United States International Trade Commision Rulings And Harmonized Tariff Schedule

faqs.org  Rulings By Number  Rulings By Category  Tariff Numbers

faqs.org > Rulings and Tariffs Home > Rulings By Number > 2003 HQ Rulings > HQ 229963 - HQ 548239 > HQ 473742

Previous Ruling Next Ruling
HQ 473742

---

February 28, 2003

ENF 4-02 RR:IT:IP 473742 PBP

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

Ms. Vitoria Lim
Vastfame Camera Ltd.
22C, Max Share Centre
367 King’s Road, North Point
Hong Kong

RE: Exclusion Order; Lens-Fitted Film Packages; International Trade Commission Investigation No. 337-TA-406

Dear Ms. Lim:

This is in reply to your letter dated November 19, 2002, received in this office on December 2, 2002, on behalf of Vastfame Camera Ltd. of North Point, Hong Kong, in which you request a ruling as to whether a certain “model C21F camera” preloaded with 35-mm film is excluded from entry into the United States. This ruling letter reflects the opinion of the U.S. Customs Service regarding the admissibility of the article discussed herein. Determinations of patent infringement in Unfair Import Investigations are the responsibility of the U.S. ITC and, therefore, proceedings by the ITC and/or review of those proceedings by the Federal Courts may ultimately impact the admissibility of articles subject to an exclusion order issued by the ITC. An importer seeking to import articles that may come within the scope of an exclusion order issued by the ITC may seek an advisory opinion from the ITC in order to avoid any potential future adverse action by the ITC.

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 1, 5, 6, 9, and 11 of U.S. Letters Patent No. 4,833,495; claims 14 and 15 of U.S. Letters Patent No. 4,855,774; claims 1, 7, 8, and 15 of U.S. Letters Patent No. 4,884,087; claims 1, 19, and 22 of U.S. Letters Patent No. 4,954,857; claims 1 and 9 of U.S. Letters Patent No. 4,972,649; claims 14 and 16 of U.S. Letters Patent No. 5,063,400; claims 1 and 11 of U.S. Letters Patent No. 5,235,364; claim 1 of U.S. Letters Patent No. 5,361,111; claims 1, 15, 23, and 25 of U.S. Letters Patent No. 5,381,200; claims 1 and 7 of U.S. Letters Patent No. 5,408,288; claims 1 and 28 of U.S. Letters Patent No. 5,436,685; claims 1 and 13 of U.S. Letters Patent No. Re. 34,168; the claim of U.S. Letters Patent No. Des. 345,750; the claim of U.S. Letters Patent No. Des. 356,101; and the claim of U.S. Letters Patent No. Des. 372,722. Certain Lens-Fitted Film Packages, Inv. No. 337-TA-406, General Exclusion Order at 1-2.

A sample camera identified as model C21F, which is manufactured by Vastfame Camera Ltd. of Hong Kong, was submitted for our analysis. The sample is a 35mm camera which is preloaded with unexposed film and incorporates a flash unit. The camera’s body is constructed of plastic, and consists of a front cover fitted to a middle casing or shell with screws, and a rear cover fitted to the shell on one side by a hinge and secured by a slide-lock mechanism on the opposite side. All of the components normally associated with the operation of a camera, except for a pushbutton and plunger assembly used to activate the shutter mechanism, and a slide switch used to activate the flash mechanism, are assembled to the middle casing or shell. With the exception of the taking lens, it appears that none of the components normally associated with the operation of a camera projects into or through any inner surface of the front cover. There appear to be no projections from the shell that fit into any openings of the front cover. 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 and counting display, a shutter and shutter-operating mechanism, and flash mechanism. The camera is preloaded with unexposed film that resides in a cartridge consisting of a cassette containing an unexposed film roll which is attached to a canister (patrone) identical to those in which film is normally sold at retail. When a photograph is taken, film winds from the cassette into the OEM type canister (patrone). This cartridge may be readily removed from the camera in order to process the exposed film. A cartridge containing unexposed film may be loaded into the camera under ordinary light conditions.

