Ruling Request; U.S. International Trade Commission; General Exclusion Order; Investigation No. 337-TA-1184; Certain Shaker Screens for Drilling Fluids, Components Thereof, and Related Marketing Materials

HQ H321496 April 7, 2022 OT:RR:BSTC:EOE H321496 SEH CATEGORY: 19 U.S.C. § 1337; Unfair Competition Kenneth S. Chang, Esq. Adsero IP, LLC 8210 Southpark Terrace Littleton, CO 80120 VIA EMAIL: [email protected] RE: Ruling Request; U.S. International Trade Commission; General Exclusion Order; Investigation No. 337-TA-1184; Certain Shaker Screens for Drilling Fluids, Components Thereof, and Related Marketing Materials Dear Mr. Chang: 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 in response to the request for an administrative ruling from Hebei GN Solids Control Co., Ltd. (“GN Solids”), dated November 16, 2021, with attachments A-C (collectively, “Ruling Request”). We find that GN Solids has established, through this inter partes proceeding, that its shaker screens for drilling fluids – [[ ]] (collectively, “articles at issue”) – are not subject to exclusion from entry based on the general exclusion order (“GEO”) that the U.S. International Trade Commission (“Commission”) issued in Investigation No. 337-TA-1184 (“the underlying investigation” or “the 1184 investigation”), pursuant to section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. § 1337 (“section 337”), unless and until this ruling letter is revoked or modified pursuant to 19 C.F.R. § 177.12. 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. As noted above, this ruling letter is the result of a request for an administrative ruling under 19 C.F.R. Part 177 that the EOE Branch 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, GN Solids, the ruling requester; and (2) M-I L.L.C. (“M-I”), the complainant in the 1184 investigation. See e.g., 19 C.F.R. § 177.1(c). GN Solids’ request, as revised, seeks a ruling from CBP that the articles at issue are not subject to the 1184 GEO. See e.g., Ruling Request at 3, n. 1. Images from the Ruling Request (with the numbering reflected therein) of the articles at issue are reproduced below: [[ ]] Figure 1 [[ ]] Figures 2 and 3 [[ ]] Figures 4 and 5 Ruling Request at 4-5. When describing the articles at issue, GN Solids noted, inter alia, that: “[t]wo or three inner longitudinal tubes are disposed parallel with and spaced from each other in the frame. The frame does not have any inner lateral tubes.” Ruling Request at 3 (emphasis in original). On January 31, 2022, the parties confirmed that: (1) they had executed an NDA, (2) M-I had received samples of the articles at issue, and (3) M-I had received the confidential version of the ruling request. See January 31, 2022, email from Kenneth S. Chang. Moreover, on the same day, the parties proposed a schedule for this inter partes proceeding. Id. Pursuant to that schedule, M-I would file its substantive response to the Ruling Request on March 17, 2022. Subsequently, M-I requested a 7-day extension to file its response that would make its submission due on March 24, 2022. See March 17, 2022, email from Dwayne L. Mason. GN Solids did not oppose that request and the EOE Branch granted the same, extending the remainder of the schedule accordingly. M-I submitted its response on March 24, 2022 (“Response”). M-I noted, inter alia, that “[t]o the extent the contentions 1. through 9. [reproduced below] are met for each of the Products that are imported into the United States, M-I takes no position with respect to infringement of the Asserted Patents by the Products.” Response at 12. Specifically, the M-I response sets forth the following with respect to which it takes no position on infringement: The [[ ]] series of shaker screens is limited to shaker screens that are described by the following model numbers: [[ ]]. The [[ ]] series of shaker screens is limited to shaker screens that are described by the following model numbers: [[ ]]. The [[ ]] series of shaker screens is limited to shaker screens that are described by the following model numbers: [[ ]]. The aforementioned shaker screens in sections 1., 2. and 3. represent the only Products to which GN Solids’s Ruling Request is directed and concerns (referred to herein as “Products”). Each of the Products include a shaker screen supported on an outer frame of tubes that form the perimeter of the shaker screen. The shaker screen and the frame are encapsulated by plastic materials. Additional features of each of the Products include the screen plate and the frame in the Product, which are used as reinforcement of the shaker screen. Among other features, each of the Products use a metal screen plate with a hexagonal metal mesh to provide reinforcement to the shaker screen. For each of the Products, the metal screen plate is