Ruling Request; U.S. International Trade Commission; General Exclusion Order; Investigation No. 337-TA-1206; Certain Percussive Massage Devices.

HQ H323811 March 18, 2022 OT:RR:BSTC:EOE H323811 JW CATEGORY: 19 U.S.C. § 1337; Unfair Competition Mr. Joshua Hartman Merchant & Gould P.C. 1900 Duke Street, Suite 600 Alexandria, VA 22314 VIA EMAIL: [email protected] RE: Ruling Request; U.S. International Trade Commission; General Exclusion Order; Investigation No. 337-TA-1206; Certain Percussive Massage Devices. Dear Mr. Hartman: 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 Zhejiang Aerlang Technology Co., Ltd.’s (“Aerlang”) request for an administrative ruling dated January 7, 2022, which included Appendices A-B and Exhibits 1-2 (collectively, “Ruling Request”). We find that Aerlang has established, through this inter partes proceeding, that its percussive massage devices – the AERLANG-EM8, AERLANG-IOOKNA-EM9A, AERLANG-IOOKNA-EM9B, AERLANG-EM11, AERLANG-EM13A, AERLANG-EM13B, AERLANG-EM13C, AERLANG-EM15A, AERLANG-EM15B and AERLANG-Mini (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-1206 (“the underlying investigation” or “the 1206 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 from CBP under 19 C.F.R. Part 177 that the EOE Branch conducted on an inter partes basis. The process involved the two parties with a direct and demonstrable interest in the question presented by the ruling request: (1) your client, Aerlang, the ruling requester; and (2) Hyperice, Inc. (“Hyperice”), complainant in the 1206 investigation. See, e.g., 19 C.F.R. § 177.1(c). Aerlang requested a ruling from CBP that “its percussive massage devices – including the AERLANG-EM8, AERLANG-IOOKNA-EM9A, AERLANG-IOOKNA-EM9B, AERLANG-EM11, AERLANG-EM13A, AERLANG-EM13B, AERLANG-EM13C, AERLANG-EM15A, AERLANG-EM15B and AERLANG-Mini” are not subject to the 1206 GEO. See e.g., Ruling Request at 1 and 6. Pictures from the Ruling Request of an “exemplary” AERLANG-EM8 are reproduced below:


Ruling Request at 5-6; see also e.g., Appendix B, Tables 1 to 4 of Ruling Request. Aerlang noted, inter alia, in its Ruling Request that “[t]he Aerlang Products’ only components that ‘receiv[e] the battery’ reside in the handle . . .” and that those components are not located “‘within the longitudinal cavity,’ as the ‘574 patent’s asserted claims require.” Ruling Request at 5 (second alteration in original). Hyperice indicated to the EOE Branch in an email (dated January 13, 2022) that it “agree[s] that the products detailed in Aerlang’s request for administrative ruling are not covered by the ‘574 patent, as they do not have ‘a battery assembly receiving tray positioned within the longitudinal cavity of the main housing.’” Given that Hyperice agrees that the articles at issue do not infringe the asserted claims of the ‘574 patent, the EOE Branch finds that Aerlang has established that the articles at issue are not subject to the 1206 GEO. Additionally, Aerlang indicated to the EOE Branch in an email (dated January 13, 2022) that “[t]he ruling request does not contain any confidential business information.” As such, unless either party contacts the EOE Branch within ten (10) working days from the date of this ruling letter to indicate its belief that this ruling letter contains confidential information, 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 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: Mr. Brian G. Arnold Lewis Brisbois Bisgaard & Smith LLP 633 West 5th Street, Suite 4000 Los Angeles, CA 90071 [email protected]