Photographs of the sample camera are displayed below:

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 CFR §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. To warrant a finding of patent infringement, an accused article must meet each limitation of any of the claims of a patent either literally or under the doctrine of equivalents. Charles Greiner & Co. v. Mari Med Mfg., Inc., 962 F. 2d 1031, 1034, (Fed. Cir. 1992). In order to find literal infringement, every limitation of the claim must be found exactly in the subject article. Southwall Techs, Inc. v. Cardinal IG Co., 54 F.3d 1570, 1575 (Fed. Cir.), cert. denied 116 S.Ct. 515 (1995). The doctrine of equivalents prevents an accused patent infringer from avoiding liability for infringement by changing only minor or insubstantial details of the claimed invention while retaining its essential identity. Festo Corp. v. Shoketsu Kinzoku Kogyo Mabashihi Co., 234 F.3d 558 (Fed. Cir. 2000), cert. granted, 2001 WL 378251 (June 18, 2001).

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, Initial Determination, Final Initial and Recommended Determinations, Additional Findings, no. 1 at 214.

In the Enforcement Initial Determination in this investigation, the administrative law judge, “based on intrinsic evidence and his findings in the ID, finds that having the capability of being reloaded with film does not mean that a camera is not an LFFP.” Enforcement Initial Determination at 20. LFFPs, as defined in that opinion, are:
simple cameras made of inexpensive materials that are preloaded with film at the factory that have the major elements of a light-tight casing that holds a shutter, shutter release button, lens, viewfinder, film advance mechanism, film counting display, film cartridge, and optionally a flash assembly and battery, where after use all of the film has been advanced into the film cartridge.

Enforcement Initial Determination at 42.

An LFFP is preloaded with an unexposed film roll which is housed in a film roll chamber; when an exposure is made, exposed film winds into an OEM type film cartridge or canister (patrone) which is removed by the film processor and developed.

Based on a visual examination of the sample, the camera appears to 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 residing in a cartridge 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 pushbutton and plunger used to activate the shutter and a slider switch used to activate the flash mechanism), a front cover fitted to the shell with screws, and a rear cover fitted to the shell by a hinge on one side and secured by a slide-lock mechanism 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 and counting display for winding exposed film from a cassette into an OEM type canister (patrone), and shutter and shutter operating mechanism. A cartridge containing a cassette with an unexposed film roll on one side attached to an OEM type canister (patrone) on the opposite side is loaded into a film-containing unit. When a photograph is taken, the film winds from the film roll into the canister (patrone). This cartridge may then be readily removed from the camera and the exposed film may be processed.

Consequently, the sample camera is properly considered to be an LFFP, the type of article identified by the ITC as being at issue in Inv. No. 337-TA-406. It is, therefore, necessary to consider whether the sample camera meets each of the limitations of any of the claims of patents at issue in Investigation No. 337-TA-406 in order to determine whether it is within the scope of the ITC’s exclusion order issued pursuant to that investigation.

Claims 1, 5, and 6 of the ‘495 patent and claims 1, 7, and 8 of the ‘087 patent recite as one of their limitations “[a] lens-fitted photographic film package which comprises a light-tight film case which must be destroyed to open the same.” In his Initial Determination the administrative law judge repeatedly found that this phrase describes “an LFFP that after a single use has lost light-tightness upon removal of the film cartridge and which cannot be reloaded by the user, like a conventional camera, but must be broken or disassembled in order to retrieve the film.” ID at 14, 16, and 23. In that opinion the administrative law judge found that an LFFP with a casing that “must be destroyed” is distinct from a “conventional camera that can be readily loaded and reloaded by a user.” See ID supra. The sample camera features a rear cover that may be easily, repeatedly, opened and closed without the camera losing its light-tight quality. The camera also features a “double cassette” film system substantially identical to one found by the administrative law judge in his Enforcement Initial Determination not to meet this “must be destroyed” limitation. EID at 47. Therefore the sample camera does not appear to fall within the scope of claims 1, 5, and 6 of the ‘495 patent and claims 1, 7, and 8 of the ‘087 patent.

