On February 27, 2017, ALJ Dee Lord issued Order No. 70 in Certain Semiconductor Devices, Semiconductor Device Packages, and Products Containing Same (Inv. No. 337-TA-1010).
By way of background, this investigation is based on a complaint filed by Tessera Technologies, Inc., Tessera, Inc., and Invensas Corp. (collectively, “Tessera”) alleging violation of Section 337 by way of unlawful importation into the U.S., selling for importation, and/or selling within the U.S. after importation certain semiconductor devices, semiconductor device packages, and products containing the same that infringe one or more claims of U.S. Patent Nos. 6,856,007; 6,849,946; and 6,133,136. See our May 24, 2016 and July 1, 2016 posts for more details on the complaint and Notice of Investigation, respectively.
According to the February 27 Order, ALJ Lord granted a summary determination motion filed by Respondents Avago Technologies Limited and Avago Technologies U.S. Inc. (the “Avago Respondents”) to terminate the investigation based on no violation of Section 337. Specifically, ALJ Lord explained that because the amended complaint and Tessera’s contention interrogatory responses and expert reports do not allege any infringing activity by the Avago Respondents, there are no facts in dispute and thus the Avago Respondents must be terminated from the investigation. Tessera’s primary argument against the relief sought by the summary determination motion was that the Avago Respondents should remain part of this investigation to ensure an effective remedy, citing a concern that Broadcom Corporation or Broadcom Limited may shift certain infringing activities to the Avago Respondents. ALJ Lord rejected this argument and noted that the common language of the Commission’s exclusion orders “obviates Tessera's concerns regarding the possibility of a future transfer of operations from Broadcom entities to Avago entities [because] [i]f such a transfer were to occur after the close of this investigation, an exclusion order ... could likely be enforced against any successor to Broadcom’s allegedly infringing activities.”