Customs Ruling HQ H315228 - Ruling Request; U.S. International Trade Commission; Limited Exclusion Order; Investigation No. 337-TA-1174; Certain Toner Cartridges, Components Thereof, and Systems Containing Same.

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HQ H315228
Mar 17, 2021

Type : 19 U.S.C. § 1337; Unfair Competition • HTSUS :
Related: H121519; H297262

OT:RR:BSTC:EOE H315228 CBC

Mr. Merritt R. Blakeslee
The Blakeslee Law Firm
1250 Connecticut Ave., N.W., Suite 700
Washington, D.C. 20036

VIA EMAIL: [email protected]

RE: Ruling Request; U.S. International Trade Commission; Limited Exclusion Order; Investigation No. 337-TA-1174; Certain Toner Cartridges, Components Thereof, and Systems Containing Same. Dear Mr. Blakeslee: 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 administrative ruling. We find that Mito Color Imaging Co., Ltd.; Forcolor Company Limited; Recharging Technologies Limited; L-Jet Image Technology Limited; ZhuHai YuanCheng Digital Technology Co., Ltd.; and Zhuhai YuanCheng Brother Trading Co., Ltd. (collectively “Mito”) has met its burden to show that the redesigned Mito TN420, TN450, TN630, and TN660 toner cartridges (“monochrome cartridges”), described in Mito’s ruling request of December 2, 2020, do not infringe claims 1–7 and 9 of U.S. Patent No. 9,568,856 (“the ’856 patent”) or claims 1, 4, 5, and 9 of U.S. Patent No. 9,632,456 (“the ’456 patent”). Thus, CBP’s position is that the monochrome cartridges are not subject to the general exclusion order (“GEO”) issued by the U.S. International Trade Commission (“ITC” or “Commission”) in Investigation No. 337-TA-1174, Certain Toner Cartridges, Components Thereof, and Systems Containing Same (“the underlying investigation” or “the 1174 investigation”), pursuant to section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. § 1337 (“section 337”) (“1174 GEO”). However, we find that Mito has not met its burden to show that the redesigned Mito TN221, TN223, TN225, and TN227 toner cartridges (“color cartridges”) do not infringe claim 1 of U.S. Patent No. 9,846,387 (“the ’387 patent”). Thus, it is CBP’s position that the color cartridges are subject to exclusion from entry pursuant to the 1174 GEO. We further note that determinations of the Commission 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. This administrative ruling is the result of a request under 19 C.F.R. Part 177 and was conducted on an inter partes basis with consent of the parties. The process involved the two parties with a direct and demonstrable interest in the question presented by the ruling request: (1) your client, Mito, the foreign manufacturer of the articles in question; and (2) Brother Industries, Ltd.; Brother International Corporation (U.S.A.); and Brother Industries (U.S.A.), Inc. (collectively, “Brother”), the complainant in the underlying 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, with [[red brackets]] in all of their submissions to the CBP. See, e.g., EOE Branch Email to Parties dated December 4, 2020. If there is additional information in this administrative ruling 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 administrative ruling. 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 (“TSA”) (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 first that the submitter customarily keeps the information private or closely-held, and either (a) the government provided an express or implied assurance of confidentiality when the information was shared with the government or (b) there were no express or implied indications at the time the information was submitted that the government would publicly disclose the information. See, e.g., OIP Guidance: Step-by-Step Guide for Determining if Commercial or Financial Information Obtained from a Person is Confidential Under Exemption 4 of the FOIA (posted 10/3/2019).

BACKGROUND

ITC Investigation No. 337-TA-1174

The Commission instituted Investigation No. 337-TA-1174 on September 3, 2019, based on a complaint filed by Brother. Certain Toner Cartridges, Components Thereof, and Systems Containing Same, Investigation No. 337-TA-1174, EDIS Doc. ID 728235, Commission Opinion (Public) (December 17, 2020) (“Comm’n Op.”) at 2 (citing 84 Fed. Reg. 49762–63 (Sept. 23, 2019)). The complaint alleged violations of section 337 based upon the importation into the United States, the sale for importation, and the sale within the United States after importation of certain toner cartridges, components thereof, and systems containing same by reason of infringement of claims 1–7 and 9 of the ’856 patent; claims 1, 7–11, 15, and 16 of U.S. Patent No. 9,575,460 (“the ’460 patent”); claims 1, 4, 5, and 9 of the ’456 patent; claims 1–5, 10, and 12–15 of U.S. Patent No. 9,785,093 (“the ’093 patent”); and claims 1, 3, 5, 7–12, and 18 of the ’387 patent. Id. The Commission’s notice of investigation named 32 respondents, including: AMI Brothers, Inc. of San Bruno, California (“AMI”); Aster Graphics, Inc. of Riverside, California (“Aster”); Cartridge Evolution, Inc. of Brooklyn, New York (“Cartridge Evolution”); E–Z Ink Inc. of Brooklyn, New York (“E-Z Ink”); Globest Trading Inc. of Ontario, California (“Globest”); Intercon International Corp. of Brea, California (“Intercon”); and Linkyo Corp. of La Puente, California (“Linkyo”). Id. at 2–3. The notice of investigation also named the Office of Unfair Import Investigations (“OUII”) as a party. Id. at 3.

