Protest 2704-11-102660; U.S. International Trade Commission; General Exclusion Order; Investigation No. 337-TA-650; Certain Coaxial Cable Connectors and Components Thereof and Products Containing the Same

HQ H194336 December 9, 2011 OT:RR:BSTC:IPR H194336 AAH CATEGORY: 19 U.S.C. § 1337; Unfair Competition Port Director U.S. Customs and Border Protection 301 East Ocean Blvd. Suite 1400 Long Beach, CA 90802 RE: Protest 2704-11-102660; U.S. International Trade Commission; General Exclusion Order; Investigation No. 337-TA-650; Certain Coaxial Cable Connectors and Components Thereof and Products Containing the Same Dear Port Director: This is in response to the application for further review of the above-referenced protest filed by Corning Gilbert (“Protestant”) with respect to the exclusion from entry for consumption of certain coaxial cable connectors (“excluded connectors”) that were determined to be covered by the general exclusion order issued by the U.S. International Trade Commission (“ITC” or “Commission”) in Investigation No. 337-TA-650 (“650 GEO”). FACTS: On November 7, 2011, U.S. Customs and Border Protection (“CBP”) issued two notices to Protestant indicating that certain shipments of connectors were excluded from entry for consumption pursuant to the 650 GEO. See Protest at 1; see also CBP Exclusion Notices (listing the date of denial as October 27, 2011). Pursuant to 19 U.S.C. § 1514(c) and § 1515(a), as implemented by 19 C.F.R. § 174, Protestant timely filed a protest on November 18, 2011, challenging the exclusion from entry and seeking further review of the CBP decision to exclude. Specifically, Protestant denies that the excluded connectors are covered by any of the patent claims found to be infringed at the ITC and included in the 650 GEO. The excluded shipments contained, inter alia, connectors designated by Protestant as the “UltraShield” and “UltraRange” connectors, which are depicted below. As shown in the physical samples and diagrams provided by Protestant, the connectors at issue consist of a nut, tubular post, cylindrical body member, compression ring, and a feature Protestant refers to as a gripping member.







 Prior to filing the protest and application for further review, but roughly contemporaneous with the arrival of the shipments that were eventually refused entry, Protestant filed a request pursuant to 19 C.F.R. § 177 for an administrative ruling addressing whether connectors exhibiting the UltraShield and UltraRange embodiment (i.e., the same as those refused entry and at issue in this determination) fell within the 650 GEO’s scope. Accordingly, all of Protestant’s submissions and letters up to this point, including those provided in connection with the ruling request, have been incorporated by referenced in the administrative record before CBP. See Submissions dated July 19 and August 24, 2011, Letters dated July 29, September 2, and October 7, 2011, and Presentation Materials dated July 22, 2011. ITC Inv. No. 337-TA-650 was instituted on May 30, 2008, based on a complaint filed by John Mezzalingua Associates, Inc., d/b/a PPC, Inc. (“PPC”) of East Syracuse, New York, which named a number of parties as respondents to the investigation. See Administrative Law Judge’s (“ALJ”) Initial Determination on Violation of Section 337 and Recommended Determination on Remedy and Bond (“ID”) at 1 (dated November 3, 2009). Protestant, however, was not named as a respondent to the investigation. The ALJ found a violation of section 337 of the Tariff Act of 1930, as amended, after determining there was substantial, reliable, and probative evidence that the connectors of Fei Yu, a defaulting respondent to the ITC investigation, satisfied all elements of claims 1 and 2 from U.S. Patent No. 6,558,194 (“the ‘194 patent”). The Commission determined not to review the ALJ’s determination that defaulting respondent Fei Yu violated section 337 with respect to the ‘194 patent. See Commission Opinion at 1 (dated March 31, 2011). Ultimately, the Commission decided to provide relief in the form of a general exclusion order that bars the entry for consumption into the United States of coaxial cable connectors covered by the ‘194 patent. As stated above, Protestant was not named as a respondent to the investigation. Therefore, the UltraShield and UltraRange connectors were not at issue in the investigation at the ITC and were not analyzed by the ALJ or the Commission during its review. However, in 2003, PPC brought suit against Protestant in the Western District of Wisconsin accusing a number of its connectors to infringe the ‘194 patent. One of the devices at issue in that case was the “UltraSeal” connector, of which there were various embodiments and some of those were found to infringe. However, Protestant has referenced the testimony of PPC’s expert in the Wisconsin litigation, who opined that after viewing drawings of some UltraSeal connectors, it was his opinion that these connectors (specifically models GAF-US-7, GAF-US-11, and GAF-US-11Q) did not literally infringe the claims of the ‘194 Patent. A depiction of the UltraSeal embodiment considered not to infringe is provided below.
