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9 March 2009


ITC to probe Avago allegation of patent infringement by Emcore

The US International Trade Commission (ITC) has voted to institute an investigation based on a complaint filed on 3 February by Avago Technologies of San Jose, CA against Emcore Corp of Albuquerque, NM.

The complaint alleges violations of Section 337 of the Tariff Act of 1930 in the importation into the USA and sale of certain optoelectronic devices, components, and products containing them that infringe Avago’s US patent numbers 5,359,447 and 5,761,229. Avago requests that the ITC issues Emcore with an exclusion order and a cease and desist order.

The ITC has not yet made any decision on the merits of the case. Its chief administrative law judge will assign the case to one of its six administrative law judges (ALJs), who will schedule and hold an evidentiary hearing. The ALJ will then make an initial determination as to whether there is a violation of Section 337; that initial determination is subject to review by the ITC.

Within 45 days after instituting the investigation, the ITC will set a target date for completing the investigation. It aims to make a final determination in the investigation 'at the earliest practicable time'.

ITC remedial orders in Section 337 cases are effective when issued and become final 60 days after issuance, unless disapproved for policy reasons by the US Trade Representative within that 60-day period.

Prior to this latest complaint against Emcore, a lawsuit regarding these patents had previously been filed by Avago in the Delaware district court in 2006 against Finisar Corp. Also, before that (in 2000), Avago’s predecessor Agilent Technologies filed lawsuits in the Delaware district court against Methode Electronics and Stratos Lightwave and (in 2001) in the Northern District of California against E20 and E20 Communications. In all cases, settlement was reached before trial.

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