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

HQ H324058 March 22, 2022 OT:RR:BSTC:EOE H324058 JW CATEGORY: 19 U.S.C. § 1337; Unfair Competition Mr. Hua Chen ScienBiziP, P.C. 550 S. Hope Street, Ste. 2825 Los Angeles, CA 90071 VIA EMAIL: [email protected]; [email protected] RE: Ruling Request; U.S. International Trade Commission; General Exclusion Order; Investigation No. 337-TA-1206; Certain Percussive Massage Devices. Dear Mr. Chen: 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 Medcursor, Inc. and Nekteck, Inc.’s (collectively, “Requesters”) request for an administrative ruling dated January 28, 2022, which included Exhibits A to M (collectively, “Ruling Request”). We find that Requesters have established, through this inter partes proceeding, that their percussive massage devices – MMG0101, MMG0201, and MMG0601 models under the Medcursor brand, and NMG200 and NMG300 models under the Nekteck brand (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, Medcursor, Inc. and Nekteck, Inc., the ruling requesters; and (2) Hyperice, Inc. (“Hyperice”), complainant in the 1206 investigation. See, e.g., 19 C.F.R. § 177.1(c). Requesters requested a ruling from CBP that its “Massage Gun products . . . namely, MMG0101, MMG0201, and MMG0601 models under the Medcursor brand, and NMG200 and NMG300 models under the Nekteck brand” are not subject to the 1206 GEO. See e.g., Ruling Request at 2. Pictures from the ruling request of a “representative” Medcursor MMG0101 model are reproduced below:
 Ruling Request at 15-16; see also e.g., Ruling Request at 17-18; Exhibits I to M of Ruling Request. Requesters note that “[a]s shown in the photos above, the Medcursor MMG0101 battery unit is housed inside a cylindrical enclosure (the ‘handle’).” Ruling Request at 16. Hyperice indicated to the EOE Branch in an email dated February 11, 2022 that “Hyperice agrees that the following devices, as shown in the photos included with the Ruling Request, do not infringe the ‘574 Patent: MMG0101, MMG0201, and MMG0601 models under the Medcursor brand, and NMG200 and NMG300 models under the Nekteck brand.” Given that Hyperice agrees that the articles at issue do not infringe the asserted claims of the ‘574 patent, the EOE Branch finds that Requesters have established that the articles at issue are not subject to the 1206 GEO. Additionally, while Requesters did specifically identify certain information within their Ruling Request as confidential information, none of that information was reproduced in this ruling letter. 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]