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HQ 475680





June 15, 2004

ENF 4-02 RR:IT:IP 475680 PBP

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

James J. Rea, President
Immediate Customs Service
148-05 175th Street
Jamaica, New York 11434

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

Dear Mr. Rea:

This is in response to your letter dated March 8, 2004, on behalf of Customcraft Industries of Syosset, New York, in which you request a ruling as to whether a certain “PMC Flash” camera preloaded with 35-mm film is excluded from entry into the United States.

This ruling letter reflects the opinion of U.S. 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 by the letters “PMC” on a cardboard sleeve enveloping the camera 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 series of ramps that project from the shell and mate with ramps that project from the front cover, and a rear cover affixed to the front cover by means of a hinge assembly molded into the two covers. The front cover is secured to the rear cover opposite the hinge assembly 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 on a spool. When a photograph is taken, film winds from this spool into an OEM-type 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 canister of unexposed film may be reloaded into the camera under ordinary light conditions and wound onto the unexposed film roll spool by means of a crank affixed to the unexposed film roll spool assembly and which extends through the base of the light-tight film casing.

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 on a film roll spool 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 assembly and a 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 film roll spool into an OEM type canister (patrone), and shutter and shutter operating mechanism. A roll of (unexposed) film is wound onto a spool in a film-receiving chamber, located opposite an exposed film-receiving canister (patrone). When a photograph is taken, the film winds from the spool 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 15 of U.S. Letters Patent No. 4,884,087 (the ‘087 patent) recites:

[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 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 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.

Visual examination of the sample camera establishes that it features a film winding spool on one side of an opening in the camera through which an exposure may be made, and a rotatable spool located on the opposite said of this opening. Visual examination further establishes that an unexposed film roll is wound around the rotatable spool, one end of said spool which extends through the base of the camera, and the opposite end of the unexposed film roll is attached to the film winding spool located on the opposite side of the light-tight film casing. Therefore the sample camera appears to fall within the scope of claim 15 of the '087 patent.

HOLDING:

In conformity with the foregoing, because the sample camera appears to have a construction which meets all of the limitations of claim 15 of U.S. Letters Patent No. 4,884,087, 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. Customcraft Industries Inc.’s “PMC Flash” camera is therefore excluded from entry for consumption into the United States.

Sincerely,


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