• HQ H355307
• Apr 20, 2026

• Type : 19 U.S.C. § 1337; Unfair Competition • HTSUS :
•  Related:   H348257; H325119; H338254   

OT:RR:BSTC:EOE H355307 ACC

Mr. Tommy Martin
BakerBotts LLP
700 K Street, N.W.
Washington D.C. 20001
Suite 3000
VIA EMAIL: [email protected]

RE: Ruling Request; U.S. International Trade Commission; Limited Exclusion Order; Investigation No. 337-TA-1415; Certain Pre-Stretched Synthetic Braiding Hair and Packaging Therefor

Dear Mr. Martin:

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, based on a request from Vivace, Inc. (d/b/a Dae Do Inc.) (“Vivace”) dated November 18, 2025 (“Ruling Request”), holding that the articles at issue, as described below, are not subject to the limited exclusion order (“LEO” or “1415 LEO”) that the U.S. International Trade Commission (“ITC” or “Commission”) issued as a result of Investigation No. 337-TA-1415 (“the 1415 investigation”) under 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 under 19 C.F.R. Part 177 that was conducted on an inter partes basis. The proceeding involved the two parties with a direct and demonstrable interest in the question presented by the Ruling Request: (1) your client, Vivace, the ruling requester and respondent in the 1415 investigation; and (2) JBS Hair, Inc. (“JBS Hair”), the patent owner and complainant in the 1415 investigation. See, e.g., 19 C.F.R. § 177.1(c).

The parties were asked to identify in their submissions confidential information, including information subject to the administrative protective order in the underlying investigation, with [[red brackets]]. See 19 C.F.R. §§ 177.2, 177.8. Consistent with the above, the parties are directed to identify information in this ruling that should be bracketed in red [[ ]] because it constitutes confidential information, as defined below, such that it should be redacted from the public version of this ruling that will be published in accordance with 19 C.F.R. § 177.10. The parties are to contact the EOE Branch within ten (10) business days of the date of this ruling letter to identify such information with brackets. 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, 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); see also OIP Guidance: Exemption 4 after the Supreme Court’s Ruling in Food Marketing Institute v. Argus Leader Media (updated 10/4/2019).

I. BACKGROUND

A. ITC Investigation No. 337-TA-1415

1. Procedural History At The ITC

The Commission instituted Investigation No. 337 TA-1415 on September 4, 2024, based on a complaint, as supplemented (“complaint”), that was filed by JBS Hair of Atlanta, Georgia. Certain Pre-Stretched Synthetic Braiding Hair and Packaging Therefor, Inv. 337-TA-1415, EDIS Doc. ID 831423, Notice of Institution of Investigation (Sept. 4, 2024) at 1. The complaint alleged a violation of Section 337 by reason of infringement of certain claims of U.S. Patent Nos. 10,786,026 (the ’026 patent), 10,945,478 (the ’478 patent), and 10,980,301 (the ’301 patent). Id. at 3-4. The notice of investigation, as amended, named the following respondents: (1) Vivace, Inc. of Levittown, New York; A-Hair Import Inc. of Norcross, Georgia (“A-Hair”); Crown Pacific Group Inc. of Doraville, Georgia (“Crown Pacific”); Loc N Products, LLC of Atlanta, Georgia (“Loc N”); and Zugoo Import Inc. of Norcross, Georgia (“Zugoo”) (collectively, “Defaulting Respondents”); (2) Chois International, Inc. of Norcross, GA (“Chois”); I & I Hair Corp. of Dallas,

2 TX (“I & I Hair”); Kum Kang Trading USA, Inc. d/b/a BNGHAIR of Paramount, CA (“Kum Kang”); Mink Hair, Ltd. d/b/a Sensual Collection® of Wayne, NJ (“Mink Hair”); Oradell International Corp. d/b/a MOTOWN TRESS of Manalapan, NJ (“Oradell”); and Twin Peak International, Inc. d/b/a Dejavu Hair of Atlanta, GA (“Twin Peak”) (collectively, “Consent Order Respondents”); and (3) Sun Taiyang Co., Ltd. d/b/a Outre® of Moonachie, NJ; Beauty Elements Corporation d/b/a Bijouz® of Miami Gardens, FL; Hair Zone, Inc. d/b/a Sensationnel® of Moonachie, NJ; Beauty Essence, Inc. d/b/a Supreme™ Hair US of Moonachie, NJ; SLI Production Corp. d/b/a It’s a Wig! of Moonachie, NJ; Royal Imex, Inc. d/b/a Zury® Hollywood of Santa Fe Springs, CA; GS Imports, Inc. d/b/a Golden State Imports, Inc. of Paramount, CA; Eve Hair, Inc. of Lakewood, CA; Midway International, Inc. d/b/a BOBBI BOSS of Cerritos, CA; Mayde Beauty Inc. of Port Washington, NY; Hair Plus Trading Co., Inc. d/b/a Femi Collection of Suwanee, GA; Optimum Solution Group LLC d/b/a Oh Yes Hair of Duluth, GA; Chade Fashions, Inc. of Niles, IL; Mane Concept Inc. of Moonachie, NJ; Beauty Plus Trading Co., Inc. d/b/a Janet Collection™ of Moonachie, NJ; Model Model Hair Fashion, Inc. of Port Washington, NY; New Jigu Trading Corp. d/b/a Harlem 125® of Port Washington, NY; Shake N Go Fashion, Inc. of Port Washington, NY; and Amekor Industries, Inc. d/b/a Vivica A. Fox® Hair Collection of Conshohocken, PA (collectively, “Remaining Respondents”). Id.; see also 89 FR 97068-69 (Dec. 6, 2024). Id. at 2-4 (as amended in Initial Determination Granting Complainant’s Motion to Amend the Complaint and Notice of Investigation (November 4, 2024), unrev’d by Commission, December 2, 2024). The Commission’s Office of Unfair Import Investigations (“OUII”) was named a party to the investigation. Id. at 4.

Through various consent orders, the Commission terminated the investigation with respect to the Consent Order Respondents. Certain Pre-Stretched Synthetic Braiding Hair and Packaging Therefor, Inv. 337-TA-1415, EDIS Doc. Id. 863271, Notice of Commission Final Determination to Issue a Limited Exclusion Order and Cease and Desist Orders; Termination of the Investigation (Sept. 29, 2025) at 2. Additionally, on April 1, 2025, JBS Hair filed a motion to terminate the investigation against the Remaining Respondents based on a withdrawal of the complaint. Certain Pre-Stretched Synthetic Braiding Hair and Packaging Therefor, Inv. 337-TA-1415, EDIS Doc. Id. 847558, Complainant’s Motion to Terminate the Investigation as to Remaining Respondents Based on Withdrawal of the Complaint, Unopposed Motion to Stay the Procedural Schedule, Unopposed Request for Shortened Response Time, and Request for Expedited Treatment (April 1, 2025) at 1. The presiding Administrative Law Judge (“ALJ”) then terminated the investigation against the Remaining Respondents in an order dated April 10, 2025. Certain Pre-Stretched Synthetic Braiding Hair and Packaging Therefor, Inv. 337-TA-1415, EDIS Doc. Id. 848362, Initial Determination Granting Complainant’s Motion to Terminate the Investigation as to Remaining Respondents based on Withdrawal of the Complaint, Order No. 44 (April 10, 2025) at 1.

Vivace filed its Answer to JBS Hair’s Complaint and the Notice of Investigation on October 21, 2024. Certain Pre-Stretched Synthetic Braiding Hair and Packaging Therefor, Inv. 337-TA-1415, EDIS Doc. ID. 835231, Dae Do, Inc.'s Response to the Complaint of JBS Hair, Inc. and to the Notice of Investigation (October 21, 2024).

On January 23, 2025, Vivace filed a Default Notice, citing “the ongoing burden and expense of participating in this Investigation” and without conceding any issues, hereby elects to raise no further defense in this Investigation and defaults” Certain Pre-Stretched Synthetic

3 Braiding Hair and Packaging Therefor, Inv. 337-TA-1415, EDIS Doc. ID. 841625, Default Notice of Respondent Dae Do Inc. (January 23, 2025) at 1.

