Public Version
`
`UNITED STATES INTERNATIONAL TRADE COMMISSION
`WASHINGTON, D.C.
`
`In The Matter Of
`
`CERTAIN SILICON MICROPHONE
`PACKAGES AND PRODUCTS
`CONTAINING SAME
`
`Inv. N0. 337-TA-825
`
`ORDER NO. 21: INITIAL DETERMINATION TERMINATIING INVESTIGATION BASED
`ON SETTLEMENT AGREEMENT
`(March 12, 2013)
`
`On March 12, 2013, Complainant Knowles Electronics, LLC (“Knowles”) and Respondents
`
`Analog Dveices, Inc. (“ADI”), Amkor Technology, Inc. (“Amkor”), and Avnet, Inc. (“Avnet”)
`
`(collectively, “Respondents”) filed a joint motion to terminate this investigation in its entirety based
`
`on settlement agreement between Knowles and ADI.
`
`The Commission’s Rules provide that “[a]ny party may move at any time to terminate an
`
`investigation in whole or in part as to any or all respondents on the basis of a settlement, a licensing,
`
`or other agreement. .
`
`19 C.F.R. § 2l0.21(a)(2).
`
`In the instant Investigation, the motion to terminate
`
`is based on the Agreement between Knowles and ADI. The parties state that the agreement
`
`completely resolves the dispute between Knowles and Respondents. A copy of the Agreement is
`
`attached hereto as Exhibit A. In accordance with Commission Rule 210.21(b), Knowles and ADI
`
`filed both confidential and public versions of the motion to terminate. Consistent with 19 C.F.R.
`
`§ 210.2l(b)(1), the moving parties state that “[t]here are no other agreements, written or oral, express
`
`or implied between the parties conceming the subject matter of this investigation.” (Mem. at 1.)
`
`The Commission’s Rules provide that in the case of a proposed tennination by settlement
`
`agreement or consent order, the parties may file statements regarding the impact of the proposed
`
`temiination on the public interest, and the administrative law judge may hear argument, although no
`
`discovery may be compelled, with respect to issues relating solely to the public interest. See 19
`
`

`
`Public Version
`
`C.F.R. § 210.50(b)(2). In any initial determination terminating an investigation by settlement
`
`agreement or consent order, the administrative law judge is directed to consider and make appropriate
`
`findings regarding the effect of the proposed settlement on the public health and welfare, competitive
`
`conditions in the United States economy, the production of like or directly competitive articles in the
`
`United States, and United States consumers. Id.
`
`The parties note in their memorandum in support of their motion to terminate that
`
`Commission policy and the public interest generally favor settlements, which preserve resources for
`
`both the Commission and the private parties. (Mem. at 2.) The parties state that terminating this
`
`investigation “falls squarely within the public interest.” Additionally, the parties assert that
`
`terminating this investigation pursuant to settlement agreement will have no adverse impact on the
`
`public health and welfare and/or competitive conditions in the United States. (Id.) I agree with the
`
`parties that termination of this Investigation does not impose any undue burdens on the public health
`
`and welfare, competitive conditions in the United States economy or United States consumers.
`
`Accordingly, it is my Initial Determination that the joint motion for termination of this
`
`Investigation based upon a settlement agreement be GRANTED. This Initial Determination, along
`
`with supporting documentation, is hereby certified to the Commission.
`
`Pursuant to l9 C.F.R. § 2l0.42(h), this Initial Determination shall be the determination of the
`
`Commission unless a party files a petition for review of the Initial Determination pursuant to 19
`
`C.F.R. § 210.43(a), or the Commission, pursuant to 19 C.F.R. § 210.44, orders, on its own motion, a
`
`review of the Initial Determination or certain issues herein.
`
`SO ORDERED.
`
`.Z...%!@.z._
`
`Thomas B. Pender
`Administrative Law Judge
`
`2
`
`