All eight participating respondents, Brother, and OUII unanimously agreed that no terms require special construction beyond the plain and ordinary meaning. See Joint Notice of Disputed Claim Terms (Dec. 6, 2019) (EDIS Doc ID 696586).

During the course of the investigation, respondents AMI, Aster, Cartridge Evolution, E-Z Ink, Globest, and Linkyo introduced certain newly designed toner cartridges as replacements for the initially accused products, and Brother stipulated that it would not accuse the newly designed toner cartridges of infringement in the underlying investigation. Comm’n Op. at 23–25; Certain Toner Cartridges, Components Thereof, and Systems Containing Same, Investigation No. 337-TA-1174, EDIS Doc. ID 716848, Initial Determination (Public) (August 10, 2020) (“ID”) at 34, unreviewed, July 23, 2020, EDIS Doc. ID 719096 (85 Fed. Reg. 56628–31, September 4, 2020); Comm’n Op. at 27 n.14.

Cartridge Evolution, E-Z Ink, Linkyo, and others were terminated from the investigation by consent orders. Comm’n Op. at 3. AMI, Globest, and Intercon, among others, defaulted. Comm’n Op. at 3–4. On July 23, 2020, the presiding administrative law judge (“ALJ”) issued an initial determination (Order No. 40), granting Brother’s motion for summary determination, finding a violation by Aster and the defaulting respondents, and finding that the accused products practice the asserted claims. Id. at 4–5. Aster had not opposed Brother’s summary determination motion, even though Aster’s products were subject to the motion, and OUII filed briefing in support of the motion. Id. at 3–5. In finding infringement, the ALJ had considered three groups of representative products identified by Brother’s experts. ID at 118–22. For each representative product, Brother had provided “detailed claim charts” containing a “limitation-by-limitation analysis,” which the ALJ found to be “substantial, reliable, and undisputed evidence” of infringement. ID at 123–34.

On September 8, 2020, the Commission requested written submissions on remedy, the public interest, and bonding, which it received from Brother, Aster, and OUII. Comm’n Op. at 5. In so briefing, Aster requested that any remedial order include an express carve-out for its newly designed toner cartridges that Brother had stipulated it would not accuse of infringement in the underlying investigation. Id. at 23–?25. Brother responded that an express carve-out would be “redundant and unnecessary” to the extent that the order would include “the general exception for imports made ‘with the permission[] of the patentee.’” Id. at 25–26. OUII agreed with Brother because “‘express carve outs in exclusion orders [are] only for products that were found to be non-infringing,’ but that here, the newly designed products were not found to be non-infringing.” Id. at 26–27. Additionally, OUII noted that “the ‘Aster Joint Stipulation and Agreement do not contain . . . limiting language’ including in agreements with other respondents . . . restrict[ing] permissible importation of Aster’s newly designed products to any particular entity.’” Id. The Commission agreed with Brother and OUII, holding that “it [was] unnecessary to include an express exemption . . . as these products are already the subject of the Joint Stipulation and Agreement between the parties.” Id. at 28. The Commission stated that the Aster Joint Stipulation and Agreement was limited to “(1) compatibility with Brother’s identified toner cartridges; (2) conformity with identified configurations specified in the referenced Tables of the Agreement; and (3) include branded toner cartridges ‘with Aster-, Arcon-, Aztech-, CMYBabee-, Cool Toner-, EPS-, Greensky-, Ink4work-, and Toner Bank-brands.’” Id. at 29.

The Commission noted that a GEO was necessary because of concerns that infringing toner cartridges could be mass produced within a month, that “it [was] likely that the same entities [Respondents] would continue online sales and importation using different names,” and that manufacturers of toner cartridges could not be identified by the retail branding. Id. at 17–18 (quoting ID at 137). Thus, among other things, the Commission issued a GEO prohibiting the unlicensed importation of certain toner cartridges, components thereof, and systems containing same that infringe one or more of claims 1–5, 10, and 12–15 of the ’093 Patent; claims 1, 7–11, 15, and 16 of the ’460 Patent; claims 1–7, and 9 of the ’856 Patent; claims 1, 4, 5, and 9 of the ’456 Patent; and claims 1, 3, 5, 7–12, and 18 of the ’387 Patent. Id. at 34. Paragraph 2 of the 1174 GEO identified “[t]he toner cartridges, components thereof, and systems containing the same that are subject to this Order (i.e., ‘covered articles’) [] as follows: laser toner cartridges designed for use with Brother printers, fax machines, and MFCs (‘Multi-Function Centers.’).”

The Patents at Issue

The ’387 Patent

“The asserted claims of the ’093, ’460, and ’387 patents are directed to various aspects of a detection gear. The detection gear enables a compatible printer, fax machine, or MFC to detect the insertion of a new toner cartridge.” ID at 19. During prosecution of U.S. Patent No. 9,529,319, which is the parent of the ’387 patent, the applicant explained the “drive force transmission path” with the following diagram of the detection gear train: Amendment dated July 7, 2016, 6–7.

