Ruling Request; U.S. International Trade Commission; Limited Exclusion Order; Investigation No. 337-TA-887; Certain Crawler Cranes and Components Thereor

U.S. Department of Homeland Security Washington, DC 20229 U.S. Customs and Border Protection HQ H269394 May 24, 2016 OT:RR:BSTC:IPR H269394RES CATEGORY: 19 U.S.C. §1337; Unfair Competition Mr. Bryan Harrison Locke Lord LLP Terminus 200 3333 Piedmont Rd NE Suite 1200 Atlanta, GA 30305 RE: Ruling Request; U.S. International Trade Commission; Limited Exclusion Order; Investigation No. 337-TA-887; Certain Crawler Cranes and Components Thereor Dear Mr. Harrison: This is in reply to your letter dated September 11, 2015, on behalf of Sany America Inc. and Sany Heavy Industry Co., Ltd., (collectively “Sany”), in which you requested a ruling, pursuant to 19 C.F.R. Part 177, as to whether the SCC5000 Crawler Crane series, that was not at issue before the U.S. International Trade Commission (“ITC” or “Commission”) in the above referenced limited exclusion order (“LEO”) is subject to exclusion from entry for consumption into the United States. Your request also contained a substantial amount of information regarding marketing and design information concerning the SCC5000 Crawler Crane, for which you request confidential treatment under 19 C.F.R. §177.2(b)(7). You assert that the disclosure of certain information relative to this matter could potentially cause substantial harm to the competitive position of the parties involved.  Based on our review of the matter we have concluded that the information in question is eligible for confidential treatment under 19 C.F.R. § 103.12; accordingly, we have granted the request for confidentiality.  Appropriate steps will therefore be taken to ensure that the information remains confidential and, to this end, the bracketed portions of this decision will be redacted from any published versions of this decision.  A public version of this decision is enclosed for your files. However, please note that the provisions of the Freedom of Information Act (FOIA) (5 U.S.C. § 552), the Trade Secrets Act (18 U.S.C. § 1905) and/or the Privacy Act of 1974 (5 U.S.C. § 552a) will prevail in any conflict that may arise regarding the confidentiality and disclosure of information.  Accordingly, any information submitted in connection with this matter may be subject to disclosure, if requested, if it is subsequently determined that the information is not protected by the Trade Secrets Act, the Privacy Act or an exemption of the FOIA. FACTS: The Commission instituted Investigation No. 337-TA-887 on July 17, 2013, based on a complaint filed by Manitowoc Cranes, LLC. See 78 Fed. Reg. 42800 (July 17, 2013). Manitowoc alleged violations against Sany of section 337 of the Tariff Act of 1930 (19 U.S.C. §1337) by reason of patent infringement of one or more claims of U.S. Patent Nos. 7,546,928 (issued June 16, 2009) and 7,967,158 (issued June 28, 2011), and misappropriation of trade secrets. See Administrative Law Judge Final Initial Determination (“FID”) at 1 (July 11, 2014). There were two models of Sany’s crane at issue in the investigation: the original SCC8500 Ultralift crane (“original ultralift”) and the redesigned SCC8500 Ultralift crane (“redesigned ultralift”). Manitowoc claimed that Sany misappropriated several of its trade secrets involving various manufacturing processes and marketing/business information, of which the following remained at issue in the investigation: Trade Secret No. (1): Information regarding the unfilled market need for a crane [ ] (See CO at 36); Trade Secret No. (3): [ ] (Id. at 41-44) ; Trade Secret No. (4): [ ] (Id. at 47-48); Trade Secret No. (6): Complainant’s plan to address the unfilled market need [ ] (Id. at 36); Trade Secret No. (14): Complainant’s detailed cost and pricing information [ ] (Id. at 48); and Trade Secret No. (15): Complainant’s manufacturing processes and procedures [ ] (Id. at 49-51). On July 11, 2014, the Administrative Law Judge (“ALJ”) issued his final initial determination (“FID”), finding a violation of Section 337, specifically the misappropriation of trade secrets and infringement of the ‘928 patent. See FID at 205. The ALJ determined that Manitowoc’s Trade Secret Nos. (1), (6), (14), and (15) were protectable trade secrets as they related to the domestic industry