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Even the Litigation Department of the Year doesn’t win ‘em all. Last week the U.S. International Trade Commission issued a final determination in Tessera Inc.’s case against a bevy of DRAM chip companies accused of infringing Tessera packaging patents. The ITC ruled that although the three Tessera patents at issue were valid, the chip makers’ products do not infringe them. Gibson, Dunn & Crutcher led the way for Tessera on the losing side; Orrick, Herrington & Sutcliffe and Foley & Lardner took the lead for the defendants. The ruling stands in contrast to Tessera’s May 2009 ITC victory over Motorola, Qualcomm, Freescale Semiconductor and Spansion, which were barred from selling products found to infringe a different Tessera patent. Gibson also represents Tessera in that case, which is on appeal to the U.S. Court of Appeals for the Federal Circuit. Larry Shatzer of Foley & Lardner told us that the difference this time around wasn’t just the particular Tessera patents the ITC was considering. “The parties were different, the products were different. And the evidence that came in at trial was very different,” he said. (Shatzer represents the Japanese chipmaker Elpida; Orrick was counsel to a group of Taiwanese manufacturers.) Although the ITC determined that one product manufactured by Elpida did infringe a Tessera patent, it concluded there was no violation of the rule barring the importation of infringing products because an Elpida supplier has a licensing deal with Tessera. It concluded the other products at issue did not infringe Tessera’s patents. The Commission also found that Tessera’s infringement experts used an unreliable testing methodology to try to prove infringement. The ITC has not yet issued a public opinion in the case; according to Shatzer, it is expected by the end of the month. Tessera counsel Wayne Barsky of Gibson Dunn referred us to Tessera for comment. In a statement, the company’s CEO, Henry Nothhaft, said, “We are disappointed … We will have an opportunity to appeal this ruling and are already reviewing other avenues open to us.” Tessera was also represented at the ITC by Irell & Manella and Adduci, Mastriani & Schaumberg.

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