`
`
`
`EXHIBIT AEXHIBIT A
`
`
`
`PUBLIC VERSIONPUBLIC VERSION
`
`EXHIBIT A
`
`

`
`PUBLIC VERSION
`
`~Executi0n C0py~
`
`Cnoss LICENSE, $E‘I‘TLEMENTANDRELEASE AGREEMENT
`
`is made as of March 11,
`This Cross License, Settlement and Release Agrcement (“Agreement”)
`2013 (the “Effective Date”) by and between Knowles Electronics LL-C, a Delaware limited liability
`company having its principal place of business at
`ll5l Maplewood Drive, Itasca,
`illinois 60143
`(“Knowles”), and Analog Devices Inc., a Massachusetts corporation having its principal place of
`business at One Tschnology Way, Norwocd, MA 02062 (“ADI”). Capitalized terms shall hays the
`meanings set forth in Exhibit A and elsewhere in this Agreement. AD! and Knowles axe each referred to
`l"*"**"as Q“P*"'"'” and are mil»-‘*i\~>lvreferred to as “the Parties”
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`licensee pursuant in the tenns of this Agreement.‘
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`at to sue)
`covenants
`extend to ADI, the ADI Afilliates, ADI Customers and ADI Suppliers;
`and the licenses and covenants (including the covenants not to sue) granted by ADI herein shall extend to
`and cover Knowles, the Knowles Afiiliates, Knowles Customers and Knowles Suppliers. The license “to
`have made" granted by one Party to the other Party in this Agreement means only that the licensee may
`contract with a third party or parties to manufacture Licensed Products solely for use er sale by the
`
`PUBLIC VERSION
`
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`SUBJECT TO FRE 408,
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`sw‘=mCTTvm4ww¢M-Eovw-LENT$.;
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`6.
`
`Egggtations godWananjg.
`
`Mutual 1§gg1;§g11gg‘gg§Qd Warranties. Each Party represents and warrants to the other
`A.
`Party, as of the Effective Date, that: (i) it is a corporation or limited liability company, duly organized,
`validly existing, and in good standing under the laws of the jurisdiction of its incorporation or formation
`and has all requisite power and authority, corporate or otherwise, to execute, deliver and perform this
`Agreement; and (ii) this Agreement is a legal, valid, and binding obligation enforceable against it in
`accordance with its terms.
`
`Disclgiger. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS SECTION
`D.
`6, ALL RIGHTS GRANTED HEREIN WITH RESPECT TO PATENTS ARE GRANTED ON AN “AS
`IS” BASIS AND NEITHER PARTY MAKES ANY OTHER REPRESENTATIONS OR
`WARRANTIES BY VIRTUE OF THIS AGREEMENT, WHETHER EXPRESS OR IMPLIED.
`
`7.
`
`an
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`endi
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`tion.
`Rel
`FromandaltertheEffectiveDate,ADI,onbehalfofitselfand
`.
`A.
`its parents, subsidiaries, predecessors, successors, Afiiliates, divisions, permitted assigns and any Person
`claiming by or through them (“ADI Releasing Parties”), discharges and releases, unconditionally,
`absolutely and forever, each Knowles Released Party from anyrand all Claims (i) made, asserted or
`brought in the Pending Litigation, (ii) related to the subject matter of the Pending Litigation that could
`have been made, asserted or brought in the Pending Litigation, and/or (iii) associated with the WASA
`Patents or AudioAsics Patents; provided, however, that (A) the release in this Section 7A is personal to
`each Knowles Released Party and is not intended to benefit any unnamed third party in any way, (B) the
`release in this Section 7A shall not prevent or Iimit the ability of ADI to assert any defense or
`counterclaim to a Claim for infiingement of a
`Patent initiated by Knowles afier the Efiieefive
`
`

`
`PUBLIC VERSION
`
`mm-mm».useEQM-M.-1­
`
`Date, and (C) nothing in this Section 7A shall operate to release or discharge any Claim for breach ofthis
`Agreement.
`t
`.
`B.
`FromandaltertheEffectiveDate,Knowles,onbehalfof
`itself and its parents, subsidiaries, predecessors, successors, Affiliates, divisions, permitted assigns and
`any Person claiming by or through them (“Knowles Releasing Parties”), discharges and releases,
`unconditionally, absolutely and forever, each ADI Released Party from any and all Claims (i) made,
`‘assertedor brought in the Pending Litigation, (ii) related to the subject matter of the Pending Litigation
`that could have been made, asserted or brought in the Pending Litigation, and/or (iii) associated with the
`Minervini Patents; provided, however, that (A) the release in this Section 7B is personal to each ADI
`Released Party and is not intended to benefit any unnamed third party in any way, (B) the release in this
`Section 7B shall not prevent or limit the ability of Knowles to assert any defense or counterclaim to a
`Claim for infiingernent of a WASA Patent or AudioAsic Patent initiated by ADI alter the Effective Date,
`and (C) nothing in this Section 7B shall operate to release or discharge any Claim for breach of this
`Agreement.
`
`Qismigal of Qlaimg. Each Party who is a claimant, ecunterclaimant or defendant in any
`C.
`Pending Litigation shall (i) concun-ently with the execution of this Agreement, complete, execute and
`deliver (or cause its applicable Affiliate to complete, execute and deliver) to the other Party the joint
`motions and instruments (“Dismissal Motions”) requesting that the Pending Litigation between the
`Parties be dismissed in the forms attached hereto as Exhibit D; and (ii) within seven (7) business days of
`
`This Agreement sets forth a compromise and settlement of
`E.
`disputed claims for the purpose of avoiding the costs, disruptions, and uncertainties associated with
`further litigation. Nothing in this Agreement is or will be deemed an admission as to any issue of feet or
`principle at law or an admission of liability of any Party hereto, and neither Party admits infringement,
`non-infiingement, validity, or invalidity of any patent.
`
`Expenses. Each Party will pay its own expenses incurred in the prosecution and defense of
`F.
`the Pending Litigation and incurred in the negotiation, preparation and execution of this Agreement.
`Page 12
`
`

