HQ 467930 - ITC General Exclusion Order Inv. No. TA-337-406; Certain Lens-Fitted Film Packages; Disposable Cameras; Patents - United States International Trade Commision Rulings

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HQ 467930

October 22, 1999

RR:IT:IP 467930 CRS

CATEGORY: INTELLECTUAL PROPERTY RIGHTS

James C. Tuttle, Esq.
Law Offices of James C. Tuttle
82 Wall Street
New York, NY 10005

RE: ITC General Exclusion Order Inv. No. TA-337-406; Certain Lens-Fitted Film Packages; Disposable Cameras; Patents

Dear Mr. Tuttle:

This is in reply to your request for a ruling, submitted on behalf of your client, Sakar International, Inc., as to whether a certain ADisposable PlusJ Happy Times 35mm Reusable Camera@ is excluded from entry into the United States pursuant to the General Exclusion Order issued by the U.S. International Trade Commission in Investigation No. 337-TA-406. A sample camera was submitted with the ruling request. We regret the delay in responding.

FACTS:

Pursuant to the above-referenced exclusion order, the ITC determined that there was a violation of 19 U.S.C. ' 1337 in regard to certain lens-fitted film packages (LFFPs), also known as one-time use cameras, single use cameras, and disposable cameras, that infringed claims under one or more of fifteen patents owned by Fuji Photo Film Co., Inc. These include claims 14 and 15 of U.S. Letters Patent 4,855,774 (expires August 8, 2006), and claims 1 and 9 of U.S. Letters Patent 4,972,649 (expires November 27, 2007).

The ITC=s investigation covered two broad categories of LFFPs: newly-manufactured LFFPs; and re-manufactured LFFPs. In its Opinion, the ITC described LFFPs as follows:

The products at issue in this investigation are inexpensive, disposable, single use-cameras, technically referred to as Alens-fitted film packages@ or ALFFPs.@ LFFPs are generally constructed of a shell made of a plastic material such as polystyrene. They are equipped with a button-activated shutter, a lens, a viewfinder, a film advance mechanism, and optional flash units and buttons. An outer cardboard cover, containing printed information such as branding and instructions, encases the shell. LFFPs are preloaded with film and a film cartridge. When pictures are taken, the exposed film winds into the film cartridge. After taking pictures, a typical consumer brings the entire LFFP to a film processor to have the film developed and receives back only negatives and prints, not the LFFP shell and its contents.

Commission Opinion, Certain Lens-Fitted Film Packages, Inv. No. 337-TA-406 (June 2, 1999), at 2.

The sample camera is a newly manufactured, Sakar brand, ADisposable PlusJ Happy Times 35mm Reusable Camera@ with flash. The camera is contained in an outer paper box which is sealed with glue. Inside the outer box is a black plastic camera wrapped in a multicolor paper jacket. The camera can be operated while still wrapped in the jacket; however, the jacket must be removed when the camera is opened to replace the film cartridge or the battery for the flash unit.

The camera has a hinged back cover which can be opened by pushing down on a latch. The camera contains a standard 35mm film cartridge with the unexposed film contained within the cartridge. When an exposure is made, the film is manually advanced onto a spindle. After the last exposure, the film must be manually rewound back into the camera before the cartridge is removed. The camera can be easily reloaded with another film cartridge; the camera retains its light-tightness after opening and reclosing the hinged cover. The sample camera is fitted with a flash unit activated by an Aon-off@ slide switch. The flash unit is powered by a standard AAA@ battery which can be replaced easily without having to open the camera=s back cover.

According to the printed instructions on both the inner and outer paper jacket, the camera is suitable for disposable or reuse, depending on how the consumer chooses to develop the film. For disposable use, the entire camera may be given to a commercial film developer. The camera is not returned in this instance. Alternatively, the consumer may rewind the film as directed, open the camera back, remove the rewound film and give to a developer. The camera may then be reloaded and reused as many as ten more times.

The sample camera was forwarded by this office to a U.S. Customs laboratory for analysis. According to the Laboratory Report, the sample camera features horizontal parallel ribs cast into the back of the hinged back, similar to the construction protected by claims 14 and 15 of U.S. Letters Patent 4,855,774.