Additionally, CBP is also aware of the current litigation ongoing between PPC and Protestant in the Northern District of New York pertaining, inter alia, to the alleged infringement of the ‘194 patent by the UltraShield and UltraRange connectors. ISSUE: The issue presented is whether the excluded connectors identified to exhibit the UltraShield and UltraRange embodiment are covered by claims 1 or 2 of the ‘194 patent and therefore fall within the scope of the 650 GEO. LAW AND ANALYSIS: The ITC has authority to conduct investigations into imported articles that allegedly infringe United States patents and impose remedies if the accused products are found to be infringing. See 19 U.S.C. § 1337(a)(1)(B), (b)(1), (d), (f). Specifically, 19 U.S.C. § 1337(d) provides the Commission authority to direct the exclusion from entry of articles found to be infringing. Moreover, when the Commission determines that there has been a violation of section 337, as amended, it may issue two types of exclusion orders: a limited exclusion order and/or a general exclusion order. See Fuji Photo Film Co., Ltd. v. U.S. Int’l Trade Comm’n, 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. U.S. Int’l Trade Comm’n, 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. Id. 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 only appropriate if two exceptional circumstances apply. See Kyocera Wireless Corp. v. U.S. Int’l Trade Comm’n, 545 F.3d 1340, 1356. 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 also 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 by satisfying the heightened burdens of §§ 1337(d)(2)(A) and (B).”). Additionally, a seizure and forfeiture order issued under 19 U.S.C. § 1337(i) directs CBP to seize and forfeit articles imported in violation of an exclusion order when the importer previously had articles denied entry and received notice that seizure and forfeiture would result from any future attempt to import infringing articles into the United States. As stated above, the 650 GEO issued by the ITC provides, in relevant part, that: Coaxial cable connectors covered by one or more of claims 1 and 2 of U.S. Patent No. 6,558,194 are excluded from entry for consumption, entry for consumption from a foreign trade zone, or withdrawal from a warehouse for consumption, for the remaining term of the patent, except under license of the patent owner or as provided by law. The ITC’s 650 order is typical of general exclusion orders, speaking in terms of patent claims rather than parties and/or infringing products. See Yingbin-Nature, 535 F.3d at 1331. The GEO directs CBP to exclude coaxial cable connectors, regardless of their manufacturer or importer, that infringe the patents included above. Accordingly, since the ITC issued a general exclusion order based on the additional findings required by 19 U.S.C. § 1337(d)(2), the fact that Protestant was not named as a respondent is immaterial to the question of whether the excluded connectors fall within the scope of the 650 GEO. The only pertinent question is whether the connectors infringe any of the relevant patents. See Sealed Air Corp. v. U.S. Int’l Trade Comm’n, 645 F.2d 976, 985 (C.C.P.A. 1981) (“An exclusion order operates against goods, not parties."); see also Vastfame Camera, Ltd. v. U.S. Int’l Trade Comm’n, 386 F.3d 1108, 1114 (Fed. Cir. 2004) (“A general exclusion order broadly prohibits entry of articles that infringe the relevant claims of a listed patent 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.”). Significantly, the Court of Appeals for the Federal Circuit (“CAFC”) has recognized that issuance of a general exclusion order by the ITC binds named parties and non-named parties alike and shifts to would-be importers (such as Protestant), “as a condition of entry, the burden of establishing noninfringement.” Hyundai Electronics Industries Co. v. U.S. Int’l Trade Comm’n, 899 F.2d 1204, 1210 (Fed. Cir. 1990). Accordingly, the burden is on Protestant to establish that the excluded coaxial cable connectors at issue do not infringe any of the relevant patents. UTILITY PATENT INFRINGEMENT Patent infringement determinations entail two steps. The first step is to interpret the meaning and scope of the patent claims asserted to be infringed. The second step is to compare the properly construed claims to the accused device. See Markman v. Westview Instruments, Inc., 52 F.3d 967 (Fed. Cir. 1995) (en banc), aff’d, 517 U.S. 370 (1996). The first step is a question of law; the second step is a question of fact. See Freedman Seating Co. v. American Seating Company, 420 F.3d 1350, 1357 (Fed. Cir. 2005). In patent law, there are two types of infringement: direct and indirect infringement. Direct infringement includes two varieties: literal infringement and infringement under the doctrine of equivalents. Literal infringement is when every limitation recited in a claim is found in the accused device. See Strattec Security Corp. v. General