`
`Wwemmmqmm--i
`
`PUBLIC VERSION
`
`Without limitation of the foregoing, each Party irrevocabiy waives (for itself and its Afiiliates) its right to
`claim attorneys’ fees as the prevailing party under 35 U.‘-5.C.§28S in any Pending Litigation.
`
`8.
`
`Term.
`
`Lqmg. This Agreement shall connnenee upon the Effective Date. The rights and
`A.
`obligationsofthePartiesunderthisAgreementshailremainineffectuntil_
`
`9-
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`This Agreementshall not be assigned, delegatedor otherwisetransferred,by
`Assigent.
`A.
`operation or law or otherwise, by a Party, in whole or in part, to any other Person, except as expressiy
`permitted in Section 1F or Section 2E herein. Any other attempted assignment, deiegation or transfer of
`this Agreement in violation of the preceding sentence shall be voié and of no effect. Subject to the
`
`Page I3
`
`

`
`PUBLIC VERSION
`
`wmwm~»t-Mmwmm.-:1­
`
`foregoing, this Agreement shall be binding upon and will inure to the benefit of the Parties hereto and
`their respective permitted successors.
`B.
`.
`EachPartyheretoshallexecuteanddeliver,andcausetobeexecuted
`and delivered, such additional documents and perform, and cause to be performed, such acts as are
`reasonably
`by the other Party in order to dismiss the
`and to effect
`intent of this
`Without limitation of the
`
`Countgggartsgfiignature. This Agreement and any amendment hereto may be executed in
`C.
`several counterparts and by each Party on a separate counterpart, each of which, when so executed and
`delivered shall be an original, but all of which together shall constitute but one and the same instrument.
`A fax signature or signature delivered as an imaged attachment (for example, .pdf or .TIFF format) to an
`e-mail message shall be deemed the equivalent to an original ink signature. This Agreement shall not
`become binding on either Party until each Party has transmitted to the other Party a counterpart executed
`by the transmitting Party.
`
`requests, consents, claims, demands, waivers and other
`All notices,
`Notig.
`D.
`communications hereunder shall be in writing and shall be deemed to have been given (i) when delivered
`by hand (with written confirmation of receipt); (ii) when received by the addressee if sent by a nationally
`recognized ovemight courier (receipt requested); (iii) on the date sent by facsimile (with confirmation of
`transmission) if sent during normal business hours of the recipient, and on the next business day if sent
`after normal business hours of the recipient; or (iv) on the third day alter the date mailed, by certified or
`registered mail, return receipt requested, postage prepaid. Such communications must be sent to the
`respective Parties at the following addresses (or at such other address for a Party as shall be specified in a
`notice given in accordance with this Section IOC:
`
`»
`
`Page 14
`
`@
`
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`

`
`PUBLIC VERSION
`
`
`
`SUBJECTT0FRE4%»WCALEQ""%
`
`ent:
`
`(i) shall be governed by and construed in
`Ooncludgg' Provisions: This A
`E.
`givingeffectto itsprinciplesorrulesof
`accordancewiththelawsof thelwithout
`conflict of laws; (ii) may he amended or supplemented only by written instrument signed by the Parties
`hereto,exceptas providedin SectionSAwithrespectto ;
`(iii)is the productof negotiationand
`shall not be ded
`to have been draftedby either Party; (iv) does not create a partnership,joint venture,
`agency, employment or other similar relationship between the Parties hereto; (v) shall not he construed as
`giving any Person, other than the Parties hereto and their successors and pcnnitted assigns, any right,
`remedy or claim under or in respect of this Agreement or any provision hereof; except as expressly
`provided herein; (vi) shall remain valid and enforceable despite the holding by any cotnt or arbitrator that
`any specific provision is invalid or unenforceable, except for such specific provision; and (vii) constitutes
`the entire agreement and understanding of the Parties with respect to its subject matter and supersedes all
`oral communications and prior writings with respect thereto. No provision of this Agreement may be
`waived orally, but only by s written instrument signed by the Party against whom enforcement of such
`waiver is sought. The words “include,” “includes” and “including” shall be deemed to be followed by the
`phrase “without limitation.”
`
`[End of text; signature page flallows}
`
`Page15 g
`
`

