H328569

HQ H328569 November 28, 2022 OT:RR:BSTC:EOE H328569 WMW CATEGORY: 19 U.S.C. § 1337; Unfair Competition Amol Parikh, Esq. McDermott Will & Emery LLP 444 West Lake Street Suite 4000 Chicago, IL 60606-0029 VIA EMAIL: amparikh@mwe.com traegerITC@mwe.com RE: Reconsideration of CBP Headquarters Ruling Letter HQ H325434; U.S. International Trade Commission; Limited Exclusion Order; Investigation No. 337-TA-1237; Certain Cloud-Connected Wood Pellet Grills and Components Thereof Dear Mr. Parikh: This is in response to your request for reconsideration, submitted on behalf of Traeger Pellet Grills LLC (“Traeger”), of Headquarters Ruling Letter (“HQ”) H325434, issued by the Exclusion Order Enforcement Branch, Regulations and Rulings, Office of Trade, U.S. Customs and Border Protection (“CBP”) on September 30, 2022. That ruling determined that certain Cloud Control Variant (“CCV”) and the Local Control Variant (“LCV”) grill systems manufactured and imported by or on behalf of GMG Products, LLC (“GMG”) are not subject to the limited exclusion order issued by the U.S. International Trade Commission (“Commission” or “ITC”) in the above-referenced investigation under Section 337 of the Tariff Act of 1930 (19 U.S.C. § 1337) (“Section 337”). Traeger has requested reconsideration of that ruling with respect to the CCV grill system (“articles at issue”). In addressing that request for reconsideration, we have taken into consideration your submissions, dated October 11, 2022, and November 9, 2022, as well as the submission provided by GMG on November 2, 2022, and the prior administrative record in connection with HQ H325434. As described in more detail below, Traeger raises two primary issues for reconsideration: (1) whether HQ H325434 contradicted certain Commission findings from the underlying investigation that resulted in the issuance of the exclusion order and (2) whether the CCV grill system is subject to the exclusion order under the doctrine of equivalents, as applied by CBP when administering a remedial order under Section 337. BACKGROUND ITC Investigation No. 337-TA-1237 Procedural History at the ITC As noted in HQ H325434, 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 ID’s finding of a violation of section 337 as to the ’720 patent. See 87 Fed. Reg. 14288-89. For the reasons set forth below, the Commission has determined that the appropriate relief is an LEO directed to GMG’s infringing products and a CDO directed against GMG. (Comm’n Op. at 1-3.) The Patent and Claims in the 1237 LEO The 1237 LEO prohibits entry for consumption of “cloud-connected wood-pellet grills and cloud-connected wood-pellet grill controllers” that infringe one or more of claims 1-2 of U.S. Patent No. 10,158,720 and that are manufactured abroad by or on behalf of, or imported by or on behalf of, Respondent or any of its affiliated companies, parents, subsidiaries, agents, or other related business entities, or their successors or assigns. (See 1237 LEO ¶¶ 1 and 2.) The ’720 patent is entitled “Cloud System for Controlling Outdoor Grill with Mobile Application.” (GMG Ruling Request, Exhibit A.) Claim 1 is an independent claim for a “cloud computing platform.” (FID at 8; see also Claim Construction Order at 25.) 1. A cloud computing platform for communicating with and controlling operation of an electronically-controlled appliance comprising an outdoor barbecue grill or outdoor barbecue smoker, the cloud computing platform having at least one hardware processor, the cloud computing platform comprising: a receiver configured to receive inputs from one or more computing systems including at least a first input indicating that an electronically-controlled appliance is in network communication with the cloud computing platform, the electronically-controlled appliance comprising an outdoor barbecue grill or outdoor barbecue smoker; a notification generator configured to generate notifications that are to be sent to one or more software applications being executed at a mobile device, the one or more software applications being configured to control one or more functions of the electronically-controlled appliance; a transmitter configured to send at least one generated notification to at least one of the software applications selected from the one or more software applications, the generated notification indicating that the cloud computing platform is communicably connected to the electronically-controlled appliance; the receiver receiving a second input from the at least one software application indicating that one or more specified functions are to be performed on the electronically-controlled appliance; and the transmitter sending one or more instructions to the electronically-controlled appliance to perform the one or more specified functions, the functions being interpreted and carried out by a hardware controller on the electronically-controlled appliance. ’720 patent at 15:36-16:2. (FID at 8.) The ’720 Patent Specification As set forth in the F

throughout the initial ruling and this reconsideration ruling, it is difficult to see how this difference should be properly considered as insubstantial. In any case, the difference is substantial enough that, for CBP’s administration of the exclusion order, it qualifies as a prima facia case of noninfringement such that CBP will not extend the doctrine of equivalents on this basis. Lastly, Traeger argues that “GMG’s vitiation argument also is not legally credible” because “the GMG System as a whole still performs the same function (generating and sending a notification to the app indicating the grill’s connectivity) to achieve the same result [XXXXX], and the end user notices no difference at all.” Traeger Reply at 12 (emphasis in the original). However, as the Supreme Court noted in Warner-Jenkinson, “[e]ach element contained in a patent claim is deemed material to defining the scope of the patented invention, and thus the doctrine of equivalents must be applied to individual elements of the claim, not to the invention as a whole. It is important to ensure that the application of the doctrine, even as to an individual element, is not allowed such broad play as to effectively eliminate that element in its entirety.” Warner-Jenkinson Co. v. Hilton Davis Chem. Co., 520 U.S. 17, 29 (1997) (emphasis added). As such, “[t]he determination of equivalence should be applied as an objective inquiry on an element-by-element basis.” Id. at 40. It is the individual features of the CCV grill system that must be compared with the claim limitations on an element-by-element basis to determine if each of those claim limitations read onto the articles at issue, literally or under the doctrine of equivalents. With GMG’s modifications to the CCV grill system that are at issue in the initial ruling and this reconsideration ruling, it has established a prima facia case that extending the doctrine of equivalents in this matter, where the claimed “generation” is lacking, could result in vi