H328080

HQ H328080 February 13, 2023 OT:RR:BSTC:EOE H328080 JW CATEGORY: 19 U.S.C. § 1337; Unfair Competition Ms. Shanshan “Shannon” Liang Liang + Mooney PLLC 2104 Delta Way, Suite #1 Tallahassee, FL 32303-4236 VIA EMAIL: sliang@customscourt.com; nmooney@customscourt.com RE: Ruling Request; U.S. International Trade Commission; General Exclusion Order; Investigation No. 337-TA-739; Certain Ground Fault Circuit Interrupters and Products Containing Same Dear Ms. Liang: 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 Wenzhou Fahint Electric Co., Ltd.’s (“Fahint”) request for an administrative ruling, dated November 3, 2022, which included Exhibit Nos. 1 to 5 (collectively, “Ruling Request”). Fahint is requesting a ruling as to whether certain of its ground fault circuit interrupters (“GFCIs”) are subject to the general exclusion order (“GEO”) issued in U.S. International Trade Commission (“ITC” or “Commission”) Investigation No. 337-TA-739 (“the underlying investigation” or “the 739 investigation”). See Ruling Request at 1. We find that Fahint has not met its burden to show that these GFCIs do not infringe claims 4, 6, 10, 35-37, 39, and 41-46 of U.S. Patent No. 7,737,809. Thus, CBP’s position is that these GFCIs are subject to the GEO issued in the 739 investigation (“the 739 GEO”), 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 with agreement of the parties. See, e.g., EOE Branch Email to Parties, dated November 10, 2022. The proceeding involved the two parties with a direct and demonstrable interest in the question presented by the ruling request: (1) your client, Fahint, the ruling requester and manufacturer of the articles at issue; and (2) Leviton Manufacturing Co. (“Leviton”), complainant in the 739 investigation. See, e.g., 19 C.F.R. § 177.1(c). The parties were asked to clearly identify confidential information with [[red brackets]] in all of their submissions to CBP. See, e.g., EOE Branch Email to Parties, dated November 10, 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). I. BACKGROUND ITC Investigation No. 337-TA-739 The Commission instituted this investigation on October 8, 2010, based on a complaint and an amended complaint filed by Leviton. See Certain Ground Fault Circuit Interrupters and Products Containing Same, Investigation No. 337-TA-739, Commission Opinion (Public), EDIS Doc. No. 482482, at 1 (June 8, 2012) (“Comm’n Op.”) (citing 75 Fed. Reg. 62420 (Oct. 8, 2010)). The complaint, as amended, alleged a violation of section 337 of the Tariff Act of 1930 (19 U.S.C. § 1337) by reason of infringement of various claims of U.S. Patent Nos. 7,463,124 (“the ‘124 patent”); 7,737,809 (“the ’809 patent”); and 7,764,151 (“the ‘151 patent”). Id. The Commission’s notice of investigation named multiple respondents, and during the course of the investigation several of the respondents were found to be in default, or were terminated due to settlement agreements, or consent orders, or were the subject of withdrawn allegations. Id. The seven non-defaulting respondents that remained in the investigation may be categorized into two groups: (1) the “Trimone Respondents,” which consist of Zhejiang Trimone Electric Science & Technology Co. Ltd., of Zhejiang, China (“Trimone”); Fujian Hongan Electric Co, Ltd., of Fujian, China (“Hongan”); and TDE, Inc., of Bellevue, Washington (“TDE”); and (2) the “ELE Respondents,” which consist of Shanghai ELE Manufacturing Corp., of Shanghai China (“ELE”); Orbit Industries, Inc., of Los Angeles, California (“Orbit”); American Electric Depot Inc., of Fresh Meadows, New York (“AED”); and Shanghai Jia AO Electrical Co. of Shanghai, China (“Shanghai Jia”). Id. at 2-3. The Trimone Respondents participated in an evidentiary hearing held before the presiding Administrative Law Judge (“ALJ”) from July 25 to August 2, 2011. Id. at 3. The ALJ excluded the ELE Respondents from participating in the hearing because they failed to file a timely prehearing statement. Id. (citation omitted). On December 20, 2011, the ALJ issued his final initial determination (“FID”), finding that the asserted patents were infringed by the accused GFCI products. Comm’n Op. at 3. The ALJ also found, however, that complainant Leviton had not sufficiently shown that a domestic industry exists with respect to the three asserted patents. Id. Accordingly, while the products sold by the respondents infringed the claims of the patents above, the ALJ found no violation of section 337 by the seven respondents remaining in the investigation. Id. On June 8, 2012, the Commission reversed the ALJ’s FID and found a violation of 19 U.S.C. § 1337. Comm’n Op. at 95. However, the Commission did not find infringement of the ‘124 patent or the ‘151 patent, but only the ‘809 patent. Id. The Commission found that Leviton had sufficiently shown that a domestic industry exists with respect to the ‘809 patent. Id. Accordingly, the Commission issued a GEO prohibiting the unlicensed entry for consumption of GFCI’s that are covered by one or more of 

We find that Fahint has not met its burden to show that the articles at issue do not infringe claim 35 of the ‘809 patent. Thus, CBP’s position is that the articles at issue are subject to the 739 GEO. The decision is limited to the specific facts set forth herein. If articles differ in any material way from the articles at issue described above, or if future importations vary from the facts stipulated to herein, this decision shall not be binding on CBP as provided for in 19 C.F.R. §§ 177.2(b)(1), (2), (4), and 177.9(b)(1) and (2).Sincerely, Dax Terrill Chief, Exclusion Order Enforcement BranchCC: Mr. Meir Y. Blonder Leviton Manufacturing Co., Inc.201 North Service Road.Melville, NY 11747 mblonder@leviton.com; cbuttitta@leviton.com