On February 4, 2025, the ALJ issued an initial determination finding respondents A-Hair and Dae Do Inc. in default. Certain Pre-Stretched Synthetic Braiding Hair and Packaging Therefor, Inv. No. 337-TA-1415, Order 31 [Corrected], Initial Determination Finding Respondents A-Hair Import Inc. and Dae Do Inc. in Default, EDIS Doc. ID 842597 (February 4, 2025) at 1, unreviewed by Commission Notice (February 24, 2025). As part of this default, Vivace waived “the right to appear, to be served with documents, and to contest the allegations at issue in this investigation.” Id. at 1-2 (citing 19 C.F.R. § 210.16(b)(4)). In additional rulings unreviewed by the Commission, the ALJ found other respondents to be in default. Certain Pre-Stretched Synthetic Braiding Hair and Packaging Therefor, Inv. No. 337-TA-1415, EDIS Doc. ID 863271, Notice of Commission on Final Determination to Issue a Limited Exclusion Order and Cease and Desist Orders; Termination of the Investigation (Sept. 29, 2025) at 2.

On September 29, 2025, the Commission issued an LEO against the Defaulting Respondents, including Vivace. Certain Pre-Stretched Synthetic Braiding Hair and Packaging Therefor, Inv. No. 337-TA-1415, EDIS Doc. 863272, Limited Exclusion Order (Sept. 29, 2025) at 1. In the LEO, the Commission ordered that “certain pre-stretched synthetic braiding hair and packaging therefor that infringe one or more of [claims 1 and 9-11 of the ’026 patent, claim 20 of the ’478 patent, and claims 1, 4-9, and 11 of the ’301 patent] and that are manufactured abroad by or on behalf of, or imported by or on behalf of the Defaulting Respondents or any of their affiliated companies, parents, subsidiaries, agents, or other related business entities, or their successors or assigns, are excluded from entry for consumption into the United States, entry for consumption from a foreign-trade zone, or withdrawal from a warehouse for consumption, for the remaining terms of the Asserted Patents, except under license from, or with the permission of, the patent owner or as provided by law.” Id. at 2. The 1415 LEO further defined the covered articles as “pre- stretched synthetic braiding hair products having a substantially cardioid shaped perimeter formed by hackling and pre-stretching synthetic hair strands having different lengths and packaging for such products.” Id. at 3.

2. The Patents And Claims In The 1415 LEO

The 1415 LEO bars the unlicensed entry for consumption of pre-stretched synthetic braiding hair and packaging that infringe one or more of claims 1 and 9-11 of the ’026 patent, claim 20 of the ’478 patent, and claims 1, 4-9, and 11 of the ’301 patent. LEO at 1. The ’026, ’478, and ’301 patents have substantially similar specifications with the ’301 patent being a continuation and the ’478 patent a continuation-in-part of the ’026 patent. Certain Pre-Stretched Synthetic Braiding Hair and Packaging Therefor, Inv. No. 337-TA-1415, EDIS Doc. ID 828244, Complaint (August 2, 2024) at 13.

a. Claims 1 and 9-11 of the ’026 patent

The ’026 patent is titled “Synthetic Braiding Hair of Differing Lengths Packaged with a

4 Cardioid” and “relates to bundled synthetic braiding hair of differing lengths packaged in a substantially cardioid shape.” Complaint at 14. Claims 9-11 depend on independent claim 1. These claims are reproduced below:

1. A hair accessory, comprising:

bundled synthetic braiding hair, comprising:

a first bundle of synthetic hair strands having a first length; and

a second bundle of synthetic hair strands having a second length that is shorter than the first length; and

a binder coupled about a waist of the bundled synthetic braiding hair;

wherein the bundled synthetic braiding hair is folded about the binder to define a substantially cardioid shaped perimeter;

further comprising a backer panel, wherein the binder is coupled to the backer panel, wherein the backer panel is folded, thereby completely spanning a first side of the bundled synthetic braiding hair and partially spanning a second side of the bundled synthetic braiding hair.

9. The hair accessory of claim 1, the substantially cardioid shaped perimeter comprising a rounded side and a cusp side.

10. The hair accessory of claim 9, further comprising a container disposed about the backer panel and the bundled synthetic braiding hair.

11. The hair accessory if claim 1, wherein a rounded side of the substantially cardioid shaped perimeter opposite a cusp side of the substantially cardioid shaped perimeter is exposed beneath a portion of the backer panel partially spanning the second side of the bundled synthetic braiding hair.

‘026 patent at 9:52-67 and 10:26-37 (emphasis added).

b. Claim 1, 4-9, and 11 of the ’301 patent

The ’301 patent is titled “Packaged, Bundled Synthetic Braiding Hair Having Bundles of Differing Lengths” and “relates to bundled synthetic braiding hair of differing lengths folded about a waist wherein the width of the perimeter of the bundled synthetic braiding hair narrows from the middle of the perimeter to the second end located distally from the (sic) waste.” Complaint at 18- 19. Claims 4-9 and 11 depend from claim 1. These claims are reproduced below:

1. A hair accessory, comprising:

bundled synthetic braiding hair, comprising:

a first bundle of synthetic hair strands having a first length; and

5  a second bundle of synthetic hair strands having a second length that is shorter than the first length;

wherein the bundled synthetic braiding hair is folded about a waist to define a perimeter having a first end collocated with the waist, a middle, and a second end located distally from the waist; and

wherein a width of the perimeter narrows as the bundled synthetic braiding hair extends distally from the middle of the perimeter to the second end.

4. The hair accessory of claim 1, further comprising a binder coupled about the waist of the bundled synthetic braiding hair.

5. The hair accessory of claim 4, wherein the perimeter defines a substantially cardioid shaped perimeter.

6. The hair accessory of claim 5, the substantially cardioid shaped perimeter comprising a cusp positioned between two cardioidal lobes.

7. The hair accessory of claim 4, further comprising a backer panel, wherein the binder is coupled to the backer panel.

8. The hair accessory of claim 7, the backer panel folded, thereby completely spanning a first side of the bundled synthetic braiding hair and partially spanning a second side of the bundled synthetic braiding hair, and disposed within a container.

9. The hair accessory of claim 8, wherein a rounded side of the perimeter is exposed beneath a portion of the backer panel partially spanning the second side of the bundled synthetic braiding hair.

11. The hair accessory of claim 1, the perimeter shaped as an inverted teardrop with a rounded end.

’301 patent at 9:58-10:37 (emphasis added).

c. Claim 20 of the ’478 patent

The ’478 patent is titled “Packaged Synthetic Braiding Hair” and “relates to bundled synthetic braiding hair of differing lengths folded by about a waist wherein a width of the perimeter of the bundled synthetic braiding hair narrows from the middle to the second end located distally from the (sic) waste.” Complaint at 17. Claim 20 is a dependent claim that depends on independent claim 17. The language for independent claim 17 and dependent claim 20 is reproduced below:

17. A hair accessory, comprising:

bundled synthetic braiding hair, comprising:

a first bundle of synthetic hair strands having a first length; and 6  a second bundle of synthetic hair strands having a second length that is shorter than the first length;

wherein the bundled synthetic braiding hair is folded by about a waist of the bundled synthetic braiding hair to define a perimeter having a first end collocated with the waist, a middle, and a second end located distally from the waist; and

wherein a width of the perimeter narrows as the bundled synthetic braiding hair extends distally from the middle to the second end.

20. The hair accessory of claim 17, wherein the bundled synthetic braiding hair comprises pre- stretched braiding hair.

’478 patent at 18:7-27.

3. The Products from the Underlying Investigation

Vivace’s accused articles from the underlying investigation consisted of a certain pre- stretched synthetic braiding hair products. Complaint at 43-44. According to the complaint, “Respondent Vivace’s (d/b/a Dae Do Inc.) infringing pre-stretched synthetic braiding hair products include at least the XPERTS brand imported, offered for sale and sold through Twin Peak’s website www.vivaceusa.com in at least 3x packs and in a variety of colors and sizes.” Id. at 43. Moreover, the complaint alleged that the following “XPERTS pre-stretched synthetic braiding hair products are representative of Vivace’s pre-stretched synthetic braiding hair products that infringe the Asserted Patents”:

7 Id. at 43- 44.

B. 19 C.F.R. Part 177 Ruling Request

1. Procedural History Regarding the Ruling Request

On November 18, 2025, Vivace requested an administrative ruling under 19 C.F.R. Part 177 from the EOE Branch that its redesigned synthetic braiding hair products (“redesigned articles” or “Vivatress products”) arenot subject to the 1415 LEO because they do not infringe any of the claims of the ’026, ’301, or ’478 patents. Ruling Request at 1. On November 18, 2025, the EOE Branch also confirmed receipt of the Ruling Request submitted by Vivace. See EOE Branch Email to Vivace (dated November 18, 2025).

