In Re Application for Order Enforcing a Subpoena

Filing 1

APPLICATION for an order enforcing a subpoena Filing fee: $ 39, receipt number 0101-3391886 (Fee Status: Filing Fee paid) (Attachments: # 1 Memorandum in Support of TriQuint Motion to Compel, # 2 Affidavit of Laura T. Ewbank in Support of TriQuint's Motion to Compel, # 3 Exhibit A to Ewbank Aff., # 4 Exhibit B to Ewbank Aff., # 5 Exhibit C to Ewbank Aff., # 6 Exhibit D to Ewbank Aff.) (Burroughs, Allison) (Entered: 05/05/2011)

Case 2:09-cv-01531-JAT Document 147

1
2
3
4
5
6
7
8
9
10
11
12

Filed 08/04/10 Page 1 of 33

Jonathan M. James, Bar No. 012204
David J. Palmer, Bar No. 026077
Perkins Coie Brown & Bain P.A.
2901 North Central Avenue, Suite 2000
Phoenix, Arizona 85012-2788
Telephone: [phone]
Facsimile: [phone]
[e-mail]
Susan E. Foster, (Pro Hac Vice)
Chun M. Ng (Pro Hac Vice)
Shylah R. Alfonso (Pro Hac Vice)
Perkins Coie LLP
1201 Third Avenue, Suite 4800
Seattle, Washington 98101-3099
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
[e-mail]
Attorneys for Plaintiff/Counterdefendant
TriQuint Semiconductor, Inc.

13
UNITED STATES DISTRICT COURT

14

DISTRICT OF ARIZONA

15
16

TriQuint Semiconductor, Inc., a Delaware
corporation,

17
18
19

Plaintiff/Counterdefendant,
v.

No. 09-01531-PHX-JAT
FIRST AMENDED COMPLAINT
(Demand for Jury Trial)

21

Avago Technologies Limited, a Singapore
corporation; Avago Technologies U.S., Inc.,
a Delaware corporation, Avago Technologies
Wireless IP (Singapore) Pte., Ltd., a Singapore
corporation,

22

Defendants/Counterclaimants.

20

23
24

Plaintiff TriQuint Semiconductor, Inc. (“TriQuint”), through its undersigned

25

attorneys, by and for its first amended complaint, upon personal knowledge as to its own

26

acts and on information and belief as to all others, alleges as follows:

Case 2:09-cv-01531-JAT Document 147

1

Filed 08/04/10 Page 2 of 33

THE PARTIES AND NATURE OF THE CLAIMS

2

1.

TriQuint is a Delaware corporation with its principal place of business at

3

2300 NE Brookwood Parkway, Hillsboro, Oregon 97124.

4

TriQuint designs, manufactures and sells Bulk Acoustic Wave ("BAW") duplexers which

5

are used in wireless communication products, such as mobile telephone handsets. BAW

6

duplexers are comprised of at least two radio frequency ("RF") filter dies that are based on

7

BAW technology ("BAW filter dies").

8
9
10

2.

Defendant Avago Technologies Limited is a Singapore corporation, having

places of business at 1 Yishun Avenue 7, Singapore 768923 and 350 W. Trimble Road,
San Jose, California 95131.

11
12

Among other products,

3.

Defendant Avago Technologies U.S., Inc., is a Delaware corporation,

having a place of business at 350 W. Trimble Road, San Jose, California 95131.

13

4.

Defendant Avago Technologies Wireless IP (Singapore) Pte., Ltd., is a

14

Singapore corporation, having a place of business at 1 Yishun Avenue 7, Singapore

15

768923.

16

5.

Defendants Avago Technologies Limited and Avago Technologies U.S.,

17

Inc. make, use, sell, offer to sell, and/or import Avago products that are the subject of this

18

action.

19
20
21

6.

Defendant Avago Technologies Wireless IP (Singapore) Pte., Ltd., is the

owner of the Avago patents that are the subject of this action.
7.

On information and belief, Avago Technologies Limited, Avago

22

Technologies U.S., Inc. and Avago Technologies Wireless IP (Singapore) Pte., Ltd., are

23

affiliated entities operating under common ownership and control and will be collectively

24

referred to herein as "Avago."

25
26
-2-

Case 2:09-cv-01531-JAT Document 147

1

8.

Filed 08/04/10 Page 3 of 33

Among other products, Avago designs, manufactures and sells BAW

2

duplexers which are used in wireless communications products, such as mobile handsets.

3

Avago's BAW technology is referred to as FBAR (Film Bulk Acoustic Resonator).

4

9.

TriQuint’s antitrust claims arise from Avago's illegal, predatory and

5

anticompetitive conduct in the BAW Technology Market and in the product markets for

6

BAW Filter Die and separately for PCS CDMA Duplexers and includes and relates to, but

7

is not limited to: a) Avago's simultaneous acquisition and discontinuance of the Infineon

8

Technologies, Inc. ("Infineon") BAW products line; b) Avago's acquisition of the related

9

Infineon intellectual property rights including six of the ten patents asserted in this action;

10

and c) the acquisition of other BAW intellectual property rights originally obtained by

11

others such as Nokia Corporation ("Nokia"), including two of the ten patents asserted in

12

this action (collectively, the "Acquired BAW Patents"). Through its anticompetitive

13

conduct, Avago has engaged in a scheme to acquire and maintain an illegal monopoly in

14

these markets and has used its dominant market power to exclude competitors and

15

foreclose potential competition to the detriment of handset manufacturers, purchasers,

16

consumers—and TriQuint.

17

10.

On information and belief, Avago presently has more than 90% share of the

18

relevant market for PCS CDMA Duplexers. BAW technology and filters are a critical

19

component of a PCS CDMA Duplexer. In about 2006, TriQuint entered the PCS CDMA

20

Duplexer Market by purchasing BAW filter die from Infineon, packaging the Infineon

21

BAW filter die into BAW Duplexers and selling its BAW Duplexers in competition with

22

Avago.1 Other than Avago, Infineon was the only then viable producer of commercial

23

BAW filters for the PCS CDMA Duplexer Market and the only commercial provider of

24

BAW filter dies.

25
26

1

In order to form a discrete BAW duplexer, BAW filter die are packaged (or
encapsulated) together to form a single "chip."
-3-

Case 2:09-cv-01531-JAT Document 147

1

11.

Filed 08/04/10 Page 4 of 33

Shortly after TriQuint's entry into the PCS CDMA Duplexer Market, Avago

2

began a campaign to acquire BAW technology patent rights commencing in 2006 with an

3

acquisition of BAW patent rights from Infineon's technology partner, Nokia, and

4

separately from Northrop Grumman Corporation ("Northrop Grumman").

5

12.

Later, in or about September 2008, Avago consolidated its monopoly

6

position further by acquiring the Infineon BAW product line and all of Infineon's BAW-

7

related patents. As a result of this acquisition, Avago became the only commercial

8

provider of BAW filter dies, and obtained 100% of the commercial BAW Filter Die

9

Market. Avago immediately began to use its market position to exclude competitors and

10

foreclose competition and in the very press release announcing its acquisition of the

11

Infineon BAW product line and patents, Avago gave notice that it was discontinuing the

12

Infineon BAW product line—thereby cutting off TriQuint's only possible source of BAW

13

filter dies. On information and belief, Avago's primary, if not sole, reason for acquiring

14

the Infineon BAW product line and patents was so that it could: a) shut down the product

15

line and eliminate the only potential supplier of BAW filter dies to TriQuint and any other

16

company that wanted to compete with Avago, and b) acquire and use the Infineon patents

17

(as well as the other Acquired BAW Patents) to prevent competition.

18

13.

Faced with the loss of its only supplier (and the only viable supplier) for

19

BAW filter dies, TriQuint proceeded with its efforts to develop its own BAW filter die so

20

that it could continue to compete with Avago in the PCS CDMA Duplexer Market.

