HQ 475295 - Limited Exclusion Order; Certain Audible Alarm Devices for Divers; International Trade Commission (ITC) Investigation No. 337-TA- 365 - United States International Trade Commision Rulings

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HQ 475295

February 20, 2004

ENF 4-02 RR:IT:IP 475295 RSB

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

Mr. Dave Hancock
President
Ideations/Dive Alert
P.O. Box 99575
Seattle, WA 98199

RE: Limited Exclusion Order; Certain Audible Alarm Devices for Divers; International Trade Commission (ITC) Investigation No. 337-TA- 365

Dear Mr. Hancock:

This letter is in response to your letter dated December 12, 2003, alleging that three companies, Aquatec (a.k.a. Aqua Sports Distribution, Inc.) of Compton, California; Ocean Master of El Monte, California; and Innovative Scuba Concepts of Colorado Springs, Colorado are importing merchandise that comes within the scope of the International Trade Commission (ITC) Limited Exclusion Order issued pursuant to Investigation No. 337-TA-365.

FACTS:

In your December 12, 2003 letter, you state that the Scub-Alert, Inflat-Alert and AIR 3 imported by Aquatec (a.k.a. Aqua Sports Distribution, Inc.), Emergency Horn imported by Ocean Master; and ScubAlert imported by Innovative Scuba Concepts violate the Limited Exclusion Order issued by the ITC pursuant to Investigation No. 337-TA-365. Your letter also states that you believe Aquatec is partly owned by Duton, one of the named respondents against whom the Order was issued.

In the above-referenced investigation, the ITC issued a limited exclusion order excluding from entry into the United States certain audible alarm devices for divers, except under license of the patent owner. The ITC determined that there was a violation of section 337 of the Tariff Act of 1930 (19 U.S.C. § 1337) based upon a number of findings including the fact that Duton Industry Co., Ltd. of Taipei, Taiwan (“Duton”) exported to the United States products that infringe claim 6 of U.S. Letters Patent No. 4,950,107 (the ‘107 patent). Therefore, the ITC ordered that audible alarm devices for divers covered by claim 6 of the ‘107 patent manufactured or imported by or on behalf of Duton or any affiliated companies, parents, subsidiaries, licensees, contractors or other related entities, or their successors or assigns, are excluded from entry for consumption into the United States for the remaining term of the patent (until October 12, 2008), except under license of the patent owner, David A. Hancock of Seattle, Washington, or as provided by law.

With your letter you submitted an Aquatec brochure cover that indicates that an affiliation exists between Aquatec and Duton. The existence of an affiliation between the two companies was verified by visiting the Duton website (www.duton.com.tw). You also submitted two samples of Aquatec’s Scub-Alert and a product description from Aquatec’s website for our review and analysis. The device as described in the product description is an underwater horn, that works both underwater and on the surface, that requires air to generate a loud “quacking” sound by using tiny pulses of air to rapidly vibrate a steel disk. The horn is composed of a gray plastic housing approximately 3 inches tall, one inch wide with a slightly larger base flanked by metallic fittings on two sides. Photographs of the samples you submitted are provided below.

As you did not submit samples of Inflat-Alert, AIR 3, Emergency Horn or ScubAlert to this office, we cannot make a determination regarding those items. Therefore, our analysis is limited to Scub-Alert imported by Aquatec.

ISSUE:

The issue presented is whether the Scub-Alert is an audible alarm device for divers that falls within the scope of the ITC’s limited exclusion order issued pursuant to Investigation No. 337-TA-365, 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 United States 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-365, the ITC determined that certain audible alarm devices for divers infringed claim 6 of U.S. Letters Patent No. 4,950,107 owned by David A. Hancock. Therefore, the ITC ordered that devices infringing claim 6 of the ‘107 patent, manufactured and/or imported by or on behalf of Duton or any affiliated companies, parents, subsidiaries, licensees, contractors or other related entities, or their successors or assigns, are excluded from entry for consumption into the United States, and notified Customs accordingly. Limited Exclusion Order, Certain Audible Alarm Devices for Divers, Inv. No. 337-TA-365 (June 6, 1995).

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).

Claim 6 of U.S. Letters Patent No. 4,950,107 recites:

An apparatus for use with diving equipment to produce an audible alarm, comprising: means responsive to air under pressure to produce an audible alarm, said audible alarm means being adapted to be carried on or about the person of the diver during diving operations, without interfering therewith; and means for selectively providing air under pressure from a diving tank source thereof to said audible alarm.

Based on a visual examination of the samples and review of the product description on Aquatec’s website, Scub-Alert appears to meet each limitation of claim 6 of U.S. Letters Patent No. 4,950,107: it is an apparatus for use with diving equipment which produces an audible alarm created by air pressure from a diving tank upon opening a valve by depressing an actuator. Additionally, Scub-Alert is imported by Aquatec which appears to be affiliated with Duton, one of the respondents named in the exclusion order. Consequently, the sample appears to fall within the scope of the ITC’s limited exclusion order issued in Investigation No. 337-TA-365.

HOLDING:

In conformity with the foregoing, Aquatec’s Scub-Alert may not be entered for consumption into the United States. In accordance with our finding, this office will notify all ports of entry.

Sincerely,

George Frederick McCray, Esq.
Chief, Intellectual Property Rights Branch

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