[Federal Register Volume 75, Number 104 (Tuesday, June 1, 2010)]
[Notices]
[Pages 30430-30431]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-12742]


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INTERNATIONAL TRADE COMMISSION

[Inv. No. 337-TA-695]


In the Matter of Certain Silicon Microphone Packages and Products 
Containing the Same; Notice of Commission Determination To Review in 
Part an Initial Determination Denying Temporary Relief and on Review To 
Take No Position on Likelihood of Success on the Merits

AGENCY: U.S. International Trade Commission.

ACTION: Notice.

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SUMMARY: Notice is hereby given that the U.S. International Trade 
Commission has determined to review in part the initial determination 
(``ID'') issued by the presiding administrative law judge (``ALJ'') on 
March 24, 2010, denying complainant's motion for temporary relief. On 
review, the Commission has determined to take no position on the 
likelihood of success on the merits. The Commission has determined not 
to review the remainder of the ID, namely the ID's denial of temporary 
relief, and its analyses of irreparable harm, the balance of hardships 
and the public interest.

FOR FURTHER INFORMATION CONTACT: Sidney A. Rosenzweig, Esq., Office of

[[Page 30431]]

the General Counsel, U.S. International Trade Commission, 500 E Street, 
SW., Washington, DC 20436, telephone (202) 708-2532. Copies of non-
confidential documents filed in connection with this investigation are 
or will be available for inspection during official business hours 
(8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. 
International Trade Commission, 500 E Street, SW., Washington, DC 
20436, telephone (202) 205-2000. General information concerning the 
Commission may also be obtained by accessing its Internet server 
(http://www.usitc.gov). The public record for this investigation may be 
viewed on the Commission's electronic docket (EDIS) at http://edis.usitc.gov. Hearing-impaired persons are advised that information 
on this matter can be obtained by contacting the Commission's TDD 
terminal on (202) 205-1810.

SUPPLEMENTARY INFORMATION: The Commission voted to institute this 
investigation on December 16, 2009, based on a complaint filed by 
Knowles Electronics LLC of Itasca, Illinois (``Knowles''). 74 FR 68077 
(Dec. 22, 2009). The complaint named as the sole respondent Analog 
Devices Inc. of Norwood, Massachusetts (``Analog''). The accused 
products are microphone packages. Knowles' complaint asserts one claim 
of U.S. Patent No. 6,781,231, and numerous claims of U.S. Patent No. 
7,242,089.
    Knowles also filed with its complaint a motion for temporary relief 
that requested that the Commission issue a temporary limited exclusion 
order and temporary cease and desist order. The ID at issue is the 
ALJ's denial of Knowles' motion. In that ID, the ALJ analyzed the four 
factors for preliminary relief: likelihood of success on the merits, 
irreparable harm, balance of hardships, and public interest.
    On the likelihood of success on the merits, the ALJ found that all 
but one of the asserted patent claims were likely anticipated by U.S. 
Patent No. 6,324,907 to Halteren. Some of these same claims were also 
likely anticipated by U.S. Patent No. 6,594,369 to Une. The remaining 
claim, while not invalid, was not likely infringed. There was no patent 
claim for which Knowles demonstrated a likelihood of success on the 
merits (i.e., as to both validity and infringement).
    The ID also found that Knowles had not demonstrated irreparable 
harm. In particular, the ID found that Analog's sales of accused 
microphone packages had not caused Knowles lost sales, had not damaged 
Knowles' relationships with its customers, and otherwise had no proven 
detrimental effect on Knowles. The ALJ found that these two factors 
(likelihood of success and irreparable harm) precluded temporary relief 
here. Nonetheless, the ALJ considered the remaining two factors 
(balance of hardships and the public interest). As to these remaining 
two factors, the ID found that the balance of hardships favored 
Knowles, and the ID also found that the public interest would not 
preclude preliminary relief.
    On review to the Commission, the parties filed opening and reply 
comments, as authorized by 19 CFR 210.66(c) & (e)(1). These comments do 
not take issue with the ALJ's findings regarding the balance of 
hardships or the public interest. Instead, the comments principally 
deal with Knowles' likelihood of success on the merits, challenging 
various aspects of the ALJ's analyses of validity and infringement. The 
private parties also dispute whether the Commission should address at 
all the likelihood of success, as Knowles now concedes to the 
Commission that it has not suffered irreparable harm. Thus, Knowles 
believes that the question of likelihood of success is moot and urges 
the Commission not to reach likelihood of success. Analog has taken the 
position that Knowles' concession is inappropriate and that the 
Commission should decide likelihood of success.
    Having examined the record of this investigation, including the 
ALJ's ID and the subsequent comments and reply comments, the Commission 
finds that even absent Knowles' concession, irreparable harm has not 
been demonstrated. It was Knowles' burden to demonstrate that such harm 
was likely absent temporary relief, and it failed to meet that burden. 
Winter v. Natural Res. Defense Council, Inc., 129 S. Ct. 365, 375 
(2008). The Commission notes, in addition to the reasons discussed in 
the ID, that Knowles did not seek temporary relief to exclude the only 
product it has identified that allegedly contains the accused 
microphone package. See Complaint of Knowles Elecs. LLC Under Section 
337 of the Tariff Act of 1930, As Amended ]] 6, 18, 48-49 (Nov. 12, 
2009). The Commission has therefore determined not to review the ID's 
finding of lack of irreparable harm and the ID's denial of temporary 
relief. The parties have not sought the Commission's review as to the 
balance of hardships and public interest analyses, and the Commission 
has determined not to review the ID's findings on those issues.
    Because irreparable harm is dispositive here, the Commission need 
not evaluate the likelihood of success on the merits, and therefore, 
the Commission has determined to review the ID's finding on likelihood 
of success and to take no position on it. See Beloit Corp. v. Valmet 
Oy, 742 F.2d 1421 (Fed. Cir. 1984). The Commission's decision enables 
the ALJ to assess the merits unburdened by Commission impressions that 
may have been formed on a limited temporary-relief record.
    The authority for the Commission's determination is contained in 
section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and 
in sections 210.52 and 210.66 of the Commission's Rules of Practice and 
Procedure (19 CFR 210.52, 210.66).

    By order of the Commission.

    Issued: May 21, 2010.
William R. Bishop,
Acting Secretary to the Commission.
[FR Doc. 2010-12742 Filed 5-28-10; 8:45 am]
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