RE: Ruling Request; U.S. International Trade Commission; Limited Exclusion Order; Investigation No. 337-TA-1392; Certain Oil Vaporizing Devices, Components Thereof, and Products Containing the Same

HQ H364275 October 2, 2026 OT:RR:BSTC:EOE H364275 RPR CATEGORY: 19 U.S.C. § 1337; Unfair Competition and Unfair Trade Acts Bryan Nese Mayer Brown LLP 1999 K Street, N.W. Washington, DC 20006-1101 VIA EMAIL: [email protected]; [email protected]; [email protected] RE: Ruling Request; U.S. International Trade Commission; Limited Exclusion Order; Investigation No. 337-TA-1392; Certain Oil Vaporizing Devices, Components Thereof, and Products Containing the Same Dear Mr. Nese, 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 holding that STIIIZY IP LLC f/k/a STIIIZY, LLC and STIIIZY Inc. d/b/a Shryne Group Inc. (collectively, STIIIZY or “Ruling Requester”) has met its burden of proof that its “[[ ]] (All-In One) AIO Device” (“[[ ]]”) is not subject to the limited exclusion order (“1392 LEO”) that the U.S. International Trade Commission (ITC or Commission) issued as a result of Investigation No. 337-TA-1392 (“the 1392 investigation”) under section 337 of the Tariff Act 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, which 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, STIIIZY, the Ruling Requester and a respondent in the 1392 investigation; and (2) PAX Labs, Inc. (PAX), the patent owner and complainant in the 1392 investigation (collectively, “the parties”). See, e.g., 19 C.F.R. § 177.1(c).
The parties were asked to clearly identify confidential information, including information subject to the administrative protective order in the underlying investigation, with [[red brackets]] in their submissions. See 19 C.F.R. §§ 177.2, 177.8. If there is additional information in this ruling letter not currently bracketed in red [[ ]] that either party believes constitutes confidential information, and should be redacted from the published ruling, the parties are asked to contact the EOE Branch within ten (10) working days of the date of this ruling letter. 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, 588 U.S. 427, 440 (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 11/18/2022); and 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-1392 1. Procedural History at the ITC The Commission instituted Investigation No. 337-TA-1392 on March 6, 2024, based on a complaint filed by PAX. Certain Oil Vaporizing Devices, Components Thereof, and Products Containing the Same, Inv. No. 337-TA-1392, EDIS Doc. ID. 871272, Public Commission Opinion (February 3, 2026) (“Comm’n Op.”) at 3. The complaint alleged a violation of section 337 by reason of infringement of certain claims of U.S. Patent Nos. 11,369,756 (filed Mar. 17, 2021) (“the ’756 patent”); 11,369,757 (filed June 30, 2021) (“the ’757 patent”); 11,766,527 (filed Feb. 23, 2023) (“the ’527 patent”); and 11,759,580 (filed Feb. 23, 2023) (“the ’580 patent”) (collectively, the “asserted patents”). Id. at 2. The complaint also alleged that the accused products were “certain oil vaporizing devices, components thereof, and products containing the same” (collectively, 2
“Accused Products”). Id. at 3. The complaint further alleged that the respondents “import into the United States, sell for importation into the United States, and/or sell in the United States after importation Accused Products that infringe, directly or indirectly, one or more claims” of the asserted patents. Certain Oil Vaporizing Devices, Components Thereof, and Products Containing the Same, Inv. No. 337-TA-1392, EDIS Doc. ID. 812867, Public Complaint (January 30, 2024) (“Complaint”) at 1. The notice of institution named STIIIZY and ALD Group Limited and ALD (Hong Kong) Holding Limited (collectively, “ALD”) as respondents (collectively, “respondents”). Certain Oil Vaporizing Devices, Components Thereof, and Products Containing the Same, Inv. No. 337-TA-1392, EDIS Doc. ID. 815209, Notice of Institution of Investigation (February 29, 2024) (“notice of institution”) at 2-3. The Commission’s Office of Unfair Import Investigation (OUII) was not a party to the investigation. Comm’n Op. at 3. Through various orders, the Commission terminated the investigation with respect to certain claims of the asserted patents. Certain Oil Vaporizing Devices, Components Thereof, and Products Containing the Same, Inv. No. 337-TA-1392, EDIS Doc. ID. 825702, Order No. 11 (July 11, 2024), unreviewed by Comm’n Notice (July 30, 2024); and Certain Oil Vaporizing Devices, Components Thereof, and Products Containing the Same, Inv. No. 337-TA-1392, EDIS Doc. ID. 831665, Order No. 20 (Sept. 6, 2024), unreviewed by Comm’n Notice, EDIS Doc. ID. 834179, (Oct. 7, 2024). Then, after an evidentiary hearing, the presiding Administrative Law Judge (ALJ) terminated the investigation with respect to additional claims. Certain Oil Vaporizing Devices, Components Thereof, and Products Containing the Same, Inv. No. 337-TA-1392, EDIS Doc. ID. 836794, Order No. 32 (Nov. 8, 2024), unreviewed by Comm’n Notice, EDIS Doc. Id. 838932 (Dec. 10, 2024). At some point during the investigation, the respondents introduced several redesigned products, including the STIIIZY-1G-REDESIGN(C), STIIIZY-ORIG-1G- REDESIGN, and STIIIZY-AIO-REDESIGN (collectively, “STIIIZY Redesigned Products”). Certain Oil Vaporizing Devices, Components Thereof, and Products Containing the Same, Inv. No. 337-TA-1392, EDIS Doc. ID. 845893, Final Initial Determination (FID) (March 6, 2025), reviewed in part by Comm’n Notice, EDIS Doc. Id. 851435 (May 16, 2025), at 24 (citing MSD, EDIS Doc. ID. 830275). On March 6, 2025, the ALJ issued an FID. Comm’n Op. at 4. As of the FID, the remaining claims at issue (“the asserted claims”) were claims 1, 5, and 10 of the ’756 patent; claims 1, 5, 10-11, 17-18, and 22 of the ’527 patent; claims 1, 13, 15, and 20 of the ’757 patent; and claims 1, 6-8, and 10 of the ’580 patent. Id. In the FID, the ALJ found that the following Accused Products infringed at least one of the asserted claims of at least one of the asserted patents: STIIIZY-LIIIL, STIIIIZY-1(G)(C), STIIIZY- ORIG-1, STIIIZY-AIO (or “ITC AIO” as sometimes referred to by the parties), FLARE(C), FLARE(V), ROVE(C), ROVE(V), STIIIZY-1G-REDESIGN(C), STIIIZY-ORIG-1G- REDESIGNS, STIIIIZY-AIO-REDESIGN, FLARE-REDESIGN(C), and FLARE- REDESIGN(V). FID at 111-112. Additionally, the FID held that the respondents’ ROVE- REDESIGN(C) and ROVE-REDESIGN(V) did not infringe the asserted claims of the ’580 patent. Id. at 100-101, and 112. With respect to the STIIIZY Redesigned Products noted above, the ALJ found that each infringed at least one claim of the ’580 patent but not the ’756, ’757, and ’527 patents. Id. at 96, 98-99, and 112. Moreover, the ALJ noted that PAX did not introduce any evidence that the STIIIZY Redesigned Products infringed the asserted claims of the ’756, ’757, and ’527 patents and therefore failed to meet its burden of proof with respect to these patents. Id. at 25, 60, and 72. The ALJ also held that STIIIZY presented no evidence to rebut PAX’s 3
contentions that the Accused Products indirectly infringed the asserted claims of the asserted patents, both contributorily and by inducement. Id. at 27, 70, 72, and 103. The FID also found that all the asserted claims were valid and that the technical prong of the domestic industry requirement of section 337 was satisfied. Id. at 112-113. However, the ALJ held that PAX did not meet the economic prong of section 337’s domestic industry requirement. Id. at 113. As such, the ALJ found no violation of section 337. Id. at 109-112. In the FID, the ALJ made a recommended determination (RD) that should the Commission find a section 337 violation, then an LEO should be issued against STIIIZY and ALD. Id. Moreover, the RD recommended cease and desist orders (CDOs) against the STIIIZY respondents only. Id. at 114- 116. Lastly, the RD recommended that the Commission set a bond of one hundred percent (100%) of the entered value for the importation of any infringing articles during the presidential review period. Id. at 116-117. The parties filed petitions with the Commission for review of the FID on March 18, 2025. Comm’n Notice (May 16, 2025) at 2-3. The Commission issued a notice on May 16, 2025 that it was reviewing the FID’s findings in part. Id. at 2. Specifically, the Commission indicated that it was reviewing the FID’s findings that: (1) certain Accused Products did not infringe the asserted claims of the ’580 patent; (2) certain redesigned products infringed the asserted claims of the ’580 patent; and (3) the Complainant had not satisfied the economic prong of the domestic industry requirement. Id. at 3. On review, the Commission found that “the FID errs by stating as a bright- line rule that ‘pre-issuance investments [are not] cognizable under subparagraphs (A) and (B) of section 337(a)(3).’” Id. As such, the Commission vacated the FID’s findings on the economic prong and remanded for further proceedings. Id. The Commission also indicated that the other FID findings selected for review (“remaining issues”) remained pending. Id. Upon remand, the Commission specifically requested that the ALJ “‘consider whether Complainant’s alleged domestic industry investments were made with respect to the articles protected by the patent (i.e., the products that the FID finds satisfy the technical prong of the domestic industry requirement), not limited by whether those investments were made post-patent issuance.’” Certain Oil Vaporizing Devices, Components Thereof, and Products Containing the Same, Inv. No. 337-TA- 1392, Comm’n Notice, EDIS Doc. Id. 862213 (September 17, 2025) (citing Comm’n Notice May 16, 2025). On July 18, 2025, the ALJ issued a Remand Initial Determination (RID) that PAX satisfied the economic prong of the domestic industry requirement. Certain Oil Vaporizing Devices, Components Thereof, and Products Containing the Same, Inv. No. 337-TA-1392, Remand Initial Determination, EDIS Doc. Id. 858076 (July 30, 2025), at 23. On September 17, 2025, the Commission issued a notice that it reviewed the RID and “otherwise affirms the RID’s findings that the Complainant has satisfied the economic prong of the domestic industry requirement under section 337(a)(3)(A) and (B), including its subsidiary finding that Complainant was an exclusive licensee when it made its domestic industry investments.” Comm’n Op. at 4. In the notice, the Commission requested written submissions from the parties with respect to their recommended remedy should the Commission ultimately find a violation. Id. at 4-5. Both parties submitted their briefs on remedy to the Commission in late November 2025. Id. at 7. 4
