                                                                           FILED
                           NOT FOR PUBLICATION                             MAR 20 2014

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


REALTEK SEMICONDUCTOR                            No. 13-16070
CORPORATION, a Taiwanese
corporation,                                     D.C. No. 5:12-cv-03451-RMW

              Plaintiff - Appellee,
                                                 MEMORANDUM*
  v.

LSI CORPORATION, a Delaware
corporation and AGERE SYSTEMS LLC,

              Defendants - Appellants.


                  Appeal from the United States District Court
                     for the Northern District of California
                Ronald M. Whyte, Senior District Judge, Presiding

                            Submitted March 13, 2014**
                             San Francisco, California

Before: FARRIS, REINHARDT, and TASHIMA, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      LSI has appealed from the district court’s grant of a preliminary injunction to

Realtek that enjoined LSI from enforcing a potential exclusion order that the

International Trade Commission might issue in a then-ongoing proceeding before

that body. The district court stated that the injunction would go into effect only if

the ITC granted an exclusion order, but if the ITC found “no section 337

violation…this preliminary injunction will become moot.” The ITC recently found

that there was “no section 337 violation” by Realtek and terminated its

investigation. Dkt. # 53. By its own terms, the preliminary injunction became

inoperative when the ITC did not find a Section 337 violation. Both parties argue

that the appeal is not moot as LSI may still appeal the ITC’s decision to the Federal

Circuit. We need not consider that question as the preliminary injunction itself is no

longer operative by virtue of the initial decision of the ITC that there was no

Section 337 violation. The appeal is DISMISSED.




                                           2
                                                                           FILED
RealTek Semiconductor Corp. v. LSI Corp., No. 13-16070                      MAR 20 2014

                                                                        MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS



TASHIMA, Circuit Judge, concurring:

      I concur. Under a strict and literal reading of the preliminary injunction, this

appeal from the granting of the preliminary injunction is moot. If the Federal

Circuit reverses the ITC’s Notice of Final Determination and Termination of the

Investigation in In re Certain Audiovisual Components and Products Containing

the Same, Inv. No. 337-TA-837 (Mar. 4, 2014), and this case is then still in active

litigation or on appeal, either party may then move for injunctive relief pendente

lite based on those new circumstances.