On November 24, 2026, the EOE Branch had an initial conference call with Vivace and JBS Hair, on which both parties agreed to conduct this proceeding on an inter partes basis as administered by the EOE Branch. On December 1, 2026, the EOE Branch set forth a procedural

8 schedule for this inter partes proceeding by adopting the proposed procedural schedule jointly submitted by the parties. See EOE Branch Email to Parties (dated December 1, 2025); see also Parties’ Email to EOE Branch (dated December 1, 2025). On January 23, the EOE Branch modified the procedural schedule based on JBS Hair’s unopposed request to modify the procedural schedule. See EOE Branch email to the Parties (dated January 23, 2026).

JBS Hair filed its response to Vivace’s Ruling Request on December 23, 2025, which included Exhibits A-I and Appendix A (collectively, “JBS Hair Response”). On January 6, 2026, Vivace filed its Reply to JBS Hair’s Response, which included Exhibits N and M (collectively, “Vivace Reply”). On January 20, 2026, JBS Hair submitted its Sur-Reply (“JBS Sur-Reply”).

On February 2, 2026, the EOE Branch conducted an oral discussion with the parties, with each party providing a presentation (respectively, “Vivace Oral Discussion Presentation” and “JBS Hair Oral Discussion Presentation”). On February 9, 2026, Vivace and JBS Hair submitted post oral discussion briefs (respectively, “Vivace Post Oral Discussion Submission” and “JBS Hair Post Oral Discussion Submission”).

The Articles at Issue

The articles at issue in the ruling request consist of products developed by Vivace “under the ‘Vivatress’ name.” Ruling Request at 12. The Vivatress products “come in three lengths-32 [inch], 46 [inch], & 56 [inch]” as shown in the figure below:

Id. at 12-13.

The Vivatress products also “come in different colors” as shown below:

9 Id. at 13-14.

All of the Vivatress products “include a bundle synthetic braiding hair that is bound to a backer panel at two spaced-apart locations, rather than a [single] location” as shown in the image below:

10 Id. at 15.

The Vivatress products “typically are packaged with three units of bundled synthetic braiding hair attached to a single backer panel.” Id. They are stacked one-on-top-of-the-other with each unit bound to a backer panel at two spaced-apart locations, rather than a [single] location” as shown in the image below:

Id.

“The backer panel [of the Vivatress products] is not folded over onto itself. Thus, the tops of each of the three units of bundled synthetic braiding hair are visible through the final packaging assembly” as shown in the image below:

11 Id. at 15-16.

II. ISSUE

Whether Vivace has met its burden to show that the articles at issue are not subject to the 1415 LEO.

III. LEGAL FRAMEWORK

A. Section 337 Exclusion Order Administration

The Commission shall investigate any alleged violation of Section 337 to determine, with respect to each investigation conducted by it under this Section, whether there is a violation of this Section. See 19 U.S.C. § 1337(b)(1) and (c). If the Commission determines, as a result of an investigation under this Section, that there is a violation of this Section, it shall direct that the articles concerned, imported by any person violating the provision of this Section, be excluded from entry into the United States unless the Commission finds based on consideration of the public interest that such articles should not be excluded from entry. See 19 U.S.C. § 1337(d)(1). 12  When the Commission determines that 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 (Fed. Cir. 2008). 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).”).

13  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 the U.S. Court of Appeals for the Federal Circuit (“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 patentee 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).

B. 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

14 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).1 “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). We apply this two-step analysis below.

IV. ANALYSIS

Vivace argues that the Vivatress products are not subject to the 1415 LEO for four specific reasons. First, Vivace argues that the “Vivatress Products are outside the scope of the 1415 Investigation and the LEO because their perimeter is not “cardioid shaped.” Ruling Request at 20. Second, Vivace argues that the Vivatress products do not infringe independent Claim 17 of the ’478 patent because “none of the Vivatress Products include synthetic braiding hair that is “folded … about a waist of the bundled synthetic braiding hair to define a perimeter” and nor does the “width of the perimeter” of the Vivatress Products ‘narrow[] as the bundled synthetic braiding hair extends distally from the middle to the second end.’” Id. at 23. Third, Vivace argues that the Vivatress products do not infringe independent Claim 1 of the ’301 patent because “none of the

1 Although claim construction is a question of law, the consideration of extrinsic evidence may constitute a subsidiary finding of fact. Teva, 135 S. Ct. at 841, 190 L. Ed. 2d at 733.

15 Vivatress Products include synthetic braiding hair that is “folded about a waist to define a perimeter. Nor does the ‘width of the perimeter’ of the Vivatress Products ‘narrow[] as the bundled synthetic braiding hair extends distally from the middle of the perimeter to the second end.’” Ruling Request at 30. Finally, Vivace argues that the Vivatress products do not infringe independent Claim 1 of the ’026 patent because “none of the Vivatress Products include synthetic braiding hair that is ‘folded about the binder’[,] … the synthetic braiding hair of the Vivatress Products [does not] ‘define a substantially cardioid shaped perimeter’[,] … [and] the backer panel of the Vivatress Products is not ‘folded’ so that it ‘partially span[s] a second side of the bundled synthetic braiding hair.’” Id. at 38.

JBS Hair disagrees and argues that Vivace has failed to show that the Vivatress products are not subject ot the 1415 LEO. See JBS Hair Response at 1. First, JBS Hair argues that “Vivace has not met its burden as to its allegation that the Vivatress Products are not within the scope of the 1415 investigation.” JBS Hair Response at 2. Second, JBS Hair argues that the Vivatress products practice the (1) “synthetic braiding hair folded about a waist,” and (2) “a width of the perimeter narrows as the bundled synthetic braiding hair extends distally from the middle to the second end” limitations, which are present in all asserted claims of the ’301 and ’478 patents and the only elements that Vivace alleges are missing in the Vivatress products. Id.at 6. Finally, JBS Hair argues that the Vivatress products “infringe under the doctrine of equivalents.” See id.at 12- 14.

We address these arguments separately below.

A. Vivace’s Position That the Vivatress Products are Not “Covered Articles”

Vivace first argues that “the Vivatress Products are outside the scope of the 1415 Investigation and the [1415] LEO because” the scope of the investigation and covered articles in the 1415 LEO was defined as “pre-stretched synthetic braiding hair products having a substantially cardioid shaped perimeter formed by hackling and pre-stretching synthetic hair strands having different lengths and the packaging for such products” and “perimeter [of the Vivatress products] is not ‘cardioid shaped.’” Ruling Request at 20-21 (emphasis in original).

JBS Hair disagrees and argues that Vivace “has failed to substantiate its position that an initial “scope of investigation” assessment, untethered to the actual limitations found in the Asserted Claims, is a prerequisite to CBP’s infringement analysis and enforcement powers.” JBS Hair Response at 2. JBS Hair notes that “the term ‘substantially cardioid-shaped perimeter’ does not appear in the vast majority of the Asserted Claims, including those at issue here – Claim 20 of the ’478 Patent and Claim 1 of the ’301 Patent.” Id. Further, JBS Hair argues that “the Vivatress Products nonetheless have a ‘substantially cardioid shaped perimeter,’ i.e., a substantially reverse tear drop shaped boundary with a distally narrowed or rounded bottom[.]” JBS Response at 1.

1. Commission Precedent Regarding the Scope of its Remedial Orders Under Section 337

“The Commission, as is its long-established practice, does not limit [an exclusion order] to covered products that were actually adjudicated to infringe [during the underlying investigation].”

16 Certain Movable Barrier Operator Systems and Components Thereof, Inv. No. 337-TA-1118, EDIS Doc. ID 839790, Remand Commission Opinion at 48 (Public) (December 20, 2024). “Consistent with [that] long-standing practice, the scope of [exclusion orders] includes all [ ] infringing [devices subject to the scope of the investigation], whether they have been adjudicated in the investigation or were later introduced.” Certain Road Construction Machines and Components Thereof, Inv. No. 337-TA-1088 (Modification), Commission Opinion, Doc. ID 719534 (Sept. 14, 2020) at 12-13 (emphasis added). “This coverage is to ensure that the exclusion order affords the complainant ‘complete relief’ and cannot be ‘easily circumvented.’” Certain Movable Barrier Operator Systems and Components Thereof, Inv. No. 337-TA-1118, EDIS Doc. ID 839790, Remand Commission Opinion at 48 (Public) (December 20, 2024) (citing Certain Graphics Systems, Components Thereof, and Consumer Products Containing Same, Inv. No. 337- TA-1044, Comm’n Op. at 66 (Sept. 18, 2018); see also Certain Human Milk Oligosaccharides and Methods of Producing Same, Inv. No. 337-TA-1120, Comm’n Op. at 19-20, 2020 WL 3073788 at *11 (June 20, 2020) (redesigned products may still fall within the scope of the remedial orders even if they were not adjudicated for infringement in the original investigation), aff’d, Jennewein Biotechnologie GmbH v. Int’l Trade Comm’n, 2021 WL 4250784 (Fed. Cir. Sept. 17, 2021) (unpublished)).

As an example, in Certain Audio Players & Controllers, Components Thereof, and Prods. Containing the Same, Inv. No. 337-TA-1191, the Commission “followed its customary practice and declined the respondent’s request to limit the LEO only to those products adjudicated as infringing and not to extend the LEO ‘to other Google products within the scope of the investigation for which [complainant] deliberately chose not to accuse of infring[ement].’” Certain Graphics Systems, Components Thereof, and Digital Televisions Containing The Same, Inv. No. 337-TA-1318, EDIS Doc. ID 822069, Comm’n Op. on Respondent Realtek Semiconductor Corporation's Petition for Reconsideration at 15 (Public) (May 22, 2024) (citing Inv. No. 337-TA- 1191 (“Audio Players”), Comm’n Op. at 24-25 (Feb. 1, 2022) and Audio Players, Respondent Google’s Submission on Remedy, Bond, and Public Interest at 14-15 (Dec. 2, 2021)). The Commission explained:

A Commission order is typically not limited to the accused products, but includes all products within the scope of the investigation that are covered by the patent claims as to which a violation has been found. See Certain Road Construction Machines & Components Thereof, Inv. No. 337-TA-1088 (“Road Construction Machines”) (Modification), Comm’n Op. at 22-34 (Aug. 31, 2020).

Audio Players, EDIS Doc. ID 762093, Comm’n Op. at 25 n.19 (emphasis added) (Public) (Feb. 1, 2022).

Consistent with this view, the Commission has pointed out that “[n]owhere does section 337 state that a remedial order is limited to products that were actually adjudicated during the investigation and found to infringe the patent(s) in question.” Certain Movable Barrier Operator Systems and Components Thereof, Inv. No. 337-TA-1118, EDIS Doc. ID 839790, Remand Commission Opinion at 50 (Public) (December 20, 2024). The Commission’s finding of a violation provides the basis for the Commission to order the exclusion of the “articles concerned[.]” Id. Moreover, section 337 states that the Commission, after finding a patent-based

17 or other IP-based violation, “shall direct that the articles concerned, imported by any person violating the provision of this section, be excluded from entry into the United States,” subject to public interest concerns. Id. The Commission’s interpretation of the statute is that “[t]he ‘articles concerned’ are ‘articles that infringe’ the patent claim(s) in question and are imported, sold for importation, or sold in the United States after importation by the respondent found in violation. See id. § 1337(a)(1)(B). Thus, once a respondent is found to have violated section 337 with respect to a given patent(s), the Commission shall issue an exclusion order precluding that respondent from importing in the future any articles that infringe the patent(s) in question.” Id. at 50-51 (emphasis added).

“An exclusion order is forward looking only [as] there is no recovery or penalty in the Commission for past unlawful acts of infringement or importation. Section 337 does not limit, and it would make no sense to limit, an exclusion order to past acts of infringement (i.e., products adjudicated as infringing) but not cover imports of future infringing products, even if they have not been adjudicated. Otherwise, a respondent could easily avoid an exclusion order merely by relabeling an adjudicated product or making some non-substantive changes to that product.” Id. at 51.

Significantly, the Federal Circuit and its predecessor have long upheld the Commission’s practice and interpretation as to the scope of exclusion orders. Certain Graphics Systems, Components Thereof, and Digital Televisions Containing The Same, Inv. No. 337-TA-1318, EDIS Doc. ID 822069, Commission Opinion on Respondent Realtek Semiconductor Corporation's Petition for Reconsideration at 14-15 (Public) (May 22, 2024) (citing Hyundai Elecs. Indus. Co. v. Int’l Trade Comm’n, 899 F.2d 1204, 1210 (Fed. Cir. 1990) (upholding the Commission’s practice of “shift[ing] to would-be importers of potentially infringing articles, as a condition of entry, the burden of establishing noninfringement” and “placing the risk of unfairness associated with a prophylactic order upon potential importers rather than American manufacturers”); see also Sealed Air Corp. v. Int’l Trade Comm’n, 645 F.2d 976, 988-89 (C.C.P.A. 1981). In this regard, the Federal Circuit has recognized that “the Commission, like other administrative agencies, has considerable latitude in shaping the form, scope, and extent of a remedial order.” Cisco Sys., Inc. v. ITC, 873 F.3d 1354, 1363 (Fed. Cir. 2017) (citing Viscofan, S.A. v. Int’l Trade Comm’n, 787 F.2d 544, 548 (Fed. Cir. 1986)). “Such a holding rests on basic principles of administrative law that pre-date the Supreme Court’s 1984 Chevron decision, and recognize the considerable latitude agencies are afforded in choosing and shaping their remedies.”2 Certain Movable Barrier Operator Systems and Components Thereof, Inv. No. 337-TA-1118, EDIS Doc. ID 839790, Remand Commission Opinion at 51 (Public) (December 20, 2024). Accordingly, the Commission has “broad discretion in selecting the form, scope, and extent of the remedy.” Viscofan, 787 F.2d at

2 The Commission has found that its practice of extending exclusion orders to cover all of a respondent’s infringing products, and not just those that were actually adjudicated as infringing during the underlying investigation, has not been disturbed by the U.S. Supreme Court’s recent decision in Loper Bright that overruled the Chevron doctrine. Certain Movable Barrier Operator Systems and Components Thereof, Inv. No. 337-TA-1118, EDIS Doc. ID 839790, Remand Commission Opinion at 48-50 (analyzing Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2273 (2024) in overruling Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837 (1984)). Specifically, in response to a respondent raising such an argument, the Commission held that “overruling Chevron does not automatically overrule or even call into question the Commission’s interpretation of section 337 or its established practice of issuing LEOs that cover all of a respondent’s infringing products, and not merely those adjudicated as infringing during the investigation.” Id. at 50.

18 548 (Fed. Cir. 1986) (emphasis added). Certain Movable Barrier Operator Systems and Components Thereof, Inv. No. 337-TA-1118, EDIS Doc. ID 839790, Remand Commission Opinion at 51-52 (Public) (December 20, 2024); see also Audio Players, EDIS Doc. ID 762093, Comm’n Op. at 22 (Public) (Feb. 1, 2022).

An exclusion order is a broad remedial order as defined by the Commission and consistent with its precedent “to afford[] the complainant ‘complete relief’ [that] cannot be ‘easily circumvented.’” Certain Movable Barrier Operator Systems and Components Thereof, Inv. No. 337-TA-1118, EDIS Doc. ID 839790, Remand Commission Opinion at 48 (Public) (Dec. 20, 2024) (citing Certain Graphics Systems, Components Thereof, and Consumer Products Containing the Same, Inv. No. 337-TA-1044, EDIS Doc. ID 656082, Commission Opinion at 66 (Public) (Sept. 18, 2018)).