On February 3, 2026, the Commission issued its Opinion. See Comm’n Op. Concerning the remaining issues, the Commission found that the ROVE(C), ROVE-REDESIGN(C), ROVE (V), and ROVE-REDESIGN(V) products infringed certain claims of the ’580 patent. Id. at 2. Moreover, the Commission affirmed the FID with additional reasoning that the STIIIZY-1G- REDESIGN(C), STIIIZY-ORIG-1G-REDESIGN, and STIIIZY-AIO-REDESIGN products infringed certain claims of the ’580 patent. Id. at 2. The Commission noted in its Opinion that it did not review the FID’s findings with respect to the remaining asserted patents, except for the economic prong of the domestic industry requirement, and as such adopted these findings. Id. at 2-3. Accordingly, the Commission found a violation of section 337 with respect to the asserted patents. Id. at 27. As for remedy, the Commission issued an LEO, including a standard certification provision, against STIIIZY and ALD, as well as CDOs against both STIIIZY respondents. Id. at 3, 28. In the 1392 LEO, the Commission ordered that: Certain oil vaporizing devices, components thereof, and products containing the same, that infringe one or more of claims 1, 5, and 10 of the ’756 patent; claims 1, 5, 10, 11, 17, 18, and 22 of the ’527 patent; claims 1, 13, 15, and 20 of the ’757 patent; or claims 1, 6-8, and 10 of the ’580 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 Oil Vaporizing Devices, Components Thereof, and Products Containing the Same, Inv. No. 337-TA-1392, EDIS Doc. ID. 869418, Limited Exclusion Order (January 20, 2026) at 2, ¶ 1. The 1392 LEO further defined the “covered articles” as follows: “Vaporizing devices capable of vaporizing oils, components thereof and products containing the same” where the components of a vaporizing device are “a mouthpiece, a cartridge body, an atomizer, a distal member, a bottom cover, a vaporizer body including a cartridge receiver,” as well as a “battery,” and where products containing the same are cartridge and battery components “sold in combination with a power charging device in which the [cartridge] or battery would each be one component of the downstream product.” Id. at 2, ¶ 2. Lastly, the Commission determined that the public interest factors did not prevent these remedial orders from being issued and required a bond of one hundred percent (100%) of the entered value for infringing products to enter the U.S. during the presidential review period. Comm’n Op. at 3. On March 4, 2026, STIIIZY filed a petition for reconsideration, which was denied by the Commission because it found that STIIIZY “[did] not identify any new questions raised by the 5
Commission’s determination or action ordered to be taken thereunder and upon which STIIIZY had no opportunity to submit arguments.” Certain Oil Vaporizing Devices, Components Thereof, and Products Containing the Same, Inv. No. 337-TA-1392, EDIS Doc. ID. 874312, Order Denying Respondent STIIIZY’s Petition for Reconsideration (March 4, 2026) at 3. Additionally, the Commission found that “STIIIZY’s petition fails to demonstrate that the Commission should ‘on its own initiative’ reconsider its finding of infringement under the doctrine of equivalents.” Id. On March 9, 2026, STIIIZY filed a motion to stay the remedial orders of the Commission pending appeal to the U.S. Court of Appeals for the Federal Circuit (“Federal Circuit”). Certain Oil Vaporizing Devices, Components Thereof, and Products Containing the Same, Inv. No. 337- TA-1392, EDIS Doc. ID. 878118, Commission Opinion Denying Motion of Respondents STIIIZY INC and STIIIZY IP LLC to Stay the Remedial Orders Pending Appeal (April 7, 2026) at 1. The Commission denied STIIIZY’s motion for a stay because “STIIIZY has not shown that the Standard Havens factors, as modified by the Commission’s jurisprudence, favor granting a stay pending appeal.” Id. at 18. On March 23, 2026, STIIIZY filed a notice of appeal and emergency motion to stay the remedial orders and for an interim administrative stay with the Federal Circuit. Id. at 5 (citing STIIIZY, Inc. v. Int’l Trade Comm’n, No. 26-1554, Dkt. 2-3 (Fed. Cir. Mar. 23, 2026)). As of the date of this ruling letter, STIIIZY’s appeal before Federal Circuit remains pending. On May 6, 2026, PAX requested the Commission to institute an enforcement proceeding against STIIIZY and ALD under 19 C.F.R. § 210.75. Certain Oil Vaporizing Devices, Components Thereof, and Products Containing the Same, Inv. No. 337-TA-1392, EDIS Doc. ID. 882689, Enforcement Complaint (May 20, 2026). The Commission instituted the enforcement proceeding on June 5, 2026. Certain Oil Vaporizing Devices, Components Thereof, and Products Containing the Same, Inv. No. 337-TA-1392, EDIS Doc. ID. 884319, Notice of Institution (June 5, 2026). As of the date of this ruling letter, the enforcement proceeding remains pending before the Commission. 2. The Patents and Asserted Claims in the 1392 LEO As noted above, the 1392 LEO prohibits the unlicensed entry for consumption of certain oil vaporizing devices, components thereof, and products containing the same that infringe the asserted claims of the asserted patents. 1392 LEO at 2, ¶ 1. The asserted patents share a common specification and are a continuation of application No. 15/396,584, now U.S. Patent No. 11,660,403 (filed Dec. 31, 2016). FID at 5-6. In general, “[t]he Asserted Patents are all directed to ‘leak-resistant vaporizer cartridges and apparatuses adapted for use with oil-based vaporizable materials including cannabis oils.’” Comm’n Op. at 8 (citing ’580 patent at code (57)). Figure 3B of the ’580 patent is representative of the asserted patents and is reproduced below: 6
’580 patent at Fig. 3B. For purposes of this Ruling Request, the EOE Branch will adopt the claim limitation labeling scheme presented in FID. FID at 16-17, 45-49, 66-68, and 77-80. a. Claims 1, 5, and 10 of the ’756 patent The ’756 patent is titled “Leak-Resistant Vaporizer Device” and describes “[v]aporizer cartridges and vaporizer apparatuses, and methods for making, using, and delivering vapor to a user, that are leak-resistant for use with cannabinoids.” ’756 patent at codes (54) and (57). Claim 1 of the ’756 patent is an independent claim and claims 5 and 10 depend from claim 1. Claim 1 is reproduced below: 1. A vaporizer cartridge comprising [756.1.pre]: a cartridge body comprising a proximal body end and a distal body end opposite the proximal body end [756.1.a]; a mouthpiece coupled to the proximal body end, the mouthpiece comprising an outlet [756.1.b]; a reservoir comprising an internal volume at least partially defined by the cartridge body, the internal volume configured to hold a vaporizable material [756.1.c]; a first reservoir seal [756.1.d]; a second reservoir seal, wherein the first reservoir seal and the second reservoir seal are each configured to cover a corresponding reservoir opening exposing the internal volume of the reservoir [756.1.e]; a first pad positioned within an interior of the mouthpiece [756.1.f]; a second pad positioned within the interior of the mouthpiece [756.1.g]; a bottom cover comprising a bottom portion positioned distally relative to the cartridge body, the bottom portion comprising: a first air opening and a second air opening [756.1.h]; a first cartridge electrical contact configured to contact a first body electrical contact on a vaporizer body [756.1.i]; a second cartridge electrical contact configured to contact a second body electrical contact on the vaporizer body [756.1.j]; and a heater chamber comprising [756.1.k]: 7
an atomizer configured to heat the vaporizable material from the reservoir to generate an aerosol [756.1.k.i]; a housing piece configured to house at least a portion of the atomizer, the housing piece comprising a housing opening into which at least a portion of the atomizer passes into the housing piece [756.1.k.ii]; and an air tube extending from the housing piece, the air tube configured to deliver the aerosol from the atomizer to the mouthpiece [756.1.k.iii]; wherein the first pad and the second pad do not intersect with a central axis of the air tube [756.1.l]. ’756 patent at 34:48-35:16 and 36:1-11. b. Claims 1, 13, 15, and 20 of the ’757 patent The ’757 patent is titled “Leak-Resistant Vaporizer Device” and describes “[v]aporizer cartridges and vaporizer apparatuses, and methods for making, using and delivering vapor to a user, that are leak-resistant for use with cannabinoids.” ’757 patent at codes (54) and (57). Claims 1 and 15 are independent claims of the ’757 patent and claims 13 and 20 depend from claims 1 and 15, respectively. Claims 1 and 15 of the ’757 patent are reproduced below: 1. A vaporizer cartridge comprising [757.1.pre]: a cartridge body comprising a proximal body end and a distal body end opposite the proximal body end [757.1.a]; a mouthpiece coupled to the proximal body end, the mouthpiece comprising an outlet [757.1.b]; a reservoir configured to hold a vaporizable material [757.1.c]; a first pad positioned within an interior of the mouthpiece [757.1.d]; a second pad positioned within the interior of the mouthpiece [757.1.e]; a heater chamber comprising [757.1.f]: a heater configured to heat the vaporizable material from the reservoir to generate an aerosol [757.1.f.i]; a housing piece configured to house at least a portion of the heater, the housing piece comprising a housing opening configured to receive at least a portion of the heater [757.1.f.ii]; an air tube extending from the housing piece [757.1.f.iii]; a bottom cover comprising a bottom portion positioned distally relative to the cartridge body, the bottom portion comprising: a first air opening and a second air opening; and [757.1.g] a distal member positioned at least partially within the cartridge body between the housing piece and the bottom cover, the distal member comprising [757.1.h]: a proximal side [757.1.h.i]; a distal side opposite the proximal side [757.1.h.ii]; a lateral side extending between the proximal side and the distal side; and [757.1.h.iii] at least one recessed surface positioned on the lateral side [757.1.h.iv]; 8
