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HQ 470549





March 13, 2001

ENF 4-02 RR:IT:IP 470549 CRS

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

Mr. Max Schwartzberg
Vice President, Sales
Title The Moment, Inc.
Suite 101
1037 57th Street
Brooklyn, NY 11219

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

Dear Mr. Schwartzberg:

This is in reply to your letter, dated January 9, 2001, in which you requested a ruling as to whether a certain 35 mm 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 camera was submitted with your ruling request.

FACTS:

The sample camera, model NR-2F, is a 35 mm camera with a built-in flash mechanism. The sample has a black plastic body, is preloaded with film, and is equipped with a lens, a viewfinder, a film advance mechanism, and a flash unit. The camera body consists of a front and back with hinges on one side and a sliding lock-catch on the other. As received, the camera has no outer cardboard or paper covering.

Opening the camera shows an unexposed film canister in the film chamber located on the right side of the camera. The film must be fully wound onto the spooling wheel by means of a hand-crank before photographs can be taken. The film is then rewound back into the canister after each exposure by means of a thumb wheel. The film can be removed and a new film canister can be loaded under normal light.

The sample camera was submitted for laboratory analysis. Based on laboratory analysis it was determined that the camera does not have a construction similar to that protected by the patents at issue in ITC Investigation No. 337-TA-406. A photograph of the sample camera, showing both the front and back, is displayed below.

In Investigation No. 337-TA-406 the U.S. 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.

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, inter alia, 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 hinges on one side and a sliding lock catch on the other. Based on laboratory examination it was determined that the sample does not have a construction similar to that protected by the patents at issue in ITC Investigation 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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