21

TriQuint successfully developed its own BAW filter die and began shipment of its BAW

22

PCS CDMA Duplexer modules (containing its own BAW filters) in the third quarter of

23

2009.

24

14.

In an effort to quash TriQuint's efforts to compete, Avago cast a broad net,

25

striking hard and fast.

26

February 2009, Avago's Chief Executive Officer, Hock Tan caused an investment banker

Soon after the Infineon acquisition in December 2008 and

-4-

Case 2:09-cv-01531-JAT Document 147

Filed 08/04/10 Page 5 of 33

1

to reach out to TriQuint to discuss a potential acquisition by Avago of TriQuint. Soon

2

thereafter Avago executives authorized and directed the issuance of thinly veiled threats to

3

the industry, including TriQuint's customers and potential customers.

4

communications advised recipients that only Avago had the patent rights necessary to

5

make BAW filter dies and Duplexers, that Avago had not licensed its patent rights and

6

that any customer who purchased BAW products from any provider other than Avago was

7

at risk of patent infringement. Avago's letters to TriQuint’s customers advised them that

8

Avago owns over 200 patents relating to RF products and that these patents “not only

9

cover important features of these products, but they also cover necessary elements.”

10

Having set the field of intimidation, Avago then threatened TriQuint and other actual and

11

potential BAW producers with patent infringement and TriQuint with trade secret

12

litigation. And, as the price for peace, Avago refused to license its patents absent an

13

express agreement that TriQuint agree not to compete in Avago's monopolistic sweet spot:

14

the PCS CDMA Duplexer Market.

15

15.

These

Faced with Avago's threats to itself and to its customers and potential

16

customers, on July 23, 2009, TriQuint filed its Original Complaint in this Court seeking a

17

declaratory judgment that its new PCS CDMA Duplexer module products did not infringe

18

four of the patents that Avago had been asserting to the industry that TriQuint's products

19

infringed: U.S. Patent Nos. 6,879,224; 6,472,954; 6,384,697; and 6,262,637.

20

16.

In its Original Complaint, TriQuint also asserted that Avago’s products

21

infringe three TriQuint patents: United States Patent Nos. 6,114,635 (“the ’635 patent”);

22

5,231,327 (“the ’327 patent”); and 5,894,647 (“the ’647 patent”).

23

17.

On September 17, 2009, Avago responded to TriQuint's complaint with a

24

counterclaim asserting that TriQuint's new PCS CDMA Duplexer products infringe ten

25

Avago patents—eight of which were acquired from Infineon and Nokia as part of Avago's

26

illegal acquisition efforts.

The patents asserted by Avago in its Counterclaim are:
-5-

Case 2:09-cv-01531-JAT Document 147

Filed 08/04/10 Page 6 of 33

1

7,365,619, 7,268,436, 6,933,807, 6,909,340, 6,864,619, 6,841,922, 6,812,619, 6,377,137,

2

6,262,637, and 6,051,907.

3

18.

On October 16, 2009, TriQuint responded to Avago’s counterclaim, by (1)

4

denying that its products infringe the ten asserted Avago patents, (2) asserting that each of

5

the Avago patents was invalid; and (3) asserting that Avago has violated and is violating

6

U.S. antitrust laws, i.e., Section 7 of the Clayton Act and Section 2 of the Sherman Act.

7

19.

In this Amended Complaint, TriQuint now again 1) asserts that Avago has

8

and is violating the Clayton and Sherman Acts, 2) that Avago’s products infringe

9

TriQuint’s ’635, ’327 and ’647 patents, and 3) seeks a declaratory judgment that TriQuint

10

does not infringe the ten patents Avago has asserted and that those asserted Avago patents

11

are invalid.

12
13

JURISDICTION, VENUE AND INTERSTATE COMMERCE
20.

This Court has jurisdiction over TriQuint’s antitrust claims pursuant to

14

Sections 4 and 15 of the Sherman Act, 15 U.S.C. §§ 4, 15. This Court has jurisdiction

15

over TriQuint’s declaratory judgment action under the Federal Declaratory Judgment Act,

16

28 U.S.C. §§ 2201 and 2202, and because there is an actual and justiciable controversy

17

between TriQuint and Avago regarding the patents asserted by Avago. In addition, this

18

Court has jurisdiction over TriQuint’s claims for patent infringement, treble damages,

19

attorneys’ fees and costs, permanent injunctive relief, and punitive damages against

20

Avago pursuant to the patent laws of the United States, Title 35 of the United States Code,

21

28 U.S.C. §§ 1391(b) and 1400(b). This Court has subject matter jurisdiction pursuant to

22

28 U.S.C. §§ 1331, 1337, 1367.

23
24

21.

This Court has personal jurisdiction over Avago because Avago has

consented to jurisdiction in this District.

25
26
-6-

Case 2:09-cv-01531-JAT Document 147

1

22.

Filed 08/04/10 Page 7 of 33

Venue is proper in this Court for TriQuint's claims under 15 U.S.C.

2

§§ 15(a), 22, and 26; 28 U.S.C. § 1391(b)(2) and (c); and also based upon Avago having

3

filed counterclaims against TriQuint in this District.

4
5
6

BACKGROUND
The Telecommunications Industry
23.

Mobile telephony devices such as mobile telephones and personal digital

7

assistants (a/k/a handsets) generally use one of either two leading air interface standards:

8

CDMA or GSM (including W-CDMA). The CDMA (code division multiple access)

9

standard (a.k.a. narrowband CDMA or N-CDMA) is used most frequently in the high

10
11

frequency PCS Band in North America by operators such as Verizon and Sprint.
24.

Despite the similarities in their names, W-CDMA and CDMA-based

12

systems are incompatible and noninterchangeable. While some components used in W-

13

CDMA and CDMA handsets are interchangeable, notably, the PCS Duplexer is not.

14

Purchasers of PCS Duplexers include handset manufacturers and, directly or indirectly,

15

telecommunication suppliers such as Verizon and Sprint.

16

Filter Technology and Products

17

25.

RF filters stop selected signals or frequencies and are used in handsets to

18

filter out unwanted signal interference. A duplexer is comprised of two custom RF filters

19

joined together to allow the simultaneous transmission ("TX") and receipt ("RX") of data

20

and voice signals while handling high input power levels from the power amplifier.

21

Duplexers prevent interference between the TX and RX signals and are critical to the

22

performance of the radio portion of the handset. Duplexer performance is most critical in

23

a PCS CDMA handset because the TX and RX bands are only separated by a very narrow

24

band gap (20MHz) at nearly 2GHz, thus requiring a very "steep" filter that operates over a

25

range of temperatures and can handle high input power levels. Further increasing the

26

technical challenge, PCS CDMA applications operate within channel bandwidths that are
-7-

Case 2:09-cv-01531-JAT Document 147

Filed 08/04/10 Page 8 of 33

1

only one-fourth as wide as W-CDMA (1.25MHz vs. 5MHz); an impediment that does not

2

allow standard filter technologies to achieve acceptable performance over all operating

3

conditions in the PCS Band.

4

26.

Single duplexers that do not have any added functionality are referred to as

5

"discretes." Discretes may be packaged as multiples or integrated with other components

6

to provide a higher level of integration, referred to as modules. Examples include a

7

quinta-plexer (combination of a duplexer and a triplexer which allows for GPS to work

8

simultaneously with voice transmission), duplexers with power amplifiers and multi-mode

9

modules capable of transmitting over more than one standard (i.e. W-CDMA and

10
11

CDMA). As used herein, "Duplexers" include discretes, multiples, and modules.
27.