Automotive Specialty Co., 126 F.3d 1411, 1418 (Fed. Cir. 1997); see also Digital Biometrics, Inc. v. Identix, Inc., 149 F.3d 1335, 1349 (Fed. Circ. 1998) (“An accused device cannot infringe, as a matter of law, if even a single limitation is not satisfied.”). Under the doctrine of equivalents, “a product or process that does not literally infringe upon the express terms of a patent claim may nonetheless be found to infringe if there is ‘equivalence’ between the elements of the accused product or process and the claimed elements of the patented invention.” Warner-Jenkinson Co. v. Hilton Davis Chemical Co., 520 U.S. 17, 21 (1997) (citing Graver Tank & Manufacturing Co. v. Linde Air Products Co., 339 U.S. 605, 609 (1950)). The CAFC applies two articulations of the test for equivalence. See Voda v. Cordis Corp., 536 F.3d 1311, 1326 (Fed. Cir. 2008) (explaining that different phrasing may be “more suitable to different cases, depending on their particular facts…”). Under the insubstantial differences test, “[a]n element in the accused device is equivalent to a claim limitation if the only differences between the two are insubstantial.” Id. at 1326 (citing Honeywell International Inc. v. Hamilton Sundstrand Corp., 370 F.3d 1131, 1139 (Fed. Cir. 2004)). Alternatively, under the function-way-result test, an element in the accused device is equivalent to a claim limitation if it “performs substantially the same function in substantially the same way to obtain substantially the same result.” Id. (citing Schoell v. Regal Marine Industries, Inc., 247 F.3d 1202, 1209-10 (Fed. Cir. 2001). However, the doctrine of prosecution history estoppel acts as a constraint to limit the application of the doctrine of equivalents. See Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., 535 U.S. 722, 733-41 (“Prosecution history estoppel requires that the claims of a patent be interpreted in light of the proceedings in the PTO during the application process….The doctrine of equivalents allows the patentee to claim those insubstantial alterations that were not captured in drafting the original patent claim but which could be created through trivial changes. When, however, the patentee originally claimed the subject matter alleged to infringe but then narrowed the claim in response to a rejection, he may not argue that the surrendered territory comprised unforeseen subject matter that should be deemed equivalent to the literal claims of the issued patent. On the contrary, by the amendment [the patentee] recognized and emphasized the difference between the two phrases[,]…and the difference which [the patentee] thus disclaimed must be regarded as material.…Prosecution history estoppel ensures that the doctrine of equivalents remains tied to its underlying purpose.”) (internal citations omitted). As for the scope of protection provided by the patents at issue in the 650 GEO, it is a “bedrock principle” of patent law that “the claims of a patent define the invention to which the patentee is entitled the right to exclude.” Innova/Pure Water, Inc. v. Safari Water Filtration Systems, Inc., 381 F.3d 1111, 1115 (Fed. Cir. 2004); Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996) (“[W]e look to the words of the claims themselves…to define the scope of the patented invention.”). Indeed, the Supreme Court has established the appropriateness of relying on the patent claims to define the scope of the invention and has declared that the claims are “of primary importance, in the effort to ascertain precisely what it is that is patented.” Merrill v. Yeomans, 94 U.S. 568, 570 (1876). Since the patentee is required to “define precisely what his invention is,” the Supreme Court explained elsewhere, it is “unjust to the public, as well as an evasion of the law, to construe it in a manner different from the plain import of its terms.” White v. Dunbar, 119 U.S. 47, 52 (1886); see also Continental Paper Bag Co. v. Eastern Paper Bag Co., 210 U.S. 405, 419 (1908) (“the claims measure the invention”); McCarty v. Lehigh Valley R.R. Co., 160 U.S. 110, 116 (1895) (“[I]f we once begin to include elements not mentioned in the claim, in order to limit such claim…, we should never know where to stop.”). After establishing that the claims define the scope of the invention, the question becomes how to define the claim terms themselves. The CAFC has frequently stated that the words of a claim “are generally given their ordinary and customary meaning.” Vitronics, 90 F.3d at 1582. Additional cases have clarified that the ordinary and customary meaning of a claim term is the meaning that the term would have to a person of ordinary skill in the art in question at the time of the invention, i.e., as of the effective filing date of the patent application. See Phillips v. AWH Corp., 415 F.3d 1303, 1312-1313 (Fed. Cir. 2005); see also Innova, 381 F.3d at 1116 (“A court construing a patent claim seeks to accord a claim the meaning it would have to a