H330951

HQ H330951 June 30, 2023 OT:RR:BSTC:EOE H330951 WMW CATEGORY: 19 U.S.C. § 1337; Unfair Competition Mr. David A. Hickerson Foley & Lardner LLP 3000 K Street, N.W., Suite 600 Washington, DC 20007 VIA EMAIL: dhickerson@foley.com RE: Ruling Request; U.S. International Trade Commission; Limited Exclusion Order; Investigation No. 337-TA-1265; Certain Fitness Devices, Streaming Components Thereof, and Systems Containing Same Dear Mr. Hickerson: 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. We find that ICON Health & Fitness, Inc., FreeMotion Fitness, Inc., and NordicTrack Inc. (collectively, “iFIT”) has met its burden to show that certain redesigned fitness devices (“articles at issue” or “Redesign”) do not infringe one or more of claims 1, 2 and 4 of U.S. Patent No. 10,757,156 (“the ’156 patent”); claims 16, 17, and 20 of U.S. Patent No. 10,469,554 (“the ’554 patent”); or claims 10, 11, 14, and 15 of U.S. Patent No. 10,469,555 (“the ’555 patent”) (collectively, “patents at issue”). Thus, CBP’s position is that the articles at issue are not subject to the limited exclusion order issued by the U.S. International Trade Commission (“Commission” or “ITC”) in Investigation No. 337-TA-1265 (“the underlying investigation” or “the 1265 investigation”), pursuant to section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. § 1337 (“section 337”), as provided in this ruling. 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 regarding application of an exclusion order under section 337. 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, iFIT, the ruling requester and respondent in the 1265 investigation; and (2) DISH DBS Corporation, DISH Technologies, LLC, and Sling TV LLC (“collectively, “DISH”), complainant in the 1265 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, with [[red brackets]] in all of their submissions to CBP. See 19 C.F.R. §§ 177.2, 177.8. If there is information in this ruling letter not currently bracketed in red [[ ]] that either party believes constitutes confidential information that should be redacted from the published ruling, then the parties are directed 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, 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-1265 Procedural History at the ITC The Commission instituted Investigation No. 337-TA-1265 on May 19, 2021, based on a complaint filed by DISH. Certain Fitness Devices, Streaming Components Thereof, and Systems Containing Same, Inv. No. 337-TA-1265, EDIS Doc. ID 792088, Public Commission Opinion (Mar. 8, 2023) (“Comm’n Op.”) at 2 (citing 86 Fed. Reg. 27106-07 (May 19, 2021)). The complaint, as supplemented, alleged a violation of section 337 by reason of infringement of certain claims of U.S. Patent Nos. 10,951,689; 9,407,564; the ‘554 patent; the ‘555 patent; the ‘156 patent. Comm’n Op. at 2. The notice of investigation named iFIT, among other parties, as a respondent. Id. at 3. The Commission’s Office of Unfair Import Investigations was named as a party in the investigation. Comm’n Op. at 3. On September 9, 2022, the Administrative Law Judge (“ALJ”) issued a final initial determination (“FID”). Id. at 4. Specifically, the ALJ determined that a violation of section 337 occurred in the importation into the United States, the sale for importation, or the sale within the United States after importation, of the accused products that infringe claims 1 and 3-5 of the ’564 patent; claims 1, 2, 4 and 5 of the ’156 patent; and claims 16, 17, and 20 of the ’554 patent; and claims 10, 11, 14, and 15 of the ’555 patent. Id. at 5. On November 18, 2022, the Commission determined to review the FID in part and requested briefing remedy, bonding, and the public interest. Id. at 6 (citing 87 Fed. Reg. 72510-13 (November 18, 2022)). The Commission, in its review of the ID, found a violation of section 337 by iFIT with respect to claims 16, 17 and 20 of the ’554 patent; claims 10, 11, 14, and 15 of the ‘555 patent; claims 1, 2, and 4 of the ’156 patent. Id. at 33. Furthermore, the Commission determined that the appropriate remedy was a limited exclusion order and cease and desist order directed to iFIT. Id. at 93. In the limited exclusion order, the Commission ordered that “certain fitness devices, streaming components thereof, and systems containing the same (as defined in paragraph 2 below) that infringe one or more of claims 16, 17, and 20 of the ’554 patent; claims 10, 11, 14, and 15 of the ’555 patent; claims 1, 2, and 4 of the ’156 patent are excluded from entry for consumption into the United States, entry for consumption from a foreign-trade zone, or withdrawal from a warehouse for consumption, for the remaining terms of the Asserted Patents, except under license from, or with the permission of, the patent owner or as provided by law.” Certain Fitness Devices, Streaming Components Thereof, and Systems Containing Same, Inv. No. 337-TA-1265, EDIS Doc. ID 792086, Limited Exclusion Order (March 8, 2023) at 2 (“1265 LEO”). In paragraph 2, the Commission further defined the articles covered by the limited exclusion order as “fitness devices containing Internet-streaming enabled video displays that are capable of using adaptive bit-