HQ 468569 - Lens-Fitted Film Packages; ITC Investigation No. 337-TA-406 - United States International Trade Commision Rulings

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HQ 468569

March 27, 2000

RR:IT:IP 468569 CRS

CATEGORY: 19 U.S.C. ' 1337 UNFAIR COMPETITION

James C. Tuttle, Esq.
Law Offices of James C. Tuttle
82 Wall Street
Suite 1105
New York, NY 10005

RE: Lens-Fitted Film Packages; ITC Investigation No. 337-TA-406

Dear Mr. Tuttle:

This is in reply to your letter of November 4, 1999, on behalf of your client, Argus Industries, Inc., in which you requested a ruling as to whether a certain “Just Once™ Plus,” model K-7, 35mm 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 included with the ruling request and wad submitted for laboratory analysis. An additional submission was made under cover of a letter dated March 1, 2000. 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, including claims 14 and 15 of U.S. Letters Patent 4,855,774 (the “'774 patent”). Certain Lens-Fitted Film Packages, Inv. No. 337-TA-406, General Exclusion Order at 1-2. 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.

Certain Lens-Fitted Film Packages, Inv. No. 337-TA-406 (June 2, 1999), Commission Opinion at 2. See also, Id., Final Initial and Recommended Determinations, Additional Findings, no. 1 at 214.

The sample K-7 camera is preloaded with film, has a black plastic body and is equipped with a flash. The sample has a label or jacket that is glued on the front of the camera and which extends down along the camera’s sides. Another label is glued to the camera’s back. The labels state that the camera is reusable and provide directions for using the camera but do not indicate how to reload the camera. The camera body consists of a front and back, hinged on one side and with a sliding lock-catch on the opposite side. The camera can be opened without removing the cardboard jacket.

As noted above, the sample K-7 is preloaded with film. The film is wound around a spool on the opposite side of the camera from the film canister. After an exposure is made, the exposed portion of the film is wound into the film canister. The camera was successfully reloaded by U.S. Customs Laboratory personnel. New film was loaded into the camera and the film’s leader was hooked onto a tab on the take-up spool. Based on Customs’ laboratory analysis, the cameras can be opened, reloaded and closed without affecting the cameras’ light-tightness. The cameras need not be loaded under darkroom conditions.

In addition, as the result of laboratory analysis it was determined that the camera features parallel ribs cast into the back of the camera which are similar to the construction protected by claims 14 and 15 of the '774 patent. Claims 14 and 15 assert the following:

14. A lens-fitted photographic film package comprising a light-tight film case with a taking lens fitted thereto and a rolled film, said case having a rolled film chamber, a film take-up chamber, and a back wall portion that closes said two chambers, said rolled film chamber having a rearwardly opening concave curved wall against which the outermost turn of the rolled film lies, said back wall portion having protuberances thereon that define a forwardly opening concave path for the film between said chambers, said back wall portion having a forwardly opening concave curved portion that overlies said rolled film chamber and that contacts and supports the rear of the film emerging from said roll at regions of said film spaced from the longitudinal edges of the film and that in cooperation with said rearwardly opening concave wall of said rolled film chamber contacts the outermost turn of said rolled film chamber and maintains said rolled film in a substantially cylindrical roll.

15. A lens-fitted photographic film package comprising a light tight film case with a taking lens fitted thereto and a rolled film, said case having a rolled film chamber, a film take-up chamber, and a back wall portion that closes said two chambers, said rolled film chamber having a rearwardly opening concave curved wall against which the outermost turn of the rolled film lies, said back wall portion having a forwardly opening concave portion that overlies said rolled film chamber and that contacts and supports the rear of the film emerging from said roll at regions of said film spaced from the longitudinal edges of the film and that in cooperation with said rearwardly opening concave wall of said rolled film chamber contacts the outermost turn of said rolled film and maintains said rolled film is (sic) a substantially cylindrical roll.

Claims 14-15, United States Letters Patent 4,855,774, at 10.

ISSUE:

The issue presented is whether the sample cameras are lens-fitted film packages within the scope of the ITC=s general exclusion order in Inv. No. 337-TA-406, such that they are excluded from entry for consumption 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. If the ITC determines that there has been a violation of 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. See also, 19 C.F.R. ' 12.39.

In Investigation 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.

The general exclusion order covers LFFPs, i.e., relatively inexpensive products also known as disposable cameras, single use-cameras and one-time use cameras. LFFPs are generally constructed of a plastic material such as polystyrene, and are equipped with a button-activated shutter, lens, viewfinder, film advance mechanism, and optional flash units and buttons. The outer shell of the LFFP is encased in a cardboard cover or jacket containing printed information such as branding and operating instructions. When an exposure is made, 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. Id. at 2; see also, Commission Opinion, Certain Lens-Fitted Film Packages, Inv. No. 337-TA-406 (June 2, 1999), at 2.

The sample camera has a plastic body, is preloaded with film and is equipped with a flash mechanism. In addition, it has an outer paper jacket that is affixed to the body of the camera. The camera can be opened without removing the jackets. The camera shell consists of a front and back, hinged on one side and with a locking catch on the opposite side.

Laboratory analysis has established that the inner back walls of the sample camera features horizontal parallel ribs of the type protected by claims 14 and 15 of the ‘774 patent. In regard to claim 14, Customs finds that the back wall portion has protuberances (ribs) that define a forwardly opening concave path for the film between the rolled film chamber and the take-up chamber, and that the back wall has a forwardly opening concave portion that overlies the rolled film chamber and that contacts and supports the film as it emerges from the roll such that the film remains in a substantially cylindrical roll. In respect of claim 15, Customs finds that the sample camera has a back wall portion with a forwardly opening concave curved portion that overlies the rolled film chamber and contacts and supports the rear of the film at a point spaced from the longitudinal edges in order to avoid distortion of the film. Customs does not interpret the claim language to require that the ribs completely cover the rolled film chamber. Instead, based on laboratory analysis, we find that the back wall of the camera itself acts as the curved portion.

Nevertheless, the sample camera is distinguishable from the LFFPs covered by the ITC’s general exclusion order. In the first instance, the sample camera is susceptible of reuse in that it features a hinged back and slide-lock closing which enables them to be opened and closed. As a result, it is possible to reload and reuse the sample K-7 camera. In addition, the sample camera was successfully reloaded and reused under laboratory conditions, and its light tightness was not compromised, even after the paper jacket encasing the article was removed. The sample camera can be loaded and reloaded outside of a darkroom.

Accordingly, it is our position that the sample camera at issue is not lens-fitted film packages within the scope of the ITC’s general exclusion order.

HOLDING:

In conformity with the foregoing, the sample “Just Once™ Plus,” model K-7, 35mm camera, is not covered by the scope of the ITC=s general exclusion order in Inv. No. 337-TA-406. The model K-7 camera may be entered for consumption into the United States.

Sincerely,

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