• HQ H325434
• Sep 30, 2022

• Type : 19 U.S.C. § 1337; Unfair Competition • HTSUS :

OT:RR:BSTC:EOE H325434 WMW

Mr. David Lowe
Lowe Graham Jones PLLC
1325 Fourth Avenue
Suite 1130
Seattle, WA 98101

VIA EMAIL: [email protected];
[email protected]

RE: Ruling Request; U.S. International Trade Commission; Limited Exclusion Order; Investigation No. 337-TA-1237; Certain Cloud-Connected Wood Pellet Grills and Components Thereof

Dear Mr. Lowe:

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 your request, dated May 16, 2022, with Exhibits A-J (collectively, “GMG Ruling Request”), on behalf of GMG Products, LLC (“GMG”) for an inter partes proceeding regarding the above-referenced matter. We find that GMG has met its burden to show that a Cloud Control Variant (“CCV”) and Local Control Variant (“LCV”) grill systems (collectively “the articles at issue”) are not covered by claims 1 or 2 of U.S. Patent No. 10,158,720 (“the ’720 Patent”). Thus, CBP’s position is that the articles at issue are not subject to the limited exclusion order (“LEO”), dated May 12, 2022, that the U.S. International Trade Commission (“Commission” or “ITC”) issued in Investigation No. 337-TA-1237 (“the underlying investigation” or the “the 1237 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, GMG, the ruling requester and respondent in the 1237 investigation; and (2) Traeger Pellet Grills, LLC (“Traeger”), complainant in the 1237 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, in their submissions to the CBP. See 19 C.F.R. §§ 177.2 and 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, then 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, 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 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-1237

Procedural History at the ITC

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 FID:

The specification of the ’720 patent describes “a cloud computing platform” for “communicating with and controlling operation of electronically-controlled appliances.” ’720 patent at 4:25-27. In one embodiment, “a cloud service 301 links various devices including a smoker/grill 302 and a smart phone 303 or other electronic computing device.” Id. at 9:40-43.


The specification describes a “receiver 105” that is “configured to receive inputs from computing systems,” including a “first input 115 indicating that an electronically-controlled appliance is permitted to communicate with the cloud computing platform.” Id. at 7:27-31. The specification also describes a “notification generator 106” that is “configured to generate notifications (e.g., 112) that are to be sent to software applications such as software application 114 running on mobile computing device 113.” Id. at 7:32-36. The specification further describes a “transmitter 107” that “may be configured to send a generated notification 112 to software application 114, where the notification indicates that the cloud computing platform 101 is communicably connected to the electronically-controlled appliance 120.” Id. at 7:39-43.




The specification further describes a method “for communicating with and controlling operation of electronically-controlled appliances.” Id. at 11:47-49. Five steps of this method are depicted in Figure 5:




(FID at 4-7; see also Order No. 22, Construing Terms of the Asserted Claims of the Patents at Issue (“Claim Construction Order”) at 21-24 (July 28, 2021).)

Claim Constructions at the Commission

As set forth in the FID, relevant to claims 1 and 2 of the ’720 Patent:

The parties agreed to construe the term “cloud computing platform” to mean “a platform for enabling on-demand network access to a shared pool of configurable computing resources.” Order No. 22 at 27. In the Markman order, the term “a first input indicating that the electronically-controlled appliance is in network communication” was construed to mean an input indicating that the appliance is communicating over a network. Id. at 28-30. The term “notification indicating that the cloud computing platform is communicably connected” was construed to mean a notification indicating that the grill is connected for communication. Id. at 30-32.

(FID at 13; see also Claim Construction Order at 27-32.).

The Legacy Products at Issue in the Underlying Investigation

The Final Initial Determination (“FID”), dated December 6, 2022 (unreviewed), identified as accused products: “GMG’s cloud-connected wood-pellet grills with ‘WiFi Smart Control’, which includes all of GMG’s ‘Prime Grills’ (‘Jim Bowie Prime,’ ‘Daniel Boone Prime,’ ‘Davy Crockett Prime, ‘Big Pig Trailer Prime,’ Peak, Ledge, and Trek grills) and certain ‘Choice’ grills (the ‘Jim Bowie Choice’ and ‘Daniel Boone Choice’) (collectively, the ‘Accused Products’) and related components.” (FID at 2.)

