H340844

HQ H340844 September 27, 2024 OT:RR:BSTC:EOE H340844 FKM CATEGORY: 19 U.S.C. § 1337; Unfair Competition Ms. Deanna T. Okun Polsinelli PC 1401 Eye Street NW Washington, D.C. 20005 VIA EMAIL: dtokun@polsinelli.com; MVC-1355-CBP@polsinelli.com RE: Ruling Request; U.S. International Trade Commission; General Exclusion Order; Investigation No. 337-TA-1355; Certain Compact Wallets and Components Thereof Dear Ms. Okun: 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 Mountain Voyage Co.’s (“Mountain Voyage”) request for an administrative ruling, dated July 31, 2024 (“Ruling Request”). We find that Mountain Voyage has established, through this inter partes proceeding, that its money clip and cash strap wallets with stock keeping units (“SKUs”) ending in the letters “WD” or “CS” (collectively, “articles at issue”), as described in this ruling, are not subject to exclusion from entry based on the general exclusion order (“GEO”) issued by the U.S. International Trade Commission (“Commission”) in Investigation No. 337-TA-1355 (“the underlying investigation” or “the 1355 investigation”), under Section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. § 1337 (“Section 337”), unless and until this ruling letter is revoked or modified pursuant to 19 C.F.R. § 177.12. 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 modify or revoke by operation of law any contrary CBP ruling or decision pertaining to Section 337 exclusion orders. As noted above, this ruling letter is the result of a request for an administrative ruling from CBP under 19 C.F.R. Part 177 that the EOE Branch conducted on an inter partes basis. The proceeding involved the two parties with a direct and demonstrable interest in the question presented by the ruling request: (1) your client, Mountain Voyage, the ruling requester; and (2) The Ridge Wallet LLC (“Ridge”), complainant and patent owner from the 1355 investigation. See 19 C.F.R. § 177.1(c). As noted below, Mountain Voyage was not a respondent during the underlying investigation. On July 31, 2024, Mountain Voyage submitted its Ruling Request to the EOE Branch. Mountain Voyage Email to EOE Branch, dated July 31, 2024. In response to the EOE Branch’s reply email, Mountain Voyage: (1) confirmed the counsel for Ridge to whom the ruling request was sent; (2) confirmed that a proposed non-disclosure agreement (“NDA”) to protect any confidential business information to be exchanged during this inter partes proceeding was shared with that counsel for Ridge; and (3) shared a revised version of the ruling request with confidential information properly identified. Mountain Voyage Email to EOE Branch, dated August 2, 2024; see also EOE Branch Email to Mountain Voyage, dated July 31, 2024. On August 5, 2024, the EOE Branch sent the parties a message to schedule a preliminary conference call to discuss certain procedural aspects of the inter partes proceeding. EOE Branch Email to Parties, dated August 5, 2024. Due to the lack of a response from Ridge, Mountain Voyage requested that the Branch move forward with this adjudication in an ex parte manner. Mountain Voyage Email to EOE Branch, dated August 7, 2024. Subsequently, counsel for Ridge responded, noting that Ridge’s in-house counsel had now been designated as lead counsel. Ridge Email to EOE Branch, dated August 7, 2024. On August 8, 2024, Mountain Voyage responded to Ridge’s message, raising concerns about undue delay and confirming that, “consistent with standard practice,” it had sent the ruling request to the law firm representing Ridge during the underlying investigation and “professional courtesy required” that representatives from the law firm apprise Ridge’s in-house counsel of that request, or apprise Mountain Voyage or the EOE Branch that the law firm would not be representing Ridge in this inter partes proceeding. Mountain Voyage Email to EOE Branch, dated August 8, 2024. In response, the EOE Branch requested, inter alia, that the parties provide times that they would be available to discuss the procedures for this inter partes proceeding. EOE Branch Email to Parties, dated August 8, 2024. Additionally, the Branch established that, in any case, the target date for completing this proceeding would be set as a date no later than sixty (60) days from receipt of the ruling request. Id. On August 9, 2024, the EOE Branch sent the partes a preliminary message in advance of the forthcoming conference call on August 12, 2024, in which the EOE Branch provided a sample procedural schedule and confirmed its understand that both parties agreed to conduct this proceeding on an inter partes basis, as administered by the EOE Branch. See EOE Email to Parties, dated August 9, 2024. In advance of the conference call, the parties proposed a joint procedural schedule, which the parties and the EOE Branch discussed during the conference call, and which the EOE Branch approved on August 12, 2024. See Mountain Voyage Email to EOE Branch, dated August 12, 2024; EOE Branch Email to Parties, dated August 12, 2024. Additionally, during this exchange, the EOE Branch noted its position that Mountain Voyage, as a non-respondent during the 1355 investigation and a party whose counsel was not signed onto the administrative protective order (“APO”) from that investigation, execute a Waiver for Continued Participation (“Waiver”), which Mountain Voyage executed and submitted on August 13, 2024. EOE Branch Email to Parties, dated August 12, 2024; Mountain Voyage Email to EOE Branch, dated August 13, 2024. And on August 13, 2024, the parties provided the EOE Branch with a copy of the fully executed NDA. Ridge Email to EOE Branch, dated August 13, 2024. On August 28, 2024, Ridge provided its response to the Ruling Request (“Ridge Response”). On September 4, 2024, Mountain Voyage submitted its reply to Ridge’s Response (“Mountain Voyage Reply”). And on September 11, 2024, Ridge provided its sur-reply (“Ridge Sur-Reply”) to Mountain Voyage’s Reply. Under the established procedural schedule, the target date that the EOE Branch set for issuance of its ruling in this inter partes proceeding is September 25, 2024. EOE Branch Email to Parties, dated August 12, 2024. Parties’ Arguments and EOE Branch Position Mountain Voyage requested a ruling “that its current wallet offerings, of both styles, are not subject to the GEO[.]” Ruling Request at 3. The styles of wallet offerings at issue consist of the money clip style and the cash strap style of wallet. Id. at 2. Mountain Voyage argued, inter alia, that: [w]hile the Asserted Claims recite a distinct recess having an undercut, in addition to the claimed longitudinal groove/channeling means, Mountain Voyage’s wallets have no such additional recess, let alone the claimed undercut. Further, the Asserted Claims recite a “hook” extending from the tang of the auxiliary feature to engage the undercut and prevent inadvertent dislodgement. However, Mountain Voyage’s wallets don’t have a hook; its clip is held in position by a friction-fit, and its cash strap is held in place by elasticity between its distal ends. Id. at 10. The articles at issue are depicted below: 
 Ruling Request at 20. 
 Id. at 22. 
 Id. at 27. 
 Id. at 30. Mountain Voyage further clarified that: . . . Mountain Voyage’s current money clip and cash strap models have different SKUs than the past models []. Specifically, each Mountain Voyage money clip wallet represented in the Request is associated with a SKU that ends in the letters “WD.” Further, Mountain Voyage has not sold any previous design of its cash strap wallets, and the cash strap wallets have not been accused of infringing the ’808 Patent in any legal proceeding.