According to one embodiment of the ’387 patent, “instead of the tooth-missing gear 96, a first resistance providing member 146 is provided on the new-product detection gear 82 as shown in FIG. 27.” Col. 27, ln. 36–39. Figure 27 is reproduced below: Claim 1 is the only independent claim of the ’387 patent.. As emphasized by Mito’s request, it reads: A cartridge comprising: a coupling rotatable about a first axis extending in a first direction; a coupling gear rotatable with the coupling about the first axis; a developing roller including a developing roller shaft extending in the first direction, the developing roller being rotatable about a second axis extending in the first direction and the developing roller shaft including a first end portion and a second end portion separated from the first end portion in the first direction; a developing gear meshing with the coupling gear, the developing gear being mounted to the first end portion of the developing roller shaft and the developing gear being rotatable with the developing roller shaft about the second axis; an agitator including an agitator shaft extending in the first direction, the agitator shaft including a first end portion and a second end portion separated from the first end portion of the agitator shaft in the first direction, the agitator being rotatable with the agitator shaft about a third axis extending in the first direction; a first gear mounted to the first end portion of the agitator shaft and rotatable with the agitator shaft; a second gear mounted to the second end portion of the agitator shaft and rotatable with the agitator shaft; and an idle gear meshing with the coupling gear and the first gear. Additionally, claim 10 reads: The cartridge according to claim 8, wherein the third gear includes a plurality of gear teeth meshing with the second gear.

The ’856 and ’456 Patents

Both the ’856 and ’456 patents are descended from U.S. Patent Application No. 14/992,553. See, e.g., Second Ruling Request, 23. “The ’856 Patent and the ’456 Patent each have only a single independent claim.” Id. at 22. As emphasized by Mito, claim 1 of the ’856 patent reads: A developer cartridge comprising: a housing configured to accommodate developer therein; a developing roller rotatable about a first axis extending in an extending direction, the developing roller including a developing roller shaft extending in the extending direction; a Supply roller rotatable about a second axis extending in the extending direction, configured to Supply the developer to the developing roller and the supply roller including a Supply roller shaft extending in the extending direction; a developing electrode positioned at an outer surface of the housing; and a supply electrode positioned at the outer Surface, the Supply electrode including: a Supply connection part electrically connected to the Supply roller shaft; and a Supply protrusion protruding in the extending direction, the Supply protrusion spaced apart from the Supply connection part. Id. at 22.

As emphasized by Mito, claim 1 of the ’456 patent reads: A cartridge comprising: a housing configured to accommodate developer therein; a first cartridge electrode made of conductive resin, the first cartridge electrode positioned on one side of the housing in an extending direction, and the first cartridge electrode including: a first protrusion protruding in the extending direction, the first protrusion being contactable with a first apparatus electrode of an image forming apparatus; and a second cartridge electrode made of conductive resin, the second cartridge electrode positioned on the one side of the housing in the extending direction, and the second cartridge electrode including: a second protrusion protruding in the extending direction, the second protrusion spaced apart from the first protrusion and the second protrusion being contactable with a second apparatus electrode of the image forming apparatus. Id. at 23.

19 C.F.R. Part 177 Ruling Request

Procedural History

On November 24, 2020, Mito submitted a letter to the EOE Branch requesting an administrative ruling pursuant to 19 C.F.R. Part 177, which included Exhibits 1–4 (collectively, “First Ruling Request”). Mito requested a ruling that Mito’s color cartridges do not violate the 1174 GEO because they do not infringe the asserted claims of the ’460, ’093, and ’387 patents. On December 2, 2020, Mito submitted a second letter to the EOE Branch requesting an administrative ruling pursuant to 19 C.F.R. Part 177, which included Exhibits 1–4 (collectively, “Second Ruling Request”). Mito’s second request sought a ruling that Mito’s monochrome cartridges do not violate the 1174 GEO because they do not infringe the asserted claims of the ’856 and ’456 patents. A copy of both ruling requests was simultaneously provided via email to counsel for Brother as the complainant in the 1174 investigation. Additionally, physical samples of both the color cartridges and monochrome cartridges were provided.

On December 3, 2020, the EOE Branch had a conference call with Mito and Brother where both parties agreed that both ruling requests be consolidated and administered by the EOE Branch on an inter partes basis and to service by email. See EOE Branch email to Parties dated December 4, 2020. On December 14, the parties jointly submitted a proposed schedule for administration of the ruling requests as well as a nondisclosure agreement. See Mito Email to EOE Branch dated December 14, 2020.

On January 5, 2021, Brother provided its response to Mito’s ruling requests, which included exhibits A–P (“Brother Response”). On January 12, 2021, Mito provided its reply to Brother’s response (“Mito Reply”). On January 19, 2021, Brother provided its sur-reply to Mito’s reply, which included exhibits A–D (“Brother Sur-Reply”).

