OT:RR:BSTC:IPR H272052 WMW
Ms. Elva Muneton
Director of Electronics Center of Excellence & Expertise
U.S. Customs and Border Protection
One World Trade Center, Suite 705
Long Beach, CA 90831
Attn: Tami Simmons, Import Specialist (Pembina, ND)
RE: Protest 2720-15-101483; U.S. International Trade Commission; General Exclusion Order; Investigation No. 337-TA-829; Certain Toner Cartridges and Components Thereof
Dear Ms. Muneton:
This is in response to the application for further review of the above-referenced protest filed by Billiontree Technology USA Inc. (“Protestant”) challenging the seizure of certain toner cartridges refused entry for consumption at the port of Los Angeles International Airport based on the above-referenced general exclusion orders issued by the U.S. International Trade Commission (“ITC” or “Commission”).
Investigation 337-TA-829
The Commission instituted this investigation on February 27, 2012, based on a complaint filed by Canon, Inc. of Tokyo, Japan; Canon U.S.A., Inc. of Lake Success, New York; and Canon Virginia, Inc. of Newport News, Virginia (collectively, “Canon”). See 77 Fed. Reg. 11586 (Feb. 27, 2012). The complaint alleged violations of section 337 of the Tariff Act of 1930 (19 U.S.C. § 1337) by reason of infringement of various claims of U.S. Patent Nos. 5,903,803 (“the ‘803 patent”) and 6,128,454 (“the ‘454 patent”). The Commission’s notice of investigation named numerous respondents, and during the course of the investigation several of the respondents were found to be in default, or were terminated due to consent orders, or were the subject of withdrawn allegations. Eventually, the only parties remaining active in this investigation were Canon and the Investigative Attorney (“IA”).
On February 28, 2013, the Administrative Law Judge (“ALJ”) issued his final initial determination (“ID”), finding that the asserted patents were infringed by the accused toner cartridge products. See ID at 128 (February 28, 2013). On March 25, 2013, the Commission determined not to review the ID. On June 28, 2013 the ITC issued the GEO. On May 29, 2015, the ITC issued a seizure and forfeiture order with respect to importation of articles covered under the GEO by Protestant.
FACTS:
On September 1, 2015, CBP officials at the port of Long Beach issued a notice to Protestant indicating that a shipment of toner cartridges, was seized because the articles in question were subject to the 829 GEO and a seizure and forfeiture order issued by the ITC. See CBP Seizure Notice (September 1, 1015).
On December 15, 2015, Protestant filed a protest challenging the seizure and claiming the excluded articles were not subject to the 829 GEO. Specifically, Protestant argues that the excluded articles are remanufactured toner cartridges whose cores were originally purchased in the United States. See Protest, at 1. (December 15, 2015). Protestant does not contest that the seized articles practice the patents at issue in the 723 GEO. This protest was given the reference number 2720-15-101483 by CBP.
On January 23, 2016, Protestant submitted additional evidence regarding the protest, including invoices from the sale of ink cartridges from Protest to [Printpro Technology Company Limited ], bills of lading and a brief statement regarding the fact that Protestant’s business is in empty ink cartridge collection in the United States. See E-Mail from Jonathon, Billiontree Technology USA Inc., to William Wittwer, Attorney-Advisor, U.S. Customs and Border Protection (January 12, 2016). Protestant sent additional pictures of the remanufacturing facility on January 18, 2016. See E-Mail from Jonathon, Billiontree Technology USA Inc., to William Wittwer, Attorney-Advisor, U.S. Customs and Border Protection (January 18, 2016).
There are a limited number of protestable actions taken by CBP, pursuant to 19 U.S.C. § 1514, as implemented by 19 C.F.R. Part 174, these actions do not include seizure of goods based upon a seizure and forfeiture order. As such, a protest is not the appropriate mechanism to seek redress, rather a petition to be filed with the local Fines, Penalties & Forfeitures officer as clearly stated in the seizure notice. Therefore, the protest challenging seizure is DENIED.
In accordance with the Protest/Petition Processing Handbook (CIS HB, December 2007), you are to mail this decision, together with the Customs Form 19, to the Protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision, Regulations and Rulings of the Office of International Trade will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Charles R. Steuart
Chief, Intellectual Property Branch