OT:RR:BSTC:EOE H359753 ACC
George C. Summerfield
K&L GATES
1601 K Street, NW
Washington, DC 20006
VIA EMAIL: [email protected]
RE: Request for Reconsideration of CBP HQ Ruling H351104; U.S. International Trade
Commission; Limited Exclusion Order; Investigation No. 337-TA-1394; Certain Liquid
Coolers for Electronic Components in Computers, Components Thereof, Devices for
Controlling Same, And Products Containing Same
Dear Mr. Summerfield:
Pursuant to 19 C.F.R. Part 177, the Exclusion Order Enforcement Branch (“EOE Branch”
or “Branch”), Regulations and Rulings, U.S. Customs and Border Protection (“CBP”), issues this
ruling letter, based on a request for reconsideration from SilverStone Technology Co., Ltd.,
SilverStone Technology, Inc., Enermax Technology, Enermax USA, Shenzhen Apaltek Co., Ltd.,
and Guangdong Apaltek Liquid Cooling Technology Co., Ltd. (collectively, “Apaltek” or
“respondent”) submitted on March 20, 2026 (“Request for Reconsideration”), holding that we
decline to modify or revoke CBP HQ Ruling H351104 (dated February 20, 2026), which found
that certain redesigned liquid coolers for electronic components in computer (“articles at issue”)
were subject to the limited exclusion order (“LEO”) that the U.S. International Trade Commission
(“ITC” or “Commission”) issued as a result of Investigation No. 337-TA-1394 (“the 1394
investigation” or “underlying investigation”) under section 337 of the Tariff of 1930, as amended,
19 U.S.C. § 1337.
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,
Apaltek, the ruling requester and respondent in the 1394 investigation; and (2) Cooler Master Co.,
Ltd., CMI USA, Inc., and CMC Great USA, Inc. (collectively “Cooler Master”), the patent owner
and complainant in the 1394 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-1394
1. Procedural History At The ITC
The Commission instituted Investigation No. 337-TA-1394 on March 21, 2024, based on
a complaint filed by Cooler Master. Certain Liquid Coolers for Electronic Components In
Computers, Components Thereof, Devices for Controlling Same, And Products Containing Same,
Inv. No. 337-TA-1394, EDIS Doc. ID 858641, Public Commission Opinion (August 5, 2025)
(“Comm’n Op.”) at 2 (citing 89 Fed. Reg. 20247-48 (Mar. 21, 2024)). The complaint alleged a
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violation of section 337 by reason of infringement of claims 1-3 and 14 of U.S. Patent No.
10,509,446 (“the ’446 patent”); claims 1-4 of U.S. Patent No. 11,061,450 (“the ’450 patent”); and
the claim of U.S. Patent No. D856,941 (“the ’941 design patent”) (together, the “Asserted
Patents”). Comm’n Op. at 2-3. The notice of investigation named SilverStone Technology Co.,
Ltd. of Taiwan; SilverStone Technology, Inc. of Chino, California; Enermax Technology Corp. of
Taiwan; Enermax USA of Chino, California; Shenzhen Apaltek Co., Ltd. of China; and
Guangdong Apaltek Liquid Cooling Technology Co., Ltd. of China as respondents. Id. at 3. The
Commission’s Office of Unfair Import Investigations (“OUII”) was not a party in the investigation.
Id.
On March 21, 2025, the Chief Administrative Law Judge (“CALJ”) issued a final initial
determination, Certain Liquid Coolers for Electronic Components In Computers, Components
Thereof, Devices for Controlling Same, And Products Containing Same, Inv. No. 337-TA-1394,
EDIS Doc. ID 848531, Initial Determination on Violation of Section 337 and Recommendation
on Remedy and Bond (March 21, 2025) (“FID”), finding a violation of section 337. Id. at 3.
Specifically, the CALJ determined that a violation of section 337 occurred in the importation into
the United States, the sale for importation, or the sale within the United States after importation,
of the accused products due to infringement of certain claims of the ’446 patent and the ’450 patent.
Id.
The Commission determined to review in part the FID and requested submissions
responding to the Commission’s questions on review and remedy, the public interest, and bonding.