`
`PUBLIC VERSION
`
`IN WITNESSWHEREOF,this Cross License, Settlement and Release Agreement has been executed
`and delivered by the Parties hereto on the Effective Date.
`
`Knowms Eumcrnomcs, LLC
`
`Ba/=#
`
`Name:HlCM6'6L.A A$EL\..
`Title: P9_¢$;Oeu1"'
`
`1 DEVICES,INC.
`
`0 ~ '0'
`By:_L':<'u4.Al;,_4
`
`Namc:MatSei
`'I'i£Ie:Vice ‘ ident,
`
`~-= Counsei
`
`Date: Hflgflgfl
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`2Q};
`
`Date: l%M4 H Z015
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`@ n/\/‘Q9
`
`

`
`PUBLIC VERSION
`
`mcmm4»»,LomQvWm.--—
`
`Exhibit A
`
`Qofinitions
`
`“ADI Customers" means the customers, dealers, and distributors of ADI and its Afliiiates, but solely in their
`2.
`capacities as customers, dealers, and distributors of ADI and its Affiliates and solely with respect to the ADI Licemezi
`Products.
`
`4.
`
`“ADI licenced Products” has the meaning set forth in Section XA.
`
`anti
`“ADI Released Party” means (a) ADI, (h) each and every one ofADi's present and formerparents,
`5.
`Affiliales, and their present and former directors, officess, shareholders, auomeys, and employees (solely in those capacities),
`(c) the ADI Customers, and (cl)ADI Suppliers.
`
`6.
`
`“ADI Releaelng Party” has the meaning set forth in Section ‘IA.
`
`“ADI Supplier" mc8n$__AmkorTechnology, Inc. (and its affiliatee and subsidiaries), Avnet, Inc. and the other
`8.
`contract manufacmnem and suppliers of ADI and its Afiiliales, but in each case solely in their capacities as contract
`manufacmrers and suppliers of ADI and its Affiliates and solely with respecl to the ADI Licenncl Products.
`
`“Afllllatee” means, with respect to a Party, any other Person (whether now existing or hereafier formed or acquired)
`10.
`that directly or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with,
`such Party, hut in each case, only for so long as it remains such.
`
`13.
`
`“ASIC” means an application-specific integrated circuit.
`
`

`
`PUBLIC VERSION
`
`suarscr T0 mm 40s,LOCALEQUIVALENTS,­
`
`“Claims” means all claims, eormterelaims, actions, causes of action, demands, judgments, debts, expemes, losses,
`I7.
`liabilities, and obligations of any kind and of whatever nature or clraracter, whether known or uulmown, whether asserted or
`unassertert, or whether accrued, actual, contingent, latent or otherwise, made or brought for the purpose of recovering any
`damages or for the purpose of obtaining any equitablerelief or any other relief ofany kind.
`
`“Cuvenanting Part?’ means the Party to this Agreement that is making a covenant not to sire for the benefit of the
`19.
`other Party to this Agreement. For purposes of illustration only, if Knowles makes a covenant not to sue ADI in this
`Agreement, then Knowles is the Covenantlng Party for purposes of that particular covenant not to we and ADI is the
`beneficiary of the covenant.
`
`22.
`
`“Effective Date” has the meaning set forth in the Preamble of this Agreement.
`
`l
`
`i
`
`“Knowlel Customers” means the customers, dealers, and distributorsof Knowles and its Aftlliates, but solely in their
`25.
`capacities as customers, dealers, and distributors of Knowles and its Amliates and solely with respect to the Knowles Lteensed
`Products.
`
`“Knowles Group” means Knowles and any wholly-owned sul>sidlttryof the ultimate parent company oi’Knowles,
`26.
`but only for so long as it remains a wholly-owned subsidiary.
`
`27. A “Knowles Licensed Products” has the meaning set forth in Section 2A.
`
`“Knowles Related Party” mear1s(a) Knowles, (b) each and every one of Knowles’: present and former parents,
`28.
`subsidiaries, and Affiliates, and their present and former directors, oflicera, shareholders, attorneys, and employees (solely in
`those capacities), (c) the Knowles Customers; and (d) Knowles Suppliers.
`29.
`“Knowle: Releasing Party" has the meaningset forth in Section7B.
`
`“Kn0wlelSuppller”meaostbeeontractmarmfacturer'sandsuppliersofKnowlesanditsAfilliates,butsolelyintheir
`31.
`capacities as contract manufacturers and suppliers of Knowles and its Affiliates and solely with respect to the Knowles
`Licensed Products.
`
`