wherein an air chamber is formed between the distal member and the bottom portion of the bottom cover [757.1.i]; and wherein the first air opening and the second air opening of the bottom portion allow air to pass into the air chamber [757.1.j]. 15. A vaporizer device comprising: [757.15.pre] a vaporizer cartridge, comprising [757.15.a]: a cartridge body comprising a proximal body end and a distal body end opposite the proximal body end [757.15.a.i]; a mouthpiece coupled to the proximal body end, the mouthpiece comprising an outlet [757.15.a.ii]; a reservoir configured to hold a vaporizable material [757.15.a.iii]; a first pad positioned within an interior of the mouthpiece [757.15.a.iv]; a second pad positioned within the interior of the mouthpiece [757.15.a.v]; a heater chamber comprising [757.15.a.vi]: a heater configured to heat the vaporizable material from the reservoir to generate an aerosol [757.15.a.vi.a]; a housing piece configured to house at least a portion of the heater, the housing piece configured to receive at least a portion of the heater [757.15.a.vi.b]; an air tube extending from the housing piece [757.15.a.vi.c]; a bottom cover comprising a bottom portion positioned distally relative to the cartridge body, the bottom portion comprising: a first air opening and a second air opening [757.15.a.vii]; a distal member positioned at least partially within the cartridge body between the housing piece and the bottom cover, the distal member comprising [757.15.a.viii]: a proximal side [757.15.a.viii.a]; a distal side opposite the proximal side [757.15.a.viii.b]; a lateral side extending between the proximal side and the distal side; and [757.15.a.viii.c] at least one recessed surface positioned on the lateral side [757.15.a.viii.d]; wherein an air chamber is formed between the distal member and the bottom portion of the bottom cover; and [757.15.a.ix] wherein the first air opening and the second air opening of the bottom portion allow air to pass into the air chamber; [757.15.a.x] a first cartridge electrical contact; and [757.15.a.xi] a second cartridge electrical contact; and [757.15.a.xii] a vaporizer body, comprising: [757.15.b] a cartridge receiver configured to insertably receive the vaporizer cartridge, the cartridge receiver comprising: [757.15.b.i] a first body electrical contact configured to electrically couple to the first cartridge electrical contact of the vaporizer cartridge; [757.15.b.i.a] a second body electrical contact configured to electrically couple to the second cartridge electrical contact of the vaporizer cartridge; [757.15.b.i.b] an insertion end into which the vaporizer cartridge is inserted; and [757.15.b.i.c] a base opposite the insertion end; and [757.15.b.i.d] 9
one or more LEDs, wherein the vaporizer device is configured to cause the one or more LEDs to illuminate during the generation of the aerosol by the heater of the vaporizer cartridge. [757.15.b.ii] ’757 patent at 34:30-65 and 36:1-15. c. Claims 1, 5, 10-11, 17-18, and 22 of the ’527 patent The ‘527 patent is titled “Leak-Resistant Vaporizer Device” and describes “[v]aporizer cartridges and vaporizer apparatus, and methods for making, using and delivering vapor to a user, that are leak-resistant for use with cannabinoids.” ’527 patent at codes (54) and (57). Claims 1, 11, and 18 of the ’527 patent are independent claims. Claims 5 and 10 depend from claim 1 and claims 17 and 22 depend from claims 11 and 18, respectively. Claims 1, 11, and 18 of the ’527 patent are reproduced below: 1. A vaporizer cartridge comprising: [527.1.pre] a cartridge body comprising a proximal body end and a distal body end opposite the proximal body end; [527.1.a] a mouthpiece coupled to the proximal body end, wherein the mouthpiece comprises an outlet; [527.1.b] a reservoir comprising an internal volume at least partially defined by the cartridge body, wherein the internal volume is configured to hold a vaporizable material; [527.1.c] a first reservoir seal configured to cover a first reservoir opening exposing the internal volume of the reservoir; [527.1.d] a second reservoir seal configured to cover a second reservoir opening exposing the internal volume of the reservoir, wherein the first reservoir seal and the second reservoir seal are positioned within an interior of the mouthpiece; [527.1.e] a bottom cover comprising a bottom portion positioned distally relative to the cartridge body, wherein the bottom portion comprises at least a first air opening; [527.1.f] a first cartridge electrical contact configured to contact a first body electrical contact on a vaporizer body; [527.1.g] a second cartridge electrical contact configured to contact a second body electrical contact on the vaporizer body; and [527.1.h] a vaporization chamber comprising: [527.1.i] a heating element configured to heat the vaporizable material from the reservoir to generate an aerosol [527.1.i.i] a wicking material comprising ceramic; [527.1.i.ii] a housing piece configured to house at least a portion of the wicking material, wherein the housing piece comprises a housing opening into which at least the portion of the wicking material passes into the housing piece; and [527.1.i.iii] an air tube configured to deliver the aerosol to the mouthpiece. [527.1.i.iv] 11. A vaporizer device, comprising: [527.11.pre] 10
a vaporizer cartridge comprising: [527.11.a] a cartridge body comprising a proximal body end and a distal body end opposite the proximal body end; [527.11.a.i] a mouthpiece coupled to the proximal body end, wherein the mouthpiece comprises an outlet; [527.11.a.ii] a reservoir comprising an internal volume at least partially defined by the cartridge body, wherein the internal volume is configured to hold a vaporizable material; [527.11.a.iii] a first reservoir seal configured to cover a first reservoir opening exposing the internal volume of the reservoir; [527.11.a.iv] a second reservoir seal configured to cover a second reservoir opening exposing the internal volume of the reservoir, wherein the first reservoir seal and the second reservoir seal are positioned within an interior of the mouthpiece; [527.11.a.v] a bottom cover comprising a bottom portion positioned distally relative to the cartridge body, wherein the bottom portion comprises at least a first air opening; [527.11.a.vi] a first cartridge electrical contact configured to contact a first body electrical contact on a vaporizer body; [527.11.a.vii] a second cartridge electrical contact configured to contact a second body electrical contact on the vaporizer body; and [527.11.a.viii] a vaporization chamber comprising: [527.11.a.ix] a heating element configured to heat the vaporizable material from the reservoir to generate an aerosol; [527.11.a.ix.a] a wicking material comprising ceramic; [527.11.a.ix.b] a housing piece configured to house at least a portion of the wicking material, wherein the housing piece comprises a housing opening into which at least the portion of the wicking material passes into the housing piece; and [527.11.a.ix.c] an air tube configured to deliver the aerosol to the mouthpiece; and [527.11.a.ix.d] a vaporizer body, comprising: [527.11.b] a cartridge receiver configured to insertably receive the vaporizer cartridge, [527.11.b.i] wherein the cartridge receiver comprises: [527.11.b.ii] a first body electrical contact configured to electrically couple to the first cartridge electrical contact of the vaporizer cartridge; [527.11.b.ii.a] a second body electrical contact configured to electrically couple to the second cartridge electrical contact of the vaporizer cartridge; [527.11.b.ii.b] an insertion end into which the vaporizer cartridge is inserted; and [527.11.b.ii.c] a base opposite the insertion end; [527.11.b.ii.d] a pressure sensor configured to detect a change in pressure, causing activation of the vaporizer device; and [527.11.b.iii] a channel extending between the base of the cartridge receiver and the pressure sensor. [527.11.b.iv] 18. A vaporizer cartridge comprising: [527.18.pre] a cartridge body comprising a proximal body end and a distal body end opposite the proximal body end; [527.18.a] 11
a mouthpiece coupled to the proximal body end, wherein the mouthpiece comprises an outlet; [527.18.b] a reservoir comprising an internal volume at least partially defined by the cartridge body, wherein the internal volume is configured to hold a vaporizable material; [527.18.c] a first reservoir seal configured to cover a first reservoir opening exposing the internal volume of the reservoir; [527.18.d] a second reservoir seal configured to cover a second reservoir opening exposing the internal volume of the reservoir, wherein the first reservoir seal and the second reservoir seal are positioned within an interior of the mouthpiece; [527.18.e] at least one pad positioned within an interior of the mouthpiece; [527.18.f ] a bottom cover comprising a bottom portion positioned distally relative to the cartridge body, wherein the bottom portion comprises at least a first air opening; [527.18.g] a first cartridge electrical contact configured to contact a first body electrical contact on a vaporizer body; [527.18.h] a second cartridge electrical contact configured to contact a second body electrical contact on the vaporizer body; and [527.18.i] a vaporization chamber comprising: [527.18.j] a heating element configured to heat the vaporizable material from the reservoir to generate an aerosol; [527.18.j.i] a wicking material comprising ceramic; [527.18.j.ii] a housing piece configured to house at least a portion of the wicking material, wherein the housing piece comprises a housing opening into which at least the portion of the wicking material passes into the housing piece; and [527.18.j.iii] an air tube configured to deliver the aerosol to the mouthpiece. [527.18.j.iv] ’527 patent at 34:1-35:8, 36:1-43, and 38:6-62. d. Claims 1, 6-8, and 10 of the ’580 patent The ’580 patent is titled “Leak-Resistant Vaporizer Device” and describes “[v]aporizer cartridges and vaporizer apparatuses, and methods for making, using and delivering vapor to a user, that are leak-resistant for use with cannabinoids.” ’580 patent at codes (54) and (57). Claims 1 and 8 of the ’580 patent are independent and claims 6-7 and claim 10 depend from claims 1 and 8, respectively. Claims 1 and 8 are reproduced below: 1. A vaporizer cartridge comprising [580.1.pre]: a cartridge body comprising a proximal body end and a distal body end opposite the proximal body end [580.1.a]; a mouthpiece coupled to the proximal body end, where the mouthpiece comprises an outlet [580.1.b]; a reservoir configured to hold a vaporizable material [580.1.c]; a vaporization chamber comprising [580.1.d]: 12
