On October 19, 2016, the Commission issued a notice instituting an investigation in Certain Silicon-On-Insulator Wafers, Inv. No. 337-TA-1025.  The Commission ordered the presiding administrative law judge to hold an early evidentiary hearing pursuant to the 100-day pilot program on whether the Complainant satisfies the economic prong of domestic industry.

The 100-Day Pilot Program

The pilot program, which is pending codification pursuant to a notice of proposed rulemaking issued in September 2015, provides for the early adjudication of potentially case-dispositive issues. Currently, the process is initiated by the Commission in the notice of investigation. The Commission proposed broadening the pilot program in its notice of proposed rulemaking by allowing administrative law judges to institute proceedings for early determination of dispositive issues.  Pursuant to the Commission’s notice of investigation, the ALJ issues a procedural schedule including expedited fact finding and an evidentiary hearing.  Ordinarily, the hearing will result in an initial determination within 100 days of the institution of the investigation. Parties may then petition the Commission for review of the ID within five days of service of the ID.

 The Case

On May 26, 2016, Silicon Genesis Corporation (“Silicon Genesis”) filed a complaint alleging a violation of Section 337 by Soitec, S.A. (“Soitec”) 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.l0(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.”


 The Commission’s institution of the 100-day pilot program in this investigation is a further indication that the ITC is willing to seek early adjudication of case dispositive issues in appropriate circumstances, and such circumstances are likely to include issues the Commission has previously examined.

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Vishal Khatri is an intellectual property lawyer with more than 15 years of experience representing clients in high stakes, bet-the-company patent litigation and procurement matters around the world. He routinely represents clients in matters before U.S. district courts, the United States International Trade Commission (ITC), and the United States Patent and Trademark Office (USPTO), including Inter Partes Review (IPR) proceedings before the Patent Trial and Appeal Board (PTAB).