OT:RR:BSTC:EOE H324274 JW
Mr. Robert Colletti
Haug Partners LLP
745 Fifth Avenue, 10th Floor
New York, NY 10151
VIA EMAIL: [email protected]
RE: Ruling Request; U.S. International Trade Commission; General Exclusion Order; Investigation No. 337-TA-1206; Certain Percussive Massage Devices.
Dear Mr. Colletti:
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 Yongkang Maixin Technology Co., Ltd.’s (“Maixin”) request for an administrative ruling, dated March 21, 2022, which included Exhibits 1-10 (collectively, “Ruling Request”). We find that Maixin has established, through this inter partes proceeding, that its percussive massage devices – the 9º, 9ºS, a7, Chrome Mini, K-005, K-008, M68-7A, M69-2, M75-2, Mini, MMG0101, and Nano (collectively, “articles at issue”) are not subject to exclusion from entry based on the general exclusion order (“GEO”) that the U.S. International Trade Commission (“Commission”) issued in Investigation No. 337-TA-1206 (“the underlying investigation” or “the 1206 investigation”), pursuant to 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 by operation of law modify or revoke 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 process involved the two parties with a direct and demonstrable interest in the question presented by the ruling request: (1) your client, Maixin, the ruling requester; and (2) Hyperice, Inc. (“Hyperice”), complainant in the 1206 investigation. See, e.g., 19 C.F.R. § 177.1(c).
Maixin requested a ruling from CBP that its “percussive massage device model types: 9º, 9ºS, a7, Chrome Mini, K-005, K-008, M68-7A, M69-2, M75-2, Mini, MMG0101, and Nano” are not subject to the 1206 GEO. See e.g., Ruling Request at 1-2. Pictures from the Ruling Request of an example K-005 are reproduced below:
Ruling Request at 21-22; see also e.g., Exhibit 10 of Ruling Request. Maixin noted, inter alia, in its Ruling Request that “Maixin’s Products secure a battery with a simple bracket or cover having no electrical contacts” and “the battery in Maixin’s Products does not have any electrical contacts to engage the (nonexistent) electrical contacts of the bracket or cover.” Ruling Request at 23. Maixin further noted that “Maixin’s Products include a battery that provides power directly to the PCB [printed circuit board] of the device via wires.” Id.
Maixin indicated to the EOE Branch in an email (dated March 22, 2022) that counsel for Hyperice informed counsel for Maixin that “Hyperice will not contend that the Maixin products shown in Ex. 10 infringe the ‘574 patent.” Counsel for Hyperice additionally confirmed this with the EOE Branch in an email (dated March 24, 2022). The “Maixin products shown in Ex. 10” are the articles at issue, i.e., the 9º, 9ºS, a7, Chrome Mini, K-005, K-008, M68-7A, M69-2, M75-2, Mini, MMG0101, and Nano. See Exhibit 10 of Ruling Request. Given the absence of an infringement contention by Hyperice that the articles at issue are covered by the asserted claims of the ‘574 patent, the EOE Branch finds that Maixin has established that the articles at issue are not subject to exclusion from entry on the basis of the 1206 GEO.
Additionally, Maixin has not identified any information in the Ruling Request as confidential information. As such, unless either party contacts the EOE Branch within ten (10) working days from the date of this ruling letter to indicate its belief that this ruling letter contains confidential information, the ruling letter will be published, in accordance with 19 U.S.C. § 1625, as implemented by 19 C.F.R. Part 177, without any redactions.
The decision above 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: Mr. Brian G. Arnold
Lewis Brisbois Bisgaard & Smith LLP
633 West 5th Street, Suite 4000
Los Angeles, CA 90071
[email protected]