Because of its superior performance and its ability to meet stringent

12

technology standards, BAW Duplexers are the technology of choice in high performance,

13

high frequency band applications. Due to the even higher technical requirements of the

14

PCS CDMA Band, BAW Duplexers are the only technology generally used in duplexer

15

applications within the PCS CDMA Band.

16

28.

BAW filters can have a solidly mounted resonator ("SMR") or a suspended

17

resonator. Avago's suspended BAW filter technology is referred to as FBAR. Infineon's

18

BAW filters and TriQuint's newly introduced BAW filters are SMRs.

19

The Parties' BAW Technology and Products

20

29.

In or about 2001, Avago's predecessor, Agilent Technologies, Inc.

21

("Agilent") introduced its new FBAR technology for commercial handset applications. In

22

2005, Agilent spun off its semiconductor business, including its FBAR products, into a

23

new company—Avago. Avago is the successor to Agilent with respect to this business

24

and is now the exclusive provider of FBAR filters and Duplexers.

25
26

30.

In 2002, in the first year after the introduction of FBAR, Agilent announced

that its FBAR Duplexer had already acquired more than 25% of the United States PCS
-8-

Case 2:09-cv-01531-JAT Document 147

Filed 08/04/10 Page 9 of 33

1

Band market. The company further announced its intentions to increase production to

2

meet 100% of worldwide market demand.

3
4

31.

achieved an 80% market share in the United States PCS market:

5

[Agilent's FBAR] devices have been designed into nine of the
top 10 CDMA (code division multiple access) phone
manufacturers handsets for the U.S. PCS market. ….

6
7

"The tremendous acceptance of our FBAR filter components
has fueled a new generation of thinner, smaller CDMA flip
phones," said Bryan Ingram, vice president and general
manager of the Wireless Semiconductor Division in Agilent's
Semiconductor Products Group. "The significant size and
performance advantage has made these components an
industry standard with more than 80-percent share of the U.S.
PCS handset market.

8
9
10
11
12
13
14

A few years later, in late 2004, an Avago press release announced that it had

(Emphasis supplied) (12/15/2004).
32.

In or around 2001, Nokia began working with Infineon to develop BAW

15

filters for Nokia's mobile handset applications. On information and belief, the joint

16

collaboration agreements between Nokia and Infineon prevented Infineon from selling

17

BAW filters to the general market until expiration of an exclusivity provision in 2004.

18

33.

In 2004, Infineon began selling BAW filter dies to other companies,

19

including TriQuint, and later introduced and sought to sell BAW Duplexers.

20

information and belief, TriQuint was the only company other than Infineon itself to

21

develop a Duplexer using the Infineon BAW filter dies.

22

34.

On

TriQuint introduced its first BAW Duplexer using the Infineon BAW filter

23

dies in 2006, and soon became Infineon's largest customer accounting for the substantial

24

majority of Infineon's BAW sales.

25
26
-9-

Case 2:09-cv-01531-JAT Document 147

1
2
3
4

Filed 08/04/10 Page 10 of 33

Avago's Illegal Acquisition Activity and Anticompetitive Scheme
35.

Shortly after TriQuint introduced its competing BAW Duplexer, Avago

acquired several BAW-related patents from Nokia and Northrop Grumman.
36.

In or about September 2008, Avago purchased Infineon's BAW product line,

5

including its patent portfolio and other intellectual property rights relating to BAW

6

technology. The effect of the acquisition was to consolidate the only significant BAW

7

manufacturers and to provide Avago with even greater and more dominant market power

8

which it has used to exclude and foreclose competitors. Because of the size of the

9

transaction, the acquisition was not subject to pre-merger review by the Department of

10
11

Justice and Federal Trade Commission.
37.

On information and belief, the acquisition price paid by Avago for the

12

Infineon BAW line was significantly higher than that offered by other bidders, including

13

TriQuint, and well above market price. The price paid by Avago reflected the premium

14

that Avago placed on its ability to buy and preserve its market power so as to engage in

15

monopolistic pricing and exclusionary conduct, e.g. to foreclose competitors' or potential

16

competitors' access to BAW filter die supply and to amass a purported blocking portfolio

17

comprised of necessary blocking and substitutable BAW patents which could be used to

18

foreclose and prevent competition. Other potential purchasers of the Infineon BAW line

19

existed who would and could have acquired the assets with less anticompetitive effect.

20

However, Avago precluded such a purchase by its supracompetitive price and structured

21

the transaction specifically to ensure that it had the maximum anticompetitive effect.

22

Specifically, Infineon did not offer to sell the BAW patents to potential purchasers,

23

including TriQuint, but rather sought only to license those patents on a nonexclusive

24

basis. On information and belief, in order to ensure its continued monopoly and allow it

25

to exercise the patents so as to exclude and prevent competition, Avago pressured

26
-10-

Case 2:09-cv-01531-JAT Document 147

Filed 08/04/10 Page 11 of 33

1

Infineon to sell the BAW patents and ultimately offered a price that significantly exceeded

2

the fair market value.

3
4

38.

resulting dominance:

5

As you know, Avago Technologies has a history of shipping
FBAR (sometimes referred to as BAW) filters into all major
OEMs and has now shipped more than 1 billion devices over
the past 7+ years which makes Avago Technologies easily the
#1 supplier of these types of devices. ….Additionally, we have
recently acquired the BAW group from Infineon technologies
(sic) who was the #2 supplier of these types of devices and was
a pioneer in the BAW field.

6
7
8
9
10
11
12

In discussing the Infineon acquisition with its customers, Avago touted its

(Emphasis supplied).
39.

Immediately upon acquiring the Infineon BAW line, Avago began to use its

13

market position and leverage its newly acquired patent position to exclude competitors

14

and foreclose competition. Specifically, on or about September 30, 2008, Avago publicly

15

announced that it had just completed the purchase of the Infineon BAW line and that it

16

was simultaneously discontinuing the Infineon BAW product line. Avago's press release

17

announcing the acquisition and the related obsolescence of the BAW line stated:

18

This acquisition provides Avago with several strategic assets,
including a strong IP portfolio and highly experienced R&D
team. . . . This development team will focus on building upon
the existing FBAR filter product....The BAW products will be
discontinued and obsolescence notices have been sent to
affected customers.

19
20
21
22
23
24

9/30/08 Press Release (emphasis supplied).
40.

Avago's decision to shut down the Infineon line terminated the only

25

commercial provider of BAW filter dies leaving TriQuint with no ongoing source of

26

supply and the announcement --- made only after the acquisition was finalized --- was
-11-

Case 2:09-cv-01531-JAT Document 147

Filed 08/04/10 Page 12 of 33

1

directly contrary to statements made prior to closing of the acquisition. Specifically, in

2

communications Avago caused to be sent to Infineon customers, TriQuint was assured of

3

Avago's intention to continue the Infineon BAW business. Thus, in a letter to TriQuint

4

dated August 1, 2008, announcing Avago's acquisition of the Infineon BAW business,

5

TriQuint was advised that: "Avago will be a very reliable partner for TriQuint and will

6

offer the BAW Business a long term perspective by developing it to its fullest potential."

7

On information and belief, Avago sought to mislead Infineon, TriQuint and others until

8

after the acquisition closed so as to ensure that it was the successful purchaser and to

9

avoid any potential challenge.

10

41.

As part of Avago's obsolescence announcement, TriQuint was offered a

11

"last time buy." The "last time buy" period was insufficient for TriQuint to determine its

12

obligations to current customers as the life of a handset model extends over several years

13

and TriQuint's customers were unable to provide accurate demand forecasts due to the

14

rapidly expanding market for Smartphones which used the Infineon BAW filter die.

15

Avago's "life time buy" period was also insufficient to allow TriQuint to compete

16

effectively in several pending and future competitions. Changing out parts generally

17

requires FCC authorization and thus customers require and expect a long term source of

18

supply -- something that TriQuint was unable to provide.

