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HQ 474000

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July 1, 2003

ENF 4-02 RR:IT:IP 474000 PBP

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

L. David Griffin, Esq.
Workman, Nydegger & Seeley
1000Eagle Gate Tower
60 East South Temple
Salt Lake City, UT 84111

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

Dear Mr. Griffin:

This is in response to your letter dated April 1, 2003, on behalf of Grandway USA Corporation of Salt Lake City, Utah, in which you request a ruling as to whether a certain “Fun Pack™ with Flash” indoor/outdoor camera preloaded with 35-mm film is excluded from entry into the United States. In addition, on June 4, 2003, you supplied supplemental information by fax documenting Grandway’s retail sales of its DCS film.

This ruling letter reflects the opinion of the Bureau of Customs and Border Protection regarding the admissibility of the article discussed herein. Determinations of patent infringement in Unfair Import Investigations are the responsibility of the U.S. international Trade Commission (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 “Fun Pack™ Flash” 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 tension fitted to a middle casing or shell by means of a projection from the shell that fits into a slot in the front cover, and a rear cover affixed to the front cover by means of a hinge that is glued or ultra-sonically welded in place. The front cover is secured to the rear cover opposite the hinge by means of a tab on the rear cover that tension fits over two projections from the front cover. When the front cover is secured to the rear cover by these means, the middle casing (or shell) is immobilized by the precision of the fit of the components. The rear cover may be opened by releasing the tension on the tab and pulling outward, away from the shell.

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 tab which may be depressed to activate a flash mechanism, are assembled to the middle casing or shell. 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. In addition, there appear to be no projections from the shell that fit into any openings of the front cover.

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 canister (cassette). When a photograph is taken, film winds from this cassette into a film canister (patrone) identical to those in which film is normally sold at retail. This canister (patrone) may be readily removed from the camera in order to process exposed film. A cassette of unexposed film may be reloaded 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 cassette 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 tab which may be depressed to activate a flash mechanism), a front cover fitted to the shell, and a rear cover affixed to the front cover by a hinge and tension fit feature. The rear cover may be opened by releasing the tension on an integral tab and pulling outward, away from the shell and front cover assembly.

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 cassette of (unexposed) film is loaded into a film-receiving chamber, located opposite the exposed film-receiving canister (patrone). When a photograph is taken, the film winds from the cassette into the canister. This canister may then be readily removed from the camera and its contents 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.

Claim 25 of the ‘200 patent recites:

[a] lens-fitted photographic film unit having a preloaded photographic film on which an image is formed through a taking lens system upon depression of a shutter release button, said film unit comprising:
a shutter mount having a flat projection projecting forward along an optical axis of said taking lens system;
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.

Visual examination of the sample camera reveals that it features a shutter mechanism incorporating a shutter blade with a semicircular rim on its masking portion that operates as described above. Therefore the sample camera appears to fall within the scope of claim 25 of the '200 patent.

HOLDING:

In conformity with the foregoing, because the sample camera appears to have a construction which meets all of the limitations of claim 25 of U.S. Letters Patent No. 5,381,200, one of the patents at issue in ITC Investigation No. 337-TA-406, we find that it is within the scope of the ITC's general exclusion order issued in that investigation. Grandway USA Corporation’s “Fun Pack™ with Flash” camera is therefore excluded from entry for consumption into the United States.

Sincerely,


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