You contend that the sample camera does not infringe any patents owned by Fuji and is not subject to the ITC order. In particular, you note that the unexposed film resides first inside the film canister and is advanced frame-by-frame out of the canister only when the user takes a photograph. This is the opposite of the loading method covered by Fuji=s 4,972,649 patent in which the unexposed film is positioned outside of the film canister, then advanced frame-by-frame into the canister as each photograph is taken.

ISSUE:

The issue presented is whether the sample camera, which incorporates construction features protected by claims 14 and 15 of U.S. Letters Patent 4,855,774, is a lens-fitted film package within the scope of the ITC=s general exclusion order in Inv. No. 337-TA-406, such that it is excluded from entry into the United States.

LAW AND ANALYSIS

Section 337 of the Tariff Act of 1930, as amended (19 U.S.C. ' 1337), prohibits, inter alia, the importation, the sale for importation, or the sale within the United States after importation by the owner, importer, or consignee of articles that infringe a valid and enforceable U.S. patent. 19 U.S.C. ' 1337(a)(1)(B)(I). The ITC has authority to investigate alleged violations of section 337. 19 U.S.C. ' 1337(b). If the ITC determines that there has been a violation section 337, it shall, subject to certain potential exceptions, direct that the articles concerned be excluded from entry into the U.S. and, accordingly, notify the Secretary of the Treasury who shall, through its proper officers, refuse such entry. 19 U.S.C. ' 1337(d). See also, 19 C.F.R. ' 12.39.

Pursuant to Inv. No. 337-TA-406, the ITC determined that certain LFFPs infringed claims under one or more of fifteen patents owned by Fuji Photo Film Co., Inc., including claims 14 and 15 of U.S. Letters Patent 4,855,774. The ITC ordered that LFFPs that infringed any of the patents be excluded from entry for consumption into the U.S., and notified Customs accordingly. General Exclusion Order, Certain Lens-Fitted Film Packages, Inv. No. 337-TA-406 (June 2, 1999), at 2.

As defined in the Commission=s Opinion, LFFPs are inexpensive, disposable, single use-cameras that are preloaded with film and a film cartridge. The shell is generally constructed of a plastic material such as polystyrene. LFFPs are equipped with a button-activated shutter, lens, viewfinder, film advance mechanism, and optional flash units and buttons. The outer shell of the camera is encased in a cardboard cover containing printed information such as branding and instructions. When a photograph is taken, the exposed film winds into the film cartridge. Once a roll of film has been exposed, the consumer typically brings the entire LFFP to a film processor to have the film developed and receives back only negatives and prints, but not the LFFP shell and its contents. Commission Opinion, Certain Lens-Fitted Film Packages, Inv. No. 337-TA-406 (June 2, 1999), at 2.

The sample article is contained in an outer paper box which is sealed with glue. Inside the outer box is a black plastic camera wrapped in a multicolor paper jacket. The sample camera can be operated while still wrapped in the jacket; however, the jacket must be removed when the camera is opened to replace the film cartridge or the battery for the flash unit. The camera is equipped with a button-activated shutter lens, a viewfinder, a film advance mechanism and optional flash unit. In these respects the sample article is similar to LFFPs covered by the ITC=s order.

However, the sample camera can be reloaded and reused. A hinge on the back of the sample camera allows the article to be opened and reloaded by the consumer. In addition, when an exposure is made, the film is manually advanced out of the film cartridge. After the last exposure has been made, the film must be manually rewound into the film cartridge before the cartridge can be removed. In contrast, the LFFPs defined by the ITC are Adisposable, single use-cameras.@ Moreover, when photographs are taken with LFFPs, the exposed film winds into the film cartridge. Consequently, the sample is a different article than the products identified by the ITC as being at issue in Inv. No. 337-TA-406. It is therefore our position that the sample camera is not an LFFP of the type covered by the ITC=s exclusion order.

HOLDING:

In conformity with the foregoing, the sample camera is not covered by the scope of the ITC=s general exclusion order in Inv. No. 337-TA-406. The camera may be entered for consumption into the United States.

Sincerely,

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