H329729

HQ H329729 December 1, 2023 OT:RR:BSTC:EOE H329729 JRW CATEGORY: 19 U.S.C. § 1337; Unfair Competition Mr. David M. Farnum Anova Law Group, PLLC 21495 Ridgetop Circle, Suite 300 Sterling, VA 20166 VIA EMAIL: david.farnum@anovalaw.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. Farnum, 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 administrative ruling in response to Zhuhai Yuancheng Digital Technology Co., Ltd.’s (“YDT”) request for an administrative ruling, dated November 14, 2022, which included Exhibits A-I (collectively, the “Ruling Request”). We find that YDT has failed to establish that the articles in question are not subject to the general exclusion order from the above-referenced investigation. 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 administration of an exclusion order issued under Section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. § 1337. This administrative ruling is the result of a request under 19 C.F.R. Part 177 and was conducted on an inter partes basis with the consent of the parties. The process involved the two parties with a direct and demonstrable interest in the question presented by the ruling request: (1) your client, YDT, the ruling requester and 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 in the underlying investigation. See, e.g., 19 C.F.R. § 177.1(c). The parties were asked to clearly identify confidential business information, including information subject to the administrative protective order from the underlying investigation, with [[red brackets]] in their submissions to the EOE Branch. See 19 C.F.R. §§ 177.2, 177.8; see also, EOE Branch Email to Parties, dated November 17, 2022. If there is additional information in this administrative ruling 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 the EOE Branch within ten (10) working days of the date of this administrative ruling. See, e.g., 19 C.F.R. Part 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. Part 177.8(a)(3). See, e.g., 19 C.F.R. Part 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. Part 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, e.g., U.S. Department of Justice, Office of Information Policy: 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, as supplemented, alleged violations of section 337 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 (“the ’460 patent”); 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 U.S. Patent No. 9,785,093 (“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 thirty-two (32) respondents, including those that participated in the investigation: 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”); Linkyo Corp. of La Puente, California (“Linkyo”); New Era (“New Era”); OW Supplies (“OW”); Theresa Meng (“Theresa”); Triple Best (“Triple”); and V4ink (“V4ink”). Id. at 2-3. The notice of investigation also named the Office of Unfair Import Investigations (“OUII”) as a party. Id. at 3. During the course of the investigation, respondents AMI, Aster, Cartridge Evolution, E-Z Ink, Globest, and Linkyo introduced certain newly designed toner cartridges as replacements for the initially accused products, and Brother stipulated that these “will not be covered by any remedial order that issues in this Investigation.” Comm’n Op. at 23-25; see also Certain Toner Cartridges, Components Thereof, and Systems Containing Same, Investigation No. 337-TA-1174, EDIS Doc. ID 716848, Initial Determination (Public) (August 10, 2020) (“ID”) at 34, unreviewed, July 23, 2020, EDIS Doc. ID 719096 (85 Fed. Reg. 56628-31, September 4, 2020); and Comm’n Op. at 27 n.14. 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, ultimately defaulted. Comm’n Op. at 3-4. As the investigation continued, the only participating respondent remaining (Aster), Brother, and OUII all 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 Certain Toner Cartridges, Components Thereof, and Systems Containing Same, Investigation No. 337-TA-1174, EDIS Doc ID 696586, Joint Notice of Disputed Claim Terms (Public) (Dec. 6, 2019) . 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. See Comm’n Op. at 4-5. Aster had not opposed Brother’s summary determination motion, even though Aster’s products were subject to the motion, and 

Whether YDT Has Carried Its Burden To Establish That The Articles At Issue Are Not Subject To The General Exclusion OrderIn H284032, CBP articulated its standard for applying the doctrine of equivalents (“DOE”) when administering Section 337 exclusion orders: CBP will not extend the doctrine of equivalents when administering an exclusion order pursuant to section 337 except in two instances. The first is where the Commission found a violation of section 337, during the underlying investigation, through infringement under the doctrine. The second is, in those cases when the Commission has found only literal infringement of the asserted patents, where a respondent identified in an exclusion order fails to show a prima facie case that the doctrine does not apply to its new or modified article under the “function-way-result” or “insubstantial differences” test based on the administrative record before CBP.CBP HQ Ruling H284032 at 26 (dated April 7, 2017) (emphasis added). For a party to establish “a prima facie case,” it is not required to reach “a conclusion on the ultimate issue.” Transocean Offshore Deepwater Drilling, Inc. v. Maersk Drilling USA, Inc., 699 F.3d 1340, 1348 (Fed. Cir. 2012); see also HQ H326593 (dated September 30, 2022). Instead, the party with such a burden must simply “present evidence ‘sufficient to establish a fact or raise a presumption [regarding the relevant issue] unless disproved or rebutted.’” Transocean at 1348. (quoting Black’s Law Dictionary (9th ed 2009)). Sufficient evidence in this context includes that which the EOE Branch may rely on to determine that no reasonable factfinder “could conclude that an element of an accused device is equivalent to an element called for in the claim, or that the theory of equivalence to support the conclusion of infringement otherwise lacks legal sufficiency.” U.S. Philips Corp. v. Iwasaki Elec. Co., 505 F.3d 1371, 1378-79 (Fed. Cir. 2007). Whether YDT Has Carried Its Burden To Show It Should Not Be Con