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HQ 468603





March 27, 2000

RR:IT:IP 468603 CRS

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

Mr. Victor Yuan
Director of Marketing
Penmax, Inc.
825 S. Primrose Avenue
Monrovia, CA 91016

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

Dear Mr. Yuan:

This is in reply to your letter of October 25, 1999, in which you requested a ruling as to whether a certain Penmax cameras, models MF-1 and MF-2, are 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. Sample cameras were included with the ruling request and were submitted for U.S. Customs Laboratory analysis. 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”), and various claims of U.S. Letters Patent 4,833,495 (the “‘495 patent”), 4,884,087 (the “‘087 patent”) and 4,954,857 (the “‘857 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 camera MF-1 camera has a pink plastic body, is preloaded with film, and is equipped with a flash unit. The camera body consists of front and back casings, which snap together by means of tabs along the sides of the camera. The camera can be opened by lifting the tabs. There are no printed labels or jackets on the camera as submitted; but a photocopy of a printed jacket intended for the MF-1 was included with the ruling request. The photocopy of the sample jacket displays the model number, states that the article is a reusable 35mm camera, and list directions for using the camera. There are no directions for reloading and reusing the camera.

As noted above, the sample 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. Customs Laboratory personnel attempted to reload the MF-1 camera. A new film canister was inserted into the camera and the film’s leader was hooked onto a tab on the take-up spool; however, the tab broke as the film was being wound onto the spool, thereby rendering the rewind mechanism useless. Based on Customs’ laboratory analysis, 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.

The sample MF-2 camera has a black plastic body and is equipped with a flash unit. The camera body consists of front and back casings, hinged on one side and with a slide-lock mechanism on the other. There are no printed labels or jackets on the camera as submitted; but a photocopy of a printed jacket intended for the MF-2 was enclosed with the ruling request. The photocopy of the sample jacket indicates the model number, states that the article is a reusable 35mm camera, and gives directions for using the camera. There are no directions for reloading the camera.

The sample MF-2 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. Customs Laboratory personnel attempted to reload the camera. A new film canister was inserted into the camera and the film’s leader was hooked onto a tab on the take-up spool; however, as the film was being rewound, the rewind-handle became detached. The handle could not be reattached without opening the camera, which would have ruined the film. Nevertheless, while the attempt to reload both sample cameras failed, the Laboratory concluded that the design of the MF-1 and MF-2 would allow both to be reused. The cameras can be reloaded outside a darkroom.

The sample cameras were submitted for examination to the U.S. Customs Headquarters Research Laboratory, pursuant to which it was determined that the cameras feature horizontal 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.

Also relevant for purposes of this ruling are certain claims of the ‘495 patent, the ‘087 patent and the ‘857 patent. These claims relate to the “must be destroyed” limitation which the ALJ found described an LFFP that “upon removal of the film cartridge, is distinguished from a camera that can be readily loaded and reloaded by a user and that has not lost its light-tightness upon removal of the film cartridge.” Certain Lens-Fitted Film Packages, Inv. No. 337-TA-406 (June 2, 1999), Final Initial and Recommended Determinations, at 86.

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 the ‘774 patent. 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 MF-1 camera has a pink plastic body, is preloaded with film, and is equipped with a flash unit. The camera body consists of front and back casings, which snap together by means of tabs along the sides of the camera. The camera can be opened by lifting the tabs. There are no printed labels or jackets on the camera as submitted; however, a photocopy of a printed jacket intended for the MF-1 was included with the ruling request. The photocopy of the sample jacket displays the model number, states that the article is a reusable 35mm camera, and list directions for using the camera. There are no directions for reloading and reusing the camera.

The sample MF-2 camera has a black plastic body, is preloaded with film and is equipped with a flash unit. The camera body consists of front and back casings, hinged on one side and with a slide-lock mechanism on the other. There are no printed labels or jackets on the camera as submitted; but a photocopy of a printed jacket intended for the MF-2 was enclosed with the ruling request. The photocopy of the sample jacket indicates the model number, states that the article is a reusable 35mm camera, and list directions for using the camera. There are no directions for reloading the camera.

Both the MF-1 and MF-2 are preloaded with film that is wound around a spool on the opposite side of the camera from the film canister. Both cameras can be opened and closed; however, the way in which this is accomplished differs as between the MF-1 and the MF-2. The MF-2, by virtue of its hinge and slide-lock mechanism, can be readily opened and reloaded like a conventional camera. In contrast, the front and back casings of the MF-1 snap together by means of tabs along the sides of the camera. Although it is possible to open the MF-1 by lifting the tabs, this method does not enable one readily to open and reload the camera. In this regard, the MF-1 differs not only from the MF-2, but also from conventional cameras. Customs considers that the awkwardness of this method would discourage most persons from opening the MF-1 as one would a conventional camera or the MF-2.

In addition, based on Customs’ laboratory analysis, both cameras feature horizontal parallel ribs cast into the back of the camera that are similar to the construction protected by claims 14 and 15 of the ‘774 patent. In regard to claim 14, Customs finds that both the MF-1 and MF-2 have a back wall portion with 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 MF-1 and MF-2 have a back wall portion that has a forwardly opening concave curved portion that overlies the rolled film chamber and that 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.

In summary, we note that the MF-1 features horizontal parallel ribs similar to the construction protected by the ‘774 patent. Moreover, as noted above, the MF-1 cannot be opened and reloaded like a conventional camera. Although it is technically feasible to open the MF-1, and while it is susceptible of reuse, from the standpoint of practicality and commercial reality we find that it is unlikely that consumers would use the MF-1 camera other than as a disposable, single use, or one-time use product. See also, Id., Final Initial and Recommended Determinations, at 86 (concluding that a LFFP that had to be pried open could not be opened and reloaded like a conventional camera). It is therefore our position that the MF-1 is within the scope of the exclusion order and is excluded from entry for consumption into the U.S.

In contrast, we find that the sample MF-2 is distinguishable from the LFFPs covered by the ITC’s general exclusion order. The sample MF-2 is susceptible of reuse in that it features a hinged back and slide-lock closing which enables the product to be readily opened and closed. As a result, it is possible to reload and reuse the camera. In addition, the sample was successfully reloaded and reused under laboratory conditions, and its light tightness was not compromised. The sample MF-2 can be opened and loaded outside of a darkroom. Accordingly, it is our position that the MF-2 is not within the scope of the ITC’s general exclusion order.

HOLDING:

In conformity with the foregoing, the sample MF-1 camera is covered by the scope of the ITC general exclusion order in Inv. No. 337-TA-406. The MF-1 camera may not be entered for consumption into the United States. The sample MF-2 camera is not within the scope of the ITC exclusion order and may be entered for consumption into the U.S.

Sincerely,


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