person of ordinary skill in the art at the time of the invention.”); Home Diagnostics, Inc. v. LifeScan, Inc., 381 F.3d 1352, 1358 (Fed. Cir. 2004) (“customary meaning” refers to the “customary meaning in [the] art field”); Ferguson Beauregard/Logic Controls v. Mega Sys., LLC, 350 F.3d 1327, 1338 (Fed. Cir. 2003) (claim terms “are examined through the viewing glass of a person skilled in the art”). Accordingly, the inquiry into how a person of ordinary skill in the art understands a claim term provides an objective baseline from which to begin claim interpretation. Moreover, the CAFC has instructed that certain intrinsic and, if necessary, extrinsic evidence can serve as important interpretive tools for claim construction purposes. Such intrinsic evidence includes “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.” Innova, 381 F.3d 1116; see also Gemstar-TV Guide Int’l, Inc. v. Int’l Trade Comm’n, 383 F.3d 1352, 1364 (Fed. Cir. 2004). For example, the claims themselves provide substantial guidance as to the meaning of particular claim terms. See Vitronics, 90 F.3d at 1582; see also ACTV, Inc. v. Walt Disney Co., 346 F.3d 1082, 1088 (Fed. Cir. 2003) (“the context of the surrounding words of the claim also must be considered in determining the ordinary and customary meaning of those terms”). Therefore, the CAFC has held that the context in which a term is used in the asserted claim can be highly instructive. See 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. This court’s cases provide numerous similar examples in which the use of a term within the claim provides a firm basis for construing the term.”); see also Mars, Inc. v. H.J. Heinz Co., 377 F.3d 1369, 1374 (Fed. Cir. 2004) (claim term “ingredients” construed in light of the use of the term “mixture” in the same claim phrase); Process Control Corp. v. HydReclaim Corp., 190 F.3d 1350, 1356 (Fed. Cir. 1999) (claim term “discharge rate” construed in light of the use of the same term in another limitation of the same claim). Additionally, as stated by the CAFC in Vitronics and reaffirmed in Phillips, claims must be read in light of the specification, of which they are a part, since the specification “is always highly relevant to the claim construction analysis. Usually, it is dispositive; it is the single best guide to the meaning of a disputed term.” Philips, 415 F.3d at 1315 (citing Vitronics, 90 F.3d at 1582); see also Standard Oil Co. v. Am. Cyanamid Co., 774 F.2d 448, 452 (Fed. Cir. 1985) (“The specification is, thus, the primary basis for construing the claims.”). However, despite the specification’s significance, caution must be taken to avoid impermissibly reading a limitation from the specification into the claims of the patent. See Comark Communications, Inc. v. Harris Corp., 156 F.3d 1182, 1186-1187 (Fed. Cir. 1998) (“We recognize that there is sometimes a fine line between reading a claim in light of the specification, and reading a limitation into the claim from the specification.”); see also Specialty Composites v. Cabot Corp., 845 F.2d 981, 987 (Fed. Cir. 1988) (“Where a specification does not require a limitation, that limitation should not be read from the specification into the claims.”) (emphasis in original). While continuing to be mindful of this fine line between interpretation and importation, the CAFC explained in Phillips that: [T]he line between construing terms and importing limitations can be discerned with reasonable certainty and predictability if the court’s focus remains on understanding how a person of ordinary skill in the art would understand the claim terms. For instance, although the specification often describes very specific embodiments of the invention, we have repeatedly warned against confining the claims to those embodiments.…In particular, we have expressly rejected the contention that if a patent describes only a single embodiment, the claims of the patent must be construed as being limited to that embodiment….That is not just because section 112 of the Patent Act requires that the claims themselves set forth the limits of the patent grant, but also because persons of ordinary skill in the art rarely would confine their definitions of terms to the exact representations depicted in the embodiments. Phillips, 415 F.3d at 1323 (internal citations omitted). Accordingly, the CAFC has provided the framework above for construing patent claims and reading those claims properly construed in light of the intrinsic evidence onto an accused device. Significantly, since claim interpretation is a question of law, any direction provided in this respect by the ALJ, Commission, or CAFC is binding on CBP. CLAIM 1 OF U.S. PATENT No. 6,558,194 The ‘194 patent has two independent claims, both of which were determined to be infringed at the ITC. As noted by Protestant, the two claims are nearly identical and therefore the analysis below will focus on claim 1 and then focus on claim 2 to the extent the