a heater configured to heat the vaporizable material from the reservoir to generate an aerosol [580.1.d.i]; a housing piece configured to house at least a portion of the heater, wherein the housing piece comprises a housing opening configured to receive at least the portion of the heater [580.1.d.ii]; and an air tube extending from the housing piece, wherein the air tube is configured to deliver the aerosol from the heater to the mouthpiece [580.1.d.iii]; an extension wire extending from the heater [580.1.e]; a bottom cover comprising a bottom portion, wherein the bottom portion comprises at least one air opening [580.1.f]; and a distal member positioned at least partially within the cartridge body between the housing piece and the bottom portion of the bottom cover, wherein the distal member comprises [580.1.g]: a proximal side [580.1.g.i]; a distal side opposite the proximal side [580.1.g.ii]; a lateral side extending between the proximal side and the distal side [580.1.g.iii]; and an extension feature having a cylindrical shape, wherein the extension feature extends from the proximal side of the distal member [580.1.g.iv], and wherein the extension feature comprises an opening extending therethrough that allows air to pass through the distal member [580.1.g.v]; wherein at least a portion of the distal member comprises a perimeter that has a first shape corresponding to a second shape of an inner surface of the cartridge body [580.1.g.vi]; and wherein at least a portion of the extension wire extends at least partially through the distal member [580.1.g.vii]; wherein an air chamber is formed between the distal member and the bottom portion of the bottom cover [580.1.h]. 8. A vaporizer device, comprising: [580.8.pre] a vaporizer cartridge, comprising: [580.8.a] a cartridge body comprising a proximal body end and a distal body end opposite the proximal body end; [580.8.a.i] a mouthpiece coupled to the proximal body end, wherein the mouthpiece comprises an outlet; [580.8.a.ii] a reservoir configured to hold a vaporizable material; [580.8.a.iii] a vaporization chamber comprising: [580.8.a.iv] a heater configured to heat the vaporizable material from the reservoir to generate an aerosol; [580.8.a.iv.a] a housing piece configured to house at least a portion of the heater, wherein the housing piece comprises a housing opening configured to receive at least the portion of the heater; and [580.8.a.iv.b] an air tube extending from the housing piece, wherein the air tube is configured to deliver the aerosol from the heater to the mouthpiece; [580.8.a.iv.c] an extension wire extending from the heater; [580.8.a.v] 13
a bottom cover comprising a bottom portion, wherein the bottom portion comprises at least one air opening; [580.8.a.vi] at least one cartridge electrical contact; and [580.8.a.vii] a distal member positioned at least partially within the cartridge body between the housing piece and the bottom portion of the bottom cover, wherein the distal member comprises: [580.8.a.viii] a proximal side; [580.8.a.viii.a] a distal side opposite the proximal side; [580.8.a.viii.b] a lateral side extending between the proximal side and the distal side; and [580.8.a.viii.c] an extension feature having a cylindrical shape, wherein the extension feature extends from the proximal side of the distal member, and [580.8.a.viii.d] wherein the extension feature comprises an opening extending therethrough that allows air to pass through the distal member; [580.8.a.viii.e] wherein at least a portion of the distal member comprises a perimeter that has a first shape corresponding to a second shape of an inner surface of the cartridge body; and [580.8.a.viii.f] wherein at least a portion of the extension wire extends at least partially through the distal member; [580.8.a.viii.g] wherein an air chamber is formed between the distal member and the bottom portion of the bottom cover; and [580.8.a.ix] a vaporizer body, comprising: [580.8.b] a cartridge receiver configured to insertably receive the vaporizer cartridge, wherein the cartridge receiver comprises: [580.8.b.i] at least one body electrical contact configured to electrically couple to the at least one cartridge electrical contact of the vaporizer cartridge; [580.8.b.i.a] an insertion end into which the vaporizer cartridge is inserted; and [580.8.b.i.b] a base opposite the insertion end; [580.8.b.i.c] a sensor configured to detect a draw on the mouthpiece, causing activation of the heater; and [580.8.b.ii] a channel extending from the base of the cartridge receiver to the sensor. [580.8.b.iii] ’580 patent at 34:1-35:11 and 35:47-36:40. 3. The Accused Products from the Underlying Investigation The Accused Products in the underlying investigation consisted of “numerous vaporizer and vaporizer cartridge products.” FID at 3. The notice of institution described the Accused Products as follows: “[V]aporizing devices capable of vaporizing oils, components thereof and products containing the same” where the components of a vaporizing device are “a mouthpiece, a cartridge body, an atomizer, a distal member, a bottom cover, a vaporizer body including a cartridge receiver,” as well as a “battery,” and where 14
products containing the same are cartridge and battery components “sold in combination with a power charging device in which the [cartridge] or battery would each be one component of the downstream product.” Notice of Institution at 2. The Commission Opinion provided the following chart of the parties’ agreed upon representative Accused Products and which of the asserted patents these products were alleged to have infringed: Comm’n Op. at 10-11 (citing FID at 4 and JX-0459). PAX maintained that “[t]he accused cartridges all have substantially the same components (e.g., mouthpiece, cartridge body, atomizer/heater, bottom cover), and they all function in substantially the same way.” FID at 3 (citing CIB at 4). Moreover, according to the FID, the “accused vaporizers all include substantially the same components (e.g., vaporizer cartridge, vaporizer body, battery), and they all function in substantially the same way.” Id. (citing CIB at 5). In its complaint, PAX provided the following annotated photographs of an accused product alongside the domestic industry product: 15
Complaint at 8-9. 16
B. 19 C.F.R. Part 177 Ruling Request 1. Procedural History before CBP On June 1, 2026, STIIIZY requested a ruling from CBP that its [[ ]] was not subject to the 1392 LEO (“STIIIZY Third Ruling Request” or “previous ruling request”). STIIIZY Third Ruling Request (June 1, 2026) at 1. On August 14, 2026, the EOE Branch issued a ruling finding that STIIIZY did not meet its burden of proof that the [[ ]] was not infringing. See HQ H361933 (August 14, 2026) (“underlying ruling”). Specifically, the Branch found that while STIIIZY met its burden with respect to a number of the asserted claims of the asserted patents, “STIIIZY has presented no specific arguments why the [[ ]] does not infringe claims 8 and 10 of the ’580 patent.” Id. at 39. Both of these claims were among the asserted claims of the ’580 patent listed in the 1392 LEO. We indicated in that ruling that “STIIIZY is free to file a ruling request pursuant to 19 C.F.R. Part 177 addressing claims 8 and 10 of the ‘580 patent and incorporating the findings of this ruling on all other claims listed in the 1392 LEO.” Id. at 41. On August 18, 2026, STIIIZY submitted a confidential letter and Exs. 1-15 (collectively, “STIIIZY Fourth Ruling Request”) in an email to CBP requesting an administrative ruling pursuant to 19 C.F.R. Part 177 addressing claims 8 and 10 of the ’580 patent. STIIIZY Email to EOE Branch, August 18, 2026. In the same email, STIIIZY indicated to the EOE Branch that it had served a redacted version of the STIIIZY Fourth Ruling Request on PAX’s counsel. Id. On August 19, 2026, the EOE Branch sent an email to STIIIZY confirming receipt of the Fourth Ruling Request. EOE Branch Email to STIIIZY, August 19, 2026. Also, on August 19, 2026, the Branch sent an email to both parties requesting an initial conference call. On August 28, 2026, an initial conference call was held in which the Branch discussed the procedural guidelines for this administrative proceeding. In particular, the Branch informed both parties that because there was only one independent claim at issue before CBP it would limit the filings in this proceeding to the STIIIZY Fourth Ruling Request already filed, a PAX response, and a STIIIZY reply. Additionally, both parties agreed to waive an oral discussion before the Branch. The Branch also told the parties that they may incorporate the Branch’s findings in H361933 and any arguments made in the previous ruling request to the ruling request before us. Following the initial conference call, the EOE Branch emailed the parties, setting the remainder of the procedural schedule for this proceeding as follows: Deadline Event Deadline for PAX to file a substantive September 8, 2026 (Tuesday) response to 177 request Deadline for STIIIZY to file a reply to September 15, 2026 (Tuesday) PAX’s substantive response to 177 request October 6, 2026 (Tuesday) Target Date for EOE Branch Ruling October 7-27, 2026 Potential Extension of Target Date 17
EOE Branch Email to Parties, August 28, 2026. That same day, STIIIZY emailed the EOE Branch indicating that the parties had reached agreement on a non-disclosure agreement (NDA) and attached the NDA to the email. STIIIZY Email to EOE Branch, August 28, 2026. On September 8, 2026, PAX submitted both confidential and redacted versions of its response to STIIIZY’s Fourth Ruling Request along with Ex. A and confidential and redacted versions of Ex. B (collectively, “PAX Response”). PAX Email to EOE Branch and STIIIZY, September 8, 2027. On September 15, 2026, STIIIZY submitted its reply (“STIIIZY Reply”). STIIIZY Email to EOE Branch and PAX, September 15, 2026. Upon receipt of the STIIIZY’s Reply, the administrative record upon which this ruling relies was completed. 2. The Article at Issue The article at issue in this Fourth Ruling Request is a vaporizer device that STIIIZY calls the “[[ ]] AIO Device” ([[ ]]). STIIIZY Fourth Ruling Request at 1. This is the same article that was at issue in STIIIZY’s Third Ruling Request. See HQ H361933. According to STIIIZY, “[[ ]]. STIIIZY Third Ruling Request at 18 (citing STIIIZY Ex. 1 ¶ 12 to STIIIZY Third Ruling Request). STIIIZY maintains that the [[ ]] “[[ ]]” STIIIZY Third Ruling Request Ex. 1 ¶ 13. Moreover, STIIIZY asserts that “[[ ]]” STIIIZY Third Ruling Request at 18 (citing STIIIZY Ex. 1 ¶ 12 to STIIIZY Third Ruling Request). During the oral discussion in connection with STIIIZY’s Third Ruling Request, STIIIZY presented the following slide depicting the [[ ]]: STIIIZY Third Ruling Request Oral Discussion Presentation at 6. According to Ramon Alarcon, the head of hardware engineering for STIIIZY, “[i]n [[ ]], STIIIZY and ALD [[ ]], which resulted in the [[ ]] AIO Device. The first working prototypes of the [[ ]] AIO Device were fabricated [[ ]].” STIIIZY Ex. 1 ¶ 11. Mr. Alarcon further asserts that the [[ ]] differs from the STIIIZY-AIO in a number of respects, and provides the following CAD drawing of these devices side by side: 18
