ITC Issues Limited Exclusion Order, Etc. on Optoelectronic Devices

(This investigation was based on a complaint filed by Avago Technologies Fiber IP (Singapore) Pte. Ltd. of Singapore; Avago Technologies General IP (Singapore) Pte. Ltd. of Singapore; and Avago Technologies Ltd. of San Jose, California (collectively, Avago), which alleged violations of section 337 of the Tariff Act of 1930 in the importation into the U.S., the sale for importation, and the sale within the U.S. after importation of certain optoelectronic devices, components thereof, or products containing the same by reason of infringement of certain claims of U.S. Patent No. 5,359,447 (the 447 patent), among others.

The respondent is Emcore Corporation of Albuquerque, NM.)

LEO Excludes Infringing Articles from Entry

According to the limited exclusion order, optoelectronic devices, components thereof, and products containing the same that are covered by one or more claims of 1, 2, 3, and 5 of the 447 patent and that are manufactured abroad by or on behalf of, or are imported by or on behalf of, Emcore Corporation, or any of its affiliated companies, parents, subsidiaries, or other related business entities, or their successors or assigns, are excluded from entry for consumption into the U.S., entry for consumption from a foreign-trade zone, or withdrawal from a warehouse for consumption, for the remaining term of the patent, except under license of the patent owner or as provided by law.

Bond of 3% of Entered Value During 60-Day Review Period

The ITC also determined that the excluded products are entitled to entry for consumption into the U.S., entry for consumption from a foreign-trade zone, or withdrawal from a warehouse for consumption, under bond in the amount of 3% of the entered value, from the day after the order is received by the U.S. Trade Representative and until such time as the USTR notifies the ITC that the order is approved or disapproved, but, in any event, not later than 60 days after receipt of the order.

CBP May Require Certification that Imports are Not Subject to Order

At the discretion of U.S. Customs and Border Protection and pursuant to procedures it establishes, persons seeking to import optoelectronic devices, components thereof, and products containing the same that are potentially subject to the order may be required to certify that they are familiar with the terms of the order, that they have made appropriate inquiry, and thereupon state that, to the best of their knowledge and belief, the products being imported are not excluded from entry under the order. At its discretion, CBP may require persons who have provided the certification to furnish such records or analyses as are necessary to substantiate the certification.

Cease and Desist Order Issued Against Emcore

The ITC has also issued a cease and desist order against Encore, which prohibits the importing, selling, marketing, advertising, distributing, offering for sale, transferring (except for exportation), and soliciting U.S. agents or distributors for, the excluded optoelectronic devices, components thereof, and products containing the same.

The conduct prohibited under the cease and desist order may be continued during the 60 day period in which the order is under review by the USTR, subject to the posting of a bond in the amount of 3% of the entered value of the covered products.

(See ITT’s Online Archives or 03/11/09 news, 09031135, for BP summary of the institution of this patent investigation.)

ITC contact -- Clint Gerdine (202) 205-2310

(FR Pub 07/19/10, Inv. No. 337-TA-669)

The limited exclusion order and cease and desist order are available by emailing documents@brokerpower.com.