19

42.

In order to meet its obligations to current customers, TriQuint approached

20

Avago to request additional flexibility. Avago refused. Ultimately, Avago advised that it

21

had excess supply and, due to its own desire to offload supply and complaints from the

22

parties' mutual customers, Avago ultimately offered TriQuint additional volume. BAW

23

filter dies are customized and Avago's most recent offer to provide BAW filter die that

24

TriQuint needed for its customers was conditioned upon TriQuint's agreement to accept

25

BAW filter die which it neither wanted nor could use. Both the original and modified

26
-12-

Case 2:09-cv-01531-JAT Document 147

Filed 08/04/10 Page 13 of 33

1

"life time buy" was insufficient to meet TriQuint's (and its customers') requirements and

2

significantly impacted TriQuint's ability to compete.

3

43.

Shortly

after

the

acquisition,

Avago

began

to

issue

customer

4

communications warning buyers that, because of its newly acquired patent portfolio,

5

Avago was the only safe choice for BAW filters and that purchasing BAW filters from

6

competitors would leave the purchaser unprotected from the exclusive effect of Avago's

7

patent portfolio, which it claimed covered necessary elements of BAW filters. As Avago

8

stated:

9

manufacturing FBAR or BAW devices." The "competitors" to which Avago's letter was

10

referring was, in fact, one competitor and its only competitor—TriQuint. Avago sent

11

these communications to all of the customers to which TriQuint sold BAW Duplexers for

12

the PCS CDMA market. In view of the recent decision in Broadcom's patent infringement

13

case against Qualcomm in which handset makers who used in their phones the Qualcomm

14

chips found to infringe Broadcom's patents were barred from importation and sale in the

15

United States, TriQuint's handset customers were particularly concerned about these

16

statements. A number of these customers contacted TriQuint about Avago’s assertions

17

and requested that TriQuint provide them with assurances that TriQuint’s products do not

18

infringe Avago’s patents and that their supply of products from TriQuint was not at risk of

19

being interrupted.

20

44.

"[W]e have not licensed these patents to any competitors who may be

Faced with a loss of supply from Infineon, TriQuint reallocated resources

21

and quickly accelerated efforts to develop its own BAW technology based in part on

22

technology earlier developed by its subsidiary, TFR Technologies, Inc. (in Bend, Oregon),

23

for military applications. TriQuint's efforts were eventually successful, and it is now

24

producing BAW Duplexers for the PCS CDMA Duplexer Market incorporating its own

25

BAW technology and BAW filter die.

26
-13-

Case 2:09-cv-01531-JAT Document 147

1

45.

Filed 08/04/10 Page 14 of 33

Avago's threats were not limited to customers, and Avago sought to enforce

2

its illegally acquired patent portfolio against actual or potential competitors, including

3

TriQuint so as to obtain a complete monopoly within the BAW Filter Die and PCS

4

CDMA Duplexer Markets. Avago's threats included, but were not limited to, threats of

5

patent infringement and trade secret litigation. In a February 10, 2009 meeting between

6

Bryan Ingram, Vice President and General Manager of Avago's Wireless division, and

7

Bruce Fournier of TriQuint, Mr. Ingram stated that he had drafted and directed that the

8

threatening letters be distributed to customers and that the letters and threats had already

9

been successful in pushing some Asian suppliers out of the market who were

10
11

manufacturing BAW and at risk of entering the PCS CDMA Duplexer Market.
46.

As part of any agreement to license its patents, Avago insisted that TriQuint

12

agree not to compete in the PCS CDMA Duplexer Market. This demand was not limited

13

to existing devices nor was it limited to devices which allegedly infringed Avago's patents

14

(including its illegally acquired patents). Rather, Avago stated that it was seeking to

15

"protect" its monopoly and that it wanted to "wall off" the PCS CDMA Duplexer Market

16

segment for itself. This demand was first stated in the February 10, 2009 conversation

17

between Bruce Fournier of TriQuint and Bryan Ingram of Avago and reiterated on

18

multiple occasions thereafter to Mr. Fournier, Mr. Ralph Quinsey and Tim Dunn of

19

TriQuint by Mr. Ingram and Hock Tan, Chief Executive Officer of Avago. With respect

20

to BAW filter die, as stated by Mr. Ingram to Mr. Dunn at Avago's facilities on June 22,

21

2009, Avago demanded that TriQuint agree not to sell BAW filter die into either the W-

22

CDMA or narrowband CDMA market for a period of 2-3 years.

23

47.

In an effort to resolve intellectual property disputes, TriQuint agreed to enter

24

into discussions with Avago that would be covered by an agreement, titled Mutual

25

Confidential Disclosure Agreement dated April 17, 2009. What TriQuint did not then

26

realize was that Avago was planning to use these discussions to pursue its demand to
-14-

Case 2:09-cv-01531-JAT Document 147

Filed 08/04/10 Page 15 of 33

1

divide up the market and to coerce TriQuint into an illegal agreement to restrain trade—

2

and to use the nondisclosure agreement to cover up and immunize its illegal activity from

3

judicial scrutiny.

4

48.

In a final conversation between Mr. Quinsey and Mr. Tan on or about July

5

6, 2009, Mr. Tan indicated that a necessary condition to providing TriQuint with a

6

worldwide license would be TriQuint's agreement not to compete in the narrowband

7

CDMA market for some period of time or, as a possible alternative, to not compete for

8

new narrowband CDMA handset models or customers and agree to cease selling to certain

9

of TriQuint's major handset customers.

10

49.

Ultimately, Avago refused to modify or drop its request for an agreement

11

not to compete as a condition of its license or "patent peace" with Mr. Ingram explaining

12

that he was "greedy" and that Avago wanted the entire narrowband CDMA market to

13

itself. This litigation followed.

14

50.

During this litigation, Avago sought to dismiss the claims in part alleging

15

that TriQuint had provided insufficient detail regarding the non-compete conversations.

16

When TriQuint amended the Complaint to narrow the issues in dispute, Avago then

17

sought to use the nondisclosure agreement to shield its anticompetitive conduct from

18

judicial review and threatened TriQuint with breach of contract if TriQuint revealed

19

Avago's illegal demands to divide the market and restrain trade, even if the allegations

20

were disclosed only to the Court under seal. On information and belief, TriQuint asserts

21

that Avago made similar requests not to compete and entered into similar nondisclosure

22

agreements with Skyworks, EPCOS and other actual or potential entrants. Independently

23

and through its aggressive interpretation and litigation tactics with TriQuint, Avago is

24

effectively seeking to gag the industry and avoid judicial review.

25
26

51.

On information and belief, Skyworks Solutions, Inc. ("Skyworks) had

developed its own BAW technology, was an actual competitor in the W-CDMA PCS
-15-

Case 2:09-cv-01531-JAT Document 147

Filed 08/04/10 Page 16 of 33

1

Duplexer Market, and was an actual or potential entrant into the BAW Filter Die Market

2

and the PCS CDMA Duplexer Market. Avago approached Skyworks alleging patent

3

infringement and shortly thereafter, in February 2009, Skyworks announced that it would

4

no longer be producing BAW filters. Then, on September 10, 2009, Avago acquired from

5

Skyworks five patents and six pending published patent applications, all related to BAW

6

technology. On information and belief, Skyworks exited the market in whole or in part

7

because of Avago's threats.

8

52.

Similarly, on information and belief, EPCOS developed its own BAW

9

technology, was an actual entrant into the W-CDMA PCS Duplexer Market, and was an

10

actual or potential entrant into the BAW Filter Die Market and the PCS CDMA Duplexer

11

Market. Avago asserted potential patent infringement claims against EPCOS.

12

53.