On January 26, 2021, in line with Mito’s and Brother’s desire for an opportunity to orally discuss the issues, and the established schedule, an oral discussion was held with the EOE Branch. See, e.g., EOE Branch email to Parties dated January 22, 2021. 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 January 26, 2021 (hereinafter, “Brother Slides” and “Mito Slides.”). On February 2, 2021, both Mito and Brother provided their post oral discussion submissions, Mito’s post oral discussion including Exhibits A–E and Brother’s post oral discussion submission including Exhibits A–B. (respectively, “Mito Submission” and “Brother Submission”).

The Articles at Issue

The articles at issue in the First Ruling Request are the color cartridges. “TN221 and TN223 are standard capacity cartridges, while TN225 and TN227 are high-capacity cartridges.” First Ruling Request at 5. The articles at issue in the Second Ruling Request are the monochrome cartridges. “TN420 and TN630 are standard capacity cartridges, while TN450 and TN660 are high-capacity cartridges. Further, as shown in the attached exhibits, the configurations of TN420 and TN450 are identical, and the configurations of TN630 and TN660 are identical.”

ISSUE

Whether Mito has met its burden to show that (1) the color cartridges do not infringe any of claims 1, 3, 5, 7–12, or 18 of the ’387 patent, claims 1–5, 10, or 12–15 the ’093 patent, or claims 1, 7–11, 15, or 16 of the ’460 patent; and (2) the monochrome cartridges do not infringe claims 1–7 or 9 of the ’856 patent or claims 1, 4, 5, or 9 of the ’456 patent.

LAW AND ANALYSIS

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) and (c)(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).”) (emphasis added).

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.”

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); cf. NLRB v. Bell Aerospace Co., 416 U.S. 267, 294 (1974) (An agency “is not precluded from announcing new principles in an adjudicative proceeding and that the choice between rulemaking and adjudication lies in the first instance within the [agency’s] discretion.”) (citing SEC v. Chenery Corp., 332 U.S. 194, 203 (1947)).

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, 134 S. Ct. 843; 187 L. Ed. 2d 703; 2014 U.S. LEXIS 788 (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).

Treatment of Confidential Information Submitted under 19 C.F.R. Part 177

The parties have requested confidential treatment in connection with this part 177 request for the information bracketed in red in their submissions and thereby seek to have the bracketed information redacted from any ruling that is published in accordance with 19 U.S.C. § 1625(a).

Disclosure of information related to administrative rulings under 19 C.F.R. Part 177 is governed by 6 C.F.R. pt. 5; 31 C.F.R. pt. 1; 19 C.F.R. pt. 103; and 19 C.F.R. § 177.8(a)(3). See e.g., 19 C.F.R. § 177.10(a). In addition, the determination as to whether to include or redact information within a published ruling is guided by various federal laws that involve confidentiality and disclosure, including the Freedom of Information Act (“FOIA”) (5 U.S.C. § 552), the Trade Secrets Act (18 U.S.C. § 1905), and the Privacy Act of 1974 (5 U.S.C. § 552a). See, e.g., CBP HQ Ruling H121519 at 1 (Feb. 8, 2011). Congress enacted FOIA to overhaul the public disclosure section of the Administrative Procedure Act that gradually became more “a withholding statute than a disclosure statute.” Milner v. Dep't of the Navy, 562 U.S. 562, 565 (quoting EPA v. Mink, 410 U.S. 73, 79 (1973)). Hence, there is a strong presumption in favor of disclosure, consistent with the purpose and plain language of the Act. U.S. Dep't of State v. Ray, 502 U.S. 164, 173 (1991). FOIA mandates agency disclosure of requested records unless they fall within one of nine exemptions. Milner, 562 U.S. at 565. These exemptions are “explicitly made exclusive,” Mink, 410 U.S. at 79, and must be “narrowly construed,” FBI v. Abramson, 456 U.S. 615, 630 (1982). Nevertheless, “Congress did not design the Freedom of Information Act exemptions to be mandatory bars to disclosure.” Chrysler Corp. v. Brown, 441 U.S. 281, 293 (1979); see also, GTE Sylvania v. Consumers Union of United States, 445 U.S. 375, 378, n. 2 (1980) (“The theory of the so-called ‘reverse Freedom of Information Act’ suit, that the exemptions to the Act were mandatory bars to disclosure and that therefore submitters of information could sue an agency under the Act in order to enjoin release of material, was squarely rejected in Chrysler Corp.”).

Like FOIA, an objective of administrative rulings under 19 C.F.R. Part 177 is disclosure, providing notice to interested parties of the agency’s decision-making process and position. See id. at 290 n.10. The relevant Customs regulations mirror the general presumption in favor of disclosure and place the burden on the party requesting confidentiality to demonstrate that such information qualifies. See generally FCC v. Schreiber, 381 U.S. 279 (1965). Moreover, the Customs regulations that place the burden on the ruling requester to establish, that the information at issue constitutes confidential business information is consistent with the burden that the government must satisfy in an action challenging an agency position not to disclose information pursuant to a FOIA exemption. See 5 U.S.C. § 552(a)(4)(B); see also United States Department of Justice v. Landano, 508 U.S. 165, 171 (1993).    Exemption 4 of FOIA, provides that FOIA does not apply to matters that are “trade secrets and commercial or financial information obtained from a person and privileged or confidential.” 5 U.S.C. § 552 (b)(4). Under 19 C.F.R. § 177.8(a)(3), there is a general presumption that “[n]o part of the ruling letter, including names, addresses, or information relating to the business transactions of private parties, shall be deemed to constitute privileged or confidential commercial or financial information or trade secrets exempt from disclosure pursuant to the Freedom of Information Act, as amended (5 U.S.C. § 552), unless, as provided in §?177.2(b)(7), the information claimed to be exempt from disclosure is clearly identified and the reasons for the exemption are set forth.” Thus, 19 C.F.R. § 177.2(b)(7) articulates the test for determining whether certain information is confidential in 19 C.F.R Part 177 administrative rulings.