As further set forth in the FID:

Traeger’s infringement allegations rely on Dr. Shoemake’s analysis of a representative grill, the GMG Daniel Boone Prime grill. CX-0838C (Shoemake DWS) at Q/A 90-92.




CDX-0002C.0018. GMG does not dispute that the Daniel Boone Prime grill is representative of the Accused Products for the purposes of infringement, and GMG’s non-infringement arguments are directed to the operation of the “GMG System” for all Accused Products. RIB at 14-33; RRB at 5-24.

The “GMG System” includes (1) a mobile GMG App (Android or iOS), (2) an API Server (sometimes also referred to as the “Parse server”), (3) a database, (4) a Grill Server, and (5) a GMG Grill having a grill controller. RIB at 8-9. The Accused Products connect to the GMG System through a “provisioning” process that initiates connections between each part of the GMG System. RIB at 8-9; see CX-0838C (Shoemaker DWS) at Q/A 112.

[XXXXX]

CX-0466C.0002. After the connections are initiated, communications can be sent between the GMG App on a mobile device and the GMG Grill via the API Server and Grill Server. RIB at 9-11; see CX-0838C (Shoemaker DWS) at Q/A 112.

[XXXXX]

CX-0466C.0004. This mode of operation is referenced in GMG’s documents as the “Server Mode.”




CX-0283C.0003.

Traeger’s expert, Dr. Shoemake, analyzed certain source code for the GMG App and the GMG Server (including the API Server and Grill Server). See, e.g., CX-0838C (Shoemake DWS) at Q/A 96 (describing API Server and Grill Server source code), Q/A 102 (describing GMG App source code).

(FID at 18-21.)

In line with the above, Traeger based its infringement allegations for the legacy products on their use of the GMG System. (FID at 21.) Claim 1 of the ’720 Patent generally “is directed to a ‘cloud computing platform.’” (FID at 21; see also FID at 22.) The ALJ found “based on the evidence identified by Traeger and in consideration of the testimony of Dr. Shoemake and Mr. Williams,” that:

[T]he GMG Server is a “cloud computing platform” according to the agreed construction for this term. The evidence shows that the GMG Server [XXXXX] There is no dispute that the GMG Server provides for communicating with and controlling the operation of outdoor barbecue grills or that the GMG Server has at least one hardware processor. See CX-0838C (Shoemake DWS) at Q/A 96; RIB at 30-32 (not disputing these limitations).

(FID at 23.)

Additionally, the ALJ found that the following limitations from claim 1 of the ’720 patent, as relevant to the infringement question presented in this ruling, were met in the legacy products.

“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 claim limitation above “requires ‘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.’ ’720 patent at 15:42-48.” (FID at 24.) The “‘first input’ described in this limitation was construed to mean an input indicating that the appliance is communicating over a network. Order No. 22 at 28-30.” (FID at 24.)

The ALJ found, “[i]n consideration of the parties’ arguments,” that:

[T]he term “one or more computing systems” in claim 1 is broad enough to include the hardware controller of a GMG Grill. The specification of the ’720 patent broadly describes “various types of computing systems.” ’720 patent at 4:46-47. “Computing systems may, for example, be mobile phones, electronic appliances, laptop computers, tablet computers, wearable devices, desktop computers, mainframes, and the like.” Id. at 4:48-51. The specification provides an explicit definition of “computing system,” to include “any device, system, or combination thereof that includes at least one processor, and a physical and tangible computer-readable memory capable of having thereon computer-executable instructions that are executable by the processor.” Id. at 4:51-56. When describing the hardware controller of a grill, the specification refers to communication between the hardware controller and “other computing systems.” Id. at 6:67-7:4. Based on these disclosures in the specification, the undersigned finds that the term “computing system” in the ’720 patent is broad enough to include grill hardware controllers.

(FID at 27-28.)

Additionally, the ALJ found, that “the open-ended term ‘one or more computing systems’ can include the ‘hardware controller’ referenced in another limitation of claim 1.” (FID at 28.)

The ALJ noted, that:

The record on post-grant review also does not support GMG’s narrow construction of “one or more computing systems.” Although the PTAB held that metadata generated by the home appliance in Lee could not be the claimed “first input,” this finding was based on GMG’s identification of the “computing system” as the terminal apparatus in Lee. PGR2019-0024 Decision at 31-32, RX-0259.4421-22. The PTAB never considered an argument that Lee’s home appliance or a hardware controller therein could be one of the “one or more computing systems.” See RX-0259.3256, Petitioner’s Reply to Patent Owner’s Response at 11 n.4 (Jan. 13, 2020) (GMG specifically disclaimed signals originating from Lee’s appliance as the “first input,” focusing its arguments on Lee’s signal 545 from the mobile device).

