HQ 471057 - AFR of Protest No. 3001-01-100115; Lens Fitted Film Packages; General Exclusion Order; ITC Investigation No. 337-TA-406 - United States International Trade Commision Rulings

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HQ 471057

June 21, 2001

ENF 4-02 RR:IT:IP 471057 CRS

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

Area Port Director
U.S. Customs Service
Attn: SIS A. Kent Barnes
1000 Second Avenue
Suite 2100
Seattle, WA 98104-1049

RE: AFR of Protest No. 3001-01-100115; Lens Fitted Film Packages; General Exclusion Order; ITC Investigation No. 337-TA-406

Dear Madam:

This is in reply to your undated memorandum, received in this office on April 23, 2001, and transmitted to the IPR Branch on May 22, 2001, under cover of which you forwarded an application for further review (AFR) of the above-referenced protest. The protest was submitted by Tower Group International on behalf of the protestant and importer of record, Photo Works, Inc. (the “protestant”). Protestant seeks review of the decision by your office to exclude certain 35 mm cameras 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 forwarded with the application for further review.

This matter was also discussed with the protestant and its counsel at a meeting at Customs Headquarters on June 6, 2001. Customs was represented at the meeting by representatives of Laboratories and Scientific Services, and by a member of my staff. Following the meeting, protestant made an additional submission under cover of an e-mail transmitted on, and a letter dated, June 7, 2001.

FACTS:

The protest encompasses two entries forming part of a shipment of approximately 50,000 cameras. As indicated on the Customs Form 6445A accompanying the instant protest and application for further review, the protested entries cover 10,000 “Snap Sight” cameras, 5,000 “REI” cameras, 15,000 “APC” cameras, and 20,000 “Fred Meyer” cameras. Photographs of the packaging and of the back wall portion of representative cameras are displayed below.

The cameras are constructed of a shell made of plastic and are pre-loaded with film. The film is fully unwound from the patrone in which it is sold, so that the film is wound into the patrone frame-by-frame as it is exposed. The cameras consist primarily of plastic components and are comprised of three main pieces: a front cover; a body to which are assembled most of the components associated with the operation of the camera; and a back cover. The body of the camera is attached to the front cover by two screws. The back cover is attached to the camera body by a V-shaped projection on the body and corresponding groove on the inside back cover, and a snap-fastening on the opposite side formed by a small V-shaped protrusion on the body and corresponding groove on the inside of the back cover. The cameras are packaged for retail sale in paper or cardboard covers that feature branding and product information. Directions for reloading the cameras are contained on the interior of the cardboard retail packaging.

The back wall portion of the cameras features a pair of curved horizontal guide ribs joined by a single vertical rib. The ribs measure 1 millimeter (mm) in width and 3.5 mm in height, the two horizontal ribs being spaced 33 mm apart (the distance between the outer edges is 35 mm).

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. The Administrative Law Judge, in his Final Initial and Recommended Determinations, described the products at issue in the investigation as “single use cameras, also known as ‘lens-fitted film packages’ or ‘LFFPs.’ Single use cameras are relatively inexpensive, disposable cameras which are preloaded with film and a film cartridge so that after use, all of the film has been advanced into the film cartridge.” Id., Final Initial and Recommended Determinations, at 4; see also, Additional Findings, no. 1 at 214.

As a result of Customs laboratory examination it was determined that the cameras are light-tight and, moreover, that they feature horizontal ribs cast into the back wall of the camera that are similar to the construction protected by claims 14 and 15 of the '774 patent. Claims 14 and 15 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 cameras that are the subject of the instant protest and AFR are within the scope of the general exclusion order issued by the ITC 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, 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. Certain Lens-Fitted Film Packages, Inv. No. 337-TA-406, General Exclusion Order (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. As described by the ALJ, LFFPs are single use cameras, i.e., relatively inexpensive, disposable cameras which are preloaded with film and a film cartridge so that after use, all of the film has been advanced into the film cartridge. Certain Lens-Fitted Film Packages, Inv. No. 337-TA-406, Final Initial and Recommended Determinations, at 4. As described in the Commission’s Opinion, 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. Certain Lens-Fitted Film Packages, Inv. No. 337-TA-406, Commission Opinion (June 2, 1999), at 2.

The cameras that are the subject of the instant protest and AFR are constructed of a shell made of plastic and are pre-loaded with film. The film is fully unwound from the patrone in which it is sold, so that the film is wound into the patrone or film canister frame-by-frame as it is exposed. The cameras consist primarily of plastic components and are comprised of three main pieces: a front cover; a body to which are assembled most of the components associated with the operation of the camera; and a back cover. The body of the camera is attached to the front cover by two screws. The back cover is attached to the camera body by a V-shaped projection on the body and corresponding groove on the inside back cover, and a snap-fastening on the opposite side formed by a small V-shaped protrusion on the body and corresponding groove on the inside of the back cover. Thus, the cameras at issue fit the description of LFFPs contained in the ITC’s Opinion and in the ALJ Final Initial and Recommended Determinations.

In the Final Initial and Recommended Determinations, the Administrative Law Judge discussed a camera that the one of the respondents to the action, Achiever Industries, contended could be reused by a consumer. However, in order to reload the camera it was necessary to use a screwdriver and a thin tool to pry open the plastic tabs on the sides of the camera. Although it is possible to open and reload the cameras at issue without employing special tools, the procedure is difficult and the cameras cannot be opened and reloaded like a conventional camera. Accordingly, it is Customs position that the cameras that are covered by the protested entries are LFFPs.

As noted above, the concave curved back wall portion of the cameras features a pair of curved horizontal guide ribs joined by a single vertical rib. The ribs measure one millimeter (mm) in width, the two horizontal ribs being spaced 33 mm apart. Protestant submits that these ribs are not “spaced from the longitudinal edges of the film” as required by claims 14 and 15 of the ‘774 patent. In regard to this element of the claims, the ALJ found that:

[A] proper interpretation of the claimed “concave curved portion” encompasses a limitation which includes a concave curved support structure that is so constructed as to avoid distortion of the film as it is unwound from the film chamber and which structure contacts the film at a point spaced from the edges as appropriate to avoid this distortion.

Certain Lens-Fitted Film Packages, Inv. No. 337-TA-406, Final Initial and Recommended Determinations, at 30. Based on laboratory examination, it is Customs position that the ribs on the cameras at issue contact the film at a point spaced in from the longitudinal or outer edges of the film, and that the function of the ribs is to maintain the film in a substantially cylindrical role in order to avoid distortion of the film as it is unwound from the rolled film chamber. Accordingly, it is Customs position that the subject cameras infringe claims 14 and 15 of the ‘774 patent.

Inasmuch as we have determined that the subject cameras have a construction similar to that protected by claims 14 and 15 of the ‘774 patent, we do not address the question of whether they infringe any of the other fourteen patents at issue in ITC Investigation No. 337-TA-406.

HOLDING:

In conformity with the foregoing, the sample cameras are within the scope of the general exclusion order issued by the ITC in Investigation No. 337-TA-406 and are excluded from entry for consumption into the United States.

In conformity with the foregoing, the protest should be denied in full. In accordance with section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, you are to mail this decision to the protestant, together with the Customs Form 19, 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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