HQ 469483 - Lens Fitted Film Packages; ITC Inv. No. 337-TA-406 - United States International Trade Commision Rulings

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HQ 469483

October 31, 2000

ENF 4-02 RR:IT:IP 469483 CRS

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

Joseph W. Bain, Esq.
Akerman, Senterfitt & Eidson, P.A.
222 Lakeview Avenue, Suite 400
West Palm Beach, FL 33401

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

Dear Mr. Bain:

This is in reply to your letter dated May 15, 2000, on behalf of your client, Achiever Industries, Ltd., in which you requested a ruling as to whether a certain “Double-Cassette 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. A sample of the “Double Cassette Camera” was submitted with your ruling request. This matter was discussed at a meeting at Customs Headquarters on October 18, 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 “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 preloaded with film and is equipped with a lens, a viewfinder, a film advance mechanism, and a flash unit. The camera consists of front and back pieces that snap together by means of tabs. Based on laboratory examination, it was initially determined that the sample camera featured horizontal parallel ribs cast into the back of the camera that were 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.

The Customs Laboratory’s initial determination that the sample camera infringed claims 14 and 15 of the ‘774 patent was discussed in a meeting at Customs Headquarters. At the meeting you maintained, inter alia, that the sample camera lacked the following five elements from claim 14 of the ‘774 patent:
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;
that contacts and supports the rear of the film emerging from said roll;
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 in a substantially cylindrical roll.

You raised similar points in respect of claim 15 of the ‘774 patent. In view of this you maintained that the sample camera does not infringe claims 14 and 15 and is not subject to the general exclusion order.

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 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. The camera shell consists of a front and back, that closes by means of tabs on either side of the camera. Based on laboratory examination it was initially determined that the inner back walls of the sample cameras featured horizontal parallel ribs of the type protected by claims 14 and 15 of the ‘774 patent. Nevertheless, based on the information presented at the meeting at Customs Headquarters, we find that the sample camera does not have a rearwardly opening concave curved wall against which the outermost turn of the rolled film lies, nor a back wall portion having a forwardly opening concave curved portion that overlies said rolled film chamber. In addition, we find that the forwardly opening back wall portion of the camera does not, in cooperation with the rearwardly opening concave wall of the rolled film chamber, contact the outermost turn of the rolled film and maintain it in a substantially cylindrical roll. Accordingly, given that the sample camera lacks these elements of claim 14 of the ‘774 patent, 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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