2. The Scope Of Section 337 Investigations Are Defined By Their Notice of Investigation And The Plain Language Descriptions Therein

“Pursuant to Commission Rule 210.10(b)(l) (19 C.F.R. § 210.10(b)(l)) and as stated in the [Commission’s Notice of Investigation (“NOI”)], the plain language description of the accused products or category of accused products [] defines the scope of this investigation[.]” Certain Toner Supply Containers and Components Thereof, Inv. No. 337-TA-1260, EDIS Doc. ID 777011, Commission Opinion at 15 (Public) (Aug. 3, 2022). Pursuant to the Commission’s regulations, “[a]n investigation shall be instituted by the publication of a notice in the Federal Register. The notice will define the scope of the investigation in such plain language as to make explicit what accused products or category of accused products provided in accordance with § 210.12(a)(12) will be the subject of the investigation, and may be amended as provided in § 210.14(b) and (c).” 19 C.F.R. § 210.10(b)(l) (emphasis added). Furthermore, Commission Rule 210.12(a)(12) provides that the complaint shall “[c]ontain a clear statement in plain English of the category of products accused. For example, the caption of the investigation might refer to ‘certain electronic devices,’ but the complaint would provide a further statement to identify the type of products involved in plain English such as mobile devices, tablets, or computers.” 19 C.F.R. § 210.12(a)(12).

“Consistent with standard Commission practice, the scope of the articles covered by [an] LEO will be defined consistent with the Commission’s notice of institution[.]” Certain Icemaking Machines and Components Thereof, Inv. No. 337-TA-1369, EDIS Doc ID 844570, Commission Opinion at 8 (Feb. 27, 2025) (emphasis added); see also Certain Graphics Systems, Components Thereof, and Digital Televisions Containing The Same, Inv. No. 337-TA-1318, EDIS Doc. ID 814860, Commission Opinion at 55, FN 42 (Public) (Feb. 23, 2024) (The Commission’s notice of investigation with its “plain language description of the accused products or category of accused products [that] defines the scope of the investigation.”); see also Certain Lithium Ion Batteries, Battery Cells, Battery Modules, Battery Packs, Components Thereof, And Processes Therefor, Inv. No. 337-TA-1159, EDIS Doc. ID 735927, Commission Opinion (“1159 Comm’n Op.”) (Public) (March at 4, 2021) at 80-81 (“The notice [of investigation] will define the scope of the investigation in such plain language as to make explicit what accused products or category of accused products . . . will be the subject of the investigation” and “any relief must be limited to the plain English statement.”) (emphasis added).

19  This approach is further confirmed by language used by the Commissions in a different investigation when responding to a letter from the EOE Branch seeking clarification from the ITC regarding the scope of the remedial order in the 1370 investigation. See CBP HQ Ruling H348257 at 14-15. In response to the EOE Branch’s request for clarification regarding the scope of the remedial order in the 1370 investigation, the ITC’s response included the following:

Thank you for your letter of June 8, 2025, seeking information regarding the scope of the limited exclusion order issued in the above-referenced investigation. Specifically, you seek “confirmation or clarification whether the Commission’s limited exclusion order extends to downstream products of respondents when those products instead incorporate upstream components from non-respondent third parties that were not accused of infringement or found to violate section 337 [of the Tariff Act of 1930, as amended (19 U.S.C. § 1337)] in the underlying investigation[.]”

In other words, the Commission’s orders extend to “all products of named respondents within the scope of the investigation that are covered by the patent claims as to which a violation has been found, and [are not limited] to only those products actually adjudicated as infringing in the investigation.” Graphic Sys., Comm’n Op. on Reconsideration at 17-18. The Federal Circuit and its predecessor court have long upheld this interpretation as to the scope of Commission exclusion orders. See, e.g., Hyundai Elecs. Indus. Co. v. Int’l Trade Comm’n, 899 F.2d 1204, 1210 (Fed. Cir. 1990) (affirming the Commission’s authority to issue remedial orders that “effectively shifts to would-be importers of potentially infringing articles, as a condition of entry, the burden of establishing noninfringement”).

Accordingly, we confirm that the Commission’s limited exclusion order in this investigation is not limited to [certain products] of respondents that include the upstream components specifically adjudicated to be infringing. Rather, the order extends to downstream products of respondents within the scope of the investigation, that infringe the patents specified in the exclusion order, even if those products incorporate upstream components from non-respondent third parties that that were not adjudicated as infringing in the underlying investigation.

CBP HQ Ruling H348257 at 14-15 (quoting ITC Letter to the EOE Branch, dated June 24, 2025) (emphasis added).

Further, a party who “believes that changed conditions of fact or law, or the public interest, require that an exclusion order[] be modified[], in whole or in part … may file a petition [for modification], pursuant to section 337(k)(1) of the Tariff Act of 1930, requesting that the Commission make a determination that the conditions which led to the issuance of an exclusion order no longer exist. … The petition shall state the changes desired and the changed circumstances or public interest warranting such action[.]” 19 C.F.R. §§ 210.76; see also Certain Ink Cartridges and Components Thereof, Inv. No. 337-TA-565, Recommendation on Modification of Remedial Orders, Doc. ID 480776 (Public) (Feb. 21, 2012) at 6-7 (“Complainant made a request for

20 “modification of the General Exclusion Order, as well as the Cease and Desist Order against [respondent], to prevent [respondent] and other foreign manufacturers and domestic distributors from engaging in the importation and sale of components [] that infringe one or more claims of the asserted patents in the General Exclusion Order. … [The ALJ determined that] the general exclusion order and the cease and desist order at issue (i.e., the order issued to [respondent]) should be modified in the manner requested by [complainant] to include ‘components.’”)

3. Patent Infringement Is the Touchstone For Determining Whether an Article is Subject to an Exclusion Order Under Section 337

In applying the Commission’s precedent concerning its remedial orders under Section 337, the EOE Branch has recognized that “an infringement analysis is required and remains the test to determine admissibility under Section 337 absent specific direction from the Commission, such as in an exclusion order with express indication in any Commission Opinion from the underlying investigation.” CBP HQ Ruling H325119 (dated November 30, 2023) at 20. As the EOE Branch further explained:

The scope of the exclusion order, however, is best understood to encompass articles “covered by” the relevant patent claims, the infringement of which formed the basis of the violation of Section 337 in the underlying investigation and resulted in the issuance of the exclusion order. As [the Commission] has repeatedly confirmed: “The Commission’s long-standing practice is to direct its remedial orders to all products covered by the patent claims as to which a violation has been found, rather than limiting its orders only to those specific models selected for the infringement analysis[.] [W]hile individual models may be evaluated to determine importation and infringement, the Commission’s jurisdiction extends to all models of infringing 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 Road Construction Machines and Components Thereof, Inv. No. 337-TA-1088 (Modification), Commission Opinion, Doc. ID 719534 (Sept. 14, 2020) at 13 (emphasis added) (quoting Optical Disk Controller Chips and Chipsets and Products Containing Same, including DVD Players and PC Optical Storage Devices, Inv. No. 337-TA-506, Comm’n Op. at 56-57 (Sept. 28, 2005) (that quoted Certain Hardware Logic Emulation Systems & Components Thereof, Inv. No. 337-TA-383, Comm’n Op., 1998 WL 307240, *9 (Mar. 31, 1998))).

Moreover, the Commission has spoken to this exact question whether, for purposes of Section 337, a redesigned article may be considered to fall within an exclusion order’s scope without first determining infringement. The Commission made clear, during a modification proceeding in a different investigation, that, as in this inter partes proceeding, the patent holder has point[ed] to no law that would authorize the Commission to determine whether previously unadjudicated products fall within the scope of remedial orders without first determining whether those products infringe the relevant claims of the patent-at-issue. In fact, the Commission has explicitly found that the issue is “whether the language of the claims reads on the redesigned products as required under the standard two-part infringement

21  analysis.” Certain Network Devices, Related Software and Components Thereof (II) (Modification 2), Inv. No. 337-TA-945, EDIS Doc. ID 650147, Public Commission Opinion (Jul. 12, 2018) at 22 (emphasis added) (citing Certain Network Devices, Related Software and Components Thereof (I), Inv. No. 337- TA-945 (Enforcement), Comm’n Order at (3) (Aug. 4, 2017); see MBO Labs, Inc v. Becton, Dickinson & Co., 474 F.3d 1323, 1329 (Fed. Cir. 2007).

