As a follow up to our
October 20 post, Judge McNamara has issued an Initial
Determination pursuant to the 100-day Pilot Program proceeding on
domestic industry in Certain Silicon-On-Insulator Wafers,
Inv. No. 337-TA-1025. Judge McNamara held that Complainant Silicon
Genesis Corp. has contingently established the economic prong of
On May 26, 2016, Silicon Genesis filed a complaint alleging a
violation of Section 337 by Soitec, S.A. pursuant to the
importation of silicon-on-insulator wafers that infringe U.S.
Patent Nos. 6,458,672 and 6,171,965.
This is the second Section 337 complaint filed by Silicon
Genesis against Soitec. In the first investigation, Certain
Silicon-On-Insulator Wafers, Inv. No. 337-TA-966, Judge
McNamara struck domestic industry evidence produced by Silicon
Genesis after the deadline in the procedural schedule (Order 15).
With its domestic industry case unsupported by sufficient evidence,
on May 18, 2016, Silicon Genesis withdrew its first complaint
Eight days later, Silicon Genesis filed its second complaint
against Soitec. The Commission, pursuant to Rule 210.10(a)(l),
twice postponed a decision regarding institution of the
investigation citing "exceptional circumstances." On
October 19, 2016, the Commission determined to institute an
investigation. The Commission instructed the presiding ALJ to
"hold an early evidentiary hearing, find facts, and issue an
early decision, as to whether the complainant has satisfied the
economic prong of the domestic industry requirement."
On February 8, 2017, after a hearing on the merits, Judge
McNamara issued a Notice of her Initial Determination finding that
Silicon Genesis, through its licensee, SunEdison Semiconductor
Limited, has established contingently by a preponderance of
evidence that the economic prong of the domestic industry
requirement has been met under subsections A, B, and C of the
statute. 19 U.S.C. § 1337(a)(3)(A), (a)(3)(B) and (a)(3)(C).
She further held provisionally that SunEdison's products
practice at least one claim of each of the asserted patents to
establish the technical prong, but reserved a final decision for
later in the Investigation.
The public version of the Initial Determination which will
provide the ALJ's rationale for her holdings is not yet
available. Jones Day will continue to monitor the case as it
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