differing scope of the claims matters. The abstract of the ‘194 patent provides the following: A connector includes a connector body, a post member, and a fastener member. In one embodiment, the connector provides for coupling a coaxial cable having a center conductor, an insulator core, an outer conductor, and a sheath to a terminal device. A nut coupled to either the connector body or post member can be used on the connector to make the connection to the device. The post member has a cavity that accepts the center conductor and insulator core of a coaxial cable. An outer cavity is formed by the connector body and the post member such that the outer conductor and the sheath of a coaxial cable are positioned therebetween. The fastener member, in a pre-installed first configuration is movably fastened onto the connector body. The fastener member can be moved toward the nut into a second configuration in which the fastener member coacts with the connector body so that the connector sealingly grips the coaxial cable. As found by the ALJ and as depicted in Figure 1 below, the ‘194 patent relates to a one-piece compression type coaxial cable connector, with a fastener member (28) – often referred to as a compression ring – that may be moved axially from a pre-installed first position into a second configuration upon the insertion of a coaxial cable. See ALJ ID at 6. Figure 1 of ‘194 Patent After the coaxial cable is inserted and the fastener member (28) is moved into the second configuration, the movement of said fastener member causes the connector body (24) to deform inwardly and thereby concentrically grip the outer portion of the inserted cable. Id. at 7. Figure 5 of ‘194 Patent
 In his Initial Determination, the ALJ noted that the claim terms of the ‘194 patent were not in issue and therefore were to be given their plain and ordinary meaning. See ALJ ID at 27. Claim 1 of the ‘194 patent contains the following limitations: A connector for coupling an end of a coaxial cable to a threaded port, the coaxial cable having a center conductor surrounded by a dielectric being surrounded by a conductive grounding sheath, and the conductive grounding sheath being surrounded by a protective outer jacket, said connector comprising: A tubular post having a first end adapted to be inserted into an exposed end of the coaxial cable around the dielectric thereof and under the conductive grounding sheath thereof, said tubular post having an opposing second end; A nut having a first end for rotatably engaging the second end of said tubular post and having an opposing second end with an internally threaded bore for threadedly engaging the threaded port; A cylindrical body member having a first end and a second end, the first end of said cylindrical body member including a cylindrical sleeve having an outer wall of a first diameter and an inner wall, the inner wall bounding a first central bore extending about said tubular post, the second end of said cylindrical body member engaging said tubular post proximate the second end thereof, said cylindrical sleeve having an open rear end portion for receiving the outer jacket of the coaxial cable, said open rear end portion being deformable; A compression ring having first and second opposing ends and having a central passageway extending therethrough between the first and second ends thereof, the first end of said compression ring having a first non-tapered internal bore of a diameter commensurate with the first diameter of the outer wall of said cylindrical sleeve for allowing the first end of said compression ring t extend over the first end of said cylindrical body member, the central passageway of said compression ring including an inwardly tapered annular wall leading from the first internal bore and narrowing to a reduced diameter as compared with the first diameter and; said inwardly tapered annular wall causing said rear end portion of said cylindrical sleeve to be deformed inwardly toward said tubular post and against the jacket of the coaxial cable as said compression ring is advanced axially over the cylindrical body member toward the second end of said cylindrical body member. As further shown below, element (a) requires a tubular post (represented below in blue) having a first and second end; element (b) requires a nut (represented below in orange); element (c) requires a cylindrical body member (represented below in yellow with a certain portion in red) having a first and second end; element (d) requires a compression ring (represented in green); and element (e) requires an inwardly tapered annular wall (also represented in green and depicted in Figure 1 by the slanted portion of the compression ring that comes into contact with the red portion of the cylindrical body member). Moreover, Figure 5 depicts how the slanted portion of the green compression ring inwardly deforms the red portion of the cylindrical body member in the second configuration.

