Ruling Request; U.S. International Trade Commission; Limited Exclusion Order; Investigation No. 337-TA-895; Certain Multiple Mode Outdoor Grills and Parts Thereof.

OT:RR:BSTC:IPR H263180 RES HQ H263180 July 1, 2015 OT:RR:BSTC:IPR H263180 RES CATEGORY: 19 U.S.C. §1337; Unfair Competition Bridgette A. Agness Sheppard Mullin Richter & Hampton LLP 333 South Hope Street, 43rd Floor Los Angeles, CA 90071-1422 RE: Ruling Request; U.S. International Trade Commission; Limited Exclusion Order; Investigation No. 337-TA-895; Certain Multiple Mode Outdoor Grills and Parts Thereof. Dear Ms. Agness: This is in reply to your letter dated March 17, 2015, on behalf of Brinkman Corporation (“Brinkman”), in which you requested a ruling, pursuant to 19 C.F.R. Part 177, as to whether a redesigned grill to be manufactured and imported by Brinkman, not accused and not at issue before the U.S. International Trade Commission (“ITC” or “Commission”) in the above referenced limited exclusion order (“LEO”), are subject to exclusion from entry for consumption into the United States. FACTS: The Commission instituted Investigation No. 337-TA-895 on September 26, 2013, based on a complaint filed by A&J Manufacturing, LLC (“A&J”/”Complainant”) See 78 Fed. Reg. 59372 (September 26, 2013). A&J alleged violations against Brinkman and 20 other respondents of section 337 of the Tariff Act of 1930 (19 U.S.C. §1337) by reason of patent infringement of three patents, of which two where voluntarily withdrawn by the Complainant, leaving only U.S. Patent No. 8,381,712 (“‘712 patent”) at issue. Order No. 50 (July 14, 2014). The independent claims 1, 10, and 17 of the ‘712 patent read as follows: A barbecue grill having multiple cooking units, comprising: a support structure configured to support a plurality of cooking units; a first cooking unit configured to cook food using gas cooking fuel, the first cooking unit attached to the support structure and including at least one first grill, the first cooking unit further including an openable first cover attached to the first cooking unit that selectively covers the first grill, wherein the first cover includes at least one exhaust; and a second cooking unit configured to cook food using solid cooking fuel, the second cooking unit attached to the support structure and including at least one second grill, the second cooking unit further including an openable cover attached to the second cooking unit that selectively covers the second grill, wherein the second cover includes at least one exhaust, wherein the first cooking unit and the second cooking unit are simultaneously operable to cook food and the first grill and second grill are selectively and independently coverable. * * * * * A barbecue grill having multiple means for cooking, comprising: a first means for cooking food using gas cooking fuel, the first means for cooking including at least one first grill and an openable first cover means for selectively covering the first grill, wherein the first cover means is attached to the first means for cooking and includes at least one exhaust; a second means for cooking food using solid cooking fuel, the second means for cooking including at least one second grill and an openable second cover means for selectively covering the second grill, wherein the second cover means is attached to the second means for cooking and includes at least one exhaust means; and a structure means for supporting the first means for cooking and the second means for cooking; wherein the first means for cooking and the second means for cooking are simultaneously openable to cook food and the first grill and second grill are selectively and independently coverable. * * * * * A barbecue grill having multiple cooking units, comprising: a support structure configured to support a plurality of cooking units; a first cooking unit supported by the support structure, the first cooking unit having a substantially cylindrical shape, the first cooking unit including at least one first grill and an openable first cover attached to the first cooking unit that selectively covers the first grill, wherein the first cover includes at least one exhaust; and a second cooking unit supported by the support structure, the second cooking unit having a substantially cylindrical shape, the second cooking unit configured to cook food using solid cooking fuel, the second cooking unit including at least one second grill and an openable second cover attached to the second cooking unit that selectively covers the second grill, wherein the second cover includes at least one exhaust, wherein the first cooking unit and the second cooking unit are simultaneously operable to cook food and the first grill and second grill are selectively and independently coverable. On April 17, 2014, the ALJ issued an Initial Determination (“ID”) in response to motions filed by respondents Char-Broil, Fudeer, Rankam, OLP, Kingsun, TSC, and Chant for a summary determination on the issue of whether certain of their dual-mode grills infringe on the claims of the ‘712 patent. See Order No. 33: Initial Determination (Apr. 17, 2014); Motion Docket No. 895-19. The ALJ construed the claim term “openable [] cover”, which is found in all independent claims 1, 10, and 17, to mean a cover, that excludes any portion of the grill enclosure that is not openable (i.e., fixed). Id. at 4. Based on this construction, the “openable cover” limitations cannot be met by grills having exhausts on fixed portions, and hence, such grills do not infringe the asserted claims of the ‘712 patent. Id. at 8. The ALJ determined that certain grills of the moving respondents did not infringe the ‘712 patent because said grills did not have an exhaust on at least one of their “openable covers.” See Exhibits 1 and 2 below.