As such, it is understood that “[t]he Commission has always issued its orders in terms of ‘infringing’ products, and has always intended them, as in this case, to prohibit to [sic] future importation or sale of products which were not specifically adjudged infringing in the violation proceeding, but do in fact infringe. The Commission has consistently issued exclusion orders coextensive with the violation of section 337 found to exist. Thus, in cases where the violation found involves infringement of patent claims, the Commission has consistently ordered the exclusion of articles which infringe the relevant patent claims.” Certain Erasable Programmable Read Only Memories, Inv. No. 337-TA-276, Enforcement Proceeding, Comm’n Op. at 11, EDIS Doc ID 43536 (Aug. 1991). Therefore, infringement is the touchstone for admissibility questions under 19 C.F.R. § 177 when administering a Section 337 exclusion order as “the language of the patent claims are controlling as to the scope of the remedial orders[,]” Certain Digital Video Receivers and Hardware and Software Components Thereof, Inv. No. 337- TA-1001, EDIS Doc. ID 630893, Public Commission Opinion (Dec. 6, 2017) at 37, and not whether an article qualifies as the type of commodity identified in the notice of investigation or falls under a plain English statement regarding the category of products included with the exclusion order.

***

“[The Commission’s] orders direct [Customs] to bar infringing products from entering the country,” Yingbin-Nature, 535 F.3d at 1330 (emphasis added), and it is “the language of the patent claims [that] control[s] as to the scope of the remedial orders.” Certain Digital Video Receivers and Hardware and Software Components Thereof, Inv. No. 337-TA-1001, EDIS Doc. ID 630893, Public Commission Opinion (Dec. 6, 2017) at 37.

Accordingly, when CBP decides under 19 C.F.R. § 177 whether an article is subject to an exclusion order under Section 337, it is not enough that the article is the same type of commodity identified in the Commission’s notice of investigation from the underlying matter. Instead, the Commission has made clear that the traditional test for patent infringement remains the one for CBP to apply when administering an exclusion order.

CBP HQ Ruling H325119 at 20-23.

As indicated above, both Commission and EOE Branch precedent make clear that the traditional test for patent infringement remains the touchstone for CBP when administering a

22 Section 337 exclusion order. Further, it is clear that all “pre-stretched synthetic braiding hair products having a substantially cardioid shaped perimeter formed by hackling and pre- stretching synthetic hair strands having different lengths and packaging for such products” that infringe the asserted patents, are subject to the 1415 LEO regardless of whether they have been adjudicated in the underlying investigation or were later introduced. 1415 LEO at ¶ 2 (emphasis added). Accordingly, the test that the EOE Branch must apply for an unadjudicated article that falls within the scope of the underlying investigation requires an analysis of whether the unadjudicated article infringes any claims from the patents at issue based on the traditional two- step approach noted above.

4. EOE Branch Precedent Regarding the Application of Exclusion Orders to “Covered Articles”

In applying the Commission’s precedent concerning its remedial orders under Section 337, the EOE Branch has recognized that the “application of a Section 337 exclusion” is a two-part process. See CBP HQ H338254 (dated January 7, 2025) at 19-30. This two-part process involves “(i) [determining whether the article] is subject to the scope of the investigation – as governed by the notice of investigation with the plain language definition – and (ii) [determining whether the article] is covered by the relevant claims included in the exclusion order under the traditional two- step test for patent infringement.” CBP HQ H338254 (dated January 7, 2025) at 20 (emphasis in the original). As the EOE Branch further explained this approach in CBP HQ H338254:

[Respondent’s] argument that [Complainant]’s theory of infringement … is “expanding” the scope of the exclusion order misunderstands the nature of Commission investigations and remedial orders under Section 337, which, as the precedent discussed below confirms, are not limited to the products accused of infringement. Instead, such remedial orders extend to any article that (i) is subject to the scope of the investigation – as governed by the notice of investigation with the plain language definition – and (ii) is covered by the relevant claims included in the exclusion order under the traditional two-step test for patent infringement.

***

As with remedial orders from other investigations under Section 337, “[t]he exclusion order in this case is routine in form.” Certain Road Construction Machines and Components Thereof, Inv. No. 337-TA-1088, EDIS Doc. ID 719534, Commission Opinion at 12 (Sep. 14, 2020). Consistent with the Commission’s long-standing practice discussed above, the scope of this limited exclusion order includes all [Respondent’s] “wearable electronic devices with light-based pulse oximetry functionality and components thereof” that infringe the asserted patents, regardless of whether they have been adjudicated in the underlying investigation or were later introduced. Certain Light-Based Physiological Measurement Devices and Components Thereof, Inv. No. 337-TA-1276, EDIS Doc. ID 807002, Limited Exclusion Order for Apple, Inc. at ¶¶ 1-2 (Public) (Oct. 26, 2023). Therefore, the proper next step is to consider the meaning of “wearable electronic devices” and

23  the application of that meaning to the articles at issue in this inter partes proceeding. The analysis below turns to this first aspect of the consideration.

***

The investigation title for ITC Inv. No. 337-TA-1276 is “Light-Based Physiological Measurement Devices and Components Thereof.” 1276 LEO at 1. However, in the notice instituting the 1276 investigation, the Commission described the plain English language statement of the articles at issue as “wearable electronic devices with light-based pulse oximetry functionality and components thereof[.]” Certain Light-Based Physiological Measurement Devices and Components Thereof, Inv. No. 337-TA-1276, EDIS Doc. ID 749538, Institution of Investigation (August 13, 2021). Notably, although both parties argue about the application of this plain language description for the articles at issue … [.] Nevertheless, based on the Commission authority cited above, especially that confirming the nature of this plain language description, it is clear that the meaning of this term is amenable to a dictionary definition.

***

Since [Respondent] has not carried its burden to show that the [redesigned article], is not a “covered article,” the question turns to the primary test, as outlined below, regarding application of a Section 337 exclusion and, specifically, whether the articles at issue are covered by the relevant patent claims under the traditional test for patent infringement.

CBP HQ H338254 at 20, 25-26, 28 (January 7, 2025) (emphasis added).

5. The Vivatress Products Are Not “Covered Articles” That Fall Within The Scope of the Investigation

As with remedial orders from other investigations under Section 337, “[t]he exclusion order in this case is routine in form.” Certain Road Construction Machines and Components Thereof, Inv. No. 337-TA-1088, EDIS Doc. ID 719534, Commission Opinion at 12 (Sep. 14, 2020). Consistent with the Commission’s long-standing practice discussed above, the scope of this limited exclusion order includes all “pre-stretched synthetic braiding hair products having a substantially cardioid shaped perimeter formed by hackling and pre-stretching synthetic hair strands having different lengths and packaging for such products ” that infringe the asserted patents, regardless of whether they have been adjudicated in the underlying investigation or were later introduced. Certain Pre-Stretched Synthetic Braiding Hair and Packaging Therefor, Inv. No. 337-TA-1415, EDIS Doc. ID 863272, Limited Exclusion Order (Public) (September 29, 2025).

The investigation title for ITC Inv. No. 337-TA-1415 is “Certain Pre-Stretched Synthetic Braiding Hair and Packaging Therefor.” 1415 LEO at 1. Notably, JBS Hair filed an amended complaint which appears to narrow the scope of the investigation that it requested in the original complaint from “pre-stretched synthetic braiding hair products and the packaging for such

24 products” to “pre-stretched synthetic braiding hair products having a substantially cardioid shaped perimeter formed by hackling and pre-stretching synthetic hair strands having different lengths and the packaging for such products.” See Certain Pre-Stretched Synthetic Braiding Hair and Packaging Therefor, Inv. No. 337-TA-1415, EDIS Doc. ID 828244, Public Complaint (Public) (August 2, 2024) at ¶ 48 (“Pursuant to Commission Rule 19 C.F.R. §210.10(b), the scope of the investigation in plain language as to make explicit what accused products or category of accused products provided in accordance with Section 210.12(a)(12) will be the subject of the investigation, are pre-stretched synthetic braiding hair products and the packaging for such products.”) (emphasis added); see also Certain Pre-Stretched Synthetic Braiding Hair and Packaging Therefor, Inv. No. 337-TA-1415, EDIS Doc. ID 829995, First Supplement to Complaint (Public) (August 19, 2024) at ¶ 48 (“Pursuant to Commission Rule 19 C.F.R. §210.l0(b), the scope of the investigation in plain language as to make explicit what accused products or category of accused products provided, in accordance with Section 210.12(a)(l2), will be the subject of the investigation are pre-stretched synthetic braiding hair products having a substantially cardioid shaped perimeter formed by hackling and pre-stretching synthetic hair strands having different lengths and the packaging for such products.”) (emphasis added).

