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HQ 468660





March 27, 2000

RR:IT:IP 468660 CRS

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

Mr. Jack Bitman
Ad-Tek Specialties, Inc.
2641 Townsgate Road
#300-500
Westlake Village, CA 91361

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

Dear Mr. Bitman:

This is in reply to your letter of October 29, 1999, in which you requested a ruling as to whether Ad-Tek camera, model no. N99F, 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 was 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”). 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 is made of plastic, is equipped with a flash mechanism and is preloaded with film. Glued onto and partially covering the front of the camera is a blank label, or jacket. A similar blank label is glued onto the back of the camera. The camera can be opened without removing the labels. The camera body consists of a front and back, hinged on one side, and with a locking catch on the opposite side. No information was submitted regarding the marketing or anticipated use of the camera after importation, i.e., whether it will be marketed as a reusable product.

As noted above, the sample Ad-Tek model N99F camera is preloaded with film. The film is wound around a spool located on the opposite side of the camera from the film canister. Once the film has been wound onto the spool, and after an exposure is taken, the exposed portion of the film is wound into the film canister. The camera was successfully reloaded by Customs Laboratory personnel. A new roll of film was loaded into the camera, the film’s leader was hooked onto a tab on the take-up spool and the film was rewound onto the rewind spool. Based on Customs’ laboratory analysis, the sample camera can be opened, reloaded and closed without affecting its light-tightness.

As the result of the examination conducted by the U.S. Customs Headquarters Research Laboratory it was also determined that the camera features 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, which claims 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 camera 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 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 camera has a plastic body, is equipped with a flash and is preloaded with film. The sample camera is partially covered by a cardboard jacket or label that is glued to the front and back of the camera. 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, since we find that, based on laboratory analysis, the back wall of the camera itself acts as the curved portion.

Nevertheless, it is Customs position that 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 permit one to open and close the product. As a result, it is possible to reload and reuse the sample camera. The sample camera was successfully reloaded and reused under laboratory conditions, and its light tightness was not compromised. The loading and reloading of the sample Ad-Tek camera does not require darkroom conditions.

Accordingly, given that the sample camera is susceptible of reuse, it is our position that it is not a lens-fitted film package within the scope of the ITC’s general exclusion order. See also, Headquarters Ruling Letter 467930, dated October 22, 1999.

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 sample Ad-Tek camera model N99F may be entered for consumption into the United States.

Sincerely,


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