[[ ]] STIIIZY Ex. 1 ¶ 13. According to Mr. Alarcon, differences between the STIIIZY-AIO and the [[ ]] include the [[ ]], [[ ]], [[ ]], number of [[ ]], [[ ]], [[ ]], number of [[ ]], and [[ ]]. STIIIZY Ex. 1 ¶¶ 13-20. Mr. Alarcon indicates that “[f]irst production samples have been imported into the United States.” STIIIZY Ex. 1 ¶ 11. II. ISSUE Whether STIIIZY has met its burden of proof in establishing that its [[ ]] does not infringe the asserted claims in the asserted patents and is thus not subject to the 1392 LEO. III. LEGAL FRAMEWORK A. Section 337 Exclusion Order Administration 19
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 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 20
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 “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 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). 21
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). “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. According to the Federal Circuit, “[t]o 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.”). 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. 22
IV. ANALYSIS Based on the above framework, STIIIZY, as the adjudged infringer at the ITC and the party 1 seeking importation of the [[ ]], has the burden of proof to establish that this article is non-infringing by a preponderance of evidence and is therefore not subject to the 1392 LEO. See Hyundai Elecs. Indus. Co., 899 F.2d at 1210 (citing SSIH Equip. S.A. v United States Int’l Trade Comm’n, 718 F.2d 365, 371 & n.10 (Fed. Circ. 1983)); Certain Integrated Circuit Telecommunication Chips, Inv. No. 337-TA-337, Comm’n Op. at 21, n.14, USITC Pub. 2670, Doc ID 217024. STIIIZY argues that its [[ ]] does not infringe the asserted claims of the ’756, ’757, ’527, and ’580 patents. STIIIZY Fourth Ruling Request at 2. In their filings, STIIIZY and PAX dispute only a single limitation from one claim of the ’580 patent. See Parties’ Filings. See also Greenlaw v. United States, 554 U.S. 237, 243 (2008) (“In our adversary system, in both civil and criminal cases, in the first instance and on appeal, we follow the principle of party presentation. That is, we rely on the parties to frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties present.”) (emphasis added); see also Astellas Pharma, Inc. v. Sandoz Inc., 2024 U.S. App. LEXIS 23669, at *12 (Fed. Cir. 2024) (“It is for the parties—not the court—to chart the course of the litigation.”); see also Certain Robotic Floor Cleaning Devices and Components Thereof, Inv. No. 337-TA-1252, Initial Determination on Violation of Section 337 and Recommended Determination on Remedy and Bonding, EDIS Doc. ID 783814 (Public) (October 7, 2022) at 10, FN 16 (“Given that [complainant] did not dispute that the [relevant] products in this category are non-infringing, this Initial Determination finds no reason to conclude otherwise.”) (emphasis added), aff’d, Notice of Commission Final Determination Finding a Violation of Section 337, EDIS Doc. ID 792838 (Public) (March 21, 2023) (“All findings in the FID that are not inconsistent with the Commission’s determination are affirmed.”). In the underlying ruling, we concluded that STIIIZY had met its burden of proof to establish that the [[ ]] does not infringe claims 1 and 6-7 of the ’580 patent, claims 1, 5, and 10 of the ’756 patent, claims 1, 13, 15, and 20 of the ’757 patent, and claims 1, 5, 10-11, 17- 18, and 22 of the ’527 patent. HQ H361933 at 45. However, because STIIIZY did not present any arguments that the [[ ]] did not practice claims 8 and 10 of the ’580 patent, we found that STIIIZY had not met its overall burden of proof with respect to the 1392 LEO. We adopt our findings in H361933 and consider here only whether STIIIZY has met its burden of proof with respect to claims 8 and 10 of the ’580 patent. Regarding the remaining limitations of these claims, because they have not been raised by the parties, the EOE Branch will not consider them here. To prove non-infringement of an asserted patent, all a would-be importer has to prove is that its product does not meet a single limitation of each of the asserted independent claims of that patent. Gemstar-Tv Guide Int’l, Inc. v. Int’l Trade Comm’n, 383 F.3d 1352, 1363 (Fed. Cir. 2004) (affirming ITC finding of non-infringement of the ’268 patent when substantial evidence showed that accused products of respondent Scientific-Atlanta did not meet the limitation “means…for 1 The evidence shows that STIIIZY will purchase the [[ ]], which is the manufacturer. [[ ]] will then import the [[ ]] into the U.S. STIIIZY Fourth Ruling Request at 3. 23
displaying the television schedule” of claim 1 of that patent) (citing FID Opinion 2002 ITC LEXIS 812 at *186). 1. The Asserted Patents The ’580 patent (claims 8, 10) a. “a vaporizer cartridge” (limitation 580.8.a) According to STIIIZY, the [[ ]] does not meet the “vaporizer cartridge” limitation of claim 8 of the ’580 patent. STIIIZY Fourth Ruling Request at 24-27. Before considering whether this feature of claim 8 is present in the [[ ]], however, we must first address PAX’s argument that the EOE Branch erred in its construction of “vaporizer cartridge” in H361933. PAX Response at 2 and 3-6. According to PAX, just because the Commission did not construe “vaporizer cartridge” it “does not free the Branch to adopt a claim construction that is irreconcilable with the Commission’s findings on the products before it.” Id. at 7. We address this argument below. 1. Claim Construction of “Vaporizer Cartridge” As we noted in the underlying ruling, the Commission did not expressly construe “vaporizer cartridge.” H361933 at 27 (citing FID at 6-7). As such, the Branch performed its own construction of this limitation. After reviewing the arguments by both parties in STIIIZY’s Third Ruling Request, the Branch adopted STIIIZY’s proposed construction of “vaporizer cartridge” as a “component that mates with and may be installed into a vaporizer base to form a vaporizer device.” H361933 at 31. We cited extensive support from the specification and claims of the ’580 patent and found that this construction was consistent with the patentee’s intent. H361933 at 27- 29. Our approach followed Federal Circuit precedent. As the Federal Circuit has confirmed, “[t]he words of a claim are generally given their ordinary and customary meaning as understood by a person of ordinary skill in the art when read in the context of the specification and prosecution history. There are only two exceptions to this general rule: 1) when a patentee sets out a definition and acts as his own lexicographer, or 2) when the patentee disavows the full scope of a claim term either in the specification or during prosecution.” Thorner v. Sony Computer Entm't Am. LLC, 669 F.3d 1362, 1365 (Fed. Cir. 2012) (emphasis added) (internal citations omitted). The Federal Circuit has also notably held that "[a] fundamental rule of claim construction is that terms in a patent document are construed with the meaning with which they are presented in the patent document. Thus claims must be construed so as to be consistent with the specification, of which they are a part." Merck & Co. v. Teva Pharms. USA, Inc., 347 F.3d 1367, 1371 (Fed. Cir. 2003) (emphasis added). “Ultimately, the interpretation to be given a term can only be determined and confirmed with a full understanding of what the inventors actually invented and intended to envelop with the claim. The construction that stays true to the claim language and most naturally aligns with the patent's description of the invention will be, in the end, the correct construction.” Renishaw PLC v. Marposs Societa' Per Azioni, 158 F.3d 1243, 1250 (Fed. Cir. 1998) (citing Markman v. Westview Instruments, Inc., 517 U.S. 370, 389 (1996); Young Dental Mfg. Co. v. Q3 Special Prods, 112 F.3d 1137, 1141 (Fed. Cir. 1997)). 24
In the ruling request before us now, STIIIZY contends that the Branch should apply the same construction of “vaporizer cartridge” to claim 8 that it adopted in the underlying ruling. STIIIZY Fourth Ruling Request at 22. According to STIIIZY, “‘if a claim term appears in more than one claim it should be construed the same in each.’” Dayco Prods., 329 F.3d at 1371. The Branch’s construction, therefore, [in the underlying ruling] applies equally to the term vaporizer cartridge in claim 8.” Id. at 24. STIIIZY also argues that “[t]he construction [the Branch adopted in the underlying ruling] is consistent with the plain meaning of cartridge, which standard dictionaries define as a removable container designed for insertion into a larger piece of equipment” and that “[h]ere, that ‘larger piece of equipment’ is the vaporizer device.” Id. at 21 (citing ’580 patent at 2:43-54, 3:64-4:1, cl. 6; STIIIZY Exs. 11-13). STIIIZY also contends that: Following the Phillips framework, the Branch [in the underlying ruling] considered the intrinsic evidence and (where not in conflict with that intrinsic evidence) the testimony of the parties’ experts. It would have been improper for the Branch to factor into its construction an infringement finding for an entirely different product. See SmithKline Beecham Corp. v. Apotex Corp., 403 F.3d 1331, 1340 (Fed. Cir. 2005) (“[T]his court has repeatedly stated that a court must construe claims without considering the implications of covering a particular product or process.”). PAX is essentially asking the Branch to conduct an infringement analysis on the category of all-in-one devices as a whole, not on a product-by-product basis. This flies in the face of Federal Circuit precedent. See ABC Corp. I v. P’ship & Unincorporated Associations Identified on Schedule “A”, 52 F.4th 934, 938 (Fed. Cir. 2022) (faulting district court for conducting infringement analysis on accused products “as a group, without providing a product-by-product analysis”). STIIIZY Reply at 5. Lastly, STIIIZY asserts that “[t]he FID’s findings . . . reflect an application of the vaporizer cartridge limitation to specific devices (legacy AIO products) with specific features (an alleged ‘cartridge component’), rather than a construction of the term that would govern all future products.” Id. On the other hand, PAX does not offer its own express construction of “vaporizer cartridge” here. PAX Response at 3-6. Instead, PAX asserts that our previous construction contradicts the Commission’s findings that several legacy AIO products met this limitation. Id. at 6-7. Here, PAX contends that “[c]ritically, the FID found that all AIO devices, including the representative STIIIZY-LIIIL, the STIIIZY-AIO, and STIIIZY-AIO-REDESIGN [collectively, the “legacy AIO devices”], each satisfy the ‘vaporizer cartridge’ preamble limitation across the Asserted Patents.” Id. at 4. To this end, PAX asserts that “[a] construction of ‘vaporizer cartridge’ that excludes the [[ ]] AIO Device would also exclude the STIIIZY-AIO” and that “[u]nder a construction consistent with the Commission’s findings, the [[ ]] AIO Device satisfies the so-called ‘vaporizer cartridge’ limitation of independent claims 1 and 8 and dependent claim 10 of the ‘580 Patent.” Id. at 3. As noted above, PAX argues that just because the Commission did not construe “vaporizer cartridge” it “does not free the Branch to adopt a claim construction that is irreconcilable with the Commission’s findings on the products before it.” Id. at 7. According to PAX, “[t]hese undisputed findings across all three AIO product lines—each of which is an integrated all-in-one device— 25