In the notice of institution for the 1415 investigation, the Commission adopted the aforementioned plain English statement from JBS Hair’s amended complaint to define the scope of the investigation as “pre-stretched synthetic braiding hair products having a substantially cardioid shaped perimeter formed by hackling and pre-stretching synthetic hair strands having different lengths and packaging for such products[.]” Certain Pre-Stretched Synthetic Braiding Hair and Packaging Therefor, Inv. No. 337-TA-1415, EDIS Doc. ID 831423, Institution of Investigation at 2 (Public) (September 4, 2024).

Further, the Commission used this statement to define the “covered articles” in the 1415 LEO as “pre-stretched synthetic braiding hair products having a substantially cardioid shaped perimeter formed by hackling and pre-stretching synthetic hair strands having different lengths and packaging for such products[.]” 1415 LEO at ¶ 2. The relevant language from the 1415 LEO states:

1. Certain pre-stretched synthetic braiding hair and packaging therefor that infringe one or more of the Asserted Claims of the Asserted Patents and that are manufactured abroad by or on behalf of, or imported by or on behalf of the Defaulting Respondents or any of their affiliated companies, parents, subsidiaries, agents, or other related business entities, or their successors or assigns, are excluded from entry for consumption into the United States, entry for consumption from a foreign-trade zone, or withdrawal from a warehouse for consumption, for the remaining terms of the Asserted Patents, except under license from, or with the permission of, the patent owner or as provided by law.

2. The pre-stretched synthetic braiding hair and packaging therefor subject to this exclusion order (i.e., “covered articles”) are as follows: pre-stretched synthetic braiding hair products having a substantially cardioid shaped perimeter formed by hackling and pre-stretching synthetic hair strands having different lengths and packaging for such products.

25 1415 LEO at ¶ 1-2 (emphasis added).

JBS Hair argues that “an initial ‘scope of investigation’ assessment … is [not] a prerequisite to CBP’s infringement analysis and enforcement powers.” JBS Hair Response at 2. JBS Hair argues that “the proper scope of the LEO should [not] be anything less than the full scope of the Asserted Claims.” JBS Hair Sur-Reply at 2. Specifically, JBS Hair notes that the term “having a substantially cardioid shaped perimeter” used in the plain English language statement “does not appear in the vast majority of the Asserted Claims, including those at issue here – Claim 20 of the ’478 Patent and Claim 1 of the ’301 Patent.” JBS Response at 2.

The EOE Branch acknowledges that the term “having a substantially cardioid shaped perimeter” used in the plain English language statement does not appear in the vast majority of the assert patent claims and notes that the “having a substantially cardioid shaped perimeter” language only appears in only one independent claim and two dependent claims of the asserted patents (i.e., in independent claim 1 of the ’026 patent and in dependent claims 5 and 6 of the ’301 patent). See ‘026 patent at 9:52-67; see also ’301 patent at 9:58-10:37 .

Additionally, in the underlying investigation, the parties disputed the construction of the term “substantially cardioid shaped perimeter” and proposed the following constructions for the claim term in the underlying investigation:

Asserted Claims Claim Term Complainant’s Respondents’ Staff’s Proposed Proposed Proposed Constructions Constructions Constructions ‘026 Claims 1, 9 “substantially “considerably “perimeter with a “having a and 11 and cardioid shaped inverted teardrop substantially cardioid [heart- asserted ‘301 perimeter” shape formed by cardioid shaped] claims 5 and 6 pre-hackling and appearance, appearance that pre-stretching including a cusp includes a cusp synthetic hair and two and two strands having cardioidal lobes” cardioidal lobes, differing lengths” resembling an inverted teardrop with a rounded end instead of a pointed one”

Certain Pre-Stretched Synthetic Braiding Hair and Packaging Therefor, Inv. No. 337-TA-1415, EDIS Doc. ID 836845, Joint Claim Construction Chart at 3 (Public) (November 8, 2024).

With regards to the term “substantially cardioid shaped perimeter,” the ALJ did not construe the term and rejected the following proposed language from the parties and the Commission’s Office of Unfair Import Investigations (“Staff”): “(1) JBS Hair’s proposal of ‘formed by pre-hackling and pre-stretching synthetic hair strands having different lengths’; (2) Respondents’ and Staff’s proposal of ‘a cusp and two cardioidal lobes’; and (3) Staff’s proposal of ‘a rounded end instead of a pointed one.’” The rejected language is identified in grey and strikethrough in the below chart:

26  JBS Hair’s Proposed Respondents’ Proposed Staff’s Proposed Constructions Constructions Constructions “considerably inverted teardrop “perimeter with a substantially “having a cardioid [heart- shape formed by pre-hackling cardioid appearance, including a shaped] appearance that and pre-stretching synthetic hair cusp and two cardioidal lobes” includes a cusp and two strands having differing lengths” cardioidal lobes, resembling an inverted teardrop with a rounded end instead of a pointed one”

Certain Pre-Stretched Synthetic Braiding Hair and Packaging Therefor, Inv. No. 337-TA-1415, EDIS Doc. ID 839791, Claim Construction Order at 11 (Public) (December 20, 2024).

Further, the ALJ made the following findings regarding the term “substantially cardioid shaped perimeter”:

The term “substantially cardioid shaped perimeter” appears in claim 1 of the 026 patent and two dependent claims of the 301 patent. See 026 patent at cl. 1; 301 patent at cls. 5, 6. A cardioid is a geometric shape formed by tracking a point on a circle as it rotates around another circle. See 478 patent at 6:7-14. The shape is called “cardioid” because although it is generally circular, it has a cusp, or pointed indentation, between two lobes, making a portion of it look like the top portion of a heart. See id. at Fig. 4. As is apparent from Figures 4, 8, and 9 of the 478 patent, a “substantially cardioid shaped perimeter” includes an arrangement of the claimed hair accessory where the perimeter includes a cusp and two cardioid lobes, and is significantly elongated in the direction opposite (distal to) the cusp[.] This limitation, though, is purely geometric, with no requirement in the claim language that it be achieved in any particular way.

Id. at 8-9 (emphasis added).

JBS Hair argues that Vivace “defaulted and waived its right with respect to further disput[ing] the construction” of the term “substantially cardioid shaped perimeter[.]” JBS Hair Response at 4. We agree that Vivace, in this inter partes proceeding, based on its default in the 1415 investigation, has waived its ability to contest claim construction for the terms disputed during the underlying investigation including the term “substantially cardioid shaped perimeter[.]” However, as discussed below, a word’s meaning when used in the plain English language statement, may be different from the meaning of the same word when used in a patent claim. Thus, Vivace’s default regarding the claim construction of the term “substantially cardioid shaped perimeter” in the asserted patents has no effect on the term’s meaning in the plain English language statement.

Under the approach that the EOE Branch has previously established, the proper first step is to consider the meaning of “pre-stretched synthetic braiding hair products having a substantially cardioid shaped perimeter formed by hackling and pre-stretching synthetic hair strands having

27 different lengths” and the application of that meaning to the articles at issue in this inter partes proceeding. The analysis below turns to this first aspect of the consideration.

While we acknowledge that the term “cardioid” appears in the claim language and the Commission made findings regarding the term as it appears in the asserted patents, we also confirm that, based on the Commission’s authority cited above, especially confirming the nature of the investigation’s plain English language statement, it is clear that using a dictionary definition can be helpful in determining the meaning of the term “cardioid” in the plain English language statement. Indeed, the meaning of a word in the plain English language statement, by its nature, may be different than that same word’s meaning when it is used in a patent, which may require claim construction to determine its meaning. Thus, for determining the meaning of the term “substantially cardioid shaped perimeter” used in the NOI’s plain English language statement, we turn to its meaning in plain English language which can be determined with the use of a dictionary definition.