(FID at 28-29..)

The ALJ noted, further, that:

The record on post-grant review is further consistent with a broad reading of “one or more computing systems,” because there was no dispute that Lee’s terminal apparatus could be both a “computing system” and a “mobile device” in the ’720 patent. See RX-0259.0048-52, Petition for Post-Grant Review at 39-43 (Dec. 18, 2018) (identifying Lee’s terminal apparatus as the claimed “mobile device”). Claim 1 separately identifies “one or more computing systems,” a “mobile device,” and a “hardware controller,” and the claim language does not preclude the “mobile device” and “hardware controller” from being among the “one or more computing systems.” Consistent with the Federal Circuit’s holding in CAE Screenplates, Inc. v. Heinrich Fiedler GmbH & Co., each of these different terms has a different meaning, with the “mobile device” and “hardware controller” part of the broader category of “computing systems.” See 224 F.3d 1308, 1317 (Fed. Cir. 2000) (finding that claim language describing a “bottom plane” referred to a specific part of the claimed “bottom”). Including hardware controllers within the category of “computing systems” is thus consistent with the claim language, specification, and prosecution history, and supported by Federal Circuit precedent.

(FID at 29.)

Following the ALJ’s interpretation of the “of the ‘one or more computing systems’ limitation,” the ALJ found, that:

[A] preponderance of the evidence [shows] that the GMG Grill’s hardware controller sends an input to the GMG Server indicating that the appliance is communicating over a network. [XXXXX] See CX-0838C (Shoemake DWS) at Q/A 100, 103. Accordingly, the undersigned finds that the “receiver” limitation is infringed in the operation of the GMG System in ‘Server Mode.’”

(FID at 29-30.)

The ALJ found that “the ‘receiver’ limitation of claim 1 is infringed in the GMG System with respect to input from the hardware controller of a GMG Grill.” (FID at 30.) “a notification generator configured to generate notifications that are to be sent to one or more software applications”

The claim limitation above “requires ‘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.’” ’720 patent at 15:49-54.” (FID at 30.)

Traeger’s expert:

[XXXXX] CX-0838C (Shoemake DWS) at Q/A 112. [XXXXX]




CDX-0002C.021. [XXXXX] CX-0838C (Shoemake DWS) at Q/A 112. Traeger submits that this functionality of the GMG System infringes the “notification generator” limitation. CIB at 32-33.

(FID at 30-31.) GMG did not dispute this limitation separately from the “transmitter” limitation, as discussed below. (FID at 31.)

The ALJ found “[b]ased on the evidence presented by Dr. Shoemake,” that “the GMG System thus infringes the ‘notification generator’ limitation of claim 1.” (FID at 31.)

“a transmitter configured to send” a “generated notification indicating that the cloud computing platform is communicably connected to the electronically-controlled appliance”

The claim limitation above “requires ‘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.’ ’720 patent at 15:55-60.” (FID at 31-32.) The “claim language ‘notification indicating that the cloud computing platform is communicably connected’ was construed to mean a notification indicating that the grill is connected for communication. Order No. 22 at 30-32.” (FID at 32.)

The ALJ found, “[i]n consideration of the parties’ arguments,” that:

[T]he “transmitter” limitation is infringed by the GMG System. [XXXXX] are notifications indicating that the GMG Grill “is communicably connected.” These regular updates indicate the current connectivity status of the grill, and delays on the order of a few seconds do not affect the infringement analysis.

(FID at 34.) The ALJ noted, that:

GMG’s proposed construction requiring the notification to reflect “the exact moment of the input” was rejected in the Markman order. See Order No. 22 at 11-15, 30-32. GMG’s arguments regarding the Lee prior art rely on the post-grant review for the ’833 patent, which does not limit the scope of the claims in the ’720 patent.5

5 As discussed supra, the PTAB distinguished Lee from claim 1 of the ’720 patent based on the “first input” in the “receiver” limitation. See PGR2019-00024 Decision at 25-33.

(FID at 34-35.) Additionally, the ALJ found, that “Dr. Shoemake’s analysis is sufficient to show that the [XXXXX].” (FID at 35.)