`
`respect to Knowles, the Knowles Licensed Products.hI
`
`swmwwQvm~ean-—
`
`PUBLIC VERSION
`
`32.
`
`“Licensed Products” means (a) when used with respect noADI, the ADI Licensed Products, and (b) when used with
`
`“Pending Litigation” means the cases described in Eghilgigg and any other case, action or proceeding that was (a)
`36.
`initiated by ADI or its Affiliaees against Knowles and its Affiliates, or (b) i.\}iIi8l0dby Knowles or its Affifiazes against ADI
`euditsA.fi~‘diates,ineitherease,tha!ispendingasofthefifibctivebabe.
`
`“Person” means a natural person, partnership, limited liability company, limited linbility partnership, association,
`37.
`joint venture, corporation, legal representative, tnmee, trustee in bankruptcy, receiver, govemmeatal authority, or any other
`legal entity whatsoever.
`
`I
`
`1'
`
`*
`
`1:
`
`­
`

`
`PUBLIC VERSION
`
`SUBJECT T0 FRE 408, LOCALEQUIVALENTS,
`
`Item Number
`
`Exhibit B£%
`
`1
`
`Knowles
`
`231, 089
`
`ADI
`
`614, 942
`
`‘ITC
`
`‘ITC
`
`I 33K7~TA-695
`
`337-TA-700
`
`'1'
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`ADI
`
`614, 942
`
`D. Del.
`
`C.A. No. 09-826-GMS
`
`Knowles
`
`049
`
`ND. HE.
`
`1:11~cv-06804
`
`Knowm
`
`049, 616
`
`ADI
`
`196,m
`
`ITC
`
`Mass
`
`337-TA-825
`
`'
`
`1:12-cv-10412 PBS (Stayed)
`
`Knowles
`
`196, 816
`
`1
`
`Denmark
`
`ADI
`
`Chineserum.
`ZL0180-$444.1
`(oounnerpartto 614)
`
`ShimghaiN0.2
`Intermediate
`People's Court
`
`Case N0.[2012]1-!u Br Zhnflg
`Wu [flrfi CimZi No.74
`
`Min
`
`invalidity Proceedings
`
`‘9
`
`‘Knowles
`
`10
`
`Knowles
`
`11
`
`Knowles
`
`Chinese Pat No.
`ZL0180-1444.!
`(counterpart to 614)
`
`China: PatNo.
`Z1-01804444.}
`(coumorpm to 614)
`
`Chinese rm No.
`zw1ao4444.1
`(counterpart ao614)
`
`P815111
`Reexamination
`Board of Chinese
`Patent0500
`Pllflfll
`Reexamination
`Board of Chinese
`Puma:Oflice
`Pawn!
`.u
`.
`R
`Boat-'60fCkineae
`Patent Ofiicc
`
`First invdidarinn ptfition
`(CaseNo.: 4w1o1a14)
`
`Second invalidation petition
`(CaseNo; 4W10I8S0)
`
`Third invaiidation petition
`(Cm N04 4\V101962)
`
`Mb
`
`

`
`PUBLIC VERSION
`
`SUBJECT 10 FRE 408, LOCALEQUIVALENTS,
`
`U.S. Patent Control Number
`95lO01,850(Imerpanes
`reexamination of U.S. PatcnkNo.
`L.§fi13»°‘9)
`U.S. Patent Contro1Number
`951001349 (Inter partes
`mexaminnion of U.S. Patent No.
`1,531,964;
`'I?R2013-00108
`
`‘
`
`< 4
`
`1
`
`j us. Pazen:Con1ro1Number
`90/010,935(Erparm
`reexaminationof US. PaéentNo.
`1,42_»g,s:Q
`U.S. Patent Comm] Number
`95/000,5 15 (Inter _partes
`reéxamimtion of U.S. Patmt No.
`7.242.939)
`
`item Number
`
`‘ US!-‘T0
`
`_
`USPTO
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`
`i
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`USPTO
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