On October 19, 2016, the International Trade Commission instituted Investigation No. 1025, based on a complaint filed on May 26, 2016, by Silicon Genesis Corporation (SiGen), against Soitec, S.A. (Soitec).  As part of the institution, the ITC ordered that the ALJ issue an early initial determination regarding whether SiGen “has satisfied the economic prong of the domestic industry requirement.”  See 81 F.R. 73419 (Notice of Institution of Inv. No. 1025) (Oct. 25, 2016).  This is now the fourth time the ITC has ordered the 100-Day program in an investigation, and in this case it appears that previous behavior by the complainant SiGen contributed to the order.

Pilot Program History

In 2013, the Commission instituted an early disposition pilot program, requiring an early evidentiary hearing and initial determination within 100 days of the Notice of Institution to test whether the early adjudication of certain issues would increase efficiency of investigations at the ITC.  The program requires the ALJ to expedite discovery and findings of fact for any issues identified for early disposition in the notice of institution. In September of 2015, the ITC proposed new rules that would permanently codify the 100-Day program.  Since its adoption, only three investigations have been ordered into the pilot program.

SiGen v. Soitec, Round Two

The 1025 investigation is now the second ITC investigation SiGen has filed in the last two years against Soitec.  The previous investigation, Investigation No. 966, was terminated on June 29, 2016, based on SiGen’s May 18, 2016, withdrawal of the complaint.  In the 966 investigation, SiGen failed to produce necessary domestic industry evidence before the production deadline, and ALJ McNamara granted a motion to strike any late produced domestic industry evidence.  Order No. 15, Inv. No. 337-TA-966 (confidential version only).  As a result, SiGen seemingly could not prove its domestic industry case and withdrew the complaint.  Soitec then moved for sanctions against SiGen based on SiGen’s discovery behavior, but those requests for sanctions were ultimately denied.

A mere eight days after SiGen moved to withdraw the complaint in the 966 investigation, due to its inability to provide a domestic industry, SiGen filed the complaint that gave rise to the 1025 investigation, once again alleging violations of Section 337 based on the importation of silicon wafers that infringe U.S. Patent Nos. 6,458,672 and 6,171,965.  This new case is subject to the 100-Day pilot program to determine whether SiGen satisfies the economic prong of the domestic industry requirement, and has again been assigned to ALJ McNamara.

Lesson

The ITC has once again demonstrated its willingness to use the 100-Day program for the early adjudication of dispositive issues, in this case with respect to questions regarding domestic industry.  Based on the behavior of the parties in the previous 966 investigation, the ITC believes that the 1025 investigation is an appropriate circumstance to utilize the 100-Day pilot program and reach an early resolution.  SiGen’s previous actions surely have contributed to the ITC’s decision in this case.  It is important to note that, despite the ITC’s actions in the 1025 investigation, a complaint containing a properly supported and well-plead domestic industry allegation likely will not receive the 100-Day program that SiGen received in the 1025 investigation.