H325435

HQ H325435 November 30, 2023 OT:RR:BSTC:EOE H325435 ACC CATEGORY: 19 U.S.C. § 1337; Unfair Competition Steven E. Adkins Barnes & Thornburg LLP 1717 Pennsylvania Avenue, N.W., Suite 500 Washington, D.C. 20006-4623 U.S.A. VIA EMAIL: sadkins@btlaw.com Print-Rite1174@btlaw.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. Adkins: 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 20, 2022, on behalf of Union Technology International (Macao Commercial Offshore) Co. Ltd. and Print-Rite Unicorn Image Products Co. Ltd. (collectively, “Print-Rite”) for a ruling with respect to the above-referenced matter. We find that Print-Rite has not met its burden to show that the TN221/TN225 (RW3), TN223/TN227 (RW3), or TN730/TN760/TN770 (RW3) cartridges (collectively, “articles at issue ”) do not infringe claim 1 of U.S. Patent No. 9,785,093 (“the ’093 patent”). Thus, CBP’s position is that the articles at issue are subject to the general exclusion order (“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, as amended, 19 U.S.C. § 1337 (“section 337”) (“1174 GEO”). We further note that determinations of the Commission resulting from the underlying investigation and 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, Print-Rite, 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. § 177.1. The parties were asked to clearly identify confidential business information, including information subject to the administrative protective order in the underlying investigation, in all of 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 business 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-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; 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: AMI Brothers, Inc. of San Bruno, California (“AMI”); 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”); Globest Trading Inc. of Ontario, California (“Globest”); Intercon International Corp. of Brea, California (“Intercon”); and Linkyo Corp. of La Puente, California (“Linkyo”). Id. at 2-3. The notice of investigation also named the Office of Unfair Import Investigations (“OUII”) as a party. Id. at 3. All eight participating respondents, Brother, and OUII 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). 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, defaulted. Comm’n Op. at 3-4. 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. Id. 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. See Certain Toner Cartridges Components Thereof, and Systems Containing Same, Inv. No. 337-TA-1174, Initial Deter

of the ’093 patent. The abstract of the ’093 patent describes a cartridge where:In a developing cartridge, a first supporting member is attached to a housing and has a first developing supporting portion and a driving-force-receiving-member supporting portion. The first developing supporting portion is configured to rotatably support a first part of a rotational shaft and the driving-force-receiving-member supporting portion is configured to rotatably support a driving-force-receiving member. The second supporting member is attached to the housing and has a second developing supporting portion and a detection-rotational-body supporting portion. The second developing supporting portion is configured to rotatably support a second part of the rotational shaft and the detection-rotational-body supporting portion is configured to rotatably support a detection rotational body.’093 patent, abstract. Claim 1 is the only independent claim of the ’093 patent. The text of claim 1 is reproduced below with emphasis on the relevant limitations for purposes of this ruling request: [1 pre] A developing cartridge comprising:[1a] a developing roller rotatable about a first axis extending in a direction, the developing roller including a developing roller shaft extending in the direction, the developing roller shaft having a first end portion and a second end portion separated from the first end portion in the direction;[1b] a housing configured to accommodate developing material therein the housing having a first outer surface and a second outer surface separated from the first outer surface in the direction;[1c] a bearing through which the first end portion is inserted, the bearing being positioned to the first outer surface;[1d] a first shaft extending in the direction, the first shaft being positioned at an opposite side of the first outer surface relative to the bearing;[1e] a coupling rotatable about the first shaft;[1f] a second shaft extending in the direction, the second shaf