THE ULTRASHIELD AND ULTRARANGE CONNECTORS Turning to the exclusion from entry challenged by the application for further review and elsewhere in the administrative record before CBP, Protestant essentially makes two arguments why its UltraShield and UltraRange connectors are not covered by claim 1 of the ‘194 patent.  The first argument, which has not been expressly raised in the application for further review filed at the port but has been incorporated by reference to Protestant’s previous submissions – and therefore remains part of the administrative recorded before CBP – is that the UltraShield and UltraRange connectors exhibit an embodiment that is not materially different from the UltraSeal connector that was at issue in the Wisconsin litigation between Protestant and PPC,  and that, according to Protestant, PPC has previously acknowledged that the UltraSeal embodiment shown below does not infringe the ‘194 patent.  The second argument is that, the Wisconsin litigation aside, the UltraShield and UltraRange connectors do not satisfy all of the elements in claim 1 of the ‘194 patent and therefore cannot be determined to infringe.  Both of these arguments are addressed in turn below.
Protestant's first argument is that the UltraShield and UltraRange connectors are no different in any material respect from the UltraSeal connector that PPC is purported to have admitted does not infringe. Even assuming that the reason for PPC’s expert to have admitted non-infringement was based on the features highlighted by Protestant, the decision here is that the UltraShield and UltraRange embodiments are materially differently from the specific UltraSeal in question (i.e., GAF-US-11). Particularly, the feature referred to by Protestant as the gripping member in the UltraSeal does not come into contact with the portion identified by Protestant to be the cylindrical body member. This is not the case with the UltraShield and UltraRange, where there is contact between the gripping member and the cylindrical body member.
 Additionally, in the diagrams of the disengaged or open UltraShield and UltraRange connectors, the gripping member, colored red, is flat along the inner surface, but then is inwardly deformed at the portion in contact with the annular wall in the engaged or closed position. This is in contrast to the UltraSeal GAF-US-11 model, which shows no inward deformation of the gripping member portion in contact with the compression ring. The deformation of the part of the gripping member in contact with the inwardly tapered annular wall is one of the features that distinguishes the UltraShield and UltraRange from the UltraSeal GAF-US-11. As such, Protestant’s argument with respect to the UltraSeal connectors does not establish that the excluded connectors fall outside the scope of the 650 GEO. Protestant’s second argument is that, regardless of the prior litigation in Wisconsin, the UltraShield and UltraRange connectors are not covered because they lack elements (c) and (e) from claim 1 of the ‘194 patent. More specifically, Protestant argues that its connectors do not exhibit a cylindrical body member with a cylindrical sleeve that is deformable, nor an inwardly tapered annular wall that causes the cylindrical sleeve to deform inwardly toward the tubular post. However, Protestant acknowledges that the component within its connectors referred to as the gripping member does deform inwardly toward the tubular post when its connectors are moved from the first position to the second configuration. Nonetheless, Protestant argues that the gripping member does not satisfy elements (c) and (e), which require a cylindrical body member having a first and second end, the first end including a cylindrical sleeve and the second end of the cylindrical body member engaging the tubular post proximate the second end thereof. Protestant’s support for this position is that: (1) the gripping member is a distinct structure within the connector and therefore cannot satisfy the cylindrical body member limitation; (2) the gripping member does not engage the second end of the tubular post and therefore does not satisfy