On September 27, 2012, ALJ Thomas B. Pender issued Order No. 16 granting-in-part complainant Knowles Electronics, LLC’s (“Knowles”) motion to exclude portions of the pre-hearing brief of Respondents Analog Device, Inc., Avnet, Inc., and Amkor Technology, Inc. (collectively, “Respondents”) in Certain Silicon Microphone Packages and Products Containing Same (Inv. No. 337-TA-825).

According to the Order, Knowles argued that Respondents’ brief failed to comply with Ground Rule 9.2 because the brief improperly incorporated by reference arguments relating to the economic prong of the domestic industry analysis, and because the appendix thereto improperly incorporated by reference arguments relating to anticipation and obviousness.  Respondents countered that their brief provided adequate notice of their arguments relating to the economic prong of the domestic industry requirement and set forth with particularity their contentions regarding the invalidity of the asserted claims, and maintained that the appendix was just a factual compilation of citations to Respondents’ expert witness statements and the relevant prior art, and contained no legal arguments.

ALJ Pender found that Respondents did not sufficiently set forth with particularity their contentions regarding the economic prong of the domestic industry requirement, which were therefore deemed waived (except for those contentions that Respondents could not have been aware of at the time of filing the brief).  However, the ALJ found the appendix to Respondents’ brief to be proper under Ground Rule 9.2, which explicitly permits the attachment of up to 50 pages of “critical charts, figures, or other pertinent material” and citation in briefs to “relevant exhibits, including witness statements.”