Id. at 3-4 (citing 90 Fed. Reg. 22755-56). The Commission, in its review of the FID, found a
violation of section 337 as to the ’446 patent and the ’450 patent, and determined that the
appropriate remedy was a limited exclusion order (“1394 LEO”) and a cease and desist order
(“CDO”). Id. at 36.
In the 1394 LEO, the Commission ordered that “[c]ertain liquid coolers for electronic
components in computers, components thereof, and products containing same that infringe one or
more of claims 1-3 and 14 of the ’446 patent or claims 1-4 of the ’450 patent and are manufactured
abroad by, or on behalf of, or imported by or on behalf of Respondents or any of their affiliated
companies, parents, subsidiaries, agents, or other related business entities, or its 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.” Certain Liquid Coolers for Electronic Components In Computers,
Components Thereof, Devices for Controlling Same, And Products Containing Same, Inv. No.
337-TA-1394, EDIS Doc. ID 857700, Limited Exclusion Order (July 24, 2025) (“1394 LEO”) at
2, ¶ 1. The Commission further defined the articles covered by the 1394 LEO as “liquid coolers
for electronic components in computers, components thereof, and products containing same
subject to this exclusion order (i.e., “covered articles”) [including the following]: liquid coolers
for electronic components in computers, components thereof, and products containing same.” Id.
at 2, ¶ 2.
2. The Patents And Claims In The 1394 LEO
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The 1394 LEO prohibits the unlicensed entry for consumption of certain liquid coolers for
electronic components in computers, components thereof, and products containing same that
infringe one or more of claims 1-3 and 14 of the ’446 patent”; and claims 1-4 of the ’450 patent.
1394 LEO at 2, ¶ 1. These patents are related, and their specifications are materially the same.
Comm’n Op. at 5. Both patents are titled “Cooling Apparatus for Electronic Components”. Id. .
The specification for these patents describes a cooling apparatus for dissipating heat generated by
electronic components. Id. . One embodiment from the specification is a cooling apparatus that
incudes “an outer casing 6 installed on the base plate 2 and enclosing the housing 4, the flow
guidance plate 3, and the cover member 1.” Id. (quoting ’446 patent at 7:61-64). The general
structure of the cooling apparatus is shown in the figures below:
’446 patent at Figs. 15C, 15D. In the above structure, the cover member 1 is disposed on the base
plate 2 to define a “heat exchange chamber.” See id. at 4:5-25. The flow guidance plate 3 is
positioned on the cover member and defines a first cavity and a second cavity. See id. at 5:10-63.
In general, the cooling apparatus functions by pumping fluid at a lower temperature into the heat
exchange chamber, circulating the fluid in the heat exchange chamber where it absorbs thermal
energy from and cools the base plate, and then circulating the fluid to an external heat dissipating
device to cool the fluid again. Id. at 1:33-44, 6:66-7:27.
a. Claims 1-3 and 14 of the ’446 patent
For the covered claims from the ’446 patent, claims 2 and 14 depend from independent
claim 1 and claim 3 depends from dependent claim 2. Independent claim 1 and claims 2- 3, and
14 of the ’446 patent are reproduced below:
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1. A cooling apparatus, comprising:
a base plate configured to dissipate heat and including a heat exchange unit;
a cover member coupled to the base plate and at least partially enclosing the heat exchange
unit, the cover member and the base plate defining a heat exchange chamber that includes
the heat exchange unit, the cover member defining a first opening and a second opening,
and the cover member being coupled to the base plate such that at least one of the first and
second openings is above the heat exchange unit;
a flow guidance plate disposed on a top surface of the cover member and including a bottom
surface facing the top surface of the cover member, wherein
the flow guidance plate at least partially defines a first cavity and a second cavity separated
from the first cavity, and
the first cavity and the second cavity are defined on the bottom surface of the flow guidance
plate; and
a housing disposed on the flow guidance plate.
2. The cooling apparatus of claim 1, wherein
the heat exchange unit includes a plurality of fins,
the first opening is a first elongated slot and the second opening is a second
elongated slot parallel to the first elongated slot, the first and second elongated slots
having different lengths, and
the cover member is coupled to the base plate such that the first and second
elongated slots extend perpendicular to the plurality of fins.