establish that the Commission’s construction of ‘vaporizer cartridge’ is broad enough to encompass such integrated devices. STIIIZY’s proposed construction, which would require a ‘vaporizer cartridge’ to mate with and be installed into a separate vaporizer base, is irreconcilable with these findings and cannot be adopted by CBP.” Id. at 6. In this regard, PAX asserts that “[t]he Commission’s infringement finding on the AIO devices necessarily implies a construction of ‘vaporizer cartridge’ broad enough to encompass the class of integrated all-in-one vaporizer devices” and that CBP is “bound to that implied construction.” Id. at 6-7. Lastly, PAX maintains that: Notably, STIIIZY did not dispute that any of these AIO products satisfied the “vaporizer cartridge” preamble in the underlying investigation. STIIIZY’s failure to contest the “vaporizer cartridge” limitation as applied to its own AIO products in the underlying investigation constitutes a forfeiture of any argument that an integrated all-in-one device cannot satisfy that limitation. STIIIZY cannot now, in a Part 177 proceeding, advance a claim construction for “vaporizer cartridge” that it never raised before the ALJ or the Commission and that would render the Commission’s own infringement findings impossible. Id. at 5. Initially, we note that PAX did not request a reconsideration of the underlying ruling. See generally PAX Response. As such, CBP is bound to its findings in H361933 until revoked or modified. See 19 C.F.R. § 177.9(a). With this in mind, we now address PAX’s argument that the Commission engaged in implicit claim construction of “vaporizer cartridge.” Id. at 6-7. According to the Federal Circuit, “[l]ess clear, at times, is whether a court or other tribunal has construed a claim or whether it has simply compared the claim to prior art or an allegedly infringing technology. While the line between these two inquiries can be fine, the answer could be critical given the different standard of review applicable to each issue on appeal.” Google LLC v. th Ecofactor, Inc., 92 F.4 1049, 1055 (Fed. Cir. 2024) (citing Dionex Softron GmbH v. Agilent Techs., Inc., 56 F.4th 1353, 1358 (Fed. Cir. 2023); Fleming v. Cirrus Design Corp., 28 F.4th 1214, 1221-22 (Fed. Cir. 2022); and Amgen Inc. v. Hospira, Inc., 944 F.3d 1327, 1335 (Fed. Cir. 2019) (emphasis in original)). The Federal Circuit in Google further surmised that: To determine whether a court, or the Board, has construed a claim, it is helpful to look to the outcome of the tribunal's analysis. See HTC Corp., 877 F.3d at 1367 (determining that a claim construction occurred where the Board's findings established the scope of the patented subject matter). If the outcome of the analysis of the claim term establishes the scope (e.g., boundaries) and meaning of the patented subject matter, the court (or the Board) has mostly likely construed the claim. See Netword, 242 F.3d at 1352; see also Trading Techs. Int'l, Inc. v. Open E Cry, LLC, 728 F.3d 1309, 1319 (Fed. Cir. 2013). th Google, 92 F.4 at 1055 (emphasis in original). In Google, the Federal Circuit found that the Patent Trial and Appeal Board (PTAB) performed claim construction of the disputed limitation even though the PTAB stated in its Final Written Decision that “because no express construction 26
is needed for our decision, we do not construe any of the claim limitations.” Id. The Federal Circuit reviewed the record and concluded that the PTAB made a detailed analysis of this limitation, including citing several Federal Circuit cases that supported its findings. Id. at 1056. Using this analysis, the Board rejected Google’s challenge to the validity of the underlying patent. Id. The Federal Circuit found that “the outcome of the Board’s assessment established the scope of the [] limitation [at issue]” and that, despite the Board’s contentions to the contrary, its findings “amount[] to claim construction.” Id. Here, we find that the Commission did not implicitly construe “vaporizer cartridge.” Unlike the Board’s assessment in Google, there was no analysis of “vaporizer cartridge” in the Commission’s findings in the underlying investigation. As stated in the underlying ruling, we found that the Commission simply made factual findings that the STIIIZY AIO met the “vaporizer cartridge” preamble of claim 1 of the ’580 patent. H361933 at 33 (citing FID at 82-83 and CX- 4747C (Kodama) at Q/As 326-327)). Although the Commission cited the Amended Witness Statement of PAX’s expert Kelly Kodama in its findings, we found his testimony insufficient in proving that the [[ ]] met this limitation. H361933 at 35. Unless the Commission analyzed this limitation such that it establishes its scope, as required by Google, we cannot conclude it implicitly construed “vaporizer cartridge.” See also Bissel, Inc. v. Int’l Trade Comm’n, th 175 F.4 1327, 1334 (Fed. Cir. 2026) (holding that appellant Bissel could not rely on Google LLC v. EcoFactor, Inc. for a finding of implicit claim construction by the ALJ when the ALJ did not “establish the scope of [the disputed] limitation” by merely applying the plain and ordinary meaning of the limitation to the article at issue). Accordingly, in the absence of an express or implicit claim construction by the Commission that provides us with clear guidance, the Branch must adopt its own claim construction of “vaporizer cartridge” that does not conflict with the Commission’s findings. We note that, despite arguing that there was an implicit claim construction by the Commission, PAX has not articulated what that claim construction was. See Pax Response at 7. We also reject PAX’s argument that our claim construction of “vaporizer cartridge” contradicts the Commission’s findings of infringement of the legacy AIO devices. PAX Response at 3. PAX argues that the STIIIZY legacy AIO devices met the “vaporizer cartridge” limitation in the underlying investigation and that therefore our claim construction contradicts this finding. PAX Response at 4. Specifically, according to PAX: These products are integrated devices in which the reservoir, heater, and battery are housed within a single unit, and none of them mates with a separate vaporizer base in the manner that STIIIZY now contends is required by the term “vaporizer cartridge.” Notwithstanding that structural characteristic, the Commission found each of these products to infringe claims requiring a “vaporizer cartridge.” Those findings are final and conclusive and are binding on CBP. Id. We disagree that the legacy AIO devices do not conform to our claim construction of “vaporizer cartridge.” Specifically, we found in the underlying ruling that the STIIIZY AIO has a “component that mates with and may be installed into a vaporizer base to form a vaporizer body.” H361933 at 33, n. 3. PAX’s own evidence from the underlying investigation confirms this, as 27
shown in the below photos of the cartridges of the legacy AIO devices presented by its expert Kelly Kodama in his Amended Witness Statement. PAX Ex. B at 109. According to Kelly Kodama, the STIIIZY legacy AIO devices all have cartridges and battery components. PAX Ex. B at Q/A at 182 (“The battery component of the STIIIZY LIIIL Vaporizer serves as the vaporizer body”); Q/A at 183 (“The battery component of the STIIIZY AIO Vaporizer serves as the vaporizer body”); and Q/A 440 (“the STIIIZY AIO Vaporizer Redesign has substantially the same features as the STIIIZY AIO Vaporizer…”). Clearly, these cartridges must be inserted into a vaporizer body (i.e., battery) to form a vaporizer device. Although users of the legacy AIO devices themselves cannot perform this function (i.e., it is done by the manufacturer), neither our claim construction nor the Commission’s findings require that the users be the ones that do so. Therefore, the Branch’s claim construction of “vaporizer cartridge” in H361933 was consistent with the infringement findings of the Commission. We lastly turn to PAX’s claim that “STIIIZY cannot now, in a Part 177 proceeding, advance a claim construction for ‘vaporizer cartridge’ that it never raised before the ALJ or the Commission and that would render the Commission’s own infringement findings impossible.” PAX Response to STIIIZY’s Fourth Ruling Request at 5. The Branch finds this argument unavailing. Neither the [[ ]] nor a similar device was before the Commission. As STIIIZY argues, “[t]he underlying ITC proceeding and this Part 177 Request involve materially different products. STIIIIZY could not have waived this argument during the underlying investigation because the argument could not have been made during the underlying investigation.” STIIIZY Reply at 8. We agree. STIIIZY was not required to advance a claim construction at the Commission for a limitation not in dispute. FID at 82, 98. Therefore, by failing to do so, it does not follow that STIIIZY forfeited any claim construction arguments here. 28