Claim 9 of the ‘495 patent recites as one of its limitations “said means comprising a friction applying member formed to deflect the film from a path along which said film would otherwise pass, said member being a projection that directly contacts said container within which said film is wound in a roll.” The film roll of the sample camera is contained in a cassette which does not directly contact any other component of the camera. Therefore the sample camera does not appear to fall within the scope of claim 9 of the ‘495 patent.

Claim 11 of the ‘495 patent recites as one of its limitations “said forcing means comprising a projection which abuts against said film container to incline said film slot of said film container.” The film containers of the sample camera do not contact any member that may incline their openings (slots). Therefore the sample camera does not appear to fall within the scope of claim 11 of the ‘495 patent.

Claims 14 and 15 of the ‘774 patent recite as one of their limitations a
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 and maintains said rolled film in a substantially cylindrical roll.

The administrative law judge found that the proper interpretation of this claim encompassed a limitation including a concave curved support structure constructed so as to avoid distortion of the film as it is unwound from the film chamber which structure contacts the film at a point spaced from the film’s edges to maintain the roll in a substantially cylindrical shape. ID at 26-27. The film roll of the sample camera is maintained in a substantially cylindrical roll by the cassette portion of the film cartridge; there is no concave curved portion of the back wall of the camera that may contact the film. Therefore the sample camera does not appear to fall within the scope of claims 14 and 15 of the ‘774 patent.

Claims 7 and 15 of the ‘087 patent recite as one of their limitations “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.” The sample camera does not incorporate a rotatable spool in its unexposed film roll cassette located on the opposite side from the (exposed) film container. Therefore the sample camera does not appear to fall within the scope of claims 14 and 15 of the ‘087 patent.

Claims 1, 19, and 22 of the ‘857 patent recite as one of their limitations a “means defining a film passage in said light-tight casing, wherein said light-tight casing must be destroyed to expose said film passage.” The administrative law judge found that the prosecution history of the patent supports the finding that “the ‘destruction’ language” describes an LFFP that is not light-tight after removal of the (exposed) film cartridge. The sample camera features a rear cover that may be easily, repeatedly, opened and closed (and the film cartridge removed) without the camera losing its light-tight quality. Therefore the sample camera does not appear to fall within the scope of claims 1, 19, and 22 of the ‘857 patent.

Claim 1 of the ‘649 patent recites as one of its limitations a method of assembling a lens-fitted photographic film package which requires “winding a film withdrawn from said light-tight container in a roll in a darkroom” (and then loading this film roll into the LFFP in a darkroom). Claim 9 of the ‘649 patent recites as one if its limitations a process whereby film is wound from an OEM type film canister onto a rotatable spool in the LFFP’s (unexposed) film roll chamber by means of a rotational apparatus attached to an end of the spool exposed outside of the light-tight film casing while the back cover is fitted to a light-tight LFFP. The sample camera is loaded by means of a “pancake method” whereby film is unwound from a bulk roll in a darkroom into a film roll which is placed in a cassette. The end of the film protruding from this cassette is attached to an OEM type film canister and the entire assembly loaded into the camera under ordinary light conditions (before the camera’s rear cover is fixed). Because the film is loaded into the camera under ordinary light conditions (leaving an exposed section of film as evidence of this fact), the sample camera does not appear to fall within the scope of claims 1 and 9 of the ‘649 patent.

Claims 14 and 16 of the ‘400 patent recite as one of their limitations “a rear case section which is securely fixed to the rear side of said main case section and cannot be disassembled therefrom.” The administrative law judge found that the file history supports the interpretation of this phrase as attachment of the rear case section in any manner which is sufficiently secure to discourage a user from removing the rear cover in order to reload the LFFP. The sample camera features a rear cover that may be easily, repeatedly, opened and closed without the camera losing its light-tight quality and the LFFP may be opened and reloaded. Therefore the sample camera does not appear to fall within the scope of claims 14 and 16 of the ‘400 patent.

