.S. District Court for the District of Delaware alleging infringement of the same patents asserted in the instant action.  In addition, Analog notes that Knowles filed a Section 337 complaint against Analog on November 12, 2009 and the ITC has not yet determined whether it will institute an investigation.  See our November 13 post for more details.  According to the complaint, there is “substantial overlap between Knowles’ Proposed Investigation and Analog’s Complaint” since “[b]oth investigations involve the same products – Analog’s MEMS microphones and Knowles’ surface mount MEMS microphones.”  Analog therefore seeks “consolidation of the investigations pursuant to Commission Rule 201.7(a)” in an effort to “save Commission resources, as well as those of the parties.”

Regarding domestic industry, Analog asserts that a “domestic industry as defined by 19 U.S.C. § 1337(a)(3) exists with respect to Analog’s activities in the United States that exploit the ‘614 Patent and ‘942 Patent and that relate to articles protected by the patented methods by reason of Analog’s significant investment in plant and equipment and significant employment of labor and capital.”

With respect to potential remedy, Analog asks that the Commission issue permanent limited and general exclusion orders and permanent cease and desist orders directed to the Proposed Respondents.