The BAW related intellectual property and patent rights, including the

13

future patents issued from these families and acquired from Northrop Grumman, Nokia,

14

Infineon, Skyworks and perhaps others are collectively referred to as the "Acquired BAW

15

Patents." Avago's acquisition of these patents has been part of a monopolistic scheme

16

aimed at preserving its market power, excluding competitors and foreclosing new market

17

entry.

18

The Relevant Market and Market Share

19

54.

The relevant market of commerce in which to analyze the effects of Avago's

20

BAW-related acquisitions and anticompetitive scheme conduct is:

21

market for BAW filters, consisting of that technology or collection of technologies

22

claimed in those patents that are needed for the design, manufacture and use of BAW

23

filters (the "BAW Technology Market"); b) the product market for BAW filter die (the

24

"BAW Filter Die Market"); and c) the product market for Duplexers that are designed for

25

and meet the stringent technical and operational requirements of CDMA PCS Band

26
-16-

a) the technology

Case 2:09-cv-01531-JAT Document 147

Filed 08/04/10 Page 17 of 33

1

applications (the "PCS CDMA Duplexer Market"). Avago has the power to raise prices,

2

reduce or eliminate supply and exclude competition in these Markets.

3

55.

The PCS CDMA Duplexer Market is an accepted, defined market within the

4

industry and by Avago, as reflected in the press release and other communications set

5

forth above.

6

addition, we were the first to deliver commercial film bulk acoustic resonator, or FBAR,

7

filters for code division multiple access, or CDMA, technology and we believe we

8

maintain a significant market share of PCS duplexers within the CDMA market."

9

56.

Avago most recently acknowledged this market in its Form S-1:

"In

RF filters are designed specifically for a particular frequency and wireless

10

air interface. Although both CDMA and W-CDMA-based handsets operate within the

11

PCS Band, they have fundamentally different bandwidths. CDMA requires a wider

12

overall bandwidth within the PCS Band compared to W-CDMA. However, the channel

13

bandwidth for CDMA handsets is narrower than that for W-CDMA handsets, requiring a

14

steeper filter that has low insertion loss. These differences result in much more stringent

15

technical requirements for Duplexers and BAW Filter die used in PCS CDMA

16

applications than in W-CDMA applications. Duplexers and BAW filter die used in PCS

17

CDMA applications must have a wide overall bandwidth, be steeper, have lower insertion

18

loss and reduced temperature shift. BAW Duplexers satisfy these requirements.

19

57.

Unlike other filter applications, Duplexers are required to simultaneously

20

send and transmit signals and, in the channel bandwidth constrained PCS CDMA Band,

21

insertion loss is critical. (Insertion loss is the loss of signal strength as it passes through

22

the filter.) Duplexers must also be able to handle higher power levels than other filter

23

applications. As such, filters (i.e. BAW filter die) used for the duplexer function in a

24

Duplexer have different technical requirements than those used in other applications.

25

Filters used in non-duplexer applications (including PCS CDMA) may have different

26

technical requirements and may be met by other technologies such as SAW.
-17-

Case 2:09-cv-01531-JAT Document 147

1

58.

Filed 08/04/10 Page 18 of 33

BAW filters are currently the only filters that can meet the stringent

2

technical and size requirements for current duplexer requirements in PCS CDMA

3

Duplexer applications and manufacturers and purchasers of Duplexers within this market

4

do not have other available substitutes.

5

59.

Until the introduction of BAW filters, ceramic monoblock filters were the

6

only products able to meet the stringent technical requirements of PCS CDMA Duplexer

7

applications. Ceramic monoblock filters are significantly larger and taller than BAW

8

filters and do not meet the requirements of today's smaller and thinner handset

9

specifications. In its early press releases, Avago pointed to the 50-80% size advantage of

10

FBAR over ceramic monoblock as the leading factor in its market success and the

11

resulting evolution of smaller handsets. This evolution has resulted in the complete

12

obsolescence of ceramic monoblock as a viable substitute.

13

60.

Other filters, such as Surface Acoustic Wave ("SAW") filters, can meet the

14

technical requirements in other applications, at other frequencies and for other air

15

interface standards. In those markets, consumers have a broader array of choices. The

16

cost of SAW is significantly lower than that for BAW and the average selling price for a

17

BAW duplexer is roughly 2-3 times the price for a SAW duplexer. As such, purchasers

18

will generally choose a SAW duplexer where the SAW technology is capable of meeting

19

the stated technical requirements.

20

61.

SAW is not an available option within the PCS CDMA Duplexer Market

21

because it does not have high enough Q ("Quality" factor relating to a filter's steepness, or

22

shape factor, and insertion loss), it is subject to significant temperature drift, and it has

23

historically been unable to handle the higher power demands. While SAW technology has

24

improved, it is not a viable alternative for PCS CDMA Duplexers (and BAW filter dies

25

used in such applications) and is not projected to be a viable alternative for many years, if

26

at all. As SAW's limitations relate in part to inherent physical properties, it is uncertain
-18-

Case 2:09-cv-01531-JAT Document 147

Filed 08/04/10 Page 19 of 33

1

whether SAW will ever become a viable alternative in anything other than marginal

2

applications that permit lower technical and quality requirements.

3

62.

Due to increased competition, the price for SAW Duplexers and component

4

parts has declined at a greater rate than that for BAW Duplexers and component parts. On

5

information and belief, since acquiring the Infineon BAW line, Avago has announced

6

price increases for BAW and FBAR products.

7

63.

Prior to the Infineon acquisition, Avago stated that it was the largest

8

provider of PCS CDMA Duplexers with at least an 80% share of the market. On

9

information and belief, Avago's post-consummation market share is at least 90% of the

10
11

PCS CDMA Duplexer Market.
64.

Avago has stated that it holds those patents necessary and essential to the

12

manufacture and sale of BAW filters and thus has control of the BAW Technology

13

Market.

14

65. On information and belief, Avago was the only commercial provider of BAW

15

filter dies after its acquisition of the Infineon BAW line and, as discussed above, has

16

obsoleted that product. While BAW filter dies may compete with other filters such as

17

SAW filters in a variety of applications, as discussed above there are no substitutes for

18

BAW filter dies in the PCS CDMA Duplexer Market. Regardless, as a result of Avago's

19

acquisition and its decision to obsolete the Infineon BAW line, purchasers have no source

20

of BAW filter die supply regardless of their intended use unless they have the ability and

21

resources to develop their own BAW filter dies. And, as a result of Avago's purchase of

22

virtually all of the BAW patents, Avago has created an insurmountable barrier to entry

23

such that those who seek to use BAW filter die within their products, including TriQuint,

24

other actual or potential BAW duplexer manufacturers, handset manufacturers and

25

telephony companies, have no alternative to Avago.

26
-19-

Case 2:09-cv-01531-JAT Document 147

1

66.

Filed 08/04/10 Page 20 of 33

The geographic market for PCS CDMA Duplexers is worldwide. PCS

2

CDMA Duplexers are small and easily shipped and sold on a worldwide basis, including

3

to customers located in Taiwan, Korea, Canada and the United States with the handsets

4

then sold primarily in the Americas.

5
6
7

67. The geographic market for BAW filter dies is worldwide. BAW filter dies are
small and easily shipped and can be sold on a worldwide basis.
68.

The geographic market for BAW Technology is worldwide but limited by

8

the United States patent laws which restrict a competitor's ability to make, use, sell, offer

9

for sale and/or import into the United States.

10
11

Anticompetitive Effect and Injury
69.

Avago has significant market power in the PCS CDMA Duplexer Market, as

12

evidenced by its high market share, its ability to resist declining price trends within the

13

industry as compared to other technologies (such as SAW in cellular and W-CDMA) and

14

its ability to exclude competitors and prevent new entry, including through use of its

15

illegally acquired patent portfolio to exclude competition and as a barrier to entry for new

16

competition.

17

70. Avago has significant market power in the BAW Filter Die Market as

18

evidenced by its high market share, its ability to restrain supply and its ability to exclude

19

competitors and prevent new entry, including through use of its illegally acquired patent

20

portfolio to exclude competition and as a barrier to entry for new competition.

21

71.

Direct evidence of Avago's unconstrained exercise of monopoly power in

22

the BAW Technology, BAW Filter Die and PCS CDMA Duplexer Markets and its

23

anticompetitive effects includes, but is not limited to, its ability to eliminate supply, its

24

ability to demand premium prices as compared to related technologies (SAW in cellular

25

and W-CDMA) and its ability to foreclose current and potential competition as part of its

26

predatory and anticompetitive campaign.
-20-

Case 2:09-cv-01531-JAT Document 147

1

72.

Filed 08/04/10 Page 21 of 33

The actionable and anticompetitive effects of Avago's unlawful acquisition

2

of the BAW patents and other anticompetitive scheme conduct include, but are not limited

3

to, the following: a) Avago's discontinuance of the Infineon BAW line has reduced output

4

and left customers with no competitive options for BAW filter dies and fewer competitive

5

options for PCS CDMA Duplexers, particularly for newly introduced handsets and has

6

increased barriers to entry to duplexer competitors such as TriQuint who have no source

7

of supply for BAW die and must develop their own BAW die at increased cost;

8

b) Avago's acquisition and abuse of its market power allows it to charge higher prices than

9

would prevail in a competitive market; c) Avago's customer communications leveraging

10

its unlawfully obtained Acquired BAW Patent portfolio chill the marketplace and

11

innovation and cause consumers to have fewer real choices in their source of supply;

12

d) through Avago's refusal to license its illegally obtained Acquired BAW Patents except

13

on anticompetitive terms has or may result in fewer competitive options for customers and

14

less innovation in the industry; e) by its threatened and actual patent and trade secret

15

litigation seeking to enforce its unlawfully obtained Acquired BAW Patents, Avago has

16

sought to, and on information and belief, has eliminated competitors, prevented new entry

17

and threatened to shut down other actual or potential competitors in the BAW Technology

18

Market, the BAW Filter Die Market and the PCS CDMA Duplexer Market; and

19

f) Avago's illegal acquisitions and patent enforcement efforts, if successful, would result

20

in an insurmountable barrier to entry in both markets and has raised its rivals costs.

21

73.

Avago's acquisition of the Acquired BAW Patents is an anticompetitive act

22

that discards previous constraints operating on the patents. The acquisitions substantially

23

lessened competition, as they resulted in Avago obtaining a complete monopoly in the

24

BAW Technology Market and the BAW Filter Die Market and securing its dominant

25

position in the PCS CDMA Duplexer Market. The acquisitions involved substitutable

26

technology to Avago's existing patent portfolio and were acquired solely for the purpose
-21-

Case 2:09-cv-01531-JAT Document 147

Filed 08/04/10 Page 22 of 33

1

of exclusion. Avago then leveraged its monopoly power to bar competition and prevent

2

new entry in all of the Markets. Its monopoly power also served as a disincentive for

3

Avago to license intellectual property rights to or collaborate with other companies on fair

4

and reasonable terms.

5

74.

By unlawfully acquiring Infineon's BAW line and thereafter obsoleting and

6

refusing to license the Infineon and other Acquired BAW Patents (or offering to do so

7

only on anticompetitive terms including a requested non-compete that extended beyond

8

the scope of any of its patents), Avago has unlawfully maintained its monopoly and

9

unlawfully profited from its ability to extract monopoly prices.

10

75.

TriQuint has incurred a separate antitrust injury from the violations of law

11

alleged and would not have incurred such injury in the absence of Avago's illegal

12

acquisition activity and anticompetitive actions.

13

76.

In TriQuint's position as a customer of Infineon, Avago's purchase and

14

discontinuance of the Infineon BAW line left TriQuint without any supplier of BAW filter

15

dies and without a previously certified BAW filter die product.

16

significant market power and its anticompetitive and predatory conduct, Avago was able

17

to disrupt TriQuint's source of supply. Due to its ongoing research and development

18

efforts, TriQuint was able to develop its own BAW filter die. Despite this success,

19

TriQuint has suffered both a short-term and long-term effect from Avago's conduct.

20

Despite its investment and reallocation of resources to accelerate the development of a

21

BAW filter die supply, TriQuint's new BAW PCS CDMA Duplexers were not available in

22

time for the launch of several new handsets. In addition, its new BAW PCS CDMA

23

Duplexer had not yet been certified by the FCC (a requirement for handsets sold in the

24

United States), and it did not have a third-party source of supply to assuage customer

25

concerns during the transition and to act as a secondary supply source in the event of a

26

disruption in its own ability to supply BAW filter dies. As a result, TriQuint was unable
-22-

Through Avago's

Case 2:09-cv-01531-JAT Document 147

Filed 08/04/10 Page 23 of 33

1

to compete against Avago in several competitions for new handsets using PCS CDMA

2

Duplexers. TriQuint lost customer sales to the only remaining supplier of BAW PCS

3

CDMA Duplexers—Avago.

4

77.

TriQuint has been further injured by Avago's efforts to leverage its illegally

5

obtained Acquired BAW Patent portfolio to chill the marketplace. Not only has Avago

6

threatened and brought actual litigation aimed at excluding TriQuint from the market,

7

which includes both patent infringement and trade secret litigation, it has also threatened

8

TriQuint's customers and other potential suppliers of BAW filter die and PCS CDMA

9

Duplexers.

Avago's illegal acquisition and anticompetitive conduct has resulted in

10

TriQuint's loss of past, present and future profits, the loss of customers and potential

11

customers, and the loss of goodwill and product image.

12

78.

It is not the patents themselves that have injured TriQuint, but the effect the

13

acquisitions have had in providing Avago with additional leverage to increase its rivals'

14

costs and exclude competition. The acquisitions have substantially heightened barriers to

15

entry into the BAW Technology Market, the BAW Filter Die Market and the PCS CDMA

16

Duplexer Market and Avago has used that power to exclude competitors and foreclose

17

entry. Whereas the holder or acquirer of the patents without significant market power

18

would have an incentive to license the patents or collaborate with other market

19

participants, Avago's dominant market power provides it with no such restraint. In the

20

absence of the Infineon acquisition, TriQuint had a source of BAW filter die and an

21

understanding that, if necessary, the Infineon patents would be licensed by Infineon to

22

TriQuint. Indeed, prior to Avago's acquisition of Infineon's patents, Infineon had offered

23

to license its patents to TriQuint for which TriQuint had submitted a bid. And, absent

24

Avago, TriQuint would have been the likely purchaser of the Infineon BAW line.

25

Furthermore, TriQuint had countervailing technology that could have been asserted

26

against Infineon or others, thereby further securing TriQuint's ability to license the
-23-

Case 2:09-cv-01531-JAT Document 147

Filed 08/04/10 Page 24 of 33

1

Infineon BAW technology. As a result, the injuries incurred by TriQuint flow directly

2

from Avago's unlawful acquisitions and anticompetitive conduct.

3

79.

The effects of Avago's acquisition and anticompetitive conduct harm

4

TriQuint and competition. In general, the harm to TriQuint and the harm to competition

5

are the types that antitrust laws were designed to prevent and those harms flow directly

6

from that which makes Avago's conduct unlawful.

7

COUNT I
UNLAWFUL ACQUISITION: CLAYTON ACT SECTION 7

8
9
10
11

80.

TriQuint repeats and realleges each of the allegations above as if fully set

forth herein.
81.

Avago's unlawful acquisition of Infineon's BAW line and the other

12

Acquired BAW Patents is an asset acquisition within the meaning of Section 7 of the

13

Clayton Act, 15 U.S.C. § 18.

