H334472

HQ H334472 December 20, 2023 OT:RR:BSTC:EOE H334472 FKM CATEGORY: 19 U.S.C. § 1337; Unfair Competition Mr. Elliott J. Williams Stoel Rives LLP 760 SW Ninth Avenue, Suite 3000 Portland, OR 97205 VIA EMAIL: elliott.williams@stoel.com RE: Ruling Request; U.S. International Trade Commission; General Exclusion Order; Investigation No. 337-TA-1124; Certain Powered Cover Plates Dear Mr. Williams: 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 American Tack and Hardware, Inc. (“AmerTac”) has not met its burden to show that certain products accused by SnapRays, LLC d/b/a SnapPower (“SnapPower”) -- specifically (i) the Lumicover Nightlight Wallplate, (ii) the Lumicover Power Failure Light, (iii) the Lumicover USB Charger Wallplate, (iv) the GloCover Nightlight Wallplate, and (v) the GloCover Motion Activated Light (collectively, “the articles at issue”) -- do not infringe claim 13 of U.S. Patent No. 9,871,324 (“the ’324 patent”) or claims 1, 2, and 3 of U.S. Patent No. 9,917,430 (“the ’430 patent”). Thus, CBP’s position is that the articles at issue are subject to the general exclusion order issued by the U.S. International Trade Commission (“Commission” or “ITC”) in Investigation No. 337-TA-1124 (“the underlying investigation” or “the 1124 investigation”), 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. The process involved the two parties with a direct and demonstrable interest in the question presented by the ruling request: (1) your client, SnapPower, the ruling requester, complainant, and patent owner in the 1124 investigation; and (2) AmerTac, the importer of the articles at issue. See, e.g., 19 C.F.R. § 177.1(c). As noted below, AmerTac was not a named respondent in the underlying investigation at the Commission. 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 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, 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-1124 Procedural History at the ITC The Commission instituted Investigation No. 337-TA-1124 on July 23, 2018, based on a complaint filed by SnapPower. Certain Powered Cover Plates, Inv. No. 337-TA-1124, EDIS Doc. ID 714335, Public Commission Opinion (Jul. 10, 2020) (“Comm’n Op.”) at 1 (citing 83 Fed. Reg. 34871-72 (Jul. 23, 2018)). The complaint, as supplemented, alleged a violation of section 337 by reason of infringement of certain claims of the ’324 and ’430 patents, as well as U.S. Patent No. 9,882,361 (“the ’361 patent”) and U.S. Design Patent No. D819,426 (“the ’D426 patent”). Comm’n Op. at 3. The notice of investigation named thirteen respondents, two of which participated throughout the investigation, including in the hearing before the presiding Administrative Law Judge (“ALJ”), four of which settled, four of which defaulted, and three of which had the complaint withdrawn due to an inability to serve the complaint. Id. at 3-4. As noted above, AmerTac was not a named respondent in the underlying investigation. Lastly, the Commission’s Office of Unfair Import Investigations (“OUII”) was named as a party in the investigation. Id. at 2. The ALJ granted SnapPower’s motions for summary determination on importation and infringement because the participating respondents did not contest these issues. Id. at 3-4 (internal citations omitted). On August 12, 2019, the ALJ issued her final initial determination finding a violation of section 337. Id. at 6; Certain Powered Cover Plates, Inv. No. 337-TA-1124, EDIS Doc. ID 687137, Public Final Initial Determination (August 12, 2019) (“FID”). 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 due to infringement of certain claims of the ’324, ’430, ’361, and ’D426 patents. Comm’n Op. at 4. On October 11, 2019, the Commission issued a notice in which it determined to review in part the FID. Id. at 6-7 (citing 84 Fed. Reg. 55985-96 (Oct. 18, 2019)). The Commission, in its review of the FID, adopted the FID’s finding of a violation of section 337 as to the asserted patents. Id. at 7. On March 12, 2020, the Commission issued its notice determining not review the remand initial determination and requested written submissions on remedy, the public interest, and bonding. Id. (citing 85 Fed. Reg. 21457-59 (Apr. 17, 2020)). On July 10, 2020, the Commission found a violation of section 337 with regard to infringement of the ’324, ’430, ’361, and ’D426 patents and determined that the appropriate remedy was a general exclusion order and cease and desist orders directed to various respondents. Id. at 32. In the general exclusion order, the Commission ordered that “power cover plated, which are electrical receptacle covers with built-in functionally, that infringe one or more of claims 1, 4, 8, 9, 10, 13, 17 and 19 of

(i.e., claim construction and “read on”) regarding the sandwiched limitation of the ’324 patent and the prong limitation of the ’430 patent. Claim ConstructionThe Sandwiched Limitation (the ’324 patent)Determining patent infringement requires two steps, construing the limitations of the asserted claims and then comparing the properly construed claims to the accused product. Advanced Steel Recovery, 808 F.3d at 1316. With respect to the ’324 patent, SnapPower argues that “no further claim construction is necessary in this proceeding. SnapPower’s Ruling Request noted prior constructions of the ‘sandwiched’ term in Certain Powered Cover Plates (ITC) and O’Reilly Winship v. SnapRays [], and proposed that no further claim construction is required in this proceeding. Neither party proposed a claim construction in subsequent briefing.” SnapPower Post Oral Discussion Submission at 2. Similarly, AmerTac argues that claim construction is not necessary for this inter partes proceeding for the sandwiched limitation and instead states that “[t]he ITC construction is the controlling definition for the purpose of this proceeding.” AmerTac Response at 11 n.2. As with other Commission conclusions of law or findings of fact, a claim construction from the underlying investigation is binding for the purposes of an inter partes proceeding under 19 C.F.R. Part 177. The Commission’s adopted construction for the sandwiched limitation is the “[p]lain and ordinary meaning, for example, the conductor is enclosed between the front insulator on one side and the rear insulator on the other side. The conductor cannot be separated from the front insulator and the rear insulator by an air gap.” Certain Powered Cover Plates, Inv. No. 337-TA-1124, EDIS Doc. ID 668781, Construing Certain Terms of the Asserted Claims of the Patents at Issue (Markman Claim Construction) (Feb. 21, 2019) Appendix A at 1 (“Markman Order”) (emphasis added); Comm’n Op. at 7 (“The Commission determined not to review the rema