The language of 19 C.F.R. § 177.2(b)(7) provides that, “[i]nformation which is claimed to constitute trade secrets or privileged or confidential commercial or financial information regarding the business transactions of private parties the disclosure of which would cause substantial harm to the competitive position of the person making the request (or of another interested party), must be identified clearly and the reasons such information should not be disclosed, including, where applicable, the reasons the disclosure of the information would prejudice the competitive position of the person making the request (or of another interested party) must be set forth.”  The “substantial harm to a competitive position” standard adopted in 19 C.F.R. § 177.2(b)(7) is identical to the standard for FOIA Exemption 4 established by the U.S. Court of Appeals for the District of Columbia Circuit. See Nat’l Parks & Conservation Ass’n. v. Morton, 498 F.2d 765, 770 (D.C. Cir. 1974) (construing information as “confidential” under FOIA Exemption 4 if disclosure would “cause substantial harm to the competitive position of the person from whom the information was obtained.”).

The Supreme Court’s decision in Argus Leader, however, overturned National Parks and the test upon which 19 C.F.R. § 177.2(b)(7) is based. Food Marketing Institute v. Argus Leader Media, 139 S. Ct. 2356 (2019). In this decision, the Court addressed when information provided to a federal agency qualifies as “confidential” under Exemption 4 by analyzing the term’s “ordinary, contemporary, common meaning . . . when Congress enacted FOIA in 1966.” Id. at 2362. The Court found that “[t]he term ‘confidential’ means then, as it does now, ‘private’ or ‘secret.’” Id. at 2363. And, “[n]otably lacking from dictionary definitions, early case law, or any other usual source that might shed light on the statute’s ordinary meaning is any mention of the ‘substantial competitive harm’ requirement” articulated in National Parks. Id. at 2363–65.  The Court found “[c]ontemporary dictionaries suggest two conditions that might be required for information communicated to another to be considered confidential”: (1) the information is “customarily kept private, or at least closely held, by the person imparting it;” and (2) the “party receiving [the information] provides some assurance that it will remain secret.” Id. at 2363. For information to be deemed confidential under Exemption 4, the Court held that the first condition must be met, but with respect to the second condition, “there’s no need to resolve that question in this case . . . .” Id. Thus, “[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.” Id. at 2366. In light of the above, 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 party seeking this treatment must overcome that presumption with a request that is appropriately tailored and supported by evidence establishing first that the submitter customarily keeps the information private or closely-held, and either (a) the government provided an express or implied assurance of confidentiality when the information was shared with the government or (b) there were no express or implied indications at the time the information was submitted that the government would publicly disclose the information. See, e.g., OIP Guidance: Step-by-Step Guide for Determining if Commercial or Financial Information Obtained from a Person is Confidential Under Exemption 4 of the FOIA (posted 10/3/2019).

Based on the framework above, any information meeting the criteria discussed above (or information that was redacted from the public version of the agency record at the Commission) will be bracketed in red [[ ]] for redaction from the published ruling.

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) ; see also Multilayer Stretch Cling Film Holdings, Inc. v. Berry Plastics Corp., 831 F.3d 1350, 1357 (Fed. Cir. 2016) (“Claim construction is a question of law, reviewed de novo, but any extrinsic fact-finding by the district court in the course of claim construction is reviewed for clear error.”).