Exhibit 1 Exhibit 2 On June 27, 2014, the Commission reviewed the April 17, 2014, ID and affirmed-in-part and vacated-in-part. See Comm’n SD Op. (June 27, 2015). The Commission adopted the ALJ’s construction of the term “openable [] cover” as it relates to claims 1 and 17. Id. at 12. However the Commission found that the ALJ failed to discuss whether the “openable [] cover means” limitations of claim 10 were means-plus-function limitations. Id. at 13. Consequently, the Commission determined that the term “openable [] cover means” limitation of claim 10 was a means-plus-function limitation and instructed the ALJ to analyze this term consistent with its means-plus-function interpretation. Id. With regard to the grills at issue in the ID’s summary determination, the Commission affirmed the ALJ’s finding of non-infringement of claims 1 and 17 for the three grills manufactured by Char-Broil and for the specific product line of OLP grills. However, the Commission vacated the ALJ’s findings with respect to claim 10 and instructed the ALJ to analyze infringement for claim 10 in light of means-plus-function limitations. Finally, the Commission did not review the ALJ’s findings with respect to the Rankam and Chant grills because the Complainant agreed that these grills did not infringement the ‘712 patent. On September 26, 2014, the Administrative Law Judge (“ALJ”) issued his final initial determination (“ID”), finding a violation of Section 337, by Brinkman and the remaining respondents (Academy, OLP, Kingsun, and Huige) based upon his determinations: that certain accused products infringed at least one claim of the ‘712 patent; that the domestic industry requirement had been satisfied with respect to the ‘712 patent; and that the asserted claims of the ‘712 patent have not been shown by clear and convincing evidence to be invalid. See Final Initial Determination (Sept. 26, 2014). Pursuant to the Commission’s instructions, the ALJ analyzed the exhaust and openable cover terms of claim 10 in light of the claim’s means-plus-function limitations. Id. at 32-45. The ALJ determined that the term “exhaust means” is construed the same way as the term “exhaust” in claims 1 and 17. Id. at 32-33, note 13. The ALJ also determined that the function of the “openable [] cover means” term is construed as selectively covering the grill and that the structure of the term is the same as construed in claims 1 and 17 in that it is a cover or lid that excludes any portion of the grill enclosure that is not openable (i.e., fixed). Id. at 39. In summary, according to the ALJ’s claims construction, to infringe upon the ‘712 patent a grill must meet all of the following independent claim limitations (grill characteristics): The grills have at least two cooking units as part of one article; The multiple cooking units use at least two different fuels for cooking (gas, wood, charcoal, etc.); The grills have at least two openable covers (lids) that are attached to (i.e., hinged) and cover the grill of each cooking unit; and Each openable cover has some type of exhaust that is part of the openable cover, which can be any type of opening that allows gases, smoke, etc., to pass through. Examples of exhaust openings include vents, louvers, smoke stacks, slits, etc. Id. at 22 – 47. The ALJ also determined that several grills did not infringe because they did not meet all the independent claim limitations. Specifically, the ALJ determined that the grills manufactured by the respondents Char-Broil (model no. 46374512) and Fudeer (model no. 12201767) did not infringe because their grills lacked the claimed exhaust or exhaust means that is required to be on both of their openable covers. Id at 55-56. Rather, the exhaust vent for the grills were not on the openable cover for each grill’s gas cooking unit. The exhaust vent was instead a gap between the openable covers and the fixed portion of the grill. See Exhibit 3.