The ALJ found that “the GMG System infringes the “transmitter” limitation of claim 1.” (FID at 35.)

“the transmitter sending one or more instructions”

The claim limitation above “requires ‘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 15:65-16:2.” (FID at 36-37.)

Traeger’s expert: Dr. Shoemake explains that [XXXXX]. CX-0838C (Shoemake DWS) at Q/A 116. [XXXXX] Id. at Q/A 118. [XXXXX] Id.

(FID at 37.)

The ALJ found “[b]ased on the testimony of Dr. Shoemake,” that:

[T]he GMG System has a “transmitter” that infringes these limitations. GMG argues [XXXXX], and Dr. Shoemake explains that the [XXXXX] CX-0838C (Shoemake DWS) at Q/A 118. The claim does not require that the same software service generate both the notifications sent to the software application and the instructions sent to the hardware controller but only that the same “transmitter” sends these signals. In the GMG System, [XXXXX] Accordingly, the undersigned finds that both “transmitter” limitations of claim 1 are infringed.

(FID at 38.) The ALJ found that that claim 1 of the ’720 patent is infringed by the GMG System. (FID at 39.)

The Redesigned Products at Issue in the Underlying Investigation

During the underlying investigation, GMG “identified two alternative designs for the deployment of infrastructure for the GMG System.” (FID at 53.) “The first redesign would [XXXXX]” (FID at 53.) “GMG’s second redesign would [XXXXX].” (FID at 53.)

As an initial matter, the ALJ addressed whether the redesigns satisfied the Commission factors, articulated in Certain Human Milk Oligosaccharides, for determining whether a new or modified product should be adjudicated in the underlying proceeding. Certain Human Milk Oligosaccharides, Inv. No. 337-TA-1120, Comm’n Op. at 18, 2020 WL 3073788, at *11 (Jun. 8, 2020). Applying those factors, the ALJ determined that the first redesign reflected in RX-0277C was ripe for adjudication and proceeded to consider the infringement question. (FID at 54;) The ALJ found “the first redesign [did] not affect the infringement analysis[.]” (FID at 54.) GMG had argued that “a dedicated server would not be a ‘cloud computing platform’ as required by the claims of the ’720 patent.” (FID at 53.) The “agreed construction for ‘cloud computing platform’ is a platform for enabling on-demand network access to a shared pool of configurable computing resources.” (FID at 54; Order No. 22 at 27.) The ALJ noted:

[XXXXX]7

7 In addition, the redesign [XXXXX]. See Tr. (Scott) at 276:4-19 (identifying [XXXXX])

(FID at 54-55.) Accordingly, “for the same reasons discussed with respect to the preamble of claim 1,” the ALJ found that “the GMG System would infringe the ‘cloud computing platform’ limitation of the ’720 patent even if the first redesign reflected in RX-0277C were implemented [XXXXX]” (FID at 55.) The ALJ, however, “[did] not render a determination on infringement with respect to GMG’s second redesign, in accordance with the Oligosaccharides factors.” (FID at 56.) The second redesign, however, does not form any part of this Part 177 request.

19 C.F.R. Part 177 Ruling Request

Procedural History

On May 16, 2022, after issuance of the LEO on May 12, 2002, GMG “request[ed] that the U.S. Customs & Border Protection (“CBP”) find that [its] modified grill systems do not infringe the 720 Patent and are therefore outside the scope of the LEO.” (Ruling Request at 1.) On May 17, 2002, counsel for Traeger submitted a letter related to a schedule for resolution of the Ruling Request. On May 18, 2022, counsel for GMC submitted a letter in reply thereto.

On May 18, 2022, the EOE Branch had an initial conference call with GMG and Traeger and discussed, inter alia, the proposed schedule for the inter partes proceeding. See EOE Branch email to Parties (dated May 26, 2022). Additionally, the EOE Branch understands that the parties entered into a non-disclosure agreement of the parties’ own drafting relating to the protection of any confidential information to be exchanged between the parties and submitted to the EOE Branch during this process. Id.

