ITC Investigation No. 337-TA-406; Lens Fitted Film Packages

HQ 470729 May 21, 2001 ENF 4-02 RR:IT:IP 470729 CRS CATEGORY: 19 U.S.C. § 1337; Unfair Competition Ms. Judy Follman Camera Custom Design 1037 57th Street Suite 204 Brooklyn, NY 11219 RE: ITC Investigation No. 337-TA-406; Lens Fitted Film Packages Dear Ms. Follman: This is in reply to your letter, dated March 20, 2001, in which you requested a ruling as to whether a certain 35 mm camera is excluded from entry into the United States pursuant to the General Exclusion Order issued by the U.S. International Trade Commission (ITC) in Investigation No. 337-TA-406. Two sample cameras were submitted with your ruling request. FACTS: The sample camera, marketed under the name “Kamy Cam,” is a 35 mm camera with a built-in flash mechanism. The sample as received has a black plastic body, is preloaded with film, and is equipped with a lens, a viewfinder, a film advance mechanism and a flash unit. The camera body consists of a front and back with hinges on one side and a sliding lock-catch on the other. As received, the sample camera has an outer cardboard or paper covering. Opening the camera shows an unexposed film canister in the film chamber located on the right side of the camera. The film must be fully wound onto the spooling wheel by means of a hand-crank before photographs can be taken. The film is then rewound back into the canister after each exposure by means of a thumb wheel. The film can be removed and a new film canister can be loaded under normal light. As presented, the outer paper cover of the sample camera contains directions for reloading the film. In Investigation No. 337-TA-406 the U.S. ITC determined that there was a violation of 19 U.S.C. § 1337 in regard to certain lens-fitted film packages (LFFPs), also known as one-time use cameras, single use cameras, and disposable cameras, that infringed claims under one or more of fifteen patents owned by Fuji Photo Film Co., Inc, including claims 14 and 15 of U.S. Letters Patent 4,855,774 (the “'774 patent”). Certain Lens-Fitted Film Packages, Inv. No. 337-TA-406, General Exclusion Order at 1-2. In its Opinion, the ITC described LFFPs as follows: The products at issue in this investigation are inexpensive, disposable, single use-cameras, technically referred to as “lens-fitted film packages” or “LFFPs.” LFFPs are generally constructed of a shell made of a plastic material such as polystyrene. They are equipped with a button-activated shutter, a lens, a viewfinder, a film advance mechanism, and optional flash units and buttons. An outer cardboard cover, containing printed information such as branding and instructions, encases the shell. LFFPs are preloaded with film and a film cartridge. When pictures are taken, the exposed film winds into the film cartridge. After taking pictures, a typical consumer brings the entire LFFP to a film processor to have the film developed and receives back only negatives and prints, not the LFFP shell and its contents. Certain Lens-Fitted Film Packages, Inv. No. 337-TA-406 (June 2, 1999), Commission Opinion at 2. See also, Id., Final Initial and Recommended Determinations, Additional Findings, no. 1 at 214. ISSUE: The issue presented is whether the sample camera is a lens-fitted film package within the scope of the ITC’s general exclusion order in Inv. No. 337-TA-406, such that it is excluded from entry for consumption into the United States. LAW AND ANALYSIS: Section 337 of the Tariff Act of 1930, as amended (19 U.S.C. § 1337), prohibits, inter alia, the importation, the sale for importation, or the sale within the United States after importation by the owner, importer, or consignee of articles that infringe a valid and enforceable U.S. patent. 19 U.S.C. § 1337(a)(1)(B)(i). The ITC has authority to investigate alleged violations of section 337. If the ITC determines that there has been a violation of section 337, it shall, subject to certain potential exceptions, direct that the articles concerned be excluded from entry into the U.S. and, accordingly, notify the Secretary of the Treasury who shall, through its proper officers, refuse such entry. 19 U.S.C. § 1337. See also, 19 C.F.R. § 12.39. In Investigation No. 337-TA-406, the ITC determined that certain LFFPs infringed claims under one or more of fifteen patents owned by Fuji Photo Film Co., Inc., including, inter alia, claims 14 and 15 of U.S. Letters Patent 4,855,774. The ITC ordered that LFFPs that infringed any of the patents be excluded from entry for consumption into the U.S., and notified Customs accordingly. General Exclusion Order, Certain Lens-Fitted Film Packages, Inv. No. 337-TA-406 (June 2, 1999), at 2. The general exclusion order covers LFFPs, i.e., relatively inexpensive products also known as disposable cameras, single use-cameras and one-time use cameras. LFFPs are generally constructed of a plastic material such as polystyrene, and are equipped with a button-activated shutter, lens, viewfinder, film advance mechanism, and optional flash units and buttons. The outer shell of the LFFP is encased in a cardboard cover or jacket containing printed information such as branding and operating instructions. When an exposure is made, the exposed film winds into the film cartridge. Once a roll of film has been exposed, the consumer typically brings the entire LFFP to a film processor to have the film developed and receives back only negatives and prints, but not the LFFP shell and its contents. Id. at 2; see also, Commission Opinion, Certain Lens-Fitted Film Packages, Inv. No. 337-TA-406 (June 2, 1999), at 2. The sample camera has a plastic body, is preloaded with film and is equipped with a lens, a viewfinder, a film advance mechanism, and a flash unit. The camera shell consists of a front and back that closes by means of hinges on one side and a sliding lock catch on the other. However, the ITC’s general exclusion order covers disposable cameras, single use-cameras and one-time use cameras, whereas the sample camera is susceptible of reuse inasmuch as it may be reloaded and reused by the consumer. Accordingly, it is our position that the sample camera is not a lens-fitted film package within the scope of the ITC’s general exclusion order. HOLDING: In conformity with the foregoing, the sample “Kamy Cam” camera is not within the scope of the ITC’s general exclusion order in Inv. No. 337-TA-406. The sample camera may be entered for consumption into the United States. Sincerely, Joanne Roman Stump, Chief Intellectual Property Rights Branch