Exhibit 3: non-infringing grill exhaust vent With regard to Brinkman, the ALJ determined that several of Brinkman’s grill models (model nos. 810-3800-S, 810-3800-SB, 810-3802-S, 810-3802-SB, 810-3821-S, and 810-3821-SB) at issue in investigation ‘895 infringed the ‘712 patent because they met all the limitations of independent claims 1, 10, and 17. Id at 53-55. The grills had two cooking units that utilized at least two different types of fuel; two openable covers attached to each cooking unit; and both openable covers had an exhaust means that was part of each openable cover. Id. On December 8, 2014, the Commission determined to review the final ID in full. See 79 Fed. Reg. 72700-02 (Dec. 8, 2014). In the Commission Opinion (“CO”), issued on February 3, 2015, the Commission affirmed the final ID, with modified reasoning, that Brinkman, along with the respondents Academy, OLP, Kingsun, Huige, and Keesung, violated section 337 in connection with the ‘712 patent. The Commission further determined to affirm, with modified reasoning that the respondents Char-Broil, LLC and Zhejian Fudeer Electric Appliance Co. Ltd., were found not to have committed acts in violation of Section 337. See CO at 2 (public version, Feb. 20, 2015). The Commission affirmed the ALJ’s finding that the space between an openable cover and the grill body, see Exhibit 3, does not satisfy the “openable [] cover . . . includes at least one exhaust” limitation of claims 1 and 17. Id. at 30-33. The Commission determined that the appropriate form of relief is an LEO prohibiting the unlicensed entry of covered multiple mode outdoor grills and parts thereof against the remaining respondents and cease and desist orders (“CDO”) prohibiting Academy, Brinkman, and OLP from importing, selling, marketing, advertising, distributing, transferring (except for exportation), and soliciting U.S. agents or distributors for multiple mode outdoor grills and parts that infringe the ‘712 patent. Id. at 2-3. The Commission also included the following exemptions: (1) conduct licensed or authorized by the owner of the ‘712 patent; (2) related to covered products imported by or for the United States; (3) the importation, distribution, and sale of parts for use in the maintenance, service, or repair of covered products purchased prior to the date the orders become final. Id. at 3. On February 3, 2014, the ITC issued the LEO, directing that multiple mode grills infringing on the claims of patent ‘712, imported by Brinkman or on behalf of, or imported by or on behalf of certain respondents in Investigation 337-TA-895 (Academy, OLP, Kingsun, Huige, and Keesung), or any of their affiliated companies, parents, subsidiaries, licensees, contractors, or other related business entities, or their 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, except under license of the owner of the ‘712 patent as provided by law. See 80 Fed. Reg. 7033-34 (Feb. 9, 2015). The LEO specifically applies to articles manufactured or imported by Brinkman that infringe claims 1-20 of the ‘712 patent. Significantly, the U.S. 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, “as a condition of entry, the burden of establishing non-infringement.” Hyundai Electronics Industries Co. v. U.S. Int'l Trade Comm’n, 899 F.2d 1204, 1210 (Fed. Cir. 1990). The CAFC also confirmed that such a rationale applies with “increased force” to parties named in an investigation that resulted in the issuance of an exclusion order. Id. Accordingly, the burden is on Brinkman to establish that its redesigned multiple mode grill does not infringe on any of the independent claims 1, 10, or 17 of the ‘712 patent. You described the subject redesigned grill, Model No. 810-6340-S (“Brinkman 6340) shown below as exhibits 4 and 5, as the following: two cooking units with one cooking unit (grill) that uses gas and a second cooking unit (grill) made to use solid fuel; two openable covers attached to a fixed portion of each cooking unit (hinged at the top of the fixed unit); the openable cover on the gas side does not have any vents or other exhaust means located on the openable cover but rather the vents are located on the fixed portion of the grill on the rear side and two smoke stacks are located on the fixed portion at the top of the grill behind the openable cover hinges; and the openable cover on the solid fuel side of each cooking unit also does not have any vents or exhaust means located on the openable cover, instead it has two smoke stacks located on the fixed portion of the grill unit behind the openable cover hinges. Dual Function Gas/Charcoal Smoker Grill, Model No. 810-6340-S
Exhibit 4: With covers open
Exhibit 5: With covers closed ISSUE: Whether the multiple mode grill designated as the Brinkman 6340, to be imported by Brinkman, not accused and not at issue before the ITC in the above referenced LEO, is subject to exclusion from entry for consumption into the United States. LAW AND ANALYSIS: Patent infringement determinations for utility patents 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.”). Additionally, a dependent claim cannot be found to infringe if the independent claim from which it depends is not found to infringe. See Becton Dickinson & Co. v. C.R. Bard Inc., 922 F.2d 792, 798 (Fed. Cir. 1990) (“The holding of noninfringement of claim 1 applies as well to all claims dependent on claim 1.”). As for the scope of protection provided, 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.”). Furthermore, the CAFC has made clear that claim terms are given their ordinary and customary meaning, which refers specifically to the ordinary and customary meaning that the claim term would have to a person of ordinary skill in the art at the time of the invention. See Phillips v. AWH Corp., 415 F.3d 1303, 1313 (Fed. Cir. 2005) (en banc). 