HQ 472462 - Lens-Fitted Film Packages; ITC Investigation No. 337-TA-406 - United States International Trade Commision Rulings

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HQ 472462

July 25, 2002

ENF 4-02 RR:IT:IP 472462 PBP

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

Peter A. Quinter, Esq.
Becker & Poliakoff, P.A.
P.O. Box 9057
Ft. Lauderdale, FL 33310-9057

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

Dear Mr. Quinter:

This is in reply to your letter dated April 23, 2002, on behalf of your client, Achiever Industries, Ltd. (Achiever), in which you requested a ruling as to whether a certain “Modified DCS Camera” preloaded with 35-mm film is excluded from entry into the United States.

This matter was also discussed with you and Mr. Joseph W. Bain of Akerman Senterfitt, Attorneys at Law, at a meeting at Customs Headquarters on May 21, 2002. I and a member of my staff represented Customs at the meeting. On June 25, 2002, Mr. Bain submitted an additional letter reviewing the points discussed at the headquarters meeting of May 21, 2002 and informing Customs that Achiever plans to use the designation DCS101 for their “Daylight Camera” (without flash) and DCS201 for their “Flash Camera.”

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.

A sample camera identified as the “Modified DCS Camera,” manufactured by Achiever Industries, Ltd., was submitted for our analysis. The sample is a 35mm camera preloaded with unexposed film and incorporates a flash unit. The camera body is constructed of plastic, and consists of a front cover tension fitted to a shell or middle casing, and a rear cover fitted to the shell on one side by a hinge affixed to the shell with screws and secured by a slide-lock release on the opposite side. All of the components normally associated with the operation of the camera, except for a button used to activate the shutter, are assembled to the middle casing or shell. There appear to be no projections from the shell that fit into any openings of the front cover; rather, the front cover is affixed to the shell by mating ramped clips. The rear cover may be opened by releasing the slide lock and pulling outward, away from the shell.

The camera is equipped with a lens, viewfinder, film advance mechanism incorporating a thumb-wheel, shutter-operating mechanism, film roll “cassette,” and a film canister (patrone). With the exception of the flash, it appears that none of the components normally associated with the operation of a camera contacts the inner surface of the front cover. When a photograph is taken, film winds from a film roll housed in a plastic case or “cassette” into a film canister or patrone similar to that in which unexposed film is normally sold at retail. The film cassette is essentially cylindrical without ribs or projections and is constructed such that unexposed film may be loaded into the cassette prior to being placed in the camera under ordinary light conditions. Photographs of the sample camera are displayed below.

Previously, Customs determined that the precursor to this camera, Achiever’s “Double Cassette Camera,” did not infringe any of the patents at issue in Investigation No. 337-TA-406. See Headquarters Ruling Letter 469483, dated October 31, 2000. In your letter you assert that Achiever redesigned the camera to further remove any possibility of infringement. In addition to features noted above, the new design incorporates a flat shutter blade with no rim or recess in its masking portion, a back cover with no projections which may contact the (unexposed) film at its outermost turn.

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 issued pursuant to 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. 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. 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.”

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 canister (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.

Based on a visual examination of the sample, 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. The sample camera is preloaded with film and consists of a plastic body incorporating a flash mechanism. The camera body consists of a shell to which is assembled all of the components associated with the operation of the camera (except for a button used to activate the shutter), a front cover tension fitted to the shell, and a rear cover fitted to the shell by a hinge on one side and a slide lock on the opposite side. The rear cover may be opened by releasing the slide lock and pulling outward, away from the shell.

Visual examination of the sample further establishes that the camera has a lens, viewfinder, film advance mechanism incorporating a thumb-wheel for winding exposed film from an enclosed “cassette” into a film canister (patrone), and a shutter operating mechanism. Unexposed film is loaded into a cassette, which is fitted opposite the film receiving canister. When a photograph is taken, the film winds from the cassette into the film canister.

The sample camera can be reloaded by the consumer under ordinary light conditions, and reused. Hinges on the back of the camera and an opposing slide lock mechanism allow it to be opened and reloaded without using tools. A cassette which is preloaded with film may be fitted into a film receiving chamber and its leader is wound into a canister identical to those in which film is normally sold. In contrast, LFFPs as defined by the ITC are "disposable, single use cameras." Consequently, the sample is a different article 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 camera is not an LFFP as defined by the ITC, and is not covered by the ITC's exclusion order. See also, Headquarters Ruling Letter 468660, dated March 27, 2000.

Inasmuch as we have determined that the subject camera is not an LFFP, we do not address the question of whether the sample camera infringes 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 camera is not covered by the scope of the ITC's general exclusion order in Inv. No. 337-TA-406. Achiever Industries, Ltd.’s “Modified DCS Camera” model nos. DCS101 and DCS210 may be entered for consumption into the United States.

Sincerely,

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