3. The cooling apparatus of claim 2, wherein the plurality of fins form an array
having a width substantially equal to a length of the first elongated slot.
14. The cooling apparatus of claim 1, further comprising an outer casing secured to
the base plate and at least partially enclosing the cover member, the flow guidance
plate, and the housing.
Comm’n Op. at 6-7; see also ’446 patent, claims 1-3 and 14.
b. Claims 1-4 of the ’450 patent
For the covered claims from the ’450 patent, claim 4 depends from claim 3, claim 3 depends
from claim 2, and claim 2 depends from independent claim 1. Independent claim 1 and claims 2-
4 of the ’450 patent are reproduced below:
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1. A cooling apparatus, comprising:
a base plate configured to dissipate heat and including a heat exchange unit;
a cover member coupled to the base plate and at least partially enclosing the heat
exchange unit, the cover member and the base plate defining a heat exchange
chamber that includes the heat exchange unit, the cover member defining a first
opening and a second opening, and the cover member being coupled to the base
plate such that at least one of the first opening and the second opening is above the
heat exchange chamber;
a flow guidance plate disposed on the cover member;
a housing disposed on the flow guidance plate; and
an outer casing secured to the base plate and at least partially enclosing the cover
member, the flow guidance plate, and the housing.
2. The cooling apparatus of claim 1, wherein the heat exchange unit comprises a
plurality of fins.
3. The cooling apparatus of claim 2, wherein the first opening is a first elongated
slot and the second opening is a second elongated slot parallel to the first elongated
slot, the first and second elongated slots having different lengths, and
the cover member is coupled to the base plate such that the first and second
elongated slots extend perpendicular to the plurality of fins.
4. The cooling apparatus of claim 3, wherein the plurality of fins form an array
having a width substantially equal to a length of the first elongated slot.
’450 patent at claims 1-4.
B. CBP HQ Ruling H351104
On August 4, 2025, pursuant to 19 C.F.R. § 177, Apaltek submitted a request to CBP for
an administrative ruling whether certain liquid coolers for electronic components in computers
were subject to the 1394 LEO that the Commission issued as a result of the 1394 investigation
under section 337 of the Tariff of 1930. See CBP HQ Ruling H351104 (dated February 20, 2026)
(“Apaltek I”) at 1. On February 20, 2025, CBP issued HQ Ruling H351104 holding:
We find that Apaltek has not met its burden to establish that the articles at issue do
not infringe the relevant claims of the asserted patents. Accordingly, we find that
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the articles at issue are subject to the limited exclusion order issued as a result of
Inv. No. 337-TA-1394.
Id.
C. 19 C.F.R. Part 177 Ruling Request
1. Procedural History Regarding the Current Request for Reconsideration
On March 20, 2026, Apaltek submitted to CBP a request for reconsideration pursuant to
19 C.F.R. § 177, requesting that “the Exclusion Order Enforcement Branch [] reconsider its
decision of February 20, 2026, pursuant to Section 177 in the afore-referenced matter finding that
Apaltek has not met its burden to establish that the articles at issue do not infringe the relevant
claims of the asserted patents.” Request for Reconsideration at 1. In the Request for
Reconsideration, Apaltek argues that the USPTO’s recent “reexamination decision confirming the
claims of the ’50 Patent, i.e., that the principal reference did not teach a housing on the flow
guidance plate, as required by such claims” “is contrary to the decision reached by the [Exclusion
Order] Enforcement Branch, given the identity in relevant structure as between the prior art at
issue before the PTO and the redesigned products.” Id; see also Exhibit A to Request for
Reconsideration (“Notice of Intent to Issuе Ex Parte Reexamination Certificate” or “Notice”) at 2.
On March 20, 2026, the EOE Branch sent an email to the parties establishing the procedural
schedule for this inter partes proceeding. See EOE Branch Email to Parties (dated August 15,
2025). Notably, the procedural schedule included a response submission by Cooler Master and a
reply submission to the response by Apaltek. Id. On March 23, 2026, Cooler Master sent an email
to the EOE Branch indicating that the parties agreed that the executed NDA covering the inter
partes proceeding for CBP HQ Ruling H351104 applies to the inter partes proceeding for this
Request for Reconsideration and that the parties had no objection to the EOE Branch administering
this proceeding on an inter partes basis. Cooler Master Email to EOE Branch (dated March 23,
2026).