On June 17, 2022, Traeger submitted a Response to GMG’s Ruling Request (“Traeger Response”). On June 24, 2022, GMG submitted a Reply to Traeger’s Response (“GMG Reply”). On July 1, 2022, in line with the schedule, the EOE Branch held an oral discussion with the parties. Due to the national emergency over the coronavirus pandemic, the oral discussion was held remotely by video conference, and the parties provided their respective presentation materials to the EOE Branch on the day of the oral discussion (hereinafter, “GMG Presentation” and “Traeger Presentation”). On July 8, 2022, both GMG and Traeger submitted their post-oral discussion submissions (respectively, “GMG Post-Oral Discussion Submission” and “Traeger Post-Oral Discussion Submission”).

The Articles at Issue

The articles at issue are “two modification variants: a Cloud Control Variant or CCV, which was fully implemented and operational since March 24, 2022; and a Local Control Variant or LCV, which is not implemented presently but could be implemented immediately.” (Ruling Request at 1; see also Ruling Request at 11-12.)

ISSUE

Whether GMG has met its burden to show that the articles at issue: the CCV or LCV grill systems do not infringe claim 1of the ’720 patent.

LEGAL FRAMEWORK

Section 337 Exclusion Order Administration

Section 337 of the Tariff Act of 1930 authorizes the Commission to exclude articles from entry into the United States when it has found “[u]nfair methods of competition [or] unfair acts in the importation of [those] articles.” 19 U.S.C. § 1337(a)(1)(B). When the Commission determines there is a violation of section 337, it generally issues one of two types of exclusion orders: (1) a limited exclusion order or (2) a general exclusion order. See Fuji Photo Film Co., Ltd. v. ITC, 474 F.3d 1281, 1286 (Fed. Cir. 2007).

Both types of orders direct CBP to bar infringing products from entering the country. See Yingbin-Nature (Guangdong) Wood Indus. Co. v. ITC, 535 F.3d 1322, 1330 (Fed Cir. 2008). “A limited exclusion order is ‘limited’ in that it only applies to the specific parties before the Commission in the investigation. In contrast, a general exclusion order bars the importation of infringing products by everyone, regardless of whether they were respondents in the Commission's investigation.” Id. A general exclusion order is appropriate only if two exceptional circumstances apply. See Kyocera Wireless Corp. v. ITC, 545 F.3d 1340, 1356. A general exclusion order may only be issued if (1) “necessary to prevent circumvention of a limited exclusion order,” or (2) “there is a pattern of violation of this section and it is difficult to identify the source of infringing products.” 19 U.S.C. § 1337(d)(2); see Kyocera, 545 F.3d at 1356 (“If a complainant wishes to obtain an exclusion order operative against articles of non-respondents, it must seek a GEO [general exclusion order] by satisfying the heightened burdens of §§ 1337(d)(2)(A) and (B).”).

In addition to the action taken above, the Commission may issue an order under 19 U.S.C. § 1337(i) directing CBP to seize and forfeit articles attempting entry in violation of an exclusion order if their owner, importer, or consignee previously had articles denied entry on the basis of that exclusion order and received notice that seizure and forfeiture would result from any future attempt to enter articles subject to the same. An exclusion order under § 1337(d)—either limited or general—and a seizure and forfeiture order under § 1337(i) apply at the border only and are operative against articles presented for customs examination or articles conditionally released from customs custody but still subject to a timely demand for redelivery. See 19 U.S.C. §§ 1337(d)(1) (“The Commission shall notify the Secretary of the Treasury of its action under this subsection directing such exclusion from entry, and upon receipt of such notice, the Secretary shall, through the proper officers, refuse such entry.”); id., at (i)(3) (“Upon the attempted entry of articles subject to an order issued under this subsection, the Secretary of the Treasury shall immediately notify all ports of entry of the attempted importation and shall identify the persons notified under paragraph (1)(C).”).

Significantly, unlike district court injunctions, the Commission can issue a general exclusion order that broadly prohibits entry of articles that violate section 337 of the Tariff Act of 1930 without regard to whether the persons importing such articles were parties to, or were related to parties to, the investigation that led to issuance of the general exclusion order. See Vastfame Camera, Ltd. v. ITC, 386 F.3d 1108, 1114 (Fed. Cir. 2004). The Commission also has recognized that even limited exclusion orders have broader applicability beyond just the parties found to infringe during an investigation. See Certain GPS Devices and Products Containing Same, Inv. No. 337-TA-602, Comm’n Op. at 17, n. 6, Doc ID 317981 (Jan. 2009) (“We do not view the Court’s opinion in Kyocera as affecting the issuance of LEOs [limited exclusion orders] that exclude infringing products made by respondents found to be violating Section 337, but imported by another entity. The exclusionary language in this regard that is traditionally included in LEOs is consistent with 19 U.S.C. § 1337(a)(1)(B)–(D) and 19 U.S.C. § 1337(d)(1).”).

