Foley Secures Victory for Avago Technologies

Foley last week secured a victory for client Avago Technologies before the U.S. International Trade Commission. The Commission issued a Notice of Final Determination, finding a violation of section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. § 1337, in favor of Avago Technologies, and entered remedial orders against Mellanox, IPtronics and FCI.

In October 2012, the Commission announced it would investigate Avago’s complaint, which accused Respondents Mellanox of California and Israel, IPtronics of Denmark and California, and FCI of France, Germany, and Pennsylvania, of importing fiber optic products and components that infringe Avago’s patents. After a four-day hearing in July 2013, and post-hearing briefing, the Commission issued the Initial Determination on December 13, 2013, rejecting Respondents’ invalidity and other defenses and finding Mellanox, IPtronics, and FCI’s active optical cables and optoelectronic transceivers, both having vertical-cavity, surface-emitting lasers (“VCSELs”), to be infringing.

In January 2014, both sides petitioned the Commission for review of the Initial Determination. On February 12, 2014, the Commission announced that it would review in part the Initial Determination. After the parties submitted requested briefing, the Commission upheld the validity of Avago’s patents and found that Mellanox, IPtronics, and FCI infringe Avago’s intellectual property by importing and selling VCSEL-based active optical cables and optoelectronic transceivers. Besides affirming infringement, the Commission also entered a limited exclusion order prohibiting Mellanox, IPtronics, and FCI from importing unlicensed infringing products and components from entering the United States. Further, the Commission entered cease and desist orders against Mellanox, IPtronics, and FCI, prohibiting each of them from importing, selling, marketing, advertising, distributing, transferring, and soliciting U.S. agents or distributors for the active optical cables and optoelectronic transceivers with VCSELs.

The Foley team that represented Avago in these matters included Rick Florsheim, John Vetter, Cynthia Rigsby, Shawn McDonald, Liane Peterson, Ary Chang, Deb Lange, Adrienne Miller, Yesenia Garcia-Perez, Michelle Moran, Stephanie Quick and Mary Ann Cochran.