UNITED STATES INTERNATIONAL TRADE COMMISSION
`WASHINGTON, DC
`
`In The Matter Of
`
`CERTAIN SILICON MICROPHONE .
`PACKAGES AND PRODUCTS
`CONTAINING SAME
`
`337-TA-825
`
`ORDER NO. 14: REGARDING RESPONDENTS’ MOTIONS IN LIMINE NO. 6
`(September 24, 2012)
`
`On September 7, 2012, Analog Devices, Inc., (ADI) Amkor Technology, Inc. (Amkor),
`
`and Avnet, Inc. (Amvet) (collectively, “Respondents”) filed Motion in Limine No. 6 (MiL 6) to
`
`exclude the Rebuttal Witness Statement of Mr. Phillip Green, a witness of Complainant Knowles
`
`Electronics, LLC (Knowles). (Motion Docket No. 825-021.) Respondents allege Mr. Green’s
`
`opinion of the commercial success of the asserted claims of the patents-in-suit and the
`
`commercial success of Knowles products is outside the scope of his expertise and thus lacks
`
`foundation. Hence, Respondents assert Mr. Green fails to provide any evidence to support the
`
`nexus between the asserted patents and the commercial success of the Knowles MEMS products
`
`and cannot do so because he is not qualified to opine on what features resulted in their
`
`commercial success.
`
`Essentially, Respondents argue that under Daubert (Daubert v. Merrell Dow Pharm.,
`
`Inc., 509 U.S. 579, 597 (1993) and Kumho (Kumho Tire Company, Ltd. I/. Carmichael, 525 U.S.
`
`137, 141 (1999), I should act as gatekeeper and consider Mr. Green’s opinions to be unreliable
`
`because they will not help me as trier of fact, even though the matter is not before a jury.
`
`Respondents argue Mr. Greens testimony should be excluded under Rule 702 (Fed. R. Evid)
`
`because it is valueless. They assert he has no experience in the market relevant to the products at
`
`1
`
`

`
`issue or the technology at issue. Instead, he is a CPA with experience in damages evaluation
`
`offering opinions on technical matters. Despite this, Respondents assert Mr. Green is offering
`
`opinions that Complainanfs MEMS microphones were successful primarily due to their patented
`
`packaging. Respondents also offer other criticisms of Mr. Green’s testimony and raise the
`
`collateral estoppel issue that was the subject of Respondents’ Mil 5. Regardless, the core of
`
`Respondents’ arguments is that Mr. Green is unqualified to offer the opinions he has offered on
`
`commercial success.
`
`On September 13, 2012, Complainant filed its Opposition to MiL 6. Complainant
`
`immediately asserts:
`
`Respondents seek to exclude the testimony of Knowles’s commercial
`success expert, Mr. Peter Green, in its entirety, on grounds that Mr. Green is
`unqualified and his testimony Lmreliablebecause he allegedly conceded that he
`lacks a “technical background” and “did not analyze the impact on commercial
`success” of other features Knowles’s MEMS microphones. MIL #6 at 3. Both
`contentions rest on selective quotations and mischaracterizations of the record. In
`fact, Mr. Green is eminently qualified to render the opinions he offers in this
`investigation.
`His background in financial analysis, asset valuation, and
`intellectual property dispute consulting are more than sufficient background to
`opine on the commercial success of Knowles’s MEMS microphone products as
`well as the relevant drivers of that success.
`
`Complainant concedes Mr. Green opines that Knowles’s SiSonic MEMS microphone
`
`packages are commercially successful and that success is due to the patented technology.
`
`Complainant then details Mr. Green’s extensive experience in valuation, economic consulting
`
`and offers that his opinions could prove of value as discussed in Medtronic, Inc. V.Daig C0rp.,
`
`780 F.2d 903, 906-07 (Fed. Cir. 1986) and other cases.
`
`Complainant explains that Mr. Green’s opinion on the nexus between the commercial
`
`success of Knowles’s MEMS and the patented claims is based, in part, on the technical opinion
`
`of Complainant’s other witnesses, which informed his understanding of the technology at issue
`
`2
`
`

