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HQ H325116 HQ H325117 May 27, 2022 OT:RR:BSTC:EOE H325116 FKM / H325117 JW CATEGORY: 19 U.S.C. § 1337; Unfair Competition Mr. Michael J. McKeon Fish & Richardson P.C. 1000 Maine Ave., SW Suite 1000 Washington, DC 20024 VIA EMAIL: mckeon@fr.com; Chamberlain-OHD-Customs-External@fr.com RE: Ruling Request; U.S. International Trade Commission; Limited Exclusion Order; Investigation No. 337-TA-1209; Certain Moveable Barrier Operator Systems and Components Thereof Dear Mr. McKeon: 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 ruling letter in response to Chamberlain Group, LLC’s (“Chamberlain” or “CGI”) request for an administrative ruling. We find that Chamberlain has met its burden to show that articles implementing the redesigns relating to the multi-frequency patent (“frequency redesign”) or the redesign relating to the low power consumption patents (“power consumption redesign”) (collectively, “the redesigned products”), as described in more detail below, do not infringe claims 1, 4, 16, and 19 of U.S. Patent No. 9,483,935; claims 18 and 24 of U.S. Patent No. 7,956,718; or claim 17 of U.S. Patent No. 8,410,895. Thus, CBP’s position is that these articles are not subject to the modified limited exclusion order the U.S. International Trade Commission (“ITC” or “Commission”) issued on March 30, 2022, in Investigation No. 337-TA-1209 (“the underlying investigation” or “the 1209 investigation”), pursuant to section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. § 1337 (“section 337”). We further note that determinations of the Commission resulting from the underlying investigation or 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 pertaining to section 337 exclusion orders. This ruling letter is the result of a request for an administrative ruling from CBP under 19 C.F.R. Part 177, which was conducted on an inter partes basis, upon agreement of the parties. See, e.g., EOE Branch email to Parties dated February 16, 2022. The process involved the two parties with a direct and demonstrable interest in the question presented by the ruling request: (1) your client, Chamberlain, the ruling requester and respondent in the 1209 investigation; and (2) Overhead Door Corporation and GMI Holdings Inc., (collectively, “OHD”), complainants in the 1209 investigation. See, e.g., 19 C.F.R. § 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 all of their submissions to the CBP. See, e.g., EOE Branch email to Parties dated February 16, 2022; see also 19 C.F.R. §§ 177.2 and 177.8. If there is additional information in this ruling letter 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 CBP within ten (10) working days of the date of this ruling letter. See, e.g., 19 C.F.R. § 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. § 177.8(a)(3). See, e.g., 19 C.F.R. § 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 (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. § 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 that: the information in question is customarily kept private or closely-held and either that the government provided an express or implied assurance of confidentiality when the information was shared with the government or there were no express or implied indications at the time the information was submitted that the government would publicly disclose the information. See, Food Marketing Institute v. Argus Leader Media, 139 S. Ct. 2356, 2366 (2019) (concluding that “[a]t least where commercial or financial information is both customarily and actually treated as private by its owner and provided to the government under an assurance of privacy, the information is ‘confidential’ within the meaning of exemption 4.”); see also U.S. Department of Justice, Office of Information Policy (OIP): Step-by-Step Guide for Determining if Commercial or Financial Information Obtained from a Person is Confidential Under Exemption 4 of the FOIA (updated 10/7/2019); and OIP Guidance: Exemption 4 after the Supreme Court’s Ruling in Food Marketing Institute v. Argus Leader Media (updated 10/4/2019). BACKGROUND ITC Investigation No. 337-TA-1209 Procedural History at the ITC The Commission instituted Investigation No. 337-TA-1209 on August 10, 2020, based on a complaint filed by Overhead Door Corporation and GMI Holdings Inc. Certain Moveable Barrier Operator Systems and Components Thereof, Inv. No. 337-TA-1209, EDIS