of 400-600 ton crawler cranes, but found that Nos. (3) and (4) were not trade secrets. Id. at 153, 164-171, 180, and 205. In light of these findings, the ALJ determined that the respondent misappropriated Trade Secret Nos. (1), (6), (14), and (15) in the manufacturing, marketing, and pricing of both its original and redesigned SCC8500 Ultralift cranes. Id. The ALJ based his findings of misappropriation on Sany’s improper acquisition of confidential information and circumstantial evidence that the trade secrets information assisted or accelerated Sany’s research and development of the SCC8500 cranes, as these cranes were developed after the trade secret disclosures to Sany. Id. at 151, 154-55, 178, 181, 186-88, and 195. The ALJ cited as evidence supporting his misappropriation determination the fact that respondent hired several former Manitowoc employees in 2010 who subsequently disclosed to Sany Manitowoc’s confidential information that formed the basis of the trade secrets at issue here. Id. at 151, 178, 186-188, and 192-196. The ALJ found that because the former Manitowoc employees disclosed Manitowoc’s confidential information and at the same time they were also involved in developing the cranes at issue in the ‘887 investigation that this established circumstantial evidence of use of the misappropriated trade secrets. Id. 152, 155, 179, 188, 193, and 195. The ALJ rejected Sany’s claim that the Manitowoc’s trade secrets were not used in the development of the cranes at issue in the investigation because Sany could not produce any documentation pre-dating the trade-secrets disclosures justifying development of said cranes. Id. at 153. In addition, the ALJ found that the original SCC8500 crane infringed on claims 1, 2, 5, 8, and 23-26 of the ‘928 patent, while the redesigned SCC8500 did not infringe the ‘928 patent. Id. at 59. The ALJ found no infringement of patent ‘158 by either of Sany’s SCC8500 cranes. Id. at 205 On September 19, 2014, the Commission determined to review the FID in full. See 79 Fed. Reg. 57566-68 (September 19, 2014). In the Commission Opinion (“CO”), issued on April 16, 2015, the Commission affirmed the ID in part and reversed in part. See CO at 1. The Commission affirmed the ALJ’s findings that claims 23-26 of the ‘928 patent were infringed by the original SCC8500 crane; that there was no infringement of claims 6, 10, and 11 of the ‘928 patent; that there was no infringement of the ‘158 patent; and that Trade Secret Nos. (1), (6), (14), and (15) are protectable and were misappropriated by the respondent. See CO at 1, 16, 26, 30, and 70. However, the Commission reversed the ALJ’s findings that Trade Secret Nos. (3) and (4) were not protectable trade secrets. Id. at 45-48. The Commission then determined that the respondent misappropriated Trade Secret Nos. (3) and (4) in the designs of both the original and redesigned SCC8500 cranes as both models incorporated a VPC in their specifications. Id. at 61-62. The Commission reversed the ALJ’s findings that claims 1, 2, 5, and 8 of the ‘928 patent were infringed. Id. at 1, and 25-26. However, the Commission affirmed the ALJ’s determination that the original SCC8500 crane infringed claim 23 of the ‘928 patent because the crane possessed a moveable counterweight structure that could be moved rearward of the top of the mast such that this structure satisfied the ‘rearward of the top of the mast limitation’ required by element (f) of independent claim 23. Id. at 27. In addition, the Commission affirmed the ALJ’s findings that the redesigned SCC8500 did not infringe claim 23 because the redesigned crane did not possess a counterweight structure that could be moved aft of the top of the mast. Id. On April 16, 2015 the ITC issued the LEO, directing that certain crawler cranes and parts thereof that are covered by one or more of claims 23-26 of the ‘928 patent and/or manufactured, marketed, priced, etc., using the trade secrets at issue by, for, or on behalf of the respondents in Investigation 337-TA-887 (including Sany Heavy Industry Co., Ltd. and Sany America, Inc.) 