Moreover, “[t]he Commission has consistently issued exclusion orders coextensive with the violation of section 337 found to exist.” See Certain Erasable Programmable Read Only Memories, Inv. No. 337-TA-276, Enforcement Proceeding, Comm’n Op. at 11, Doc ID 43536 (Aug. 1991) (emphasis added). “[W]hile individual models may be evaluated to determine importation and [violation], the Commission's jurisdiction extends to all models of [violative] products that are imported at the time of the Commission’s determination and to all such products that will be imported during the life of the remedial orders.” See Certain Optical Disk Controller Chips and Chipsets, Inv. No. 337-TA-506, Comm’n Op. at 56–57, USITC Pub. 3935, Doc ID 287263 (July 2007).

Lastly, despite the well-established principle that “the burden of proving infringement generally rests upon the patentee [or plaintiff],” Medtronic, Inc. v. Mirowski Family Ventures, LLC, 571 U.S. 191 (2014), the Commission has held that Medtronic is not controlling precedent and does not overturn its longstanding practice of placing the burden of proof on the party who, in light of the issued exclusion order, is seeking to have an article entered for consumption. See Certain Sleep-Disordered Breathing Treatment Systems and Components Thereof, Inv. No. 337-TA-879, Advisory Opinion at 6–11. In particular, the Commission has noted that “[t]he Federal Circuit has upheld a Commission remedy which effectively shifted the burden of proof on infringement issues to require a company seeking to import goods to prove that its product does not infringe, despite the fact that, in general, the burden of proof is on the patent to prove, by a preponderance of the evidence, that a given article does infringe[.]” Certain Integrated Circuit Telecommunication Chips, Inv. No. 337-TA-337, Comm’n Op. at 21, n.14, USITC Pub. 2670, Doc ID 217024 (Aug. 1993), (emphasis in original) (citing Sealed Air Corp. v. ITC, 645 F.2d 976, 988–89 (C.C.P.A. 1981)).

This approach is supported by Federal Circuit precedent. See Hyundai Elecs. Indus. Co. v. ITC, 899 F.2d 1204, 1210 (Fed. Cir. 1990) (“Indeed, we have recognized, and Hyundai does not dispute, that in an appropriate case the Commission can impose a general exclusion order that binds parties and non-parties alike and effectively shifts to would-be importers of potentially infringing articles, as a condition of entry, the burden of establishing noninfringement. The rationale underlying the issuance of general exclusion orders—placing the risk of unfairness associated with a prophylactic order upon potential importers rather than American manufacturers that, vis-a-vis at least some foreign manufacturers and importers, have demonstrated their entitlement to protection from unfair trade practices—applies here [in regard to a limited exclusion order] with increased force.”) (emphasis added) (internal citation omitted). Law of Patent Infringement

Determining patent infringement requires two steps. Advanced Steel Recovery, LLC v. X-Body Equip., Inc., 808 F.3d 1313, 1316 (2015). The first is to construe the limitations of the asserted claims and the second is to compare the properly construed claims to the accused product. Id. To establish literal infringement, every limitation recited in a claim must be found in the accused product whereas, under the doctrine of equivalents, infringement occurs when there is equivalence between the elements of the accused product and the claimed elements of the patented invention. Microsoft Corp. v. GeoTag, Inc., 817 F.3d 1305, 1313 (Fed. Cir. 2016). One way to establish equivalence is by showing, on an element-by-element basis, that the accused product performs substantially the same function in substantially the same way with substantially the same result as each claim limitation of the patented invention, which is often referred to as the function-way-result test. See Intendis GmbH v. Glenmark Pharms., Inc., 822 F.3d 1355, 1361 (Fed. Cir. 2016).

As for the first step above, “claim construction is a matter of law.” SIMO Holdings, Inc. v. H.K. uCloudlink Network Tech., Ltd., 983 F.3d 1367, 1374 (Fed. Cir. 2021). Moreover, the ultimate construction of a claim limitation is a legal conclusion, as are interpretations of the patent’s intrinsic evidence (the patent claims, specifications, and prosecution history). UltimatePointer, L.L.C. v. Nintendo Co., 816 F.3d 816, 822 (Fed. Cir. 2016) (citing Teva Pharms. USA, Inc. v. Sandoz, Inc., 135 S. Ct. 831, 841, 190 L. Ed. 2d 719 (2015).