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. See Innova, 381 F.3d at 1116. That starting point is based on the well-settled understanding that inventors are typically persons skilled in the field of the invention and that patents are addressed to and intended to be read by others of skill in the pertinent art. See Verve, LLC v. Crane Cams, Inc., 311 F.3d 1116, 1119 (Fed. Cir. 2002). 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. See Phillips, 415 F.3d at 1313. Often, this requires an examination of terms that have a particular meaning in a field of art. Id. Since the meaning of a claim term, as understood by persons of skill in the art, is often not immediately apparent, and since patentees frequently act as their own lexicographers, a court or administrative body responsible for making patent infringement determinations should look to sources available to the public that show what a person of skill in the art would have understood a disputed claim term to mean. Id. These sources include, for example, the words of the claims themselves, the remainder of the specification and the prosecution history, along with certain extrinsic evidence in appropriate circumstances. Id. Importantly, 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.” Phillips, 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.”). While continuing to be mindful of this fine line between interpretation and importation, Phillips explains 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 interpreting patent claims and reading those claims, as properly construed in light of the relevant evidence, onto an accused device. Pursuant to the Tariff Act of 1930, 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, 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); see also Certain Ink Cartridges and Components Thereof, Inv. No. 337-TA-565, Commission Opinion (October 19, 2007). Both types of orders direct CBP to bar the 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 importation of the infringing products by everyone, regardless of whether they were respondents in the Commission’s investigation. Id. A general exclusion order is 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 covered articles. The issuance of a limited exclusion order by the ITC binds named parties and shifts to would-be importers, “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 Academy to establish that the products at issue are not covered by one or more of claims 1, 10, or 17 of the ‘712 patent. “It is axiomatic that dependent claims cannot be found infringed unless the claims from which they depend have been found to have been infringed[.]” Wahpeton Canvas Co. v. Frontier, Inc., 870 F.2d 1546, 1553 (Fed. Cir. 1989); See also Becton, 922 F.2d, at 798. All of the claims at issue in the LEO depend from either claim 1, 10, or 17. Therefore, if none of these independent claims are infringed, none of the dependent claims are infringed. As stated in the FACTS section, to infringe upon the ‘712 patent, a grill would have to meet all of the following independent claim limitations (grill characteristics): The grills have at least two cooking units as part of one article; The multiple cooking units use at least two different fuels for cooking (gas, wood, charcoal, etc.); The grills have at least two openable covers (lids) that are attached to (i.e., hinged) and cover the grill of each cooking unit; and Each openable cover has some type of exhaust that is part of the openable cover, which can be any type of opening that allows gases, smoke, etc., to pass through. Examples of exhaust openings include vents, louvers, smoke stacks, slits, etc. The redesigned grill at issue here is a multiple mode outdoor grill that has two cooking units that are simultaneously operable to cook food using gas and solid fuels. You assert in your ruling request that Brinkman’s redesigned grill does not meet all of the claim limitations listed supra, because it does not have an exhaust or exhaust means on any of its openable covers. As demonstrated in the pictures of the redesigned grill in exhibits 4 and 5, there are no vents or exhaust means located on either of the openable covers, but rather the exhaust vent and smoke stacks are located on the fixed portion of each grill. Therefore, the redesigned grill does not satisfy the claim limitation that the first cover and second cover both “include[] at least one exhaust” in claims 1, 10, or 17 of the ‘712 patent. HOLDING: As discussed above, Brinkman’s redesigned grill, not accused and not at issue before the ITC in the above referenced LEO, is not covered by the claims at issue in the ‘712 patent. Therefore, this product is not within the scope of the ITC’s limited exclusion order in Investigation No. 337-TA-895. Accordingly, the instant product may be entered for consumption into the United States. This decision is limited to the specific facts set forth herein. If Brinkman manufactures or imports multiple mode outdoor grills that differ from the embodiment 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), and (4), and §177.9(b)(1) and (2). Sincerely, Charles R. Steuart, Chief Intellectual Property Rights Branch