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, for a period of ten years from the effective date of the order, except under license of the owner of the above identified trade secrets, or as provided by law. See 79 Fed. Reg. 3624-25. The trade secrets at issue in this protest and forming the basis of the LEO are the six trade secrets as listed supra and the patent claim at issue is claim 23 of the ‘928 patent which reads as follows: A mobile lift crane compromising: A carbody having moveable ground engaging members A rotating bed rotatably connected to the carbody such that the rotating bed can swing with respect to the ground engaging members about an axis of rotation; A boom pivotally mounted on a front portion of the rotating bed; A mast mounted at its first end on the rotating bed at a fixed angle compared to the plane of rotation of the rotating bed; A moveable counterweight unit suspended from a tension member connected adjacent a second end of the mast; and A counterweight movement structure connected between the rotating bed and the counterweight unit such that the counterweight unit may be moved to and held at a first position in front of the top of the mast and moved to and held at the second position rearward of the top of the mast; Wherein the top of the mast is defined as the furthest back position on the mast from which any line or tension member supported from the mast is suspended, and if no line or tension member is supported from the mast, then the top of the mast is the position to which any backhitch is attached; and wherein the position of the counterweight unit is defined as the center of gravity of the combination of all counterweight elements and any holding tray to which the counterweights are attached or otherwise move in conjunction with, with all counterweight units on a crane that are tied together so as to always move simultaneously being treated as a single counterweight for purposes of determining the center of gravity. You asserted that the manufacturing process for the model SCC5000 crane at issue, does not use any of the protected trade secrets identified in Inv. No. 337-TA-887 and does not infringe the ‘928 patent. See Ruling Request, dated Aug. 31, 2015 pp. 1, 10-11. You described the SCC5000 series crane as having a base lifting capacity of 500 metric tons and utilizing a moveable counterweight structure whose center of gravity only travels rearward of the tip of the back mast and not in front of the back mast. RR. at Exhibit 1. You stated that the SCC5000 counterweight is the same structure that is described in Patent No. 6,568,547 (issued May 27, 2003) (“’547 Patent”). Id. at Exhibit 2. According to the SCC5000 series cranes brochure, it is used in wind power applications capable of lifting wind turbines of 2.0 MW. Id. at Exhibit 1. In addition, you stated that the SCC5000 series also uses materials with the same metallurgical properties, welding processes, and boom manufacturing processes utilized by the respondent prior to 2010, the year when several former Manitowoc employees were hired by Sany. Id. at 11. You also noted that the SCC5000 series was developed prior to 2010 specifically for the Chinese wind power market and that none of the former Manitowoc employees were involved in the development and design of this crane series. Id. Also, you stated that Sany uses a [ ] Id. at 10. Lastly, you stated that the SCC5000 does not compete with the complainant’s model 16000 crane that was the subject of the ‘887 investigation because the cranes have different lifting capacities, 500 ton versus 400 ton, respectively, and that it would be uneconomical to use the SCC5000 crane to perform lifts of 400 tons or less. You have presented product guides and welding/assembly procedure guidelines as evidence supporting that the SCC5000 series cranes do not infringe the ‘928 patent or misappropriate Manitowoc’s trade secrets. Id. at Exhibits 1 and 4. ISSUE: Whether the SCC5000 series cranes are subject to exclusion from entry for consumption into the United States. LAW AND ANALYSIS: Patent Claims 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 Sany to establish that the products at issue are not covered by one or more of claims 23-26 of the ‘928 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 claim 23. Therefore, if this independent claim is not infringed, none of the dependent claims are infringed. As noted in the FACTS section, the ALJ determined that the original SCC8500 crane infringed the ‘928 patent because it utilized a moveable counterweight structure that moved rearward of the top mