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HQ 471165

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May15, 2002

ENF 4-02 RR:IT:IP 471165 PBP

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

James C. Tuttle, Esq.
Law Offices of James C. Tuttle
82 Wall Street
Suite 1105
New York, NY 10005

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

Dear Mr. Tuttle:

This is in reply to your letter dated June 11, 2001, on behalf of your client, Argus Industries, Inc., in which you requested a ruling as to whether certain cameras preloaded with 35-mm film are excluded from entry into the United States.

FACTS:

Pursuant to the above-referenced exclusion order, the ITC determined that there was a violation of 19 U.S.C. §1337 regarding 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. Certain Lens-Fitted Film Packages, Inv. No. 337-TA-406, General Exclusion Order at 1-2. With the exception of design patents DES. 345,750; DES. 356,101; and DES. 372,722 which claim ornamental designs of single use cameras and are represented by their application drawings, all of the claims of the patents at issue protect “a lens-fitted photographic film package” or “a lens-fitted photographic film unit.” In its Opinion, the ITC described an LFFP 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.

Two sample cameras identified as Model #N20F, and Model #N20FT, manufactured by Vastfame Camera Ltd., 22 C-D, MaxShare Centre, 367 King’s Road, North Point, Hong Kong, were submitted for our analysis. With the exception that the front covers of the two models are fitted to their respective shells by different means, the construction of the two cameras is identical. The sample cameras are preloaded with unexposed film and consist of light plastic bodies incorporating flash units. The cameras each have a body consisting of a front cover, a shell to which is assembled most of the components associated with the operation of the camera, and a rear cover fitted to the shell by a hinge on one side and a slide-lock mechanism on the other. The rear cover may be opened by releasing the slide lock mechanism and pulling outward, away from the shell. In addition, the cameras are equipped with a lens, a viewfinder, and a film advance mechanism. When a photograph is taken, the film winds from an unexposed film roll into the film cartridge (patrone). Photographs of the sample cameras are displayed below.

ISSUE:

The issue presented is whether the sample cameras are lens-fitted film packages within the scope of the ITC’s general exclusion order issued pursuant to 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. The ITC therefore ordered that LFFPs that infringed any of the aforementioned fifteen 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, or 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 usually 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 from a preloaded film roll into a film cartridge (patrone). 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 only negatives and prints back, 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 cameras submitted for analysis consist of light plastic bodies and are pre-loaded with film. Both models are equipped with flash mechanisms. The camera bodies consist of a shell to which is assembled most of the components associated with the operation of the camera, front cover fastened to the shell, and rear cover fitted to the shell by means of a hinge on one side and a slide lock mechanism on the other. The rear cover may be opened by releasing the slide lock mechanism and pulling outward, away from the shell. Laboratory examination of the samples further established that the cameras have a lens, viewfinder, thumb-wheel (advance) for winding exposed film into a film cartridge (patrone), and rotatable film roll spool with a winding crank. According to the laboratory report, one end of the rotatable spool is exposed outside of the plastic camera casing. An unexposed roll of film is wound onto this spool located opposite the film cartridge (patrone).

Due to their design, the sample cameras can be reloaded and reused by the consumer. Hinges on the back of the camera and an opposing slide lock mechanism allow it to be opened and reloaded without using tools under ordinary light conditions. In contrast, the LFFPs defined by the ITC are "disposable, single use cameras." Consequently, the samples are different articles than the products identified by the ITC as being at issue in Inv. No. 337-TA-406. It is therefore our position that the sample cameras are not LFFPs of the type covered by the ITC's exclusion order.

Inasmuch as we have determined that the subject cameras are not LFFPs, we do not address the question of whether they incorporate any of the other elements of the claims of the fifteen patents at issue in ITC Investigation No. 337-TA-406.

HOLDING:

In conformity with the foregoing, the sample cameras are not covered by the scope of the ITC's general exclusion order in Inv. No. 337-TA-406. The cameras may be entered for consumption into the United States.

Sincerely,

Joanne Roman Stump, Chief

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