“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. E.g., 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.”); Mems Tech. Berhad v. ITC, 447 Fed. Appx. 142, 151 (Fed. Cir. 2011) (An interpretation that would render other claims redundant “is disfavored . . . particularly where . . . the construction would without justification exclude embodiments in the specification.”) On the other hand, the written description may limit, as well as broaden, the choice of ordinary meaning, even without explicit redefinition or disavowal, particularly where the specification disparages alternatives or characterizes the ‘invention’ or relevant claim element as so limited; such limitation will overcome the presumption of claim differentiation. See, e.g., Ruckus Wireless, Inc. v. Innovative Wireless Solutions, LLC, 824 F.3d 999, 1004 (Fed. Cir. 2016) (holding, where claim differentiation could lead to multiple interpretations broader than the dependent claim, only one of which was consistent with the specification’s discussion of the scope of the “invention,” that the consistent meaning would govern); id. at 1009 n.6 (Stark, C.J. dissenting) (noting that the majority opinion did not analyze whether the specification amounted to disclaimer); Marine Polymer Techs., 672 F.3d at 1358–59 (finding, without analyzing lexicography or disavowal, that the characterization of the “invention” in the specification overcame claim differentiation, and listing cases discussing the significance of the term “invention” in the specification); Am. Calcar, Inc. v. Am. Honda Motor Co., 651 F.3d 1318, 1336–1337 (Fed. Cir. 2011) (limiting, without analyzing lexicography or disclaimer, the element “message” to containing a recipient address, notwithstanding such a limitation in a dependent claim, where the specification repeatedly compared the novel “C-mail messages” to E-mail.); Trs. of Columbia Univ. v. Symantec Corp., 811 F.3d 1359, 1363–66 (Fed. Cir. 2016) (holding “explicit redefinition or disavowal” unnecessary to limit claim term where the specification repeatedly, if inconsistently, so implied); UltimatePointer, L.L.C. v. Nintendo Co., 816 F.3d 816, 824 (Fed. Cir. 2016) (“UltimatePointer’s argument that a court may only deviate from the ordinary meaning when there is an explicit definition or disclaimer does not apply because the ordinary meaning of ‘handheld device,’ when read in the specific context of the specification” is limited by “the repeated description of the invention as a direct-pointing system, the repeated extolling of the virtues of direct pointing, and the repeated criticism of indirect pointing.”). Extrinsic evidence is valuable as well because “a patent specification need not disclose or teach what is known in the art.” Hill-Rom Servs. v. Stryker Corp., 755 F.3d 1367, 1373–74 (Fed. Cir. 2014) (collecting cases).

Only those claim terms that are disputed must be construed and only to the extent necessary to resolve the dispute. See O2 Micro Int’l Ltd. v. Beyond Innovation Tech. Co., 521 F.3d 1351, 1362 (2008) (“We, however, recognize that district courts are not (and should not be) required to construe every limitation present in a patent's asserted claims”). Rather, “[c]laim construction is a matter of resolution of disputed meanings and technical scope, to clarify and when necessary to explain what the patentee covered by the claims, for use in the determination of infringement.” Id. (quoting U.S. Surgical Corp. v. Ethicon, Inc., 103 F.3d 1554, 1568 (Fed. Cir. 1997); see also Vanderlande Indus. Nederland BV v. ITC, 366 F.3d 1311, 1323 (Fed. Cir. 2004) (noting that “formal construction” of an undisputed term was unnecessary where the factfinder was “plainly attentive to the critical words”).

The second step to establish infringement involves the comparison of the claims 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).

Analysis

As described in more detail below, we find that the color cartridges are subject to the 1174 GEO by infringing claim 1 of the `387 patent (one of the detection gear patents). We also find that the monochrome cartridges are not subject to the order because they do not infringe the asserted independent claims of the patents in question (the electrode patents). The monochrome cartridges were not accused of infringing the detection gear patents.

Color Cartridges

Mito presented arguments that the color cartridges did not infringe claim 1 of the ’387 patent, claim 1 of the ’093 patent, or claim 1 of the ’460 patent, the only independent claims at issue. The only element of claim 1 of the ’387 patent that Mito argued was not present in the color cartridges was the “second gear mounted to the second end portion of the agitator shaft and rotatable with said agitator shaft” because the detection gear train under Mito’s construction of that claim limitation. We find that the color cartridges infringe claim 1 of the ’387 patent for the reasons below and thus are subject to the 1174 GEO.

a second gear mounted to the second end portion of the agitator shaft and rotatable with the agitator shaft

Mito’s noninfringement argument for the color cartridges under the ’387 patent is based entirely on its construction of “gear” with respect to the “second gear” in claim 1:

The term “gear” means “a toothed machine part that is configured to mesh with another toothed part to transmit force.” On the Mito Color Cartridges, a cam is mounted on the agitator shaft, and the cam engages with the detector Geneva wheel. . . . Because a cam is not a toothed machine part, the Mito Color Cartridges do not literally infringe claim 1 of the ’387 Patent.

First Ruling Request at 53. Mito explains:

Figure 26: A close-up of the cam that engages the Geneva wheel to operate the detection mechanism on the cartridge. Figure 26 shows the portion of the cam formed with driving pins and the arcuate surface. The driving pins engage the slots on the Geneva wheel, so that rotation of the cam rotates the Geneva wheel.

First Ruling Request at 17–18.

Brother argues that Mito’s construction is improper, e.g., Brother Response, 32–33; barred by the ITC’s reliance on the plain meaning of the claims, e.g., id. at 27–28; and, moreover, that:

the Color Cartridges infringe the asserted claims of the ’387 Patent even under Mito’s improper proposed construction…. Mito’s cam gear has readily identifiable teeth in the form of “driving pins” that mesh with toothed parts of the Geneva wheel to transfer a rotational force.

E.g., id. at 42. We find Brother’s last argument dispositive and accordingly find that Mito has not met its burden. As Brother states:

Mito’s own demonstratives clearly show numerous toothed portions around the circumference of Mito’s cam gear:

Brother Response at 42. The black labels and arrows above are Brother’s additions. The detection gear train on the cartridge is shown below:

First Ruling Request at 14.