“Importantly, the person of ordinary skill in the art is deemed to read the claim term not only in the context of the particular claim in which the disputed term appears, but in the context of the entire patent, including the specification.” Phillips v. AWH Corp., 415 F.3d 1303, 1313 (Fed. Cir. 2005) (en banc). “In some cases, the ordinary meaning of claim language as understood by a person of skill in the art may be readily apparent even to lay judges.” Id. at 1314. In others, courts look to public sources such as “the words of the claims themselves, the remainder of the specification, the prosecution history, and extrinsic evidence concerning relevant scientific principles, the meaning of technical terms, and the state of the art.” Id.

“To begin with, the context in which a term is used in the asserted claim can be highly instructive.” Phillips, 415 F.3d at 1314 (“To take a simple example, the claim in this case refers to ‘steel baffles,’ which strongly implies that the term ‘baffles’ does not inherently mean objects made of steel.”). The context in which a claim term is used also includes the full chain of dependence as well as the remaining suite of claims and the written description. See Inline Plastics Corp. v. EasyPak, LLC, 799 F.3d 1364, 1371 (Fed. Cir. 2015) (“Since the specification explicitly mentions the ‘alternative’ . . . there can be no debate concerning the application of the doctrine of claim differentiation.”).

The second step to establish infringement involves a comparison of the claims, as properly construed, to the accused product, which is a question of fact. Apple Inc. v. Samsung Elecs. Co., Ltd., 839 F.3d 1034, 1040 (Fed. Cir. 2016) (en banc).

LAW AND ANALYSIS

As described in more detail below, we find that the articles at issue do not infringe claim 1 of the ‘720 patent, the only independent claim at issue in this inter partes proceeding.

GMG has argued that the articles at issue do not infringe claim 1 of the ‘720 patent because they do not meet one limitation in particular from that claim. GMG specifically argues that the articles at issue do not satisfy the limitation requiring “a transmitter configured to send at least one generated notification[,] … the generated notification indicating that the cloud computing platform is communicably connected to the electronically-controlled appliance.” The basis for GMG’s non-infringement position with respect to this claim limitation is separated into two individual arguments:

(1) the articles at issue do not generate a notification indicating that the platform is communicably connected to the electronically-controlled appliance and (2) the server for the articles at issue employs two separate transmitters instead of a singular transmitter, as required by the claim in GMG’s view.

With regards to the first argument, GMG states that “the Original GMG System has been modified so that [XXXXX].” See GMG Ruling Request at 1. GMG argues that while the patent claim requires that the server generate a notification, in the articles at issue, the server “merely [XXXXX] [.]” See GMG Reply at 2. GMG points to the ’720 patent specification to show that the “the server is illustrated as receiving grill data and forwarding it along to the mobile device. That functionality is not an act generating a notification of the connectivity status of the grill because there is an additional and separate ‘notification generator’ that generates a notification indicating connectivity status, which sends that notification to the mobile device.” See GMG Post-Hearing Submission at 5.

Traeger responds to these arguments by stating that [XXXXX]” See Traeger Post-Discussion Submission at 6. Traeger argues that since this communication between the server and the app is still in existence, the relevant claim limitation is met as a notification is still generated.

Lastly, GMG argues that, in addition to the reasons for non-infringement above, the LCV grill systems do not meet the limitation requiring a cloud-based “receiver” or “transmitter” configured to pass instructions from the mobile app to the grill. See GMG Ruling Request at 23. Traeger argues, however, that the [XXXXX] See Traeger Response at 20.

Cloud Control Variant (“CCV”)

As an initial matter, neither party requests a construction of the relevant claim. See Ruling Request at 6; Traeger Response at 4-6. Accordingly, “the words of a claim are generally given their ordinary and customary meaning as understood by a person of ordinary skill in the art when read in the context of the specification and prosecution history.” Blackbird Tech LLC v. ELB Elecs., Inc., 895 F.3d 1374, 1377 (Fed. Cir. 2018) (citing Thorner v. Sony Comput. Entm’t Am. LLC, 669 F.3d 1362, 1365 (Fed. Cir. 2012). “To begin with, the context in which a term is used in the asserted claim can be highly instructive.” Phillips, 415 F.3d at 1314. The Federal Circuit, in addition, has “often remarked that a construction which excludes the preferred embodiment is rarely, if ever correct.” PPC Broadband, Inc. v. Corning Optical Communs. RF, LLC, 815 F.3d 747, 755 (Fed. Cir. 2016).

