30
Jul
By Eric Schweibenz
On July 26, 2010, the International Trade Commission issued its Opinion on the issues of remedy, the public interest and bonding in Certain Optoelectronic Devices, Components Thereof, and Products Containing the Same (Inv. No. 337-TA-669).

By way of background, this investigation was instituted on March 10, 2009 based on a complaint filed by Avago Technologies Fiber IP Pte. Ltd., Avago Technologies General IP Pte. Ltd., and Avago Technologies Ltd. (collectively, “Avago”).  On March 12, 2010, ALJ Theodore R. Essex issued his final Initial Determination (“ID”) finding a violation of Section 337 by Respondent Emcore Corporation (“Emcore”) by reason of infringement of one or more of claims 1-3 and 5 of U.S. Patent No. 5,359,447 (the ‘447 patent) and no violation with respect to U.S. Patent No. 5,761,229 (the ‘229 patent).  The final ID also included ALJ Essex’s recommendations on the issues of remedy and the amount of bond to be set during the Presidential review period.  See our April 1, 2010 post for more details.

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

Remedy

In the Opinion, the ITC adopted ALJ Essex’s recommendations on remedy, including issuing (1) a limited exclusion order and (2) a cease and desist order.  Further, the ITC agreed with ALJ Essex’s recommendation that the orders should cover all of Emcore’s accused products, despite Emcore’s argument that ALJ Essex’s finding of infringement was limited and therefore excluded certain products.

The ITC also rejected Emcore’s argument that final testing of the accused products in the U.S. occurring after ordering and purchase by the customer does not warrant a cease and desist order.  Rather, the ITC determined that evidence of final testing of the products by Emcore sufficiently “supports a finding of a ‘commercially significant’ inventory of accused goods.”

Bonding

In the Opinion, the ITC also adopted ALJ Essex’s recommendation to impose a three percent bond of the entered value of Emcore’s accused products based on a reasonable royalty rate established in a previous cross-license agreement between Avago’s predecessor and an Emcore customer.

Public Interest

The ITC determined that public interest factors do not preclude issuance of the limited exclusion order or the cease and desist order.