By Eric Schweibenz
On September 21 and 24, 2012, ALJ Thomas B. Pender issued Order No. 12 and Order No. 14, respectively, denying motions to exclude witness testimony in Certain Silicon Microphone Packages and Products Containing Same (Inv. No. 337-TA-825).

According to Order No. 12, complainant Knowles Electronics, LLC (“Knowles”) sought to exclude respondents Analog Devices, Inc., Amkor Technology, Inc., and Avnet, Inc. (“Respondents”) from offering expert opinion testimony at trial from Dr. Michael G. Pecht relating to economic, sales or marketing matters as these areas are outside the scope of his expertise (which is the area of electronics packaging, printed circuit board assembly, surface mount technology, and electronic products and systems development) and is thus unreliable under Fed. R. Evid. 702.  ALJ Pender denied the motion, stating that Dr. Pecht’s lack of specific relevant experience is an issue that goes to the weight assigned to his testimony rather than its admissibility, and that Knowles may address his qualifications, or lack thereof, through cross-examination.

According to Order No. 14, Respondents sought to exclude the rebuttal witness statement of Knowles’ witness, Phillip Green, on the grounds that his opinion of the commercial success of the asserted claims of the patents-in-suit and Knowles’ MEMS products – and thus the nexus between the asserted patents and the commercial success of Knowles’ products – is outside the scope of his expertise (he is allegedly a CPA with experience in damages evaluation who lacks a technical background) and thus lacks foundation under Fed. R. Evid. 702.  Knowles conceded that Mr. Green opines that Knowles’ SiSonic MEMS microphone packages are commercially successful due to the patented technology, but asserted that his opinion on the nexus is based in part on the technical opinion of Knowles’ other witnesses which informed his understanding of the technology at issue, and that Mr. Green does not need to have technical experience to offer an opinion about which features were responsible for the success of the MEMS products, based on his financial and economic analysis of the record.  Knowles also argued that the issue is one of weight assigned to Mr. Green’s testimony and not its admissibility.  ALJ Pender agreed with Knowles and denied the motion.