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 domestic industry.

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 against Soitec.

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 unfolds.

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