On April, 3, 2026, Cooler Master provided its response to the Request for Reconsideration
(“Cooler Master Response”). On April 10, 2026, Apaltek provided its reply to Cooler Master’s
Response (“Apaltek Reply”).
2. The Articles at Issue
The articles at issue in this Request for Reconsideration include redesigned liquid coolers:
(1) the CF liquid cooler; and (2) the TDT liquid cooler (collectively, “Redesign Liquid Coolers”).
The first redesigned liquid cooler is the CF liquid cooler as depicted below:
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CBP HQ Ruling H351104 (dated February 20, 2026) at 7.
An image showing the heat exchange chamber of the CF liquid cooler is included below:
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Id. at 8.
Further, the below CAD drawing of the CF liquid cooler similarly shows that the housing
provides the side walls of the heat exchange chamber, with the space between the heat exchange
fins and the housing as designated by green arrows:
Id.
The image below of the CF liquid cooler shows a space between the cover member and
the side walls of the housing as indicated by a green arow:
Id. at 9.
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The second redesigned liquid cooler is the TDT redesigned liquid cooler as shown below:
Id. at 9.
In the TDT redesigned liquid cooler, the liquid cooler has an uncovered portion of the heat
exchange fins (shown below in red) when the cover member and base plate are assembled:
Id. at 10.
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II. ISSUE
Whether Apaltek has failed to meet its burden to show that the articles at issue do not
infringe the ’446 and ’450 patents and thus are not subject to the LEO issued in the 1394
investigation.
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).
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
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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.” 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
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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
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.”).
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.
13
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. INFRINGEMENT ANALYSIS
Apaltek makes the following arguments in its Request for Reconsideration based on the
PTO’s recent Intent to Issuе Ex Parte Reexamination Certificate for the ’450 Patent:
In its Intent to Issuе Ex Parte Reexamination Certificate for the ‘450 Patent, the
PTO stated that, “[i]f 164 of Tsai is seen as the cover member and 166 is the flow
guidance plate, there is no housing on the flow guidance plate.” U.S. Patent Appl.
Ser. No. 90/015,394, Notice of Intent to Issuе Ex Parte Reexamination Certificate
(Feb. 20, 2026) [] at 2. This reexamination decision is now part of the prosecution
history for the patents at issue and is therefore part of the intrinsic evidence used to
interpret claim scope for those patents. See, e.g., Northpeak Wireless, LLC v.
3COM Corp., 674 F. App’x 982, 986 n.1 (Fed. Cir. 2016). Courts often issue
supplemental claim constructions to address pertinent developments that occur in
concurrent reexamination proceedings. See, e.g., 3rd Eye Surveillance, LLC v.
United States, 167 Fed. Cl. 719, 730 (2023), citing Cloud Farm Assocs., L.P. v.
Volkswagen Grp. of Am., Inc., No. 10-502-LPS, 2015 WL 4730898 at *1, 9 (D.
Del. Aug. 10, 2015); and VirtualAgility, Inc. v. Salesforce.com, Inc., No. 2:13-cv-
00011-JRG, 2014 WL 807588, at *3 (E.D. Tex. Feb. 27, 2014). In this case, the
PTO found that the configuration shown in the Tsai reference does not include a
housing “disposed on” the flow guidance plate, as required by the claims of the
patents at issue. See, e.g.,‘450 Patent, claim 1; and ‘446 Patent.
***
The juxtaposition of the housing relative to the top cover (the only thing that could
arguably correspond to the claimed “flow guidance plate”) in Respondents’
redesigned products is identical to the juxtaposition of elements 14 and 166 in the
Tsai reference. Xiao Decl., ¶ 3. If Tsai’s housing 14 is not “disposed on” flow
guidance plate 166, as required by the claims of the patents at issue, then the same
would be true for the redesigned products. Id., ¶ 4. Respondents respectfully
request that the Enforcement Branch consider this intrinsic evidence from the PTO,
reconsider its ruling, find that the Respondents’ redesigned products lack the
“disposed on” limitation as between the claimed “flow guidance plate” and
“housing,”
Request For Reconsideration at 2-3.
Specifically, the PTO, in its Intent to Issue Ex Parte Rexamination Certificate for the ’450
Patent, stated the following:
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If 164 of Tsai is seen as the cover member and 166 is the flow guidance plate, there
is no housing on the flow guidance plate.
Notice of Intent to Issuе Ex Parte Reexamination Certificate at 2.
The Request for Reconsideration presents two non-infringement theories. First, Apaltek
argues that the redesigned liquid coolers do not infringe because they are identical to the prior art
(i.e., Tsai). See Request for Reconsideration at 2-3. Second, Apaltek argues that the redesigned
liquid coolers do not infringe because the PTO’s Notice limits the scope of the asserted patents.
Id. We will address both arguments below.
A. “Practicing the Prior Art”
The first non-infringement theory presented by Apaltek in the Request for Reconsideration
has three steps. First, “the PTO found that the configuration shown in the Tsai reference does not
include a housing “disposed on” the flow guidance plate, as required by the claims of the patents
at issue.” Request for Reconsideration at 2 (emphasis added). Second, Apaltek argues that “[t]he
juxtaposition of the housing relative to the top cover (the only thing that could arguably correspond
to the claimed “flow guidance plate”) in Respondents’ redesigned products is identical to the
juxtaposition of elements 14 and 166 in the Tsai reference.” Id. at 3 (emphasis added). Third,
Apaltek argues “[i]f Tsai’s housing 14 is not “disposed on” flow guidance plate 166, as required
by the claims of the patents at issue, then the same would be true for the redesigned products.”
Id.
In response to this argument, Cooler Master argues that Apaltek’s argument “is nothing
more than an improper ‘practicing the prior art’ defense to infringement.” Cooler Master Response
at 1.
The EOE Branch recognizes that the Federal Circuit has unequivocally stated: “[T]here is
no ‘practicing the prior art’ defense to literal infringement.” See Tate Access Floors v. Interface
Architectural Res., 279 F.3d 1357, 1365 (Fed. Cir. 2002) (emphasis added); see also Baxter
Healthcare Corp. v. Spectramed, Inc., 49 F.3d 1575, 1583 (Fed. Cir. 1995) (Federal Circuit rejected
plaintiff’s argument that, “in order to establish literal infringement, must prove by a preponderance
of the evidence that [defendant’s] accused devices embody all the limitations in the asserted
claims, and in addition, [defendant’s] accused devices must not be an adoption of the combined
teachings of the prior art.).
To distinguish this Federal Circuit case law, Apaltek cites to a district court case named
Alloc, Inv. v. Norman D. Lifton Co. to argue “that the ‘practicing the prior art’ defense is only
‘impermissible where the defendant uses such an argument to demonstrate invalidity, i.e. that the
plaintiff's patent was anticipated or non-obvious, as a backdoor route to proving non-
infringement.’” Apaltek Reply at 1 (quoting Alloc, Inc. v. Norman D. Lifton Co., 653 F. Supp.2d
469, 474 n.4 (S.D.N.Y. 2009)). Further Apaltek argues that it “similarly reference[s]the prior art,
and particularly what the Examiner had to say about such art in distinguishing the subject claims,
in supporting its noninfringement defense” such that “Cooler Master’s [] argument regarding
practicing the prior art should be disregarded.” Apaltek Reply at 2.
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Notably, the above district court case is both non-binding on CBP and other district courts
have rejected this approach. See Opticurrent, LLC v. Power Integrations, Inc., 2018 U.S. Dist.
LEXIS 215907 at 17 (N.D. Cal. 2018) (“Alloc, Inc. is unpersuasive. … [I]t provides only a cursory
application of the prior art case law in a footnote. Without more information on the expert
testimony in that case, I also cannot glean much value from the court's application of the law.”).
We similarly find this argument unpersuasive. Specifically, the Federal Circuit has made clear
that “infringement is determined by construing the claims and comparing them to the accused
device, not by comparing the accused device to the prior art.” Tate Access Floors v. Interface
Architectural Res., 279 F.3d 1357, 1366 (Fed. Cir. 2002).