`
`and his statement clearly supports that assertion. Still, Complainant argues l\/Ir.Green does not
`
`need to have technical experience to be able to offer an opinion about, based upon his financial
`
`and economic analysis of the record, which features were responsible for the success of the
`
`MEMS. Regardless, Mr. Green did rely on the technical experts to offer his opinion, which is
`
`permissible.
`
`Complainant also alleges Respondents’ argument is inappropriate since it really goes to
`
`weight and not admissibility. Complainant avers that Daubert concems are diminished in a
`
`hearing where the ALJ is the fact finder. In addition, Complainant provides examples of
`
`testimony that it alleges Respondents’ “cherry picked” to bolster their arguments and shows that
`
`Mr. Green usually did fully answer all questions asked of hi.m. In addition, Complaint cites
`
`several examples of where Respondents arguably attempted to mislead the tmdersigned
`
`concerning what Mr. Green had said relevant to Respondents’ contentions.
`
`After examining and analyzing the submissions of the parties and Mr. Green’s proffered
`
`rebuttal testimony, I find that MiL 6 is not well fotmded. It is my opinion that Respondents have
`
`crafted a convoluted argument addressing admissibility when the real issue is weight. In
`
`addition, I do have some concerns that Mr. Green’s testimony was not fully represented to me by
`
`Respondents.
`
`Finally, I note the obvious. I know Mr. Green is not an engineer nor is he an expert on
`
`the MEMS device. He does not pretend to be. Therefore, it is patent to me he must be relying
`
`on the testimony of others to give an opinion on economic success as he admitted in his
`
`3
`
`

`
`deposition. This kind of reliance is very easy to establish during cross-examination and does not
`
`merit a motion that expends the resources of the ITC and the parties.
`
`Respondenfs MiL 6 is DENIED.
`
`SO ORDERED.
`
`$451541,’
`
`Thomas B. Pender
`Administrative Law Judge
`
`4
`
`

`
`IN THE MATTER OF CERTAIN SILICON MICROPHONE
`PACKAGES AND PRODUCTS CONTAINING SAME
`
`337-TA-825
`
`CERTIFICATE OF SERVICE
`
`I, Lisa R. Barton, hereby certify that the attached PUBLIC ORDER NO. 14 has been served
`upon the following parties via first class mail and air mail where necessary on
`September 24
`, 2012,
`
`Lisa R. Barton, Acting Secretary
`U.S. International Trade Commission
`500 E Street, SW, Room ll2A
`Washington, DC 20436
`
`FOR COMPLAINANT KNOWLES ELECTRONICS LLC.:
`
`David A. Garr, Esq.
`COVINGTON & BURLING LLP
`1201 Pennsylvania Avenue, N.W.
`Washington, DC 20004
`
`)Via Hand Delivery
`(
`)Via Ovemight Mail
`(
`(\)Via First Class Mail
`(
`)Other:
`
`FOR RESPONDENTS ANALOG DEVICES, INC., AMKOR TECHNOLOGY, INC. &
`AVNET INC.
`.
`
`Steven Bauer, Esq.
`PROSKAUER ROSE, LLP
`One International Place
`Boston, MA 021 l0
`
`)Via Hand Delivery
`(
`)Via OvernightMail
`(
`(\)Via First Class Mail
`(
`)Other:
`
`PUBLIC MAILING LIST
`
`Heather Hall
`LEXIS - NEXIS
`9443 Springboro Pike
`Miamisburg, OH 45342
`
`Kenneth Clair
`THOMSON WEST
`1100 —13"‘Street NW
`Suite 200
`Washington, DC 20005
`
`)Via Hand Delivery
`(
`)Via Overnight Mail
`(
`(\)Via First Class Mail
`(
`)Other:
`
`)Via Hand Delivery
`(
`)Via Ovemight Mail
`(
`(\)Via First Class M ail
`(
`)Other: