DARRELL E. ISSA
`49TH DISTRICT, CALIFORNIA
`
`www.Issa.I‘louseigov
`
`COMMITTEE ON THE JUDICIARY
`
`COMMITTEE ON FOREIGN AFFAIRS
`
`COMMITTEE ON OVERSIGHT
`AND GOVERNMENT REFORM
`
` W.
`
`(Eongress at the fltlm'teh étatea
`{901152 at fieprefientauhta
`
`Washington, E341 20515—0549
`
`WASHINGTON OFFICE‘
`2265 Ravaunm HOUSE OFFICE BUILDING
`WASHINGTON, DC 20515
`[202I 225—3906
`VISTA OFFICE:
`1800 THIBODO Roma, SUITE 310
`VISTA, CA 92081
`(760) 599—5000
`FAX: [750) 539—1178
`DANA POINT OFFICE:
`33232 GoLnEN LANTERN. SUITE 102
`DANA POINT, CA 92629
`(949) 281—2449
`
`August 7, 2017
`
`Dear Chairman Schmidtlein, Vice Chairman Johanson, and Commissioners:
`
`As Chairman of the House Judiciary’s Subcommittee on the C OuI'IS, Intellectual Property,
`and the Internet, I offer these comments for consideration in response to the Commission’s
`Notice of Request for Statements on the Public Interest in the matter of Certain Semiconductor
`Devices, Semiconductor Device Packages, and Products Containing the Same, Inv. No. 337—TA—
`101, dated July 10, 2017.
`
`I represent Califomia’s 49th Congressional District, which encompasses parts of Orange
`and San Diego Counties, where Broadcom has a substantial presence.
`I am deeply concerned
`that a remedial order could affect the livelihood of my constituents employed by Broadcom.
`
`The lTC’s purpose is to ensure and enforce fair trade practices. A remedy in the case at
`hand would be an affront to the ITC’s mission as Broadcom’s legitimate trade and operations
`that serve our public interest would be harmed in favor of a nonpracticing entity using these
`proceedings to extract compensation. I understand Complainant Tessera has sought inclusion of
`a broad swath of semiconductor components and products integrating such components in this
`Investigation, and that the Administrative Law Judge presiding over this Investigation has
`recommended a sweeping exclusion order, a cease-and-desist order, and a maximum bond
`preventing the importation and/or sale of a wide swatch of consumer products.
`
`A remedial order of this breath would bring substantial economic harm to the American
`public and jeopardize the ability of American businesses and consumers to access basic services
`as cable television, intemet, and telecommunication.
`In fact, Broadcom is the sole supplier of
`chips for set—top boxes manufactured by co—Respondents ARRIS and Technicolor, who are
`themselves the suppliers of cable set-top boxes for co—Respondent Comcast. Moreover, a
`remedy in this case would affect even non-Comcast users as the marketplace would become less
`competitive.
`
`An exclusion order in this matter will not serve to protect American industry. The
`licensees to Tessera’s patent (Cylpress and Micron), relied upon to demonstrate domestic
`industry, do not compete with Broadcom in the commercialization of the excluded products.
`When the ITC acts to protect domestic industry based on the businesses of licensees to a patent,
`
`F‘FIlNTED ON RECYCLED PAPER
`
`

`

`the licensees benefit because they can increase manufacturing or other business efforts to fill the
`void left by the exclusion of products. That, however, is not the case here. The companies to
`which Tessera licenses the patent do not provide the type of product sought to be excluded, so
`they cannot fill the gap in the American market created by this exclusion order. Likewise, the
`licensees are not banned by Broadcom’s continued sale of implicated products because they do
`not compete with Broadcom with respect to the products at issue in the case.
`
`Any monetary harm to Tessera, which can be more appropriately addressed by Article Ill
`courts, is sufficient. Although I maintain that an exclusion order on these grounds is not
`appropriate, at very least, a stay of enforcement of any exclusion order pending the resolution of
`additional litigation would be much more appropriate.
`
`Finally, I am especially troubled by the fact that Tessera does not actually manufacture
`products protected by the patents it is asserting, but rather seeks profits from such manufacturers
`in the form of patent royalties.
`It seems Tessera did not even invent the patent that underlies the
`cun‘ently recommended remedy — it bought the patent and has now asserted it against these
`respondent manufacturers. Furthermore, I believe Tessera’s patented technology is trivial in the
`technological context ofa semiconductor chip. As such, I implore the Commission to diligently
`consider any remedy in this investigation.
`
`I am an original co-sponsor of legislation currently pending in the House of
`Representatives that seeks to curb abuses of patent assertion entities and nonpracticing entities at
`the ITC. The Trade Protection Not Troll Protection Act (HR. 2189) would clarify the domestic
`industries requirement to reflect the fact that investment in licensing must be substantial and
`must lead to the adoption and development of articles that incorporate the patent in question.
`Patent trolls 7 PAES and NPEs a drain billions of dollars from the U.S. economy every
`year.£'—1 The instant case reflects yet another time when the Commission has the opportunity to
`rebuff litigious extortion and adhere to its mission of ensuring ITC actions are in the public
`interest.
`
`While I express no opinion on the merits of the Investigation, I ask that full and fair
`consideration be given to the economic impact at stake for consumers throughout our country.
`Furthermore, I offer that I am deeply concerned about the impact a remedial order may have on
`the U.S. economy and American consumers generally.
`
`Sincerely,
`
`Witch Issa
`
`ember of Congress
`
`

`

`CERTIFICATE OF SERVICE
`
`The Honorable Dee Lord
`Administrative Law Judge
`U.S. International Trade Commission
`500 E. Street SW, Room 317
`Washington, D.C. 20436
`
`I, Pamela A. Freitik, hereby certify that the attached document has been served upon the
`
`following parties as indicated below on August 7, 2017.
`
`☒ Via EDIS
`The Honorable Lisa R. Barton
`☐ Via First Class Mail
`Secretary to the Commission
`☐ Via Express Delivery
`U.S. International Trade Commission
`☒ Via Hand Delivery
`500 E Street SW, Room 112-A
`Washington, D.C. 20436
`
`☐ Via EDIS
`Sidney A. Rosenzweig
`☐ Via First Class Mail
`Office of the General Counsel
`☐ Via Express Delivery
`U.S. International Trade Commission
`☐ Via Hand Delivery
`500 E Street SW
`☒ Via Electronic Mail at
`Washington, D.C. 20436
`
`sidney.rosenzweig@usitc.gov
`
`☐ Via First Class Mail
`☐ Via Express Delivery
`☒ Via Hand Delivery
`☒ Via Electronic Mail at
`edward.jou@usitc.gov
`
`☐ Via EDIS
`☐ Via First Class Mail
`☐ Via Express Delivery
`☐ Via Hand Delivery
`☒ Via Electronic Mail at
`Tessera-Broadcom@cov.com
` ☐ Via EDIS
`☐ Via First Class Mail
`☐ Via Express Delivery
`☐ Via Hand Delivery
`☒ Via Electronic Mail at
`Tessera-Broadcom@cov.com
`
`
`
`
`
`
`Sturgis M. Sobin
`Shara Aranoff
`Daniel E. Valencia
`COVINGTON & BURLING LLP
`One CityCenter, 850 Tenth Street, N.W.
`Washington, D.C. 20001
`
`
`Michael K. Plimack
`Dale A. Rice
`Nitin Subhedar
`COVINGTON & BURLING LLP
`One Front Street
`San Francisco, CA 94111
`
`
`
`
`
`
`
`
`
`
`

