By Eric Schweibenz
On September 26, 2012, ALJ Thomas B. Pender issued Order No. 15, ruling on motions to exclude witness testimony, exhibits, and arguments in Certain Silicon Microphone Packages and Products Containing Same (Inv. No. 337-TA-825).

In the Order, ALJ Pender ruled on: 1) Complainant Knowles Electronics, LLC’s (“Knowles”) request to exclude the testimony, and exhibits when relevant, of Respondents’ Analog Devices, Inc., Amkor Technology, Inc., and Avnet, Inc. (“Respondents”) expert, Dr. Michael G. Pecht; 2) Knowles’s request to exclude several of Respondents’ pre-hearing brief arguments; and 3) Respondents’ collateral estoppel arguments.

ALJ Pender granted-in-part Knowles’s motion to exclude numerous questions and answers (“Q/As”) in Dr. Pecht’s Direct Witness Statement and Rebuttal Witness Statement.  Specifically, ALJ Pender’s excluded many of the Q/A’s based on a finding that they violated Ground Rule 12.7.6., which limits an expert’s direct testimony to the scope of his/her expert reports and deposition testimony.  Several other Q/As were excluded based on Knowles’s unchallenged assertion that the Q/As were irrelevant because Respondents’ have waived the applicable obviousness argument.

ALJ Pender denied Knowles’s motion to exclude a Q/A in Dr. Pecht’s Rebuttal Witness Statement regarding his interpretation of the claim term “cover.” Although ALJ Pender did not exclude the Q/A, he questioned its probative value declaring that Dr. Pecht’s testimony was unclear and created “substantial ambiguity.”

ALJ Pender denied Knowles’s motion to exclude Q/As in Dr. Pecht’s testimony relating to invalidity theories raised by Respondents following the deadline set in the procedural schedule. ALJ Pender declined to exclude the applicable Q/As because: they were within the scope of the expert discovery, and Knowles failed to provide sufficient justification on both evidentiary and equitable grounds.  Furthermore, ALJ Pender stated that the proper recourse for Knowles would have been to move for an order compelling discovery earlier.

ALJ Pender denied Knowles’s motion to exclude an opinion of Dr. Pecht in his Q/As attempting to link the current investigation to an earlier investigation.  Based on a finding of support in Dr. Pecht’s Rebuttal Expert Report, ALJ Pender held that the Q/As were supported by expert discovery and, accordingly, denied Knowles’s motion.

Lastly, ALJ Pender denied Respondents’ collateral estoppel arguments.