14

82.

The effect of this acquisition has been to lessen competition and/or acquire

15

and/or maintain a monopoly in the BAW Technology Market, the BAW Filter Die Market

16

and the PCS CDMA Duplexer Market in violation of Section 7 of the Clayton Act, 15

17

U.S.C. § 18.

18

COUNT II
MONOPOLIZATION: SHERMAN ACT SECTION 2

19
20
21
22

83.

TriQuint repeats and realleges each of the allegations above as if fully set

forth herein.
84.

Avago engaged in a monopolistic scheme to foreclose competition and

23

maintain its unlawful monopolies.

24

includes, but is not limited to, the following conduct. By unlawfully acquiring Infineon's

25

BAW line and the other Acquired BAW Patents, refusing to license its patents except on

26

anticompetitive terms and exercising its monopoly power to foreclose all competition and

Avago's anticompetitive scheme to monopolize

-24-

Case 2:09-cv-01531-JAT Document 147

Filed 08/04/10 Page 25 of 33

1

prevent new entry, Avago has gained or increased its monopoly in the BAW Technology

2

Market, the BAW Filter Die Market and the PCS CDMA Duplexer Market.

3
4
5

85.

By such acts, practices, and conduct, Avago has engaged in a course of

conduct that amounts to monopolization and unlawful exercise of its monopoly power.
86.

Avago's conduct has had a direct adverse effect on competition, as

6

evidenced by the exclusion of actual and potential competitors in the BAW Technology

7

Market, the BAW Filter Die Market and the PCS CDMA Duplexer Market and Avago's

8

ability to obtain supracompetitive prices for its PCS CDMA Duplexers.

9
10
11
12
13

87.

Avago's exclusionary conduct has no legitimate business justification but,

instead, was undertaken in order to establish and maintain monopoly power.
88.

Avago's conduct constitutes monopolization in violation of Section 2 of the

Sherman Act, 15 U.S.C. § 2.
89.

By reason of Avago's violations of Section 2 of the Sherman Act, TriQuint

14

has been injured in its business or property through the loss of past, present and future

15

profits, by the loss of customers and potential customers, and by the loss of goodwill and

16

product image.

17

COUNT III
ATTEMPTED MONOPOLIZATION: SHERMAN ACT SECTION 2

18
19
20
21

90.

TriQuint repeats and realleges each of the allegations above as if fully set

forth herein.
91.

Avago engaged in a monopolistic scheme to foreclose competition and

22

obtain unlawful monopolies. Avago's anticompetitive scheme to monopolize includes,

23

but is not limited to, the following conduct. By unlawfully acquiring Infineon's BAW line

24

and the Acquired BAW Patents, discontinuing the Infineon BAW line, refusing to license

25

its patents except on anticompetitive terms (e.g., an agreement not to compete in the PCS

26

CDMA Market), and asserting its monopoly power to foreclose all competition and
-25-

Case 2:09-cv-01531-JAT Document 147

Filed 08/04/10 Page 26 of 33

1

prevent new entry, Avago specifically intended to monopolize the BAW Technology

2

Market, the BAW Filter Die Market and the PCS CDMA Duplexer Market.

3

92.

Avago has undertaken this course of conduct with the specific intent of

4

monopolizing the BAW Technology Market, the BAW Filter Die Market and the PCS

5

CDMA Duplexer Market. Avago's conduct presents, at minimum, a dangerous probability

6

of success.

7

93.

Avago's conduct has had a direct adverse effect on competition, as

8

evidenced by the exclusion of actual and potential competitors in the BAW Technology

9

Market, the BAW Filter Die Market and the PCS CDMA Duplexer Market and Avago's

10
11
12
13

ability to obtain supracompetitive prices for its PCS CDMA Duplexers.
94.

Avago's conduct constitutes attempted monopolization in violation of

Section 2 of the Sherman Act, 15 U.S.C. § 2.
95.

By reason of Avago's violations of Section 2 of the Sherman Act, TriQuint

14

has been injured in its business or property including through the loss of past, present and

15

future profits, by the loss of customers and potential customers, and by the loss of

16

goodwill and product image.

17

COUNT IV
INFRINGEMENT OF U.S. PATENT NO. 6,114,635

18
19
20
21

96.

TriQuint repeats and realleges each of the allegations above as if fully set

forth herein.
97.

TriQuint is the assignee and owner of all right, title and interest to United

22

States Patent No. 6,114,635 (“the ’635 patent”), a true and correct copy of which is

23

attached hereto as Exhibit A, is entitled “Chip-Scale Electronic Component Package.” On

24

September 5, 2000, the ’635 patent was duly and legally issued to TFR Technologies, Inc.

25

(“TFR”). In January 2005, TriQuint acquired TFR and acquired the ’635 patent as part of

26

that acquisition.
-26-

Case 2:09-cv-01531-JAT Document 147

1
2
3

98.

Filed 08/04/10 Page 27 of 33

By virtue of its ownership of the ’635 patent, TriQuint has the right to sue

and to recover for infringement of the ’635 patent.
99.

TriQuint is informed and believes, and on that basis alleges that Avago has

4

directly infringed, actively induced infringement, and/or contributorily infringed the ’635

5

patent in violation of 35 U.S.C. §§ 271(a), (b), (c) and/or (f) by making, selling, offering

6

for sale and/or importing RF components for mobile products, including, without

7

limitation, the Avago products identified in TriQuint’s Preliminary Infringement

8

contentions to Avago, dated March 5, 2010. On information and belief, Avago will

9

continue to do so unless enjoined by this Court.

10

100.

11

been and is willful.

12

101.

On information and belief, Avago’s infringement of the ’635 patent has

Avago’s infringement is irreparably injuring and damaging TriQuint, and

13

such injury and damage will continue unless Avago is permanently enjoined by this Court.

14

COUNT V
INFRINGEMENT OF U.S. PATENT NO. 5,231,327

15
16
17
18

102.

TriQuint repeats and realleges each of the allegations above as if fully set

forth herein.
103.

TriQuint is the assignee and owner of all right, title and interest to United

19

States Patent No. 5,231,327 (“the ’327 patent”), a true and correct copy of which is

20

attached hereto as Exhibit B, is entitled “Optimized Piezoelectric Resonator-Based

21

Networks.” On July 27, 1993, the ’327 patent was duly and legally issued to TFR

22

Technologies, Inc. (“TFR”). In January 2005, TriQuint acquired TFR and acquired the

23

’327 patent as part of that acquisition.

24
25

104.

By virtue of its ownership of the ’327 patent, TriQuint has the right to sue

and to recover for infringement of the ’327 patent.

26
-27-

Case 2:09-cv-01531-JAT Document 147

1

105.

Filed 08/04/10 Page 28 of 33

TriQuint is informed and believes, and on that basis alleges that Avago has

2

directly infringed, actively induced infringement, and/or contributorily infringed the ’327

3

patent in violation of 35 U.S.C. §§ 271(a), (b), (c) and/or (f) by making, selling, offering

4

for sale and/or importing RF components for mobile products, including, without

5

limitation, the Avago products identified in TriQuint’s Preliminary Infringement

6

Contentions to Avago, dated March 5, 2010. On information and belief, Avago will

7

continue to do so unless enjoined by this Court.

8

106.

9

been and is willful.

10

107.

11

On information and belief, Avago’s infringement of the ’327 patent has

Avago’s infringement is irreparably injuring and damaging TriQuint, and

such injury and damage will continue unless Avago is permanently enjoined by this Court.

12
COUNT VI
INFRINGEMENT OF U.S. PATENT NO. 5,894,647

13
14
15
16

108.

TriQuint repeats and realleges each of the allegations above as if fully set

forth herein.
109.

TriQuint is the assignee and owner of all right, title and interest to United

17

States Patent No. 5,894,647 (“the ’647 patent”), a true and correct copy of which is

18

attached hereto as Exhibit C, is entitled “Method for Fabricating Piezoelectric Resonators

19

and Product.” On April 20, 2009, the ’647 patent was duly and legally issued to TFR

20

Technologies, Inc. (“TFR”). In January 2005, TriQuint acquired TFR and acquired the

21

’647 patent as part of that acquisition.

22
23
24

110.

By virtue of its ownership of the ’647 patent, TriQuint has the right to sue

and to recover for infringement of the ’647 patent.
111.

TriQuint is informed and believes, and on that basis alleges that Avago has

25

directly infringed, actively induced infringement, and/or contributorily infringed the ’647

26

patent in violation of 35 U.S.C. §§ 271(a), (b), (c) and/or (f) by making, selling, offering
-28-

Case 2:09-cv-01531-JAT Document 147

Filed 08/04/10 Page 29 of 33

1

for sale and/or importing RF components for mobile products, including, without

2

limitation, the Avago products identified in TriQuint’s Preliminary Infringement

3

Contentions to Avago, dated March 5, 2010. On information and belief, Avago will

4

continue to do so unless enjoined by this Court.

5

112.

6

been and is willful.

7

113.

On information and belief, Avago’s infringement of the ’647 patent has

Avago’s infringement is irreparably injuring and damaging TriQuint, and

8

such injury and damage will continue unless Avago is permanently enjoined by this Court.

9

COUNT VII
DECLARATORY JUDGMENT OF NONINFRINGEMENT AND INVALIDITY
OF AVAGO'S ASSERTED PATENTS

10
11
12
13

114.

TriQuint repeats and realleges each of the allegations above as if fully set

forth herein.
115.

On September 17, 2009, Avago filed its Answer, Affirmative Defenses and

14

Counterclaims for Patent Infringement, in which it asserted that TriQuint infringes U.S.

15

Patent Nos. 7,365,619; 7,268,436; 6,933,807; 6,909,340; 6,864,619; 6,841,922;

16

6,812,619; 6,377,137; 6,262,637; and 6,051,907 (“Avago’s Asserted Patents”);

17
18
19
20
21
22
23
24
25
26

116.

On March 5, 2010, Avago served infringement contentions on TriQuint

alleging that certain TriQuint products infringe Avago’s Asserted Patents.
117.

A valid and justiciable controversy exists between TriQuint and Avago

regarding, inter alia, infringement of Avago's Asserted Patents.
118.

TriQuint has not and does not infringe, directly or indirectly, by inducement

and/or contributorily, any claim of Avago's Asserted Patents.
119.

TriQuint has been injured by Avago filing a Counterclaim asserting patents

that TriQuint does not infringe.
120.

TriQuint is entitled to a declaratory judgment that it has not infringed and is

not infringing any claim of Avago's Asserted Patents.
-29-

Case 2:09-cv-01531-JAT Document 147

Filed 08/04/10 Page 30 of 33

1

121.

Each claim of Avago's Asserted Patents is invalid.

2

122.

TriQuint has been injured by Avago filing a Counterclaim asserting patents

3
4

that are invalid.
123.

TriQuint is entitled to a declaratory judgment that each claim of Avago's

5

Asserted Patents is invalid for failure to comply with the conditions for patentability

6

specified by 35 U.S.C. § 101 et seq., including but not limited to §§ 101, 102, 103, 112,

7

116, 132, and/or statutory or obviousness-type double patenting.

8
9

REQUEST FOR RELIEF
WHEREFORE, TriQuint requests that the Court enter judgment for it and grant it

10

relief as follows:

11

1.

12

Adjudge Avago's acquisition of the Infineon BAW line violated Section 7 of

the Clayton Act, 15 U.S.C. § 18;

13

2.

Adjudge Avago violated Section 2 of the Sherman Act, 15 U.S.C. § 2;

14

3.

Adjudge Avago has infringed TriQuint’s ’635, ’327 and ’647 patents;

15

4.

Adjudge Avago has willfully infringed the ’635, ’327 and ’647 patents, and

16

that treble damages should be awarded pursuant to 35 U.S.C. § 284;

17

5.

A declaration that each of Avago’s Asserted Patents is invalid.

18

6.

A declaration that none of Avago’s Asserted Patents is infringed by any act

19

or product of TriQuint.

20

7.

Adjudge this to be an exceptional case under 35 U.S.C. § 285;

21

8.

Enter judgment for TriQuint against Avago for three times the amount of

22

damages sustained by TriQuint, including pre-judgment and post-judgment interest on

23

damages awarded for patent infringement, together with the cost of the action, including

24

reasonable attorneys' fees and such other relief as appropriate;

25
26
-30-

Case 2:09-cv-01531-JAT Document 147

1

9.

Filed 08/04/10 Page 31 of 33

Order divestiture, rescission and any further actions needed to establish

2

competitive conditions that would have existed but for the unlawful acquisition of the

3

BAW patents and Avago's anticompetitive conduct;

4

10.

Permanently enjoin Avago, their agents, officers, assigns and others acting

5

in concert with them from infringing, inducing infringement of, and/or contributing to

6

infringement of the ’635, ’327 and ’647 patents.

7
8
9

11.

Permanently enjoin Avago from acquiring or maintaining any simultaneous

legal or beneficial interest in BAW patents;
12.

Grant such other equitable relief, including disgorgement of all unlawfully

10

obtained profits that the Court finds just and proper to address and to prevent recurrence

11

of Avago’s unlawful conduct;

12

13.

An order permanently enjoining Avago, its officers, agents, attorneys,

13

employees, assigns and those in active concert with them from enforcing Avago's

14

Asserted Patents against TriQuint;

15
16

14.

Such other and further equitable or legal relief as the Court deems just and

proper.

17
18
19

DEMAND FOR JURY TRIAL
Pursuant to Fed. R. Civ. P. 38, TriQuint hereby demands a jury trial as to all issues
triable to the jury.

20
21
22
23
24
25
26
-31-

Case 2:09-cv-01531-JAT Document 147

1

Dated: August 4, 2010

Filed 08/04/10 Page 32 of 33

Respectfully submitted,

2
3
4
5
6
7
8
9
10
11
12
13
14
15

/s/ David J. Palmer
Jonathan M. James
David J. Palmer
Perkins Coie Brown & Bain P.A.
2901 North Central Avenue, Suite 2000
Phoenix, Arizona 85012-2788
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Susan E. Foster, (Pro Hac Vice)
Chun M. Ng (Pro Hac Vice)
Shylah R. Alfonso (Pro Hac Vice)
Perkins Coie LLP
1201 Third Avenue, Suite 4800
Seattle, Washington 98101-3099
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]

16
17
18
19
20
21
22
23
24
25
26
-32-

Case 2:09-cv-01531-JAT Document 147

1

Filed 08/04/10 Page 33 of 33

CERTIFICATE OF SERVICE

2

I hereby certify that on August 4, 2010, I electronically transmitted the attached

3

document to the Clerk's Office using the CM/ECF System for filing and transmittal of a

4

Notice of Electronic Filing to the following CM/ECF registrants:

5
6
7
8
9
10
11
12
13
14
15

James A. Ryan
Krystal M. Aspey
Quarles & Brady LLP
Renaissance One
Two North Central Avenue
Phoenix, Arizona 85004
[e-mail]
[e-mail]
Duane-David Hough
Brian W. Nolan
Mayer Brown LLP
1675 Broadway
New York, New York 10019
[e-mail]
[e-mail]
[e-mail]

16
17

/s/ Daniel R. Graziano

18
19
20
21
22
23
24
25
26

67024-0009/LEGAL18889918.1