However, Mito argues that “a cam having a driving pin on its surface, such as that found in Mito’s Color Cartridges, cannot be a ‘gear,’ because neither the cam nor the driving pin are capable of working in pairs to transmit force.” Mito Reply at 45. For the purported requirement that the features be “used in pairs,” Mito does not refer back to its own construction but cites Exhibit O to Brother’s Response, Stephen P. Radzevich, Dudley’s Handbook of Practical Gear Design and Manufacture, (2d Ed. 2012). Notwithstanding how authoritative the treatise may be, or whether it constitutes extrinsic evidence that should not be relied on in this instance, it nevertheless does not support Mito’s position. The passage continues that “[i]f the two gears have different diameters, the smaller one (called the pinion) will turn faster and with less rotational force than the larger one (called the gear).” Thus Radzevich does not support the argument that a “pair” of the claimed “gear[s]” must be understood as a “pair.”

Nevertheless, Mito states that “[n]one of Brother’s three exhibits on the workings of gears show a gear mechanism driven by meshing driving pins on the surfaces of cams.” Brother does indeed cite examples of similar mechanisms disclosed as a “geneva gear” in the prior art: E.g., Brother Sur-Reply at 17. Mito for its part cites various prior art publications to “distinguish” between a “gear” and “Geneva wheel” or “cam” where the terms are used separately. However, these references do not explicitly teach that a Geneva wheel or cam can not be considered a gear in the relevant art. See, e.g., Mito Submission, 62-65. Accordingly, Mito has not overcome its burden to show that, as a factual matter, claim 1 of the ’387 patent does not read onto the color cartridge at issue. Moreover, Mito has not refuted Brother’s legal argument that, as used in the ’387 patent, the plain and ordinary meaning of the claimed “gear,” as implicitly adopted at the ITC during the underlying investigation, should be otherwise limited.

Monochrome Cartridges

Mito presented arguments that the monochrome cartridges do not infringe claim 1 of the ’456 patent or claim 1 of ’856 patent, the only independent claims at issue. Brother responded during the inter partes proceeding to challenge Mito’s non-infringement arguments. Additionally, Brother argued that Mito has failed to describe its proposed transaction in sufficient detail to meet the requirements for CBP to issue a ruling letter under 19 C.F.R. Part 177. For the reasons described below, we find that Mito has met its burden to establish non-infringement and has described the proposed transaction relative to the monochrome cartridges in sufficient detail to determine their status under the GEO.

“developing electrode,” “supply electrode” Mito argues that by removing an electrode from its monochrome cartridges, it has avoided infringement of the independent claims at issue, observing:

The claims of the ’856 Patent recite a “developing electrode” and a “supply electrode”, while the claims of the ’456 Patent recite a “first cartridge electrode” and a “second cartridge electrode”. The claims in the ’856 and ’456 Patents therefore require two electrodes.

First Ruling Request at 24. “The specifications disclose providing ‘a developing cartridge which is made to be thin while individually providing electrodes to a developing roller and a supply roller.” Id. at 25 (quoting ’856 Patent, 2:13–15; ’456 Patent, 2:13–15).

Mito’s redesigned monochrome cartridges have a “single electrode sheet.” See First Ruling Request at 33–40. Annotated Figures 14, 17, and 18 from Exhibit 2 to the First Ruling Request, depicting the TN-450 cartridge, are reproduced below by way of example:

Id. at 35–37.

Brother notes, as can be seen for example in Figure 18 above, that the monochrome cartridges have a groove suitable for positioning a second electrode as in the models found to infringe in the underlying investigation. E.g., Brother Response, 53–56. Additionally, Brother observes that the sample cartridges Mito provided did not contain toner powder, speculating that Mito may have wished to conceal the cartridge’s poor performance. Id. Finally, Brother produced evidence that customers of the Brother-compatible third-party toner cartridges (both retailers and end users) are in some cases sophisticated enough to modify them—such as by removing or replacing an “IC Chip” or selling the tools to do so in a kit—in order to achieve better performance. Id. Thus Brother argues:

Mito’s decision to include separate grooves for separate supply and developing electrodes allows Mito’s end users, or Mito itself, to add separate supply and developing electrodes at some future point—a possibility that becomes significantly more likely if Mito’s design does not actually work. . . . [W]ithout affirmative evidence to meet its burden . . . Mito’s non-infringement arguments are purely speculative . . . [and] should therefore be denied.

Id. (internal quotations omitted).

Neither Mito nor Brother discussed the two electrodes’ actual functionality in the cartridges adjudicated to infringe by the ITC or how the redesigned monochrome cartridges compensate or fail for the lack thereof. While Brother is correct that the burden is on Mito to show noninfringement, Mito has done so, consistent with the findings in the underlying investigation, in which no assertions of indirect infringement were made, by removing the claimed “electrode.” See Mito Submission at 75 (“Brother offers no coherent legal theory.”); see also id. (“The two unused electrode grooves are vestigial remains.”); Brother Submission at 6 (“Mito facilitates, and potentially encourages” infringement.) (emphasis added).

