H320288

HQ H320288 March 29, 2022 OT:RR:BSTC:EOE H320288 WMW CATEGORY: 19 U.S.C. § 1337; Unfair Competition Mr. Gary M. Hnath Mayer Brown LLP 1999 K Street NW Washington, D.C. 20006-1101 VIA EMAIL: ghnath@mayerbrown.com Mito.177Request@mayerbrown.com RE: Ruling Request; U.S. International Trade Commission; General Exclusion Order; Investigation No. 337-TA-1174; Certain Toner Cartridges, Components Thereof, and Systems Containing Same Dear Mr. Hnath: Pursuant to 19 C.F.R. Part 177, the Exclusion Order Enforcement Branch (“EOE Branch”), Regulations and Rulings, U.S. Customs and Border Protection (“CBP”) issues this administrative ruling. We find that Mito Color Imaging, Co., Ltd. (“Mito”) has met its burden to show that the TN221, TN223, TN225, and TN227 model toner cartridges (“subject cartridges”), as identified and described in Mito’s ruling request of August 23, 2021, do not infringe claims 1-5, 10, or 12-15 of U.S. Patent No. 9,785,093 (“the ‘093 patent”). Accordingly, CBP’s position is that these cartridges are not subject to the general exclusion order (“1174 GEO”) issued by the U.S. International Trade Commission (“ITC” or “Commission”) in Investigation No. 337-TA-1174, Certain Toner Cartridges, Components Thereof, and Systems Containing Same (“the underlying investigation” or “the 1174 investigation”), pursuant to section 337 of the Tariff Act of 1930 (“section 337”), as amended, 19 U.S.C. § 1337. We further note that determinations of the Commission resulting from a related proceeding under 19 C.F.R. Part 210 are binding authority on CBP and, in the case of conflict, will by operation of law modify or revoke any contrary CBP ruling or decision related to section 337 exclusion orders. This administrative ruling is the result of a request under 19 C.F.R. Part 177 and was conducted on an inter partes basis with the consent of the parties. The process involved the two parties with a direct and demonstrable interest in the question presented by the ruling request: (1) your client, Mito, the foreign manufacturer of the articles in question, and (2) Brother Industries, Ltd.; Brother International Corporation (U.S.A.); and Brother Industries (U.S.A.), Inc. (collectively, “Brother”), the complainant and patent owner in the underlying investigation. See, e.g., 19 C.F.R. Part 177.1(c). The parties were asked to clearly identify confidential information, including information subject to the administrative protective order in the underlying investigation, with [[red brackets]] in their submissions to CBP. See, e.g., EOE Branch Email to Parties (dated September 10, 2021). If there is additional information in this administrative ruling not currently bracketed in red [[ ]] that either party believes constitutes confidential information, and should be redacted from the published ruling, then the parties are asked to contact the EOE Branch within ten (10) working days of the date of this administrative ruling. See, e.g., 19 C.F.R. Part 177.8(a)(3). Please note that disclosure of information related to administrative rulings under 19 C.F.R. Part 177 is governed by, for example, 6 C.F.R. Part 5, 31 C.F.R. Part 1, 19 C.F.R. Part 103, and 19 C.F.R. Part 177.8(a)(3). See, e.g., 19 C.F.R. Part 177.10(a). In addition, CBP is guided by the laws relating to confidentiality and disclosure, such as the Freedom of Information Act (“FOIA”), as amended (5 U.S.C. § 552), the Trade Secrets Act (“TSA”) (18 U.S.C. § 1905), and the Privacy Act of 1974, as amended (5 U.S.C. § 552a). A request for confidential treatment of information submitted in connection with a ruling requested under 19 C.F.R. Part 177 faces a strong presumption in favor of disclosure. See, e.g., 19 C.F.R. Part 177.8(a)(3). The person seeking this treatment must overcome that presumption with a request that is appropriately tailored and supported by evidence establishing first that the submitter customarily keeps the information private or closely-held, and either (a) the government provided an express or implied assurance of confidentiality when the information was shared with the government or (b) there were no express or implied indications at the time the information was submitted that the government would publicly disclose the information. See, e.g., OIP Guidance: Step-by-Step Guide for Determining if Commercial or Financial Information Obtained from a Person is Confidential Under Exemption 4 of the FOIA (posted 10/3/2019). BACKGROUND ITC Investigation No. 337-TA-1174 The Commission instituted Investigation No. 337-TA-1174 on September 3, 2019, based on a complaint filed by Brother. Certain Toner Cartridges, Components Thereof, and Systems Containing Same, Investigation No. 337-TA-1174, EDIS Doc. ID 728235, Commission Opinion (Public) (December 17, 2020) (“Comm’n Op.”) at 2 (citing 84 Fed. Reg. 49762-63 (Sept. 23, 2019)). The complaint alleged violations of section 337 based upon the importation into the United States, the sale for importation, and the sale within