HQ 471206 - Lens-Fitted Film Packages; ITC Investigation No. 337-TA-406 - United States International Trade Commision Rulings

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HQ 471206

February 5, 2002

TMK-1 RR:IT:IP 471206 PBP

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

Ms. Christina Pember
Photoworks, Inc.
1260 16th Avenue West
Seattle, WA 98119-8696

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

Dear Ms. Pember:

This is in reply to your letter dated June 21, 2001, in which you requested a ruling as to whether certain cameras preloaded with 35-mm film are excluded from entry into the United States. 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 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, including claims 14 and 15 of U.S. Letters Patent 4,855,774 (the “'774 patent”), claim 7 of U.S. Patent 4,884,087 (the ‘087 patent), and claim 22 of U.S. Patent 4,954,857 (the ‘857 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.

Two identical sample cameras were submitted for analysis. The sample cameras consist of black plastic bodies with flash units. The cameras each have a body consisting of a shell, front cover fastened to the shell with screws, and rear cover which is tension fitted to the shell. The rear cover may be pried off with the assistance of an implement after several ancillary covers are likewise pried off of the camera body assembly. Laboratory examination of the samples further established that the camera has a lens, thumb-wheel (advance) for winding exposed film into a film cartridge (patrone), rotatable film roll spool with a winding crank, and hatch on the side of the film cartridge (patrone). An unexposed roll of film is wound onto the rotatable spool located on the opposite side of the film cartridge (patrone). According to the laboratory report, a rotatable spool with a winding crank affixed, extends through the camera body, and features a construction similar to that protected by claim 7 of U.S. Patent 4,884,087 (the ‘087 patent), and claim 22 of U.S. Patent 4,954,857 (the ‘857 patent).

The claims of the ‘087 and the ‘857 patents are similar. Claim 7 of the ‘087 patent claims protection for a lens-fitted photographic film package comprising:
a light-tight film casing which must be destroyed to open the same, having an opening through which an exposure is made;
a light-tight film container having a film winding spool therein disposed on one side of said opening in said light-tight film casing;
a rotatable spool disposed on the opposite side of said opening in said light-tight film container; one end of said spool being exposed outside said light-tight film casing;
a film roll of [un]exposed film

While claim 7 of the ‘087 patent reads “exposed film,” the administrative law judge interpreted that phrase as “unexposed film” in view of the fact that the patent’s file history shows that claim 36, which became patent claim 7, reads “unexposed film.” of which one end is attached to said film winding spool in said light-tight film container and which is rolled around said rotatable spool.

U.S. Patent 4,884,087, claim 7.

Claim 22 of the ‘857 patent claims protection for a lens-fitted photographic film package comprising:
a light tight film casing having an opening through which an exposure is made;
a light-tight film container having a film winding spool disposed on one side of said opening in said light-tight film casing;
a rotatable spool disposed on the opposite side of said opening in said light-tight film casing from said light-tight film container; one end of said spool being exposed outside said light-tight film casing;
a film roll of unexposed film of which one end is attached to said film winding spool in said light-tight film container and which is rolled around said rotatable spool; and
means defining a film passage in said light-tight casing, wherein said light-tight casing must be destroyed to expose said film passage.

U.S. Patent 4,954,857, claim 22.

In your letter you state that the camera back has been redesigned to remove ribs on its inside back wall. Previously, Customs determined that a similar model, packaged as the “Snap Sight” camera, the “REI” camera, the “APC” camera, and the “Fred Meyer” camera featuring ribs on its inside back wall portion infringed claims 14 and 15 of the ‘774 patent. See HRL 471057, June 21, 2001.

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 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’774 patent), claim 7 of U.S. Patent 4,884,087 (the ‘087 patent), and claim 22 of U.S. Patent 4,954,857 (the ‘857 patent). The ITC therefore ordered that LFFPs that infringe any of these 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 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 film roll into a film cartridge or 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 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 cameras consist of black plastic bodies with flash units and are pre-loaded with film. The camera bodies consist of a shell, front cover fastened to the shell with screws, and rear cover which is tension fitted to the shell. The rear cover may be pried off with the assistance of an implement after several ancillary covers are likewise pried off of the camera body assembly. Laboratory examination of the samples further established that the camera has a lens, thumb-wheel (advance) for winding exposed film into a film cartridge (patrone), rotatable film roll spool with a winding crank, and hatch on the side of the film cartridge (patrone). An unexposed roll of film is wound onto the rotatable spool located on the opposite side of the film cartridge (patrone). According to the laboratory report, a rotatable spool with a winding crank affixed, extends through the camera body. This camera, therefore, fits the description of an LFFP contained in the ITC’s Opinion and in the ALJ Final Initial and Recommended Determinations.

In his Final Initial and Recommended Determinations, the Administrative Law Judge interpreted the claim language a light-tight film case which must be destroyed to open same for the purpose of limiting the claims in issue of the ‘087, ‘495’ and 857 patents “as describing an LFFP that, upon removal of the film cartridge, is distinguished from a camera that can be readily loaded and reloaded by a user. . . .” Certain Lens-Fitted Film Packages, Inv. No. 337-TA-406 (June 2, 1999), Final Initial and Recommended Determinations, Opinion, at 16, 86. In addition, the Administrative Law Judge concluded that a camera which one of the respondents to the action, Achiever Industries, contended could be reused by a consumer, which is substantially indistinguishable in construction from the sample Photoworks cameras, “cannot be opened and reloaded like a conventional camera.” Id. at 86.

The back casing of the sample camera is tension fitted to the camera’s shell. Although it is possible to open the camera by using a tool to separate the back casing from the rest of the camera body, this method does not enable one readily to open and reload the camera. In this respect, the sample camera differs from conventional, non-disposable cameras. Customs considers that the complexity of this reloading procedure would discourage most persons from opening and reloading the camera as one would a conventional camera.

Based on Customs’ laboratory analysis, the sample cameras have a construction similar to that protected by claim 7 of the ‘087 patent and claim 22 of the ‘857 patent. Their design incorporates a spool onto which unexposed film is wound with a handle or crank that extends outside the light-tight film casing. Moreover, as discussed above, the cameras cannot be opened and reloaded like conventional cameras. While it is technically possible to open and reload these cameras, from the standpoint of practicality and commercial reality we find that it is unlikely that consumers would use these cameras other than as disposable, single use, or one-time use products. Accordingly, it is Customs’ position that the sample cameras are within the scope of the ITC’s general exclusion order and are excluded form entry into the U.S. Inasmuch as we have determined that the subject cameras have a construction similar to that protected by claim 7 of the ‘087 patent and claim 22 of the ‘857 patent, we do not address the question of whether the sample cameras infringe any of the other thirteen patents at issue in ITC Investigation No. 337-TA-406.

HOLDING:

In conformity with the foregoing, the sample cameras are LFFPs within the scope of the ITC’s general exclusion order in Inv. No. 337-TA-406 and should be excluded from entry for consumption into the United States.

Sincerely,

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