Accordingly, we reject Apaltek’s “practicing the prior art” non-infringement theory that
the redesigned liquid coolers do not infringe the Asserted Patents because the relevant features on
the redesigned liquid coolers are the same as the features on the prior art (i.e., Tsai) and “Tsai’s
housing 14 is not “disposed on” flow guidance plate 166, as required by the claims of the patents
at issue”.
B. Scope of the Asserted Patents in Light of the PTO’s Statement in the Notice
Apaltek also alludes to an alternative non-infringement theory that requires the EOE
Branch to re-interpret the scope of the asserted patents based on the PTO’s Notice. In their Request
for Reconsideration Apaltek argues:
This reexamination decision is now part of the prosecution history for the patents
at issue and is therefore part of the intrinsic evidence used to interpret claim scope
for those patents. Courts often issue supplemental claim constructions to address
pertinent developments that occur in concurrent reexamination proceedings. In this
case, the PTO found that the configuration shown in the Tsai reference does not
include a housing “disposed on” the flow guidance plate, as required by the
claims of the patents at issue. The juxtaposition of the housing relative to the top
cover (the only thing that could arguably correspond to the claimed “flow guidance
plate”) in Respondents’ redesigned products is identical to the juxtaposition of
elements 14 and 166 in the Tsai reference. If Tsai’s housing 14 is not “disposed
on” flow guidance plate 166, as required by the claims of the patents at issue,
then the same would be true for the redesigned products.”)
Request for Reconsideration at 2 (citations omitted) (emphasis added).
Cooler Master argues that “the fact that the Examiner in Reexam Control No. 90/015,394—
not Cooler Master—made certain comments in his statement of reasons for patentability does not
limit the scope of the claims of the ‘450 patent (or ‘446 patent)” because “an Examiner’s unilateral
comments in a statement of reasons for allowance do not limit claim scope.” Cooler Master
Response at 2. Based on the PTO records provided in the Request for Reconsideration, Cooler
Master did not disavow the Examiner’s statements in the Notice. Thus, we must determine whether
Cooler Master’s failure to reject the PTO’s unilateral statement in the Notice limits the scope of
the asserted patents.
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Federal Circuit precedent explains the standard for determining whether the prosecution
history limits the scope of a patent:
Claims terms “are generally given their ordinary and customary meaning.”
Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005) (en banc) (quoting
Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996)). But a
term's ordinary meaning must be considered in the context of all the intrinsic
evidence, including the claims, specification, and prosecution history. 3M
Innovative Props. Co. v. Avery Dennison Corp., 350 F.3d 1365, 1371 (Fed. Cir.
2003); see also Phillips, 415 F.3d at 1314. “[T]he prosecution history can often
inform the meaning of the claim language by demonstrating how the inventor
understood the invention and whether the inventor limited the invention in the
course of prosecution, making the claim scope narrower than it would otherwise
be.” Phillips, 415 F.3d at 1317. In the latter circumstance, we have recognized that
a “clear and unmistakable” disavowal during prosecution overcomes the “‘heavy
presumption' that claim terms carry their full ordinary and customary meaning.”
Omega Eng'g, Inc. v. Raytek Corp., 334 F.3d 1314, 1323, 1326 (Fed. Cir. 2003);
see also Epistar Corp. v. Int'l Trade Comm'n, 566 F.3d 1321, 1334 (Fed. Cir. 2009)
("A heavy presumption exists that claim terms carry their full ordinary and
customary meaning, unless it can be shown the patentee expressly relinquished
claim scope." (emphasis added)). Thus, when the patentee unequivocally and
unambiguously disavows a certain meaning to obtain a patent, the doctrine of
prosecution history disclaimer narrows the meaning of the claim consistent with
the scope of the claim surrendered. Id. at 1324 (emphasis added).
***
[I]t is the applicant, not the examiner, who must give up or disclaim subject
matter that would otherwise fall within the scope of the claims." Innova/Pure
Water, Inc. v. Safari Water Filtration Sys., Inc., 381 F.3d 1111, 1124 (Fed. Cir.