the required structure described in claim 1; and (3) the compression ring in the UltraShield and UltraRange connectors does not move axially over the gripping member and therefore cannot satisfy another structural limitation of claim 1. Each of these arguments is addressed below. Protestant first argues the gripping member is a distinct structure from the cylindrical body member because it is different in form, material, and mechanical function from every embodiment of the cylindrical body member described, contemplated, or claimed in the ‘194 patent. In support of this argument, Protestant points out that in describing the material of the body, the ‘194 patent specification states that the post member, connector body, and fastener member can be metallic or alternatively formed of reinforced plastic material. Protestant infers from this that the ‘194 patent describes the body member as a necessarily rigid structure. While it is true that the ‘194 specification does contemplate some embodiments using reinforced plastic such as DELRIN, which is used for its rigidity, the passage cited by Protestant only refers to the preferred embodiment in the specification and is not a limitation in the claims. As such, it would be improper to import such a limitation from the specification into the claims, particularly since claim 1 specifically requires the cylindrical body member to be deformed inwardly by the compression ring, which requires a certain degree of malleability. Additionally, although Protestant claims that the gripping member is a wholly distinct structure, an examination of the physical samples submitted by Protestant, along with the diagrams, suggests otherwise. Unlike the UltraSeal described and depicted above, in the first position, the gripping member of the UltraShield and UltraRange comes into contact with the component Protestant claims to be the cylindrical body member. Moreover, as the UltraShield and UltraRange connectors move into the second configuration, the interconnectivity between these two features increases, with a portion of what Protestant designates the cylindrical body member interlocking with the gripping member such that an inwardly tapered annular wall of the compression ring overlaid by the gripping member deforms the gripping member inwardly toward the tubular post. The physical samples and diagrams provided by Protestant, instead of depicting a wholly distinct structure, reveal a multi-body member that, in its totality, satisfies the cylindrical body member element. Such a finding is supported by CAFC precedent and the actual device determined to infringe at the ITC. The CAFC has frequently emphasized that: [A]n indefinite article ‘a’ or ‘an’ in patent parlance carries the meaning of ‘one or more’ in open-ended claims containing the transitional phrase ‘comprising.’” That “a” or “an” can mean “one or more” is best described as a rule, rather than merely as a presumption or even a convention. The exceptions to this rule are extremely limited: a patentee must “evince[ ] a clear intent” to limit “a” or “an” to “one.” The subsequent use of definite articles “the” or “said” in a claim to refer back to the same claim term does not change the general plural rule, but simply reinvokes that non-singular meaning. An exception to the general rule that “a” or “an” means more than one only arises where the language of the claims themselves, the specification, or the prosecution history necessitate a departure from the rule. Baldwin Graphic Sys., Inc. v. Siebert, Inc., 512 F.3d 1338, 1342 (Fed. Cir. 2008) (internal citations omitted). Moreover, the infringing Fei Yu device, as shown below from the ITC record, consisted of a multi-body member, the second portion of which was deformed inwardly toward the tubular post by the compression ring. In light of the CAFC pronouncement above and the nature of the ITC’s finding a violation of section 337 as to the Fei Yu connectors, the determination here is that this aspect of Protestant’s argument has not carried its burden to establish the UltraShield and UltraRange connectors do not meet the cylindrical body member limitation.