`

`Robert T. Haslam
`Anupam Sharma
`Thomas E. Garten
`COVINGTON & BURLING LLP
`333 Twin Dolphin Drive
`Redwood Shores, CA 94065-1418
`
`
`Counsel for Complainants Tessera Technologies,
`Inc., Tessera, Inc. and Invensas Corporation
`
`KILPATRICK TOWNSEND & STOCKTON LLP
`David E. Sipiora
`Kristopher L. Reed
`Matthew C. Holohan
`Brian P. O’Donnell
`1400 Wewatta Street, Suite 600
`Denver, CO 80202
`
`Joshua B. Pond
`607 14th Street, NW, Suite 900
`Washington, D.C. 20005-2018
`
`
`
`
`
`
`Norris P. Boothe
`Matthew J. Meyer
`William E. Mosley
`1080 Marsh Road
`Menlo Park, CA 94025
`
`
`
`
`FOSTER MURPHY ALTMAN & NICKEL PC
`David F. Nickel
`Matthew N. Duescher
`1899 L Street, N.W., Suite 1150
`Washington, D.C. 20036
`
`Counsel for Respondents Broadcom Limited,
`Broadcom Corporation, Arista Networks, Inc. ARRIS
`International plc, ARRIS Group, Inc., ARRIS
`Technology, Inc., ARRIS Enterprises LLC, ARRIS
`
`
`
`☐ Via EDIS
`☐ Via First Class Mail
`☐ Via Express Delivery
`☐ Via Hand Delivery
`☒ Via Electronic Mail at
`Tessera-Broadcom@cov.com
`
`
`
`☐ Via EDIS
`☐ Via First Class Mail
`☐ Via Express Delivery
`☐ Via Hand Delivery
`☒ Via Electronic Mail at
`Broadcom-
`TesseraITC@kilpatricktownsend.com
`
` ☐ Via EDIS
`☐ Via First Class Mail
`☐ Via Express Delivery
`☐ Via Hand Delivery
`☒ Via Electronic Mail at
`Broadcom-
`TesseraITC@kilpatricktownsend.com
`
` ☐ Via EDIS
`☐ Via First Class Mail
`☐ Via Express Delivery
`☐ Via Hand Delivery
`☒ Via Electronic Mail at
`Broadcom-
`TesseraITC@kilpatricktownsend.com
`
` ☐ Via EDIS
`☐ Via First Class Mail
`☐ Via Express Delivery
`☐ Via Hand Delivery
`☒ Via Electronic Mail at
`FM-Broadcom-
`1010@fostermurphy.com
`
`
`

`

`Solutions, Inc. , Pace Ltd., Pace Americas, LLC, Pace
`USA, LLC, ASUSTeK Computer Inc., ASUS
`Computer International, Comcast Cable
`Communications, LLC, Comcast Cable
`Communications Management, LLC, Comcast
`Business Communications, LLC, Technicolor S.A.,
`Technicolor USA, Inc., Technicolor Connected Home
`USA LLC, NETGEAR, Inc., HTC Corporation and
`HTC America, Inc.
`
`David A. Hickerson
`George C. Beck
`Foley & Lardner LLP
`3000 K Street, N.W., Suite 600
`Washington, D.C. 20007-5109
`
`
`Steven J. Rizzi
`Ramy E. Hanna
`Foley & Lardner LLP
`90 Park Avenue
`New York, New York 10016-1314
`
`
`Counsel for Broadcom Limited
`and Broadcom Corporation
`
`
`
`
`☐ Via EDIS
`☐ Via First Class Mail
`☐ Via Express Delivery
`☐ Via Hand Delivery
`☒ Via Electronic Mail at
`Broadcom-Foley@Foley.com
` ☐ Via EDIS
`☐ Via First Class Mail
`☐ Via Express Delivery
`☐ Via Hand Delivery
`☒ Via Electronic Mail at
`Broadcom-Foley@Foley.com
`
`
`
`/s/ Pamela A. Freitik
`Pamela A. Freitik
`
`
`
`
`
`
`
`