The Oxford Dictionary describes “Cardioid” as “[a] curve having the general shape of a heart with a rounded end, such as is traced by a point on the circumference of a circle as it rolls around another, identical, circle.” Oxford English Dictionary, https://doi.org/10.1093/OED/7917616134, cardioid (n. & adj.), (March 2025) (emphasis added). Merriam-Webster Online Dictionary offers a nearly identical definition. See Merriam-Webster Online Dictionary, https://www.merriam-webster.com/dictionary/cardioid (last visited April 20, 2026) (“a heart-shaped curve that is traced by a point on the circumference of a circle rolling completely around an equal fixed circle[.]” (emphasis added)). Further, Merriam-Webster Online Dictionary includes the following illustration showing this geometric shape and how a cardioid has a “first position of [the] rolling circle,” which appears to be the indentation that facilitates the

28 creation of the heart shaped portion of the shape:

Id.

Further, this geometric meaning of the term “cardioid” is also supported by the ALJ’s findings that describe the “cardioid” limitation in asserted patents as “purely geometric” and that “[a] cardioid is a geometric shape formed by tracking a point on a circle as it rotates around another circle.” Certain Pre-Stretched Synthetic Braiding Hair and Packaging Therefor, Inv. No. 337-TA-1415, EDIS Doc. ID 839791, Claim Construction Order at 11 (Public) (December 20, 2024) (emphasis added).

Accordingly, for purposes of this Ruling Request, a “Pre-Stretched Synthetic Braiding Hair,” under its broadest definition and in light of the above dictionary definitions and the ALJ’s findings regarding the term, has a “substantially cardioid perimeter” if it has a substantially heart- shaped or tear-shaped perimeter where a portion of it looks like the top portion of a heart. We must now determine whether the Vivatress products fall within this definition, as understood by the EOE Branch.

Vivace argues that the Vivatress Products “do[] [not] have a ‘cusp’ that might ‘make a portion … look like the top portion of a heart.” Ruling Request at 21 (quoting Certain Pre- Stretched Synthetic Braiding Hair and Packaging Therefor, Inv. No. 337-TA-1415, EDIS Doc. ID 839791, Claim Construction Order at 8 (Public) (December 20, 2024). As explained by 29 Vivace, the image it provides show that “the Vivatress Products are bound in the packaging at two spaced apart locations and arranged such that each bundled synthetic hair braiding in the package has substantially the shape of an open-ended rectangle with a channel between the left and right sides”:

Ruling Request at 21.

JBS Hair disagrees and argues that “the hair shown in the Vivace Request is not representative of the actual hair—namely, the two sides of the Vivace sample have clearly been spread, and the bottom ends splayed, as demonstrated by the hair extending far beyond the edge of the packaging[.]” JBS Hair Response at 12.

30  In the exclusion order context, it is well established that the party who is seeking to enter an article in light of an exclusion order has both the burden of production and persuasion. In CBP HQ Ruling H338254, the EOE Branch provided the following explanation for this approach:

[T]he Federal Circuit has noted that, as “two distinct burdens of proof” for a party to carry, “the burden of persuasion is the ultimate burden assigned to a party who must prove something to a specified degree of certainty, such as by a preponderance of the evidence or by clear and convincing evidence” and the distinct “burden of production may entail producing additional evidence and presenting persuasive argument based on new evidence or evidence already of record.” In re Magnum Oil Tools Int’l, Ltd., 829 F.3d 1364, 1375 (Fed. Cir. 2016) (internal quotations and citations omitted). Significantly, when Hyundai places the “burden” on the “would be importer,” that is understood to encompass both the “burden of persuasion” and the “burden of production” such that [the importer] must produce sufficient record evidence that proves to the requisite degree of certainty the relevant question of fact. This approach is generally consistent with application of the Customs laws in other contexts. See Shamrock Bldg. Materials, Inc. v. United States, 119 F.4th 1346, 1352 (Fed. Cir. 2024) (“[T]the importer must produce evidence (the burden of production portion of the burden of proof) that demonstrates by a preponderance (the burden of persuasion portion of the burden of proof) that Customs’ classification decision is incorrect.”) (citing Universal Electronics Inc. v. United States, 112 F.3d 488, 492 (Fed. Cir. 1997); Timber Products Co. v. United States, 515 F.3d 1213, 1219 (Fed. Cir. 2008); and Libas, Ltd. v. United States, 193 F.3d 1361, 1365 (Fed. Cir. 1999)).

CBP HQ Ruling H338254 (January 7, 2025) at 47.

Taking the above into consideration, for Section 337-based inter partes proceedings under 19 C.F.R. Part 177, the party with the burden to establish admissibility generally must provide a sample of the article at issue for examination and testing by the other party, as well as other information or evidence needed to establish non-infringement, and therefore admissibility, of that article. Although Vivace failed to provide a sample of the Vivatress products at issue to JBS Hair in this inter partes proceeding, JBS Hair was able to obtain a sample by “purchas[ing] the genuine Vivatress Product on the open market.” See JBS Hair Sur-Reply at 19 (“[F]ailure to submit a sample of its alleged new Vivatress Product, alone, should result in denial of Vivace’s Request. … JBS Hair purchased the genuine Vivatress Product on the open market.”).

JBS Hair provides the following chart showing images provided by Vivace (on the left) and the images of the product they obtained (on the right) to argue that the images provided by Vivace do not sufficiently show the features of the Vivatress products because they “lack[] the clear plastic and depict[] the hair splayed beyond the edge of the packaging (i.e., extending over the packing border (green dashed lines)), which would not be possible in reality due to the plastic bag” on the actual product:

31  Vivace Images of the Vivatress Products JBS Hair Images of the Vivatress Products

JBS Hair Response at 5, 11.

An image provided by Vivace for the first time in its Reply confirms that the hair on the Vivatress products, when in the plastic cover, does not extend beyond the edge of the packaging:

32 Vivace Reply at 7.

While the images provided by Vivace are not sufficient for showing that the entire perimeter of the Vivatress product is substantially the shape of an open-ended rectangle with a channel between the left and right side because it is not possible for the hair of the Vivatress product to extend beyond end edge of the packaging when covered in the plastic cover, we find that these images are sufficient for showing that the perimeter of the Vivatress products do not have aportion that looks like the top portion of a heart. Specifically, the following image from Vivace shows that the perimeter of the Vivatress products do not include a portion that looks like the top portion of a heart, due to the addition of the two spaced-apart binders that create two spaced- apart indents along the top of the perimeter. Instead, the addition of the two spaced- apart binders, which bind the hair bundle to the backer panel cause the perimeter for the Vivatress products to have two spaced apart indents such that the top portion of the perimeter

33 looks like the top of arectangle with rounded sides or the top of an inverted triangle with rounded sides:

Id. at 6 (annotations in original).

Notably, JBS Hair provides no images that show only a single bundle of braiding hair when it is attached to the backer panel with the spaced-apart binders. Specifically, they only provide the following images of a single bundle of the Vivatress product they obtained, which depicts the bundle of braiding hair when it is not attached to a backer panel:

34 JBS Hair Sur-Reply at 11.

We find the images provided by Vivace sufficient for showing that the perimeter of the Vivatress products do not have a perimeter that includes a portion that looks like the top portion of a heart. Thus, we find that Vivace has met its burden of persuasion and production with respect to showing this feature of the article. , Based on our above findings, Vivace has met its burden to show to show that the articles do not fall within the plain English language statement of the NOI, which we have determined requires the perimeter to include a portion that looks like the top portion of a heart. Therefore, the Vivatress products are not “covered articles” that fall within the scope of investigation for the 1415 LEO.

Since Vivace has carried its burden to show that the Vivatress Products are not “covered articles” that fall within the scope of investigation for the 1415 LEO, the EOE Branch does not need to address the second step involved in the application of a Section 337 exclusion order and, specifically, whether the articles at issue are covered by the relevant patent claims under the traditional test for patent infringement. Accordingly, we find that Vivace has carried its burden to show that the Vivatress products are not subject to 1415 LEO.

V. HOLDING

We find that Vivace has met its burden to establish that the Vivatress products are not “covered articles” that fall within the scope of the 1415 LEO. Accordingly, we find that the articles at issue are not subject to the limited exclusion order issued as a result of Inv. No. 337-TA-1415.

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

35 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,

Alaina van Horn
Chief, Intellectual Property Enforcement Branch/
Exclusion Order Enforcement Branch


CC: Mr. Tony Pezzano
Lippes Mathias LLP
1900 K Street, NW
Suite 730
Washington, DC 20006

36