UNITED STATES INTERNATIONAL TRADE COMMISSION
`WASHINGTON, DC
`
`In The Matter Of
`
`CERTAIN SILICON MICROPHONE
`PACKAGES AND PRODUCTS
`CONTAINING SAME
`
`337-TA-825
`
`ORDER NO. 16: GRANTING-IN-PART AND DENYING-IN-PART COMPLAINANT’S
`MOTION IN LIMINE TO EXCLUDE PORTIONS OF
`RESPONDENTS’ PRE-HEARING BRIEF FOR FAILIGN TO‘
`COMPLY WITH GROUND RULE 9.2
`
`(September 27, .2012)
`
`On September 7, 2012, Complainant Knowles (“Knowles”) filed a motion to exclude
`
`portions of the pre-hearing brief of respondents Analog Devices, Inc., Avnet, Inc., and Amkor
`
`Technology, Inc. (collectively, “Respondents”) for failing to comply with Grotmd Rule 9.2.
`
`(Motion Docket No. 825-015.) On September l3, 2012, Respondents filed a response stating
`
`that they oppose Knowles’ motion. On September 18, 2012, Knowles filed Motion Docket No.
`
`825-024, which is hereby DENIED, to file a reply to respond to Respondents’ opposition. On
`
`September 20, 2012, Respondents filed an opposition to Knowles motion for leave to file a reply
`
`Knowles seeks to bar Respondents from relying upon portions of Respondents’ pre
`
`hearing brief that fail to comply with Ground Rule 9.2, and from pursuing the waived subject
`
`matter therein at the hearing in this investigation or in their post—hea1-ingsubmissions.
`
`(Knowles
`
`Mot. at 1.) Specifically, Knowles argues that Respondents’ brief improperly incorporated by
`
`reference arguments relating to the economic prong of the domestic industry analysis. (Id. at 2.)
`
`In addition, Knowles argues that Respondents improperly incorporated by reference arguments
`
`relating to anticipation and obviousness in the appendix marked Exhibit l of Respondents’ brief.
`
`(Id. at 3)
`
`
`WASHINGTON, DC
`
`In The Matter Of
`
`CERTAIN SILICON MICROPHONE
`PACKAGES AND PRODUCTS
`CONTAINING SAME
`
`337-TA-825
`
`ORDER NO. 16: GRANTING-IN-PART AND DENYING-IN-PART COMPLAINANT’S
`MOTION IN LIMINE TO EXCLUDE PORTIONS OF
`RESPONDENTS’ PRE-HEARING BRIEF FOR FAILIGN TO‘
`COMPLY WITH GROUND RULE 9.2
`
`(September 27, .2012)
`
`On September 7, 2012, Complainant Knowles (“Knowles”) filed a motion to exclude
`
`portions of the pre-hearing brief of respondents Analog Devices, Inc., Avnet, Inc., and Amkor
`
`Technology, Inc. (collectively, “Respondents”) for failing to comply with Grotmd Rule 9.2.
`
`(Motion Docket No. 825-015.) On September l3, 2012, Respondents filed a response stating
`
`that they oppose Knowles’ motion. On September 18, 2012, Knowles filed Motion Docket No.
`
`825-024, which is hereby DENIED, to file a reply to respond to Respondents’ opposition. On
`
`September 20, 2012, Respondents filed an opposition to Knowles motion for leave to file a reply
`
`Knowles seeks to bar Respondents from relying upon portions of Respondents’ pre
`
`hearing brief that fail to comply with Ground Rule 9.2, and from pursuing the waived subject
`
`matter therein at the hearing in this investigation or in their post—hea1-ingsubmissions.
`
`(Knowles
`
`Mot. at 1.) Specifically, Knowles argues that Respondents’ brief improperly incorporated by
`
`reference arguments relating to the economic prong of the domestic industry analysis. (Id. at 2.)
`
`In addition, Knowles argues that Respondents improperly incorporated by reference arguments
`
`relating to anticipation and obviousness in the appendix marked Exhibit l of Respondents’ brief.
`
`(Id. at 3)
`
`
`
`Respondents argue that their brief provided “full and fair notice of each issue” that
`
`Respondents intend to advance at the hearing. (Respondents Opp. at 2.) Specifically,
`
`Respondents argue 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. (Id. at 5, 9.) In addition,
`
`Respondents argue that Exhibit 1 contains no legal argument but is a factual compilation of
`
`citations to Respondents’ expert witness statements and the relevant prior art. (Id. at 7).
`
`Having reviewed the parties’ filings both in support and opposition to the present motion,
`
`I find that Respondents have not sufficiently set forth with particularity their contentions on the
`
`issue of the domestic industry economic prong analysis within their brief. Pursuant to Ground
`
`Rule 9.2, Respondents’ contentions regarding the economic prong of the domestic industry are
`
`hereby deemed Waived,except for those contentions of which the Respondents are not aware and
`
`could not have been aware in the exercise of reasonable diligence at the time of filing the pre
`
`hearing brief. Accordingly, Respondents are barred both at the hearing and in their post-hearing
`
`submissions fiom advancing waived economic prong arguments. Thus, Knowles’ present
`
`motion in limine is GRATNED with regard to the economic prong of the domestic industry
`
`requirement.
`
`With regard to Exhibit 1 in Respondents’ pre-hearing brief, I find such exhibit to be
`
`proper. Ground Rule 9.2 explicitly permits the attachment of up to _5Opages of “critical charts,
`
`figures, or other pertinent material” and to cite in briefs to “relevant exhibits, including witness
`
`statements.” Respondents have sufficiently given Knowles filll and fair notice of each issue and
`
`argument regarding the invalidity theories Respondents will be advancing at the hearing.
`
`Accordingly, with regard to Exhibit 1, Knowles’ motion in Iimine is hereby DENIED.
`
`2
`
`
`
`For the forgoing reasons Motion Docket No. 825-O15is GRANTED-IN-PART and
`
`DENIED-IN-PART as set forth above.
`
`SO ORDERED.
`
`4% %5A~
`
`47///if
`Thomas B. Pender
`Administrative Law Judge
`
`
`
`
`IN THE MATTER OF CERTAIN SILICON MICROPHONE
`PACKAGES AND PRODUCTS CONTAINING SAME
`
`337-TA-825
`
`,2012. E22
`
`CERTIFICATE OF SERVICE
`
`I, Lisa R. Barton, hereby certify that the attached PUBLIC ORDER NO. 16 has been served
`upon the following parties via first class mail and air mail where necessary on
`September 21
`
`Lisa R. Barton, Acting Secretary
`U.S. International Trade Commission
`500 E Street, SW, Room 112A
`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 OvernightMail
`(
`(\)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 10
`
`)Via Hand Delivery
`(
`)Via Overnight Mail
`(
`(\2Via 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
`
`Wia FirstClassM ail
`(
`)
`ther:
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