Doc. ID 765192, Public Commission Opinion (March 11, 2022) (“Comm’n Op.”) at 1 (citing 85 Fed. Reg. 48264-65 (Aug. 10, 2020)). The complaint, as supplemented, alleged a violation of section 337 based on the importation into the United States, the sale for importation, and the sale within the United States after importation of certain moveable barrier operator systems and components there of that infringe one or more claims 1, 4, 16, and 19 of U.S. Patent No. 9,483,935 (“the ‘935 patent”), claims 1 and 16 of U.S. Patent No. 8,970,345 (“the ‘345 patent”), claims 1-3, 7, and 8 of U.S. Patent No. 7,180,260 (“the ‘260 patent”), claims 18 and 24 of U.S. Patent No. 7,956,718 (“the ‘718 patent”), and claim 17 of U.S. Patent No. 8,410,895 (“the ‘895 patent”) (collectively, “the patents at issue”). Comm’n Op. at 1. U.S. Patent No. 7,173,516 and claims 2 and 17 of the ‘345 patent were initially asserted in this investigation but ultimately were terminated based on the withdrawal of the allegations in the complaint as to the former and withdrawal of the allegations as to those claims regarding the latter. Id. at 1, fn. 1 (citations omitted). The notice of investigation named Chamberlain as the respondent in this investigation. Id. at 1. The Commission’s Office of Unfair Import Investigations was not a party to the investigation. Id. On September 14, 2021, the Administrative Law Judge (“ALJ”) issued the final initial determination (“FID”) finding a violation of section 337 based on infringement by Chamberlain of the asserted claims of the patents at issue. Comm’n Op. at 1. Specifically, the FID found that (1) the asserted claims of the patents at issue were all infringed by Chamberlain’s accused products and redesigned products; (2) the domestic industry products practiced the asserted claims of the patents at issue; and (2) the asserted claims of the patents at issue are not invalid under 35 U.S.C. §§ 101, 102, or 103. Id. at 1-2. The ALJ’s recommended determination (“RD”) recommended that should the Commission affirm and find a violation of section 337, the Commission should issue (1) a limited exclusion order (“LEO”) against certain moveable barrier operator systems and components thereof that are imported into the United States, sold for importation, and sold within the United States after importation by or on behalf of Chamberlain, and (2) a cease and desist order against Chamberlain. Id. at 2. The ALJ al

of the frequency redesign centers on claim 1 of the ‘935 patent, and more specifically, the claim limitations emphasized in bold and italicized below:1. A remote controlled barrier opening system, comprising:a transmitter configured to:(a) switch an output frequency to different channels, the switching being performed at a transmitter-switching rate, and(b) on each of the channels, transmit multiple copies of a message;a receiver configured to:(a) switch a reception frequency to the different channels at a receiver scan rate that is different from the transmitter-switching rate, and(b) on each of the channels, receive data for a period of time greater than a transmission time of one copy of the message; anda barrier operator configured to operate a device at least in part in response to receipt of a copy of the message on any of the different channels.See, the ‘935 Patent, col. 11: lns. 6-24 (emphasis added); Ruling Request at 5; OHD Response at 48. For at least the reasons below, we find that Chamberlain has met its burden to show that the frequency redesign does not infringe claim 1 of the ‘935 patent as at least the claim limitations emphasized above are not met.Infringement Analysis As an initial matter, we note that “in every infringement analysis, the language of the claims, as well as the nature of the accused product, dictates whether an infringement has occurred.” Fantasy Sports Props. v. Sportsline.com, Inc., 287 F.3d 1108, 1118 (Fed. Cir. 2002). Thus, we start with the claim language, and as OHD states, claim 1 recites an apparatus with a transmitter and receiver “configured to” perform certain functions. OHD Response at 52. Further, there is no real disagreement between the parties that, in light of the “configured to” language at issue, claim 1 recites capability. See e.g., OHD Response at 52 (citing Finjan, 626 F.3d 1197, 1204 (Fed. Cir. 2010)); Chamberlain Reply at 4. Turning to the products that implement the frequency redesign, we note that the pa