Brother suggests that the formal requirements of indirect infringement are not required where “a device is designed to be altered . . . before operation.” Id. at 8. However, the case Brother cites goes on to state that infringement was found where the accused “components” had “no useful noninfringing purpose” and then held that the “principle is inapplicable here, however, because the record provides no reason to disregard the [noninfringing configuration.]” High Tech Med. Instrumentation, Inc. v. New Image Indus., 49 F.3d 1551, 1556 (Fed. Cir. 1995). Likewise, although Mito has the burden to establish admissibility, Brother’s theory requires CBP to presume the elements of indirect infringement with no basis in the record, i.e., inducement or lack of substantial noninfringing use.

Support for Mito’s request also comes from the fact that, of the five stipulations filed at the ITC, all five involved redesigns of the relevant monochrome models with an electrode removed, including certain parties identified in public documents from the agency record. E.g., Globest stipulation, Table 3, Fig. 3, EDIS Doc ID 7018165 (Feb. 7, 2020) (“first electrode removed.”) The fact that these have been on sale to the public underscores Mito’s argument that it could not market its own cartridges without the public becoming aware if they did not function other than through installation of the legacy electrode.

Requirements of Part 177 Related to Brother’s argument concerning alleged deficiencies in Mito’s request, Brother asserts that Mito has failed to describe its transaction in the detail required for the sound administration of the customs laws. E.g., Brother Response at 25–26 (citing 19 C.F.R. § 177.1). Brother elaborated its theory:

Mito’s failings in this regard come in two forms. First, Mito fails to provide “a complete statement of all relevant facts relating to the transaction,” as required by . . . 19 C.F.R. § 177.2(b)(1). Second, the transactions identified by Mito “are essentially hypothetical in nature” and “contrary to the sound administration of the Customs and related laws,” which warrant no ruling at all under Rule 177.7(a).

Brother Submission, 4. The first provision Brother cites reads in full:

Each request for a ruling must contain a complete statement of all relevant facts relating to the transaction. Such facts include the names, addresses, and other identifying information of all interested parties (if known); the name of the port or place at which any article involved in the transaction will arrive or be entered, or which will otherwise have jurisdiction with respect to the act or activity described in the transaction; and a description of the transaction itself, appropriate in detail to the type of ruling requested.

19 C.F.R. § 177.2(b)(1) (emphasis added). Brother also cites section 177.7 for the proposition that “[n]o ruling letter will be issued in response to a request for a ruling which fails to comply with the provisions of this part” or “with regard to transactions or questions which are essentially hypothetical in nature.” Brother Submission at 5.

As emphasized above, the regulation requires a requestor to provide the identity of “known” parties. Thus Mito clarifies that for all the cartridges at issue “Mito Color Imaging Co., Ltd. is the manufacturer and a direct exporter of the Mito Cartridges. . . . All the Requesters sell the Mito Cartridges for importation.” Mito Submission, 11 (also noting that [[ ]] are likely ports of entry). Thus, Mito has provided the identities of the entities shipping the cartridges and has not failed to provide a list of future customers or ports. Mito has described its request in sufficient detail for CBP to identify the articles concerned and their admissibility under the 1174 GEO, i.e., based on noninfringement. Contra Brother Submission at 12 (arguing that the transaction is not “specifically described” within the meaning of 19 C.F.R. § 177.1(a)(1) because CBP could not so determine). Brother’s request for all “plans for manufacturing, distribution, and importation,” is not necessary under Part 177 for Mito to satisfy the requirements in 19 C.F.R. Part 177.

Brother also discusses a previous ruling request which CBP denied as “essentially hypothetical.” E.g., Brother Response at 7 (citing HQ H297262 (Aug. 9, 2019)). However, the decision cited involved a product with a design that was not finalized, batches of which would be subjected to a “verification plan” to demonstrate that the manufacturing tolerances were not within those claimed. In contrast, here there is no dispute about the configuration of the articles at issue. Even Brother’s theory about how the monochrome cartridges could be modified presumes that Mito’s structural description of its redesign is adequately representative.

IV. HOLDING:

We find that Mito has met its burden to establish that monochrome cartridges manufactured by Mito do not infringe the claims at issue. Specifically, we find that the monochrome cartridges do not have a both a “developing electrode” and a “supply electrode” as the asserted claims of the ’856 and ’456 patents require. Accordingly, we find that the monochrome cartridges are not subject to the GEO issued as result of Investigation No. 337-TA-1174.

Additionally, we find that Mito has not met its burden to show that the color cartridges do not have a “gear” within the meaning of “a second gear mounted to the second end portion of the agitator shaft and rotatable with the agitator shaft” as claimed by the ’387 patent. Mito has not alleged that the color cartridges are missing any other elements of claim 1. Accordingly, we find that the color cartridges are subject to the 1174 GEO.

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. Part 177.2(b)(1), (2), and (4), Part 177.9(b)(1) and (2).

Sincerely,

Dax Terrill
Chief, Exclusion Order Enforcement Branch

cc VIA EMAIL: Ms. Lisa M. Kattan
Baker Botts LLP
700 K Street, N.W.
Washington, DC
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