H325119

HQ H325119 November 30, 2023 OT:RR:BSTC:EOE H325119 FKM CATEGORY: 19 U.S.C. § 1337; Unfair Competition Ms. Lisa M. Kattan BAKER BOTTS L.L.P. 700 K Street, N.W. Washington, D.C. 20001 VIA EMAIL: lisa.kattan@bakerbotts.com RE: Ruling Request; U.S. International Trade Commission; General Exclusion Order; Investigation No. 337-TA-1194; Certain High-Density Fiber Optic Equipment and Components Thereof Dear Ms. Kattan: 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. We find that Huber+Suhner AG and Huber+Suhner, Inc. (collectively, “H+S”) has met its burden to show that certain H+S products, specifically: (1) the IANOS Lite Standard Chassis (model no. IANOS-LITE-STANDARD-t4) and the [[ ]], (2) the SYLFA HD 3U Chassis (model no. SY-HD Chassis 3U) and the SYLFA HD Transition Module (part no. STS-12-LCAD-03-12CF-SM-NS-00WW), and (3) the LSIA Fiber Chassis (model no. LISA-Fiber-Chassis-L-1U-GY) and the LISA Fiber Cassette (model no. LC-L-MH-88-18-36-53-M1-04O-ML) (collectively, “the articles at issue”), do not infringe claims 1 or 3 of U.S. Patent No. 9,020,320 (“the ’320 patent”); claims 11, 12, 14-16, 19, 21, 27, or 28 of U.S. Patent No. 10,444,456 (“the ’456 patent”); claims 9, 16, 23, or 26 of U.S. Patent No. 10,120,153 (“the ’153 patent”); or claims 22 or 23 of U.S. Patent No. 8,712,206 (“the ’206 patent”). Thus, CBP’s position is that the articles at issue are not subject to the general exclusion order issued by the U.S. International Trade Commission (“Commission” or “ITC”) in Investigation No. 337-TA-1194 (“the underlying investigation” or “the 1194 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. The process involved the two parties with a direct and demonstrable interest in the question presented by the ruling request: (1) your client, H+S, the ruling requester and respondent in the 1194 investigation; and (2) Corning Optical Communications LLC (“Corning”), complainant in the 1194 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 CBP. See 19 C.F.R. §§ 177.2, 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-1194 Procedural History at the ITC The Commission instituted Investigation No. 337-TA-1194 on March 24, 2020, based on a complaint filed by Corning Optical Communications LLC of Charlotte, North Carolina. Certain High-Density Fiber Optic Equipment and Components Thereof, Inv. No. 337-TA-1194, EDIS Doc. ID 750094, Public Commission Opinion (Aug. 23, 2021) (“Comm’n Op.”) at 1 (citing 85 Fed. Reg. 16653-53 (Mar. 24, 2020)). The complaint, as supplemented, alleged a violation of section 337 by reason of infringement of certain claims of the ’153, ’206, ’320, ’456 patents and U.S. Patent No. 10,094,996 (“the ’996 patent”). Comm’n Op. at 3. The notice of investigation named H+S, among other parties, as a respondent. Id. at 3-4. The Commission’s Office of Unfair Import Investigations (“OUII”) was also named as a party in the investigation. Id. On April 29, 2020, H+S filed default notices pursuant to 19 C.F.R. § 210.16(b)(3), and on June 9, 2020, H+S was found to be in default. Comm’n Op. at 5 (citing Order Nos. 7 and 8 (June 9, 2020), unreviewed by Comm’n Notice (June 22, 2020)). On August 13, 2020, the investigation was terminated with respect to the ’996 patent due to a motion for partial termination submitted by Corning. Comm’n Op. at 5. On March 23, 2021, the presiding Administrative Law Judge (“ALJ”) issued his final initial determination (“FID”) finding a violation of section 337. Id. at 6. Specifically, the ALJ determined that a violation of section 337 occurred in the importation into the United States, the sale for importation, or the sale within the United States after importation, of the accused products due to infringement of certain claims of the ’153, ’206, ’320, and ’456 patents. Id. On May 24, 2021, the Commission issued a notice in which it determined to review in part the FID and requested submissions responding to the Commission’s questions on review and remedy, the public interest, and bonding. Id. at 7-8 (citing 86 Fed. Reg. 28890-93 (May 28, 2021). The Commission, in its review of the FID, found a violation of section 337 as to the ’153, ’206, ’320, and ’456 patents and determined that the appropriate remedy was a general exclusion order and cease and desist orders directed to various participating respondents. Id. at 97. In the general exclusion order, the Commission ordered that “high density fiber optical equipment and components thereof . . . that infringe one or more of claims 1 and 3 of the ’320 patent, claims 11, 12, 14-16, 19, 21, 27, and 28 of the ’456 patent, claims 9, 16, 23, and 26 of the ’153 patent, and claims 22 and 23 of the ’206 patent are excluded from entry for consumption into the United States, entry for consumption from a foreign-trade zone, or withdra

will focus on the only article at issue remaining in dispute between the parties, the [[]].Moreover, Corning does not contend that the [[ ]] infringes the ’206 patent and confirmed this point during the oral discussion, as well as in its subsequent submission. See, e.g., Corning Post Oral Discussion Submission at 2 (regarding “infringement of the ’206 patent, which Corning has not asserted in this proceeding.”). Thus, hereinafter, any reference to the “patents at issue” will refer only to the ’320, ’456, and ’153 patents. Finally, Corning does not argue that the [[ ]] directly infringes any of the patents at issue. Instead, it only claims that, with this product, H+S induces infringement of the patents at issue and, therefore, under Corning’s view, the redesigned module is subject to the exclusion order under a theory of indirect infringement. See, e.g., Corning Response at 12; Corning Sur-Reply at 8; Corning Post Oral Discussion Submission at 16. Corning confirmed this understanding of its position during the oral discussion. However, before turning to the question of indirect infringement, Corning argues as a preliminary matter that H+S should be precluded from importing the redesigned module merely because it constitutes “high-density fiber optic equipment” that falls within the Commission’s definition of the type of commodity the general exclusion order covers generally and without regard to whether it is an infringing article. See Corning Response at 4 (citing 1194 GEO at ¶ 2); see also Corning Sur-Reply at 2 (“The [[ ]] should be excluded because they fall within the Commission’s definition of ‘covered articles.’”). According to Corning, “the only question that [the EOE] Branch must answer – is whether the [[ ]] themselves fall within the definition of excluded products under the Commission’s Exclusion Order.” Corning Response at 4 (emphasis in original). In other words, according to Corning, “[b]ecause the Exclusion Order covers the [[ ]], there is no need fo