Protestant second argues that the gripping member cannot satisfy the cylindrical body limitation because the gripping member does not proximately engage the tubular post. However, this argument misreads the claim limitation, particularly in light of the multi-body member finding above. Claim 1 only requires that the second end of the cylindrical body member proximately engage the second end of the tubular post. In the case of a multi-body member, both components would not need to engage the second end of the tubular post. Claim 1 only requires the second end of the cylindrical body member to exhibit this structure. Therefore, since the analysis above considers the gripping member to be a component of a multi-body member, the UltraShield and UltraRange connectors are found to satisfy this limitation. Protestant third argues that the compression ring does not advance axially over the gripping member and therefore this feature cannot satisfy the limitation. However, claim 1 of the ‘194 patent does not require the compression ring to advance axially over every part of the cylindrical body member. In fact, Figure 5 from the patent shows that the compression ring does not advance over the second end of the cylindrical body member that proximately engages the tubular post. Also, Protestant’s diagrams of the connectors in the second configuration show the deformed gripping member to protrude slightly atop the back end of the compression ring, which suggests axial movement by the compression ring over the gripping member in some fashion during the transition from the first position to the second configuration. The only evidence that the compression ring within the excluded connectors does not axially move over the gripping member is Protestant’s declaration that it does not, which is not sufficient to carry its burden on this factual question. After consideration of all the arguments above, the determination here is that Protestant has not met its factual burden to establish the UltraShield and UltraRange connectors are not covered by the 650 GEO. DEVICES OTHER THAN THE ULTRASHIELD AND ULTRARANGE CONNECTORS Protestant also references certain devices which it alleges do not fall within the scope of the 650 GEO because they are not coaxial cable connectors or do not exhibit additional elements of the relevant patent claims from those discussed above. The devices in question include the UltraEase models GF-UE-6, GF-UE-6Q, GF-UE-59, GF-UE-59Q, and GAF-UE-MQ, the “360” model hex crimp connector, the assembly models including the GF-360-6Q, the “USA” model hex crimp connector assembly models including GF-6-AHS-USA, the female right angle to computer board connector assembly models including the GF-61-APC/90L, and the male to male connector adaptor assembly models, including the GF-71-M. With respect to the UltraEase models GF-UE-6, GF-UE-6Q, GF-UE-59, GF-UE-59Q, and GAF-UE-MQ, Protestant has argued that these models do not compress by inward deformation of the inwardly tapered annular wall but rather by sandwiching the cable between the post and the body. Such an embodiment has been confirmed upon examination and therefore these products are determined to fall outside the scope of the 650 GEO. With respect to the 360 model hex crimp connector assembly models, Protestant has argued that the models entirely lack the claimed compression ring that deforms inwardly as said compression ring is advanced axially over the cylindrical body and instead is a simple nut and body configuration that achieves compression when a separate crimping tool applies force to the connector to literally crimp it to the cable. Examination of the device in question establishes the same and therefore the products fall outside the scope. With respect to the USA model hex crimp connector assembly models including the GF-6-AHS-USA, Protestant has argued that the USA model connectors entirely lack the claimed “compression ring” that “deforms inwardly” the body member “as said compression ring is advanced axially over the cylindrical body,” and instead is a simple nut and body configuration that achieves compression when a separate crimping tool applies force to the connector to literally crimp the connector to the cable. Upon review, this has been determined to be the case. Therefore, the products in question fall outside the scope. With respect to the female right angle assembly models including the GF-61-APC/90L, Protestant has argued that these fall outside the scope of the 650 GEO because the connectors lack at least the required compression ring with inwardly tapered annular wall, a body member that is deformable, and the body member being deformed when the compression ring is advanced axially over the body. Upon review, this has been confirmed and the products in question fall outside the scope. Lastly, with respect to the male-to-male adaptor models including the GF-71-M, Protestant has argued that this model is not even a coaxial cable connector, but rather simply an adaptor. Protestant has argued that these simple adaptors are comprised solely of a body retainer and a nut, and indisputably are not a “connector” as claimed in the ‘194 patent. Upon review, this has been confirmed and therefore the products in question fall outside the 650 GEO’s scope. HOLDING: The accused UltraShield and UltraRange coaxial cable connectors were properly excluded from entry for consumption because they are covered by the 650 GEO issued by the ITC. You are instructed to deny the protest with respect to the connectors exhibiting the UltraShield and UltraRange embodiment and to grant the protest as to the other devices determined not to fall within the scope of the 650 GEO. In accordance with the Protest/Petition Processing Handbook (CIS HB, December 2007), you are to mail this decision, together with the Customs Form 19, to the Protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to the mailing of the decision. Sixty days from the date of the decision, Regulations and Rulings of the Office of International Trade will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution. Sincerely, Charles R. Steuart Branch Chief Intellectual Property Rights Branch