HQ 469075 - Lens Fitted Film Packages; ITC Inv. No. 337-TA-406 - United States International Trade Commision Rulings

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HQ 469075

November 30, 2000

ENF 4-02 RR:IT:IP 469075 CRS

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

Thomas H. Bottini, Esq.
Armstrong Teasdale LLP
One Metropolitan Square
Suite 2600
St. Louis, MO 63102-2740

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

Dear Mr. Bottini:

This is in reply to a letter dated May 15, 2000, from Mr. Norman Didia of Elite Brands, Inc., requesting a ruling as to whether a certain photographic film package with detachable cartridge (camera) is excluded from entry into the United States pursuant to the General Exclusion Order issued by the U.S. International Trade Commission (ITC) in Investigation No. 337-TA-406. Additional information relative to this matter was submitted under cover of your letter of November 6, 2000. 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, 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 “lens-fitted film packages” or “LFFPs.” 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 equipped with a lens, a viewfinder, a film advance mechanism, and a flash unit. The body of the camera is made of plastic. The camera has a specially designed film cartridge and a hinged back that enables the user to load and re-load the camera with relative ease. The camera is designed to be re-used. Photographs of the sample camera are displayed below.

The sample camera was submitted for laboratory analysis. Based on this examination it was determined that the sample camera does not have a construction similar to that protected by the patents at issue in ITC Inv. No. 337-TA-406.

ISSUE:

The issue presented is whether the sample camera is a lens-fitted film packages 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 U.S. Letters Patent 4,855,774. The ITC therefore 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 lens, a viewfinder, a film advance mechanism, and a flash unit. However, based on laboratory examination it was determined that the sample camera does not have a construction similar to that protected by the patents at issue in ITC Inv. No. 337-TA-406. Accordingly, it is our position that the sample camera is not a lens-fitted film package within the scope of the ITC’s general exclusion order.

HOLDING:

The sample camera is not within the scope of the ITC’s general exclusion order in Inv. No. 337-TA-406 and may be entered for consumption into the United States.

Sincerely,

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