supported on a frame, which also provides reinforcement to the shaker screen. As is shown in FIGURES 1-6,2 provided below, each of the Products include a frame includes two lateral tubes and two longitudinal tubes, welded together to form a rectangle. The two lateral tubes included in each of the Products constitute the opposite lateral sides of the frame, and the two longitudinal tubes constitute the opposite longitudinal sides of the frame. Each of the Products includes two or three inner longitudinal tubes that are 2 FIGURES 4-6 are electromagnetic images of representative series [[ ]] shaker screens that show the inner structure of the metal frames made of tubes that are encapsulated within the moulded plastic, the metal screen plate, that includes a hexagonal metal mesh, that is welded to the frame of tubes, and certain aspects of the welding and adhesive utilized to create the metal frame and secure the metal screen plate to the metal frame tubes. [[ ]] FIGURE 1: Representative Moulded Plastic Frame for the [[ ]] Series of Shaker Screens For each of the Products, as depicted in FIGURE 2 provided below, a metal frame is disposed within the moulded plastic frame. Each of the shaker screens included in the series [[ ]] includes different model numbers corresponding to different filter screen sizes. [[ ]] FIGURE 2. Representative [[ ]] Series of Shaker Screens As shown in FIGURES 3-6, each of the Products includes a screen plate stamped with hexagonal holes covers the frame. The screen plate is a separate member from the frame and the screen plate is welded to the frame. The screen plate includes a plurality of hexagonal openings having six strip members. For each of the Products, the screen plate is placed on top of the frame, and the strip members of the screen plate are not perpendicular to any inner latitudinal tube (which is missing from the Product). For each of the Products, the screen plate, together with the inner longitudinal tube, is encapsulated by the plastic adhesive. For each of the Products, the portion of the plastic adhesive encapsulating the inner longitudinal tube defines an upper face and a lower face. For each of the Products, the portion of the plastic adhesive encapsulating the screen plate also defines an upper face and a lower face. [[ ]] FIGURE 3. Representative [[ ]] Series of Shaker Screens that includes a screen plate stamped with hexagonal holes that covers the frame. [[ ]] FIGURE 4: An electromagnetic image of the [[ ]] Series of Shaker Screens [[ ]] FIGURE 5: An electromagnetic image of the [[ ]] Series of Shaker Screens [[ ]] FIGURE 6: An electromagnetic image of the [[ ]] Series of Shaker Screens Response at 3-11. We note that M-I’s paragraphs 1-9 referenced above incorporate almost the entire text that GN Solids included under the “Description of the Product” section in its Ruling Request. However, M-I’s response does not include the portion of GN Solids description, noted above, that states “disposed parallel with and spaced from each other in the frame. The frame does not have any inner lateral tubes.” See supra at 4 (quoting Ruling Request at 3). The omission appears inadvertent, inasmuch M-I’s response stops mid-sentence where the quoted text would seem to appear. In any case, M-I’s response does not include any theory of infringement or specific allegations regarding the articles at issue or the description of the same by GN Solids. Given the absence of an infringement contention by M-I that the articles at issue are covered by any claims of the Asserted Patents, the EOE Branch finds that GN Solids has established that the articles at issue are not subject to exclusion from entry on the basis of the 1184 GEO. If there is information in this ruling letter not currently bracketed in [[ ]] that either party believes constitutes confidential information, and should be redacted from the published ruling, then the relevant party is asked to contact the EOE Branch within ten (10) working days of the date of this ruling letter to indicate its belief that this ruling letter contains additional confidential information. Otherwise, the ruling letter will be published, in accordance with 19 U.S.C. § 1625, as implemented by 19 C.F.R. Part 177, without any additional redactions. The decision above is limited to the specific facts set forth herein. If articles differ in any material way from the articles at issue described above, or if future importations vary from the facts stipulated to herein, this decision shall not be binding on CBP as provided for in 19 C.F.R. §§ 177.2(b)(1), (2), (4), and 177.9(b)(1) and (2). Sincerely, Dax Terrill Chief, Exclusion Order Enforcement Branch CC: Dwayne L. Mason, Esq. Greenberg Traurig, LLP 1000 Louisiana Street, Suite 1700 Houston, TX 77002 [email protected]