As noted above, the first argument GMG makes with respect to the articles at issue is that they do not generate a notification indicating that the platform is communicably connected to the electronically-controlled appliance. See GMG Ruling Request at 14. GMG notes that, with respect to the server process for the legacy infringing grill systems at the Commission, [XXXXX]. See FID at 34. [XXXXX] Id. at 14.

Traeger states that the [XXXXX] However, there is no indication in the specification nor in the investigation by the ITC that the usage of a communication protocol is sufficient to satisfy the generation notification limitation. The fact that the server communicates to the app through sending a message in a response to a request is different from the generation of a notification as required by the claim. In claim 1 of the ‘720 patent, communication between the grill, server, and app is addressed by “a receiver configured to receive inputs from one or more computing systems” and “the receiver receiving a second input from at least one software application.” See ‘720 patent at 16:42-63. This is a distinct claim limitation from the generation limitation and it would be improper to accord them the same meaning. “Different claim terms are presumed to have different meanings.” Bd. Of Regents of the Univ. of Tex. Sys. V. BENQ Am. Corp., 533 F.3d 1362, 1371 (Fed. Cir. 2008).

Generation, as understood within its ordinary and customary meaning, requires creation, not merely forwarding information in an unmodified, undecrypted manor. Throughout the ‘720 patent, whenever the term “generate” is used, it is in conjunction with the creation of an instruction or the creation of a notification from the server to the app. See ‘720 patent at 2:5-59. Therefore, information merely transmitted from the server to the app in response to a request from the app in conjunction with the articles at issue cannot be said to “generate” a notification indicating that the platform is communicably connected to the electronically controlled appliance. For this reason, the articles at issue do not infringe claim 1 of the ‘720 patent. Accordingly, we do not address GMG’s second non-infringement argument, with respect to the CCV grill system, that [XXXXX] as this argument is not a separate claim but instead represents additional grounds for determining whether the products at issue should be refused entry and, therefore, need not be addressed here. See Solomon Technologies, Inc. v. U.S. Int’l Trade Comm’n, 524 F.3d 1310, 1320 (Fed. Cir. 2008) (“If we uphold the Commission’s order, as we do in this case, we are not required to address every possible ground on which the Commission’s order might be sustained.”); see also Beloit Corp. v. Valmet Oy, 742 F.2d 1421, 1423 (Fed. Cir. 1984) (“The Commission … is at perfect liberty to reach a ‘no violation’ determination on a single dispositive issue.”).

Local Control Variant (“LCV”)

The final argument made by GMG relates only to the LCV grill system, which is essentially [XXXXX] See GMG Ruling Request at 23. Traeger states that the LCV grill system could potentially receive communication from the cloud. See Traeger Post-Discussion Submission at 13. Moreover, Traeger argues that this variant is hypothetical and that GMG has not provided sufficient information for it to be addressed in this ruling. Id. Seeing that the redesign in question requires a software update and the software to be used in the update has been disclosed, CBP does not find the variant to be hypothetical. As described by GMG, the LCV grill system is incapable of […..], as taught and required by the ’720 patent. The ‘720 patent requires the ability of the app to communicate with the grill though the server. See ’720 patent at 15:36-16:2. The LCV grill system, instead, [XXXXX]. As such, the LCV grill system does not practice the relevant claims of the ‘720 patent.

HOLDING

We find that GMG has met its burden to establish that CCV and LCV grill systems do not infringe claim 1 of the ’720 patent. Accordingly, we find that the articles at issue are not subject to the LEO issued as result of Investigation No. 337-TA-1174.

The decision is limited to the specific facts set forth herein. If articles differ in any material way from the articles at issue described above, or if future importations vary from the facts stipulated to herein, this decision shall not be binding on CBP as provided for in 19 C.F.R. §§ 177.2(b)(1), (2), (4), and 177.9(b)(1) and (2).

Sincerely,

Dax Terrill
Chief, Exclusion Order Enforcement Branch

CC: Amol Parikh, Esq.
McDermott Will & Emery LLP
444 West Lake Street
Suite 4000
Chicago, IL 60606-0029
[email protected]
[email protected]