the United States after importation of certain toner cartridges, components thereof, and systems containing same by reason of infringement of claims 1-7 and 9 of U.S. Patent No. 9,568,856 (“the ’856 patent”); claims 1, 7-11, 15, and 16 of U.S. Patent No. 9,575,460 (“the ’460 patent”); claims 1, 4, 5, and 9 of U.S. Patent No. 9,632,456 (“the ’456 patent”); claims 1-5, 10, and 12-15 of the ’093 patent; and claims 1, 3, 5, 7-12, and 18 of U.S. Patent No. 9,846,387 (“the ’387 patent”). Id. The Commission’s notice of investigation named 32 respondents, including those that participated in the investigation: Aster Graphics, Inc. of Riverside, California (“Aster”); Cartridge Evolution, Inc. of Brooklyn, New York (“Cartridge Evolution”); E-Z Ink Inc. of Brooklyn, New York (“E-Z Ink”); Linkyo Corp. of La Puente, California (“Linkyo”); New Era (“New Era”); OW Supplies (“OW”); Theresa Meng (“Theresa”); Triple Best (“Triple”); and V4ink (“V4ink”). Id. at 2-3. The notice of investigation also named the Office of Unfair Import Investigations (“OUII”) as a party. Id. at 3. Mito was not named as a respondent in the underlying investigation. During the course of the investigation, respondents AMI, Aster, Cartridge Evolution, E-Z Ink, Globest, and Linkyo introduced certain newly designed toner cartridges as replacements for the initially accused products, and Brother stipulated that these “will not be covered by any remedial order that issues in this Investigation.” Comm’n Op. at 23-25; see also Certain Toner Cartridges, Components Thereof, and Systems Containing Same, Investigation No. 337-TA-1174, EDIS Doc. ID 716848, Initial Determination (Public) (August 10, 2020) (“ID”) at 34, unreviewed, July 23, 2020, EDIS Doc. ID 719096 (85 Fed. Reg. 56628-31, September 4, 2020); and Comm’n Op. at 27 n.14. Cartridge Evolution, E-Z Ink, Linkyo, and others were terminated from the investigation by consent orders. Comm’n Op. at 3. AMI, Globest, and Intercon, among others, ultimately defaulted. Comm’n Op. at 3-4. As the investigation continued, the only participating respondent remaining (Aster), Brother, and OUII all agreed that, for purposes of the accused products in the investigation, no claim terms in the asserted patents required a construction beyond their plain and ordinary meaning. See Joint Notice of Disputed Claim Terms (Dec. 6, 2019) (EDIS Doc ID 696586). On July 23, 2020, the presiding administrative law judge (“ALJ”) issued an initial determination (Order No. 40), granting Brother’s motion for summary determination, finding a violation by Aster and the defaulting respondents, and finding that the accused products practiced the asserted claims. See Comm’n Op. at 4-5. Aster had not opposed Brother’s summary determination motion, even though Aster’s products were subject to the motion, and OUII filed briefing in support of the motion. Id. at 3-5. In finding infringement, the ALJ had considered three groups of representative products identified by Brother’s experts. ID 

regarding the construction of this claim term. Mito states that a “‘gear’ in view of the ‘093 patent’s specification … [means] ‘a wheel-like component that itself transfers rotary motion.’” Mito Post-Discussion Submission at 2. As additional support for this meaning, Mito points to “the claim language itself and the specification” for the proposition that “gears transfer rotary motion from one rotating component to another.” Id. at 10. Brother responds by noting “that a device that translates rotational movement into linear movement also may be considered a gear.” Brother’s Post-Hearing Brief at 6. To support its contention, Brother points to various types of gears, such as worm gears and rack and pinion gears, as examples in the field that show the ability of gears to “convert rotary motion to linear motion.” Id. at 7. While Brother does not provide an express construction for this limitation from the ’093 patent, to further define its plain and ordinary interpretation, it looks to “those sources available to the public that show what a person of skill in the art would have understood disputed claim language to mean,” including “extrinsic evidence concerning relevant scientific principles, the meaning of technical terms, and the state of the art.” Id. at 8.Both parties appear to urge the plain and ordinary meaning of this claim term without an express construction. As such, the EOE Branch looks to Federal Circuit case law for guidance. “The words of a claim are generally given their ordinary and customary meaning as understood by a person of ordinary skill in the art when read in the context of the specification and prosecution history.” Blackbird Tech LLC v. ELB Elecs., Inc., 895 F.3d 1374, 1377 (Fed. Cir. 2018) (citing Thorner v. Sony Comput. Entm’t Am. LLC, 669 F.3d 1362, 1365 (Fed. Cir. 2012). “To begin with, the context in which a term is used in the asserted claim can be highly instructive.” Phillips, 415 F.3d at 1314. The Federal Circuit, in addition, has “o