Claims 1 and 11 of the ‘364 patent recite as one of their limitations “a flash unit including a main capacitor and a discharge tube for emitting a flash of light, said main capacitor being disposed above said film roll chamber and extending in a horizontal direction.” The sample camera features a vertically oriented capacitor positioned parallel to its film roll chamber. Therefore the sample camera does not appear to fall within the scope of claims 1 and 11 of the ‘364 patent.

Claim 1 of the ‘111 patent recites as one of its limitations
at least one plastic pushbutton and a barrier formed on an outer surface of said wall surrounding said pushbutton only partially, said barrier projecting outwardly relative to an actuating surface of said pushbutton when said pushbutton is in said initial position, said barrier terminating in two ends disposed on opposite sides of said bridge.

The sample camera features only one pushbutton (for the shutter operating mechanism) which is not surrounded in any way by any barrier. Therefore no such barrier projects from the camera body and the sample camera does not appear to fall within the scope of claim 1 of the ‘111 patent.

Claim 1, of the ‘200 patent recites as one of its limitations
a shutter blade attached to said shutter mount, said shutter blade having a claw portion, an arm portion and a masking portion, for opening and closing said shutter opening, said shutter blade being bent in a crank shape in the middle of said arm portion in a directional along said optical axis such that said masking portion is disposed farther forward than said claw portion so as to correspond in shape to said shutter mount and said projecting portion.

The sample camera features a planar shutter blade that is not crank-shaped. Therefore the sample camera does not appear to fall within the scope of claim 1 of the ‘200 patent.

Claim 15 of the ‘200 patent recites as one of its limitations
a shutter blade having a claw portion and a masking portion for opening and closing said shutter opening and being swingable between a closed position and an open position, said masking portion having on a surface facing said shutter opening a recess and a semicircular rim, said rim being disposed on the side of a leading edge portion of said masking portion when said shutter blade swings from said closed position to said open position, said recess having a tapered surface formed approximately in a half portion of said recess on the side of a trailing edge portion opposite to said leading edge portion of said masking portion such that the thickness of said masking portion decreases in a direction toward said trailing edge portion so as to prevent said tapered surface from being brought into contact with said projection formed around said shutter opening during swinging of said shutter blade, said projection fitting in said recess when said shutter blade is in said closed position.

The sample camera features a planar (flat) shutter blade without a semicircular rim. Therefore the sample camera does not appear to fall within the scope of claim 15 of the '200 patent.

Claim 23 of the ‘200 patent recites as one of its limitations
a shutter blade having a claw portion and a masking portion for opening and closing said shutter opening and being swingable between a closed position and an open position and a protrusion in said masking portion on a side of a trailing edge portion when said shutter blade swings from said closed position to said open position.

The sample camera features a shutter blade with no protrusion from its masking portion. Therefore the sample camera does not appear to fall within the scope of claim 23 of the '200 patent.

Claim 25 of the ‘200 patent recites as one of its limitations
a shutter blade having a claw portion and a masking portion for opening and closing said shutter opening and being swingable between a closed position and an open position, said masking portion having on a surface facing said shutter opening a recess and a semicircular rim, said rim being disposed on the side of a leading edge portion of said masking portion when said shutter blade swings from said closed position to said open position, said projection fitting in said recess when said shutter blade is in said closed position. The sample camera features a shutter blade without a semicircular rim. Therefore the sample camera does not appear to fall within the scope of claim 25 of the '200 patent.

Claim 1 of the ‘288 patent recites as one of its limitations a lens-fitted photographic film unit incorporating a film cassette with an axial hole formed in one distal end of the cassette’s spool with “a keyway defined by a plurality of inner teeth formed on an inside of said axial hole” and a film winding wheel which rotates said spool after each exposure “wherein said winding wheel includes a drive shaft integrally formed therewith and fitted in said axial hole; and said drive shaft includes a plurality of engaging teeth formed thereabout, arranged at a regular pitch, extended axially, and respectively engaged with said inner teeth.” The sample camera features a winding wheel without any such teeth that may engage with teeth formed in its film cassette. Therefore the sample camera does not appear to fall within the scope of claim 1 of the ‘288 patent.

