H325434

HQ H325434 September 30, 2022 OT:RR:BSTC:EOE H325434 WMW CATEGORY: 19 U.S.C. § 1337; Unfair Competition Mr. David Lowe Lowe Graham Jones PLLC 1325 Fourth Avenue Suite 1130 Seattle, WA 98101 VIA EMAIL: Lowe@LoweGrahamJones.com; GMG-CBP-177@devlinlawfirm.com RE: Ruling Request; U.S. International Trade Commission; Limited Exclusion Order; Investigation No. 337-TA-1237; Certain Cloud-Connected Wood Pellet Grills and Components Thereof Dear Mr. Lowe: 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 your request, dated May 16, 2022, with Exhibits A-J (collectively, “GMG Ruling Request”), on behalf of GMG Products, LLC (“GMG”) for an inter partes proceeding regarding the above-referenced matter. We find that GMG has met its burden to show that a Cloud Control Variant (“CCV”) and Local Control Variant (“LCV”) grill systems (collectively “the articles at issue”) are not covered by claims 1 or 2 of U.S. Patent No. 10,158,720 (“the ’720 Patent”). Thus, CBP’s position is that the articles at issue are not subject to the limited exclusion order (“LEO”), dated May 12, 2022, that the U.S. International Trade Commission (“Commission” or “ITC”) issued in Investigation No. 337-TA-1237 (“the underlying investigation” or the “the 1237 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, GMG, the ruling requester and respondent in the 1237 investigation; and (2) Traeger Pellet Grills, LLC (“Traeger”), complainant in the 1237 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, in their submissions to the CBP. See 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, 588 U. S. , , 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-1237 Procedural History at the ITC The Commission instituted this investigation on January 4, 2021, based on a complaint filed on behalf of Traeger. 86 Fed. Reg. 129-30 (Jan. 4, 2021); see also Comm’n Op. at 1. The Commission Opinion notes the following regarding the underlying investigation: The complaint, as supplemented, alleged violations of section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, based upon the importation into the United States, the sale for importation, and the sale within the United States after importation of certain cloud-connected wood-pellet grills and components thereof by reason of infringement of, inter alia, certain claims of the ’720 patent and U.S. Patent No. 10,218,833 (“the ’833 patent”). The Commission’s notice of investigation named GMG as the sole respondent. The Office of Unfair Import Investigations did not participate in the investigation. On July 28, 2021, the former CALJ issued a Markman Order (Order No. 22) construing claim limitations in dispute. On September 9, 2021, the Commission found that Traeger has satisfied the economic prong of the domestic industry (“DI”) requirement with respect to the ’833 and ’720 patents. See Order No. 26 (Aug. 10, 2021), unreviewed by Comm’n Notice (Sept. 9, 2021). On October 28, 2021, the Commission affirmed, with supplemental reasoning, the former CALJ’s initial determination granting in part GMG’s motion for summary determination of non-infringement of the ’833 patent and terminated that patent from the investigation. See Order No. 28 (Sept. 3, 2021), aff’d, with supplemental reasoning, by Comm’n Notice (Oct. 28, 2021). On December 6, 2021, the former CALJ issued the final ID finding a violation of section 337 as to claims 1 and 2 of the ’720 patent. The ID also includes the former CALJ’s recommended determination (“RD”), which recommended, should the Commission find a violation, the issuance of an LEO directed to GMG’s infringing products and a CDO directed to GMG and a requirement to post a bond in the amount of 53.1 percent of the entered value of infringing articles imported during the period of Presidential review. The Commission received no submissions from the public in response to its Federal Register notice requesting comments on the public interest should the Commission find a violation of section 337. 86 Fed. Reg. 70860-61 (Dec. 13, 2021). Traeger and GMG did not submit any public interest comments pursuant to Commission Rule 210.50(a)(4) (19 C.F.R. § 210.50(a)(4)). On March 8, 2022, the Commission determined not to review the final ID. See 87 Fed. Reg. 14288-89. In the same notice, the Commission also requested written submissions from the parties, interested government agencies, and other interested persons on the issues of remedy, the public interest, and bonding. Id. On March 22, 2022, Traeger and GMG each filed a brief on remedy, the public interest, and bonding. On March 29, 2022, the parties filed reply briefs.3 The Commission received no other submissions. As noted above, the Commission previously adopted the final

of a representative grill, the GMG Daniel Boone Prime grill. CX-0838C (Shoemake DWS) at Q/A 90-92.
CDX-0002C.0018. GMG does not dispute that the Daniel Boone Prime grill is representative of the Accused Products for the purposes of infringement, and GMG’s non-infringement arguments are directed to the operation of the “GMG System” for all Accused Products. RIB at 14-33; RRB at 5-24.The “GMG System” includes (1) a mobile GMG App (Android or iOS), (2) an API Server (sometimes also referred to as the “Parse server”), (3) a database, (4) a Grill Server, and (5) a GMG Grill having a grill controller. RIB at 8-9. The Accused Products connect to the GMG System through a “provisioning” process that initiates connections between each part of the GMG System. RIB at 8-9; see CX-0838C (Shoemaker DWS) at Q/A 112.[XXXXX]CX-0466C.0002. After the connections are initiated, communications can be sent between the GMG App on a mobile device and the GMG Grill via the API Server and Grill Server. RIB at 9-11; see CX-0838C (Shoemaker DWS) at Q/A 112.[XXXXX]CX-0466C.0004. This mode of operation is referenced in GMG’s documents as the “Server Mode.”
CX-0283C.0003. Traeger’s expert, Dr. Shoemake, analyzed certain source code for the GMG App and the GMG Server (including the API Server and Grill Server). See, e.g., CX-0838C (Shoemake DWS) at Q/A 96 (describing API Server and Grill Server source code), Q/A 102 (describing GMG App source code).(FID at 18-21.) In line with the above, Traeger based its infringement allegations for the legacy products on their use of the GMG System. (FID at 21.) Claim 1 of the ’720 Patent generally “is directed to a ‘cloud computing platform.’” (FID at 21; see also FID at 22.) The ALJ found “based on the evidence identified by Traeger and in consideration of the testimony of Dr. Shoemake and Mr. Williams,” that: [T]he GMG Server is a “cloud computing platform” according to the agreed construction for this term. The evidence shows that the GMG Server [XXXXX] There