2004). This case, however, differs markedly from those frequently raising this
admonition. Those cases typically involve an applicant standing silent when
confronted by statements made by the examiner during prosecution, most often in
the examiner's Statement of Reasons for Allowance. See, e.g., Salazar v. Procter
& Gamble Co., 414 F.3d 1342, 1345-47 (Fed. Cir. 2005); ACCO Brands, Inc. v.
Micro Sec. Devices, Inc., 346 F.3d 1075, 1079 (Fed. Cir. 2003).
Biogen Idec., Inc. v. GlaxoSmithKline LLC, 713 F.3d 1090, 1094-95, n. 6 (Fed. Cir. 2013)
(internal citations and quotations omitted) (emphasis added).
We note that every case cited by Apaltek in its Request for Reconsideration, in support of
this theory of non-infringement, does not involve patent scope being limited due to an Examiner’s
unilateral comments in a PTO notice where the patentee has not responded. See Northpeak
Wireless, LLC v. 3Com Corp., 674 Fed. Appx. 982, 986-87 (Fed. Cir. 2016) (Patent scope limited
17
because of patentee’s own statements during examination.); see also Cloud Farm Assocs., L.P. v.
Volkswagen Group of Am., Inc., 2015 U.S. Dist. LEXIS 104184, at *27 (D. Del. 2015) (Patentee
“gave up claim scope … by clarifying that the piston and plate elements are distinct as claimed in
the '153 patent” during reexamination); see also VirtualAgility, Inc. v. Salesforce.com, Inc., 2014
U.S. Dist. LEXIS 24848, at *9-10 (E.D. Tex. 2014) (finding that “further statements of Plaintiff's
or amendments to claims” during [Covered Business Method] review may affect the court's claim
construction) (emphasis added); see also 3rd Eye Surveillance, LLC v. U.S., 167 Fed. Cl. 719,
729-31 (Fed. Cl. 2023) (court did rely on examiner’s claim construction from reexamination as
intrinsic evidence for claim construction, but this case involved a means-plus-function
construction for the claim term by an examiner during the reexamination, which the patentee
acquiesced to during the reexamination and then did not dispute in following litigation).
Also, for the first time in its Reply, Apaltek argues that Cooler Masters’s “failure to rebut”
the PTO’s unilateral statement in the Notice limits the scope of the Asserted Patents because “the
version of 37 C.F.R. § 1.104(e) in effect at the time of the Examiner’s reason for intent to issue
reexamination certificates provides that an applicant’s failure to rebut an examiner’s reason for
allowance can provide definitive evidence for claim interpretation unless the applicant overcomes
a presumption of acquiescence.” Apaltek Reply at 2-3. Since Apaltek failed to raise this argument
when it filed its Request for Reconsideration, Cooler Master has been given no opportunity to
respond to this argument. Thus, the EOE Branch finds this argument untimely, and it will not be
considered. Further, the only case cited by Apaltek in support of this argument is a district court
case, which is not binding precedent on CBP. See Moneysuite Co. v. Insurance Answer Center,
LLC, 2013 WL 6925942 (C.D. Cal. 2013).
Based on the Federal Circuit precedent, which requires the applicant, not the examiner to
disclaim subject matter that would otherwise fall within the scope of the claims, we find that
Apaltek has failed to show that the PTO’s unilateral statement in the Notice limits the scope of the
asserted patents.
Since the EOE Branch has rejected both arguments raised by Apaltek in the Request of
Reconsideration and Apaltek has not articulated a theory of non-infringement under the traditional
two-step infringement analysis, we find that Apaltek has failed to show that the articles at issue do
not infringe the relevant claims of the asserted patents.
V. HOLDING
We find that Apaltek has not met its burden to establish that the articles at issue do not
infringe the relevant claims of the asserted patents. Accordingly, we decline to modify or revoke
CBP HQ Ruling H351104 (dated February 20, 2026), which found that the articles at issue were
subject to the limited exclusion order that the U.S. International Trade Commission issued as a
result of Investigation No. 337-TA-1394 under section 337 of the Tariff of 1930, as amended, 19
U.S.C. § 1337.
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
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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. Eric W. Schweibenz
Merchant & Gould
1900 Duke Street
Suite 600
Alexandria, VA 22314
[email protected]
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