After considering the evidence and arguments before us, the Branch adopts the same claim construction of “vaporizer cartridge” that it did in the underlying ruling. H361933 at 31. PAX has not provided any new arguments for why the Branch should depart from this construction. Rather, PAX largely relies on the same arguments that we already considered and rejected in H361933. Although we acknowledge that CBP is bound by the findings of the Commission, CBP has authority to decide issues that the Commission has not addressed in connection with our authority over prospective transactions under 19 C.F.R. 177. Here, we find that Commission did not expressly or implicitly construe “vaporizer cartridge.” See Order No. 19, FID, Comm’n Op; and supra at 26. Accordingly, for the same reasons we articulated in H361933 for claim 1 of the ’580 patent, the Branch finds that “vaporizer cartridge” should be construed as a “component that mates with and may be installed into a vaporizer base to form a vaporizer device” for claim 8 of this patent. H361933 at 31. 2. Whether the [[ ]] Meets the “Vaporizer Cartridge” Limitation The Branch now considers whether the [[ ]] practices the “vaporizer cartridge” limitation of claim 8 of the ’580 patent based on the above claim construction. According to STIIIZY in its Third Ruling Request: [T]he [[ ]] AIO Device does not pair with a vaporizer base and does not contain a component that mates with or is installed into a vaporizer base. Even PAX’s expert agreed that “the [[ ]] AIO Device is “an all-in-one (‘AIO’) vaporizer device in which a battery is not detachable from a cartridge.” (Ex. 14, Kodama Decl. ¶ 15. Accordingly, there is no component that literally meets the Branch’s construction, i.e. one that “mates with and may be installed into a vaporizer base to form a vaporizer device.” (emphasis in original) (some internal citations omitted). STIIIZY Third Ruling Request at 22. Additionally, STIIIZY asserts that: Nor is the [[ ]] AIO Device a vaporizer cartridge under the doctrine of equivalents. The [[ ]] AIO Device does not contain any structure that performs the function of a vaporizer cartridge (mating with a base) in substantially the same way (through electrical contacts that engage upon insertion) to achieve substantially the same result (forming a vaporizer device by pairing separable components). (Ex. 11, Wensley Decl. ¶ 28; Ex. 10 at 32 (“[W]e do not find this [vaporizer cartridge] feature or its equivalent present in the [[ ]].”).) Id. (emphasis in original). Lastly, STIIIZY argues that “PAX mischaracterizes the FID by claiming that ‘all AIO devices . . . satisfy the “vaporizer cartridge” preamble limitation across the Asserted Patents.’ To the contrary, the FID did not broadly rule that all integrated vaporizer devices necessary satisfy the vaporizer cartridge limitation. Rather, its rulings related only to particular devices, none of which are at issue here.” STIIIZY Reply at 4 (internal citations omitted) (emphasis in original). 29
Conversely, PAX contends that “the Branch’s construction of ‘vaporizer cartridge’ in the Prior Ruling is irreconcilable with the Commission’s infringement findings and cannot be applied in this proceeding. Under a construction consistent with those findings, which is broad enough to encompass the class of integrated all-in-one vaporizer devices, which the Commission found to infringe claim 1, the [[ ]] AIO Device likewise satisfies the ‘vaporizer cartridge’ limitation of claims 8 and 10.” PAX Response at 7. In this regard, PAX further asserts that: The Commission’s finding that STIIIZY earlier AIO devices satisfy the “vaporizer cartridge” limitation establishes that an integrated all-in-one vaporizer device can constitute or contain a “vaporizer cartridge” within the meaning of the ‘580 Patent. The [[ ]] AIO Device is similarly an integrated all-in-one vaporizer device. The [[ ]] AIO Device therefore satisfies the “vaporizer cartridge” limitation of claim 8 for the same reasons the Commission found the STIIIZY AIO devices to satisfy the corresponding limitation of claim 1. Id. at 7 (internal citations omitted). Moreover, PAX argues that the “STIIIZY-AIO is a representative product for all AIO variants of the STIIIZY All-In-One Vaporizer. Accordingly, the Commission’s findings that the STIIIZY-AIO satisfies the ‘vaporizer cartridge’ preamble applies to all AIO variants of that product line.” Id. at 4 (citing PAX Ex. A, Joint Stipulation re Representative Products (“Joint Product Stipulation”) at 3). PAX makes similar contentions regarding the STIIIZY-AIO-REDESIGN and STIIIZY LIIIL. PAX Response at 4-5 (citing PAX Ex. A at 3). Here, PAX argues that the legacy AIO devices “are integrated devices in which the reservoir, header, and battery are housed within a single unit, and none of them mates with a separate vaporizer base in the manner that STIIIZY now contends is required by the term ‘vaporizer cartridge.’” Id. at 4. PAX also asserts that STIIIZY admitted that the [[ ]] has both cartridge and battery components. According to PAX, “STIIIZY’ [sic] own submissions confirm that the [[ ]] AIO Device is an integrated all-in-one vaporizer device in which the battery is not detachable from the cartridge—the same structural characteristic shared by the STIIIZY AIO devices that the Commission found to satisfy the ‘vaporizer cartridge’ limitation.” PAX Response at 4-5 (citing STIIIZY Ex. 1 at ¶¶ 12-15). We conclude that the preponderance of evidence supports a finding that the [[ ]] does not have a “vaporizer cartridge” as construed by the Branch, as set forth above and previously in H361933. As we indicated in the underlying ruling, we reject PAX’s contentions that the Branch must apply the Commission’s findings of the “vaporizer cartridge” limitation that it made for the legacy AIO devices to the [[ ]] here. H361933 at 32. In H361933, we extensively discussed the differences between the STIIIZY AIO and the [[ ]]. H361933 at 32-33. In particular, we noted the clear differences between the STIIIZY AIO and the [[ ]] as shown in the following slide presented by STIIIZY during the oral discussion in its Third Ruling Request: 30
[[ ]] Id. (citing STIIIZY Oral Presentation in STIIIZY Third Ruling Request at 54). There, we found the following: From the lefthand photo of the cartridge of the STIIIZY-AIO above, one can readily see a vaporizer cartridge, which just one of the components of the STIIIZY-AIO. In contrast, we do not see a vaporizer cartridge that can mate with a vaporizer base to form a vaporizer device in the [[ ]] on the right. In fact, the CAD drawing of the [[ ]] shows that the device is a single unit that does not need to mate with another component to form a vaporizer device. From the Branch’s perspective, just because the ALJ found that the STIIIZY-AIO infringed the preamble of the ’580 patent, it does not follow that we are required to find that another all-in-one device (the [[ ]]) has this same feature. This is especially true considering the [[ ]] is distinctive in numerous ways from STIIIZY- AIO and the Commission did not consider a similar all-in-one product during the underlying investigation. H361933 at 33. We also note again that the FID did not specifically indicate why the STIIIZY-AIO met the “vaporizer cartridge” limitation of claim 1 of the ’580 patent. FID at 82-83 (citing CX-4747C (Kodama) at Q/As 326-327, 333). It is worth considering again the evidence cited by the ALJ for this limitation. In the FID, the ALJ briefly cited, but did not quote from, the testimony below of Kelly Kodama. FID at 83. In the Amended Witness Statement of Kelly Kodama that the ALJ cited, the following question and answer exchange occurred: Q326. Let’s turn to the details of your analysis for claim 1 of the ’580 Patent, and for each element I’m going to ask you to explain your analysis relative to the following representative products: . . . STIIIZY All-In- One Vaporizer . . . . Are any of these accused products a vaporizer cartridge as recited in the preamble of claim 1? A326. Yes, Slide CDX-0001.0105 shows that the STIIIZY 1 Gram Cartridge, Rove Cartridge, Flare X2 Cartridge, STIIIZY 1 Gram Cartridge Redesign, Rove Cartridge Redesign, and Flare X2 Cartridge Redesign are vaporizer cartridges. 31
Q327. Do any of these accused vaporizer products include a vaporizer cartridge as recited in the preamble of claim 1? A327. Yes, the STIIIZY (Original) Vaporizer with 1 Gram Cartridge, the STIIIZY LIIIL Vaporizer, STIIIZY All-In-One Vaporizer, Rove Vaporizer, Flare X2 Vaporizer, STIIIZY (Original) Vaporizer with 1 Gram Cartridge Redesign, STIIIZY All-In-One Vaporizer Redesign, Rove Vaporizer with Rove Cartridge Redesign, and Flare X2 Vaporizer with Flare X2 Cartridge Redesign all include vaporizer cartridges. . . . The vaporizer cartridge component of the STIIIZY All-In-One Vaporizer Redesign is shown on slide CDX-0001.0106. . . . Q333. Does the STIIIZY AIO Vaporizer satisfy elements [1A]-[1C]? A333. Yes, the mouthpiece, cartridge body, and reservoir of the cartridge component of the STIIIZY AIO Vaporizer are identified on slide CDX- 0001.0112. Relative to elements [1A]–[1C], the cartridge component has substantially the same features as the STIIIZY 1 Gram. PAX Ex. B, Q/A 326-327, 333. See also H361933 at 33-34. As part of his Amended Witness Statement, Mr. Kodama provided the following slide with respect to Q/A 327 above: PAX Ex. B, Q/A 327. See also H361933 at 34. 32
Thus, we found in H361933 that although the ALJ cited Mr. Kodama’s witness statement as evidence that the STIIIZY-AIO infringed claim 1 of the ’580 patent, Mr. Kodama gave no specifics as to why this device met the “vaporizer cartridge” limitation. PAX Ex. B, Q/As 326- 327, 333. Rather, Mr. Kodama made general statements concerning infringement and provided a slide with a photograph of the cartridge of the STIIIZY-AIO (i.e., middle device in above photograph). From this alone, as we indicated in the underlying ruling, the Branch cannot conclude that the ITC’s findings on the STIIIZY-AIO warrant a similar finding that an entirely different article with a different structure and functionality, the [[ ]], meets the “vaporizer cartridge” limitation of claim 8. H361933 at 35; see supra p19. As such, we again find Mr. Kodama’s testimony from the underlying investigation insufficient to prove that the [[ ]] contains a “vaporizer cartridge.” The additional arguments made by PAX are also unavailing. As stated above, PAX alleges that STIIIZY’s “own submissions confirm that the [[ ]] AIO Device is an integrated all- in-one vaporizer device in which the battery is not detachable from the cartridge.” PAX Response at 6 (citing STIIIZY Ex. 1 at ¶¶ 12-15). We disagree. We have reviewed STIIIZY’s Exhibit 1 (Declaration of Ramon Alarcon) cited by PAX and did not locate this alleged admission by Mr. Alarcon. Moreover, PAX’s assertion that the STIIIZY legacy AIO devices are “integrated devices in which the reservoir, heater, and battery are housed within a single unit, and none of them mates with a separate vaporizer base in the manner that STIIIZY now contends is required by the term ‘vaporizer cartridge’” is misleading. The Commission