HQ 469266 - AFR of Protest No. 3001-00-1000082 - United States International Trade Commision Rulings

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HQ 469266

August 8, 2000

ENF 4-02 RR:IT:IP 469266 CRS

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

Mr. Artis M. Morgan, Jr.
Port Director
U.S. Customs Service
1000 2nd Avenue, Suite 2100
Seattle, WA 98104-1049

RE: AFR of Protest No. 3001-00-1000082

Dear Sir:

This is in reply to your memorandum, dated February 15, 2000, under cover of which you forwarded an application for further review of the above-referenced protest, submitted by Rodriguez, O’Donnell, Fuerst, Gonzalez & Williams, on behalf of Americam, Inc. as to whether certain 35mm cameras with film 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”). 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.

Four sample cameras were forwarded with the application for further review. They include: one “Hy-Top 35mm Flash Camera and Film All in One;” and one “Red & White 35mm Flash Camera and Film All in One” (the “type A cameras”). The construction of these two sample cameras is identical. Both are made of plastic and are preloaded with film. Each one has a button-activated shutter, a lens, a viewfinder and a film advance mechanism. All have paper labels that are glued to and partially cover the front and back of the cameras. Operating instructions, branding and warranty information are printed on the labels. As submitted, the sample cameras were packaged for retail sale in cardboard boxes. Information similar to that printed on the labels also appears on the outer cardboard boxes. The instructions printed on the labels/boxes do not indicate how to reload the cameras, nor do they indicate that the products are reusable.

The body of the sample type A cameras consists of a front and back, hinged on one side and with a locking catch on the opposite side. The locking catch release tab is covered by a paper seal which must be removed in order to open the camera; however, the cameras can be opened without removing the paper labels glued to the front and back of the camera body.

As noted above, the sample type A cameras are 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 taken the exposed portion of the film is wound into the film canister. The sample type A cameras were successfully reloaded by Customs Laboratory personnel. New film was loaded into the cameras and the film’s leader was hooked onto a tab on the take-up spool. The type A cameras can be loaded under normal conditions, i.e., it is not necessary to load them under darkroom conditions. Based on Customs’ laboratory analysis, the cameras can be opened, reloaded and closed without affecting the cameras’ light-tightness.

In addition to the two sample type A cameras described above, two other cameras are at issue in the instant application for further review: a “HomeBest Single-Use Camera – Daytime;” and an “Our Family Single-Use Camera with Flash” (the “type B cameras). The type B cameras are similar in construction. Both are made of plastic and are preloaded with film. Each one has a button-activated shutter, a lens, a viewfinder and a film advance mechanism. Both have paper labels that are glued to and partially cover the front and back of the cameras. Operating instructions, branding and warranty information are printed on the labels. As submitted, the sample type B cameras were packaged for retail sale in cardboard boxes. Information similar to that printed on the labels also appears on the outer cardboard boxes. As noted above, in both cases the packaging states that the cameras are single-use.

The body of the sample type B cameras consists of a front and back. However, unlike the first set of cameras described above, these cameras do not have a hinge on one side and a locking catch on the opposite side. Instead, the sample cameras have tabs which must be pried apart in order to open the cameras. Furthermore, the sample cameras do not have rewind handles which would allow the consumer to wind/rewind the film.

Based on laboratory examination, it was determined that both the sample type A and type B 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, 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 type A and B 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 type A cameras have plastic bodies and are preloaded with film. The sample cameras are partially covered by paper labels that are glued to the body of the camera; the cameras can be opened without removing the labels. The camera shell consists of a front and back, hinged on one side and with a locking catch on the opposite side. Both type A sample cameras are equipped with a flash mechanism.

Laboratory analysis has established that the type A cameras are light-tight. However, it was also determined that the inner back walls of the sample cameras feature 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 cameras have back wall portions with forwardly opening concave curved portions that overlie the rolled film chamber and that contact and support 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 type A cameras are distinguishable from the LFFPs covered by the ITC’s general exclusion order. In the first instance, the sample type A cameras are susceptible of reuse in that they feature 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 cameras. In addition, the sample cameras were successfully reloaded and reused under laboratory conditions, and their light-tightness was not compromised. The sample type A cameras can be loaded and reloaded outside of a darkroom. Accordingly, given that the sample type A cameras are susceptible of reuse, it is our position that the sample cameras at issue are not lens-fitted film packages within the scope of the ITC’s general exclusion order. See also, Headquarters Ruling Letter 467930, dated October 22, 1999.

The sample type B cameras also have plastic bodies and are preloaded with film. The sample type B cameras are partially covered by paper labels that are glued to the body of the camera; the cameras can be opened without removing the labels. The camera shell consists of a front and back. However, the sample cameras do not have a hinge and slide-lock mechanism that would allow consumers to open the cameras. Instead, they have tabs which must be pried apart in order to open the cameras.

As with the type A cameras, Customs has determined that the inner back walls of the sample type B cameras feature 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 type B cameras have back wall portions with forwardly opening concave curved portions that overlie the rolled film chamber and that contact and support the rear of the film at a point spaced from the longitudinal edges in order to avoid distortion of the film.

Given that the sample type B cameras cannot be opened like a normal cameras, but must be pried apart, and that they contain horizontal parallel ribs similar to the construction protected by the ‘774 patent, we find that they are not susceptible of reuse. Accordingly, it is our position that the sample type B cameras are lens-fitted film packages within the scope of the ITC’s general exclusion order such that they are excluded from entry into the U.S.

HOLDING:

The sample type A cameras are not within the scope of the ITC=s general exclusion order in Inv. No. 337-TA-406. The type A cameras may be entered for consumption into the United States.

The sample type B cameras are within the scope of the ITC=s general exclusion order in Inv. No. 337-TA-406. The type B cameras are excluded from entry for consumption into the United States.

In conformity with the foregoing, the protest should be ALLOWED in part and DENIED in part. In accordance with section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, you are to mail this decision, together with the Customs Form 19, to the protestant no later than sixty days from the date of this letter. Any reliquidation of the entry in accordance with this decision must be accomplished prior to mailing the decision.

Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel and the public via the Customs Home Page on the World Wide Web at www.customs.gov, through the Freedom of Information Act, and by other means of public distribution.

Sincerely,

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