Claim 7 of the ‘288 patent recites as one of its limitations a lens-fitted photographic film unit incorporating a film cassette with an axial hole formed in one distal end of the cassette’s spool, a winding wheel with integral driveshaft that rotates said spool, “a plurality of inner teeth formed inside said axial hole, arranged circularly at a regular pitch, shaped to have a substantially triangular section ” and “a plurality of outer teeth formed about said drive shaft, shaped to have a substantially triangular section engaged with said inner teeth, and extended axially, said drive shaft fitted into said axial hole to engage said inner teeth with said outer teeth.” The sample camera features a winding wheel without any such teeth that engage with any teeth formed in its film cassette. Therefore the sample camera does not appear to fall within the scope of claim 7 of the ‘288 patent.

Claim 1 of the ‘685 patent recites as one of its limitations
a single photo-forming unit including said shutter mechanism and said wind-up stopping mechanism, said single photo-forming unit having metal parts and being secured to said film containing unit but being removable as a single unit from said film containing unit so as to facilitate removal of metal parts from resinous parts.

Claim 28 of the ‘685 patent recites as one of its limitations
a single photo-forming unit including said shutter blade, said sprocket wheel, said shutter cocking means, said shutter driving means, and said wind-up stopping mechanism, said single photo-forming unit having metal parts and being secured to said film containing unit but being removable as a single unit from said film containing unit so as to facilitate removal of metal parts from resinous parts.

The middle casing or shell of the sample camera houses all of the components normally associated with the operation of a camera including the shutter mechanism. The majority of its shutter operating mechanism is integral with its film-containing unit and may not be removed therefrom as a single unit. Consequently, the sample camera does not appear to fall within the scope of claims 1 and 28 of the ‘685 patent.

Claim 1 of the Re ‘168 patent recites as one of its limitations
a front cover section which is attached to said main case section and closes said open front of said main case section to cover the majority of said taking lens and said shutter means and said film transporting means, said front cover section being formed with at least one opening for partly receiving therein a member of one of said means, which member projects forwardly beyond surfaces of said main case section which are in contact with an inner surface of said front cover section.

The sample camera is not constructed such that its shutter means or film transporting means project forwardly past its middle casing or shell or contact any inner surface of its front cover section. Therefore the sample camera does not appear to fall within the scope of claim 1 of the Re ‘168 patent.

Claim 13 of the Re ‘168 patent recites as one of its limitations
a lens-fitted photographic film package having at least a roll of unexposed photographic film and taking lens means, comprising: a parallelepipedal light-tight case mounting said taking lens means and containing said roll of unexposed photographic film in a chamber formed therein, said chamber being closed by an openable cover; and a parallelepipedal external container in which said light-tight film case is shape-matingly enclosed having a weakened openable portion directly overlying said openable cover and which can be opened only by being broken away from said external container to expose said openable cover. The sample camera has no external container, casing, or cover overlying its openable film chamber cover. Therefore the sample camera does not appear to fall within the scope of claim 13 of the Re ‘168 patent.

The drawings of design patents Des. 345,750 and Des. 356,101 depict a camera with a planar (flat) front cover excepting the portion of that cover housing its taking lens bezel and (on drawings for Des. 356,101) a raised lip around the button used to charge its flash mechanism. The front cover of the sample camera, on the other hand, contains a bulge to accommodate its unexposed film cassette and is not essentially flat or planar. Consequently, the sample camera does not appear to fall within the scope of design patents Des. 345,750 and Des. 356,101.

The drawings of design patent Des. 372,722 depict a camera with bezels around its viewfinder and flash that fit into both the front and top panels of the camera body. The flash and viewfinder of the sample camera are entirely contained within its front panel and do not utilize bezels. Consequently, the sample camera does not appear to fall within the scope of design patent Des. 372,722.

HOLDING:

In conformity with the foregoing, because the sample camera appears to lack a construction which meets all of the limitations of any of the claims of patents at issue in ITC Investigation No. 337-TA-406, we find that it does not fall within the scope of the ITC's general exclusion order issued in that investigation. Vastfame Camera Ltd.’s model C21F camera may be entered for consumption into the United States.

Sincerely,


Previous Ruling Next Ruling