NOTE: This order is nonprecedential.
Wntteb ~tates QI:ourt of §ppeals
for tbe jfeberal QI:trcutt
ASIA PACIFIC MICROSYSTEMS, INC.,
Appellant,
v.
INTERNATIONAL TRADE COMMISSION,
Appellee,
AND
HEWLETT-PACKARD COMPANY AND HEWLETT-
PACKARD DEVELOPMENT COMPANY, L.P.,
Intervenors.
2012-1225
On appeal from the United States International Trade
Commission in Investigation No. 337-TA-723.
ON MOTION
Before NEWMAN, LOURIE, and REYNA, Circuit Judges.
REYNA, Circuit Judge.
ASIA PACIFIC v. lTC 2
ORDER
Hewlett-Packard Company and Hewlett-Packard De-
velopment Company, L.P. (Hewlett-Packard) move to
dismiss the appeal. The International Trade Commission
(ITC) supports the motion. Asia Pacific Microsystems,
Inc. (APM) opposes. Hewlett-Packard replies.
This appeal arises out of a complaint brought by
Hewlett-Packard at the ITC that in relevant part stated
claims for induced and contributory infringement by APM
of U.S. Patent Nos. 6,234,598, 6,309,053, 6,398,347,
6,481,817 and 6,402,279 (the asserted patents). The
Administrative Law Judge (ALJ)'s initial determination
found that APM did not induce infringement of the as-
serted patents but that APM did contributorily infringe
the asserted patents and therefore violated
19 U.S.C.
§ 1337(a)(1). The ALJ further recommended that a gen-
eral exclusion order should issue because the respondents
would likely circumvent a limited exclusion order.
Both parties and the Office of Unfair Import Investi-
gations petitioned the ITC to review that determination.
The ITC decided to review only the induced infringement
findings, adopting the ALJ's determinations that APM
contributorily infringed the asserted patents. On review,
the ITC concluded that APM also induced infringement,
and agreed that a general exclusion order should issue.
APM appealed to this court with the assistance of legal
counsel. Hewlett-Packard subsequently intervened, and
now moves to dismiss, noting that in its opening brief
APM presents arguments related only to the issue of
induced infringement, and thus APM has waived any
argument regarding contributory infringement.
3 ASIA PACIFIC v. lTC
It is well settled that an appellant's failure to raise an
argument in its opening brief may constitute a waiver of
that argument. See Advanced Magnetic Closures, Inc. v.
Rome Fastener Corp.,
607 F.3d 817, 833 (Fed. Cir. 2010);
SmithKline Beecham Corp. v. Apotex Corp.,
439 F.3d
1312, 1319 (Fed. Cir. 2006) ("Our law is well established
that arguments not raised in the opening brief are
waived."); Becton Dickinson & Co. v. C.R. Bard, Inc., 922
F.2d 792, 800 (Fed. Cir. 1990). Here not only does APM's
initial brief fail to raise any argument regarding contribu-
tory infringement, but APM acknowledges in its response
that it "made a deliberate choice of focusing its appeal on
the Inducement issue . . . ." APM's response further
states that its "decision to appeal only the 'inducement'
issue also stems from the fact that 'inducement' and
'contributory infringement' are separate and independent
bases of infringement.',. Because APM is obviously aware
of its actions and expressly acknowledges its desire to
abandon any argument regarding the issue of contributo-
ry infringement, we agree it has waived such arguments
on appeal.
In light of such waiver, summary affirmance of that
portion of the judgment is appropriate. See Joshua v.
United States,
17 F.3d 378, 380 (Fed. Cir. 1994) (sum-
mary affirmance of a case "is appropriate, inter alia, when
the position of one party is so clearly correct as a matter
of law that no substantial question regarding the outcome
of the appeal exists"). In view of that determination, it is
unnecessary for the court to address the induced in-
fringement issue because even accepting every argument
made in APM's brief will not alter the judgment of the
ITC in light of our affirmance of the alternative ground
* We further note that APM's initial brief does not
raise any separate challenge to the issue of remedy.
ASIA PACIFIC v. ITC 4
for the exclusion order based on the contributory m-
fringement determination.
Accordingly,
IT Is ORDERED THAT:
(1) The motion is granted to the extent that the
judgment of the ITC is summarily affirmed.
(2) All other pending motions are denied as moot.
(3) Each side shall bear its own costs.
FOR THE COURT
MAR 0 6 2013 Is/ Jan Horbaly
Date Jan Horbaly
Clerk
cc: Steven D. Ling, Esq.
Panyin A. Hughes, Esq.
U.S.~~~~ITFOR
Ahmed J. Davis, Esq.
s26
MAR U~ 201J
JANHORBALY
CLERK
