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ITC Considering Impact on Users of Possible Import Restrictions on Optoelectronic Devices

Thursday, February 20, 2014
Sandler, Travis & Rosenberg Trade Report

The International Trade Commission has determined to review in part a final initial determination that the importation, sale for importation and sale within the U.S. after importation of certain optoelectronic devices for fiber optic communications, components thereof and products containing the same are infringing certain patents owned by Avago Technologies Fiber IP (Singapore) Pte. Ltd., Avago Technologies General IP (Singapore) Pte. Ltd. and Avago Technologies U.S. Inc. Among other things, the ITC has requested input from the participating parties on whether the complainants are permitted to rely on their research and development investments to meet the economic prong of the domestic industry requirement.

The presiding administrative law judge has recommended that the ITC issue (a) a limited exclusion order directed to the respondents’ accused products that infringe the patent at issue and (b) a cease and desist order against certain respondents. The ITC is therefore requesting public comment no later than Feb. 28 on (a) the form of remedy, if any, that should be ordered; (b) the effects of an exclusion order and/or cease and desist orders on the public health and welfare, competitive conditions in the U.S. economy, U.S. production of articles that are like or directly competitive with those that are subject to investigation, and U.S. consumers; and (c) the amount of the bond under which infringing articles could enter the U.S. during the 60-day period the president has to review any ITC-ordered remedy. With respect to the public interest factors, the ITC is specifically requesting evidentiary support regarding whether and to what extent the respondents’ customers that “operate in extremely important and sensitive areas” would be adversely impacted by the requested remedial orders.

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