specifically found that these devices also include a vaporizer cartridge. FID at 82-83, 98. The Branch also rejects PAX’s argument that the [[ ]] is representative of the STIIIZY legacy AIO devices and variants thereof listed in the parties’ Joint Product Stipulation. PAX Response at 4-5 (citing PAX Ex. A at 3). Initially, we note that the Joint Product Stipulation does not reference a [[ ]] type device. Additionally, for the STIIIZY LIIIL and STIIIZY AIO, the agreed-upon representative products listed in the Joint Product Stipulation are merely variants in flavor and strain type. PAX Ex. A, Attachments E, F. Moreover, for the STIIIZY AIO Vaporizer Redesign, the parties stipulated that it “shall be representative of all future variants of the STIIIZY All-in-One Vaporizer Redesign that reflect only cosmetic and/or flavor differences compared to the STIIIZY All-in-One Vaporizer Redesign.” PAX Ex. A at 4. We find that the [[ ]] is not simply a variation in flavor or strain or a cosmetic variant of the STIIIZY legacy AIO devices. As we held in held in the underlying ruling, and again here, the [[ ]] is a completely different product than any that was adjudicated in the underlying investigation. H361933 at 32-33. We also agree with STIIIZY that “PAX mischaracterizes the FID by claiming that ‘all AIO devices . . . satisfy the “vaporizer cartridge” preamble limitation across the Asserted Patents.’” STIIIZY Reply at 4. A review of the record in the underlying investigation reveals that the Commission only made findings on several AIO devices, including the STIIIZY LIIIL, STIIIZY AIO, and STIIIZY AIO Redesign. At no point did the Commission make a finding that all AIO devices, no matter their structure, infringe the asserted patents. See FID and Comm’n Op. Moreover, STIIIZY’s branding of the [[ ]] as an AIO is not an admission that it is the same as the legacy AIO devices or a concession that it has a cartridge. By definition, an all-in-one is simply a device that contains all its parts or functionalities in one unit. All-In-One, Collins.com, 33
https://www.collinsdictionary.com/dictionary/english/all-in-one (“denoting a product or system that combines multiple parts or functions”) (last visited Sept. 28, 2026)). However, not every all- in-one device is created the same. In fact, the specification of the ’580 patent discloses that vaporizer devices may be cartridge-less, [[ ]]. ’580 patent at 2:43- 45; 32:13-17. Lastly, we reiterate here, as we found before, that PAX has not pointed to any feature in the [[ ]] that satisfies the “vaporizer cartridge” limitation. See PAX Response at 7-8. Rather, PAX’s arguments are restricted to its disagreement with our claim construction and its assertion that CBP is bound to apply the Commission’s findings on the legacy AIO devices to the [[ ]]. In other words, PAX has failed to provide an alternative argument of what feature of the [[ ]] meets this limitation under the Branch’s claim construction. Accordingly, its argument is unpersuasive. 3. Our Overall Findings on the “Vaporizer Cartridge” Limitation of Claim 8 After reviewing the parties’ filings, the underlying investigative record, and Federal Circuit precedent, we find that the [[ ]] does not practice the “vaporizer cartridge” limitation of claim 8. As noted above, we maintain our claim construction of this limitation that we adopted in H361933. Furthermore, based on this claim construction, we find that the [[ ]] does not meet the limitation “vaporizer cartridge” of claim 8 because the preponderance of the evidence supports a finding that this feature is not present in the [[ ]]. b. The Remaining Limitations of Claim 8 Concerning the other limitations of claim 8, STIIIZY argues that “[i]f necessary, STIIIZY reserves the right to introduce evidence that additional claim limitations (i.e., those addressed by STIIIZY in its June 1, 2026 proceeding for claim 1 of the ’580 Patent that also appear in claim 8, such as extension feature, vaporization chamber, and the like) are not satisfied by the [[ ]] device for claim 8 for the same reasons these limitations are not found in claim 1.” STIIIZY Fourth Ruling Request at 27 (emphasis in original). The Branch did not consider these limitations in H361933 with respect to claim 1 because we found that the [[ ]] did not meet the preamble “vaporizer cartridge.” See H361933 at 35-39. These limitations are also found in claim 8 of the ’580 patent. ’580 patent at 35:47-36:40. Because we conclude that the [[ ]] does not practice the “vaporizer cartridge” limitation of claim 8, we need not consider these remaining limitations. c. The EOE Branch’s Overall Position on the ’580 patent In conclusion, the Branch finds that STIIIZY has met its burden of proof in showing the [[ ]] does not infringe claim 8 of the ’580 patent. Because claim 10 depends from claim 8, we find that the [[ ]] does not infringe this dependent claim either. 34
The Remaining Asserted Patents In H361933, the Branch found that STIIIZY met its burden of proof that the [[ ]] does not infringe the asserted claims of the ’756, ‘757, and ’527 patents. H361933 at 41-45. We adopt those same findings here and need not revisit them. 2. Summary of Infringement Findings After reviewing the investigative record as well as submissions by both parties in this inter partes proceeding and incorporating our findings in H361933, we conclude that STIIIZY has met its burden of proof in establishing that its [[ ]] does not infringe the asserted claims of the ’756, ’757, ’527 and ’580 patents. STIIIZY has provided sufficient evidence establishing that the [[ ]] does not practice the “vaporizer cartridge” limitation of claims 1 and 8 of the ’580 patent. Additionally, as we noted in H361933, STIIIZY has sufficiently shown that the [[ ]] does not practice all the limitations of the ’756, ’757, and ’527 patents. The following chart summarizes our infringement findings in regard to the [[ ]]: Asserted Patents Asserted Claims Claims Claims Not Infringed Infringed U.S. Patent No. 11,369,756 1,5,10 1, 5, 10 U.S. Patent No. 11,369,757 1,13,15,20 1, 13, 15, 20 U.S. Patent No. 11,766,527 1,5,10-11,17-18, 1,5,10-11,17-18, 22 22 U.S. Patent No. 11,759,580 1,6-8,10 1, 6-8, 10 V. CERTIFICATION Despite this ruling’s determination that the articles at issue are not subject to the 1392 LEO, the EOE Branch acknowledges any concerns that PAX might have regarding the possibility of circumvention. Thus, these concerns warrant conditioning entry for consumption of the articles at issue into the United States on the drafting and submission of a certification pursuant to paragraph 4 of the 1392 LEO. According to the 1392 LEO, “[a]t the discretion of CBP and pursuant to the procedures it establishes, persons seeking to import articles may be required to certify that they are familiar with the terms of this Order, that they have made appropriate inquiry, and thereupon state that, to the best of their knowledge and belief, the products being imported are not excluded from entry under paragraph 1 of this Order. At its discretion, CBP may require persons who have provided the certification described in this paragraph to furnish such records or analyses as are necessary to substantiate the certification.” 1392 at ¶ 4. Significantly, an importer’s ability to enter for consumption into the United States an article addressed in a ruling under 19 C.F.R. Part 177 that resulted from an inter partes proceeding has previously been conditioned by CBP to require a certification drafted with the participation of the 35
complainant. The EOE Branch previously explained the reasoning for this approach in HQ H329187: [I]n appropriate circumstances, the EOE Branch has conditioned an importer’s ability to enter for consumption into the United States the article at issue according to a ruling under 19 C.F.R. Part 177 that resulted from an inter partes proceeding. See CBP Headquarters Ruling H324813 (dated June 3, 2022) at 47 (“Thus, it is CBP’s position that the articles at issue are subject to exclusion from entry for consumption based on the 1191 LEO until Google: (1) disables or renders inoperable the Device Utility app such that it can no longer be used with the articles at issue and provide notice of this action or (2) establishes non-infringement for the articles at issue pursuant to an ancillary proceeding at the Commission or an inter partes proceeding requested from CBP under 19 C.F.R. Part 177 that addresses operation of the Device Utility app on the articles at issue.”). Additionally, in certain cases, the Intellectual Property Rights Branch (the predecessor to the EOE Branch) treated the filing of a certification as a condition for entry following a favorable ruling under 19 C.F.R. Part 177. See CBP Headquarters Ruling H282234 (dated May 16, 2017) at 9 (“Because there is currently no simple method to test whether a particular GFCI utilizes three electrically isolated conductors without disassembling the GFCI, we are requiring that Royal Pacific Corporation file a certification upon ENTRY (along with any other required entry documents) for any imported GFCIs certifying that said merchandize does not utilize three electrically isolated conductors and thus does not satisfy the independent claim limitations of the ’809 patent.”); see also CBP Headquarters Ruling H311351 (dated August 19, 2020) at 29 (“In addition, with each entry of the articles at issue, CBP will require from persons importing the articles at issue (1) a certification, as approved by CBP; and (2) upon request by CBP, to furnish such records or analyses necessary to substantiate the certification.”) (internal citation omitted). Based on the concerns raised by the potential to modify the articles at issue post-importation, we find that the use of a certification as a condition of entry is appropriate. Thus, the EOE Branch finds that conditioning the entry for consumption into the United States of the articles at issue on the submission of a certification is appropriate. VI. HOLDING Having reviewed both parties’ arguments and the supporting evidence, we determine that STIIIZY has met burden of proof in establishing that the [[ ]] does not infringe the asserted claims of the asserted patents of the 1392 LEO. Accordingly, we hold that the [[ ]] is not subject to the 1392 LEO. This 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 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). 36
Sincerely, Alaina van Horn Chief, Exclusion Order Enforcement Branch CC: Lyle Vander Schaaf Crowell & Moring LLP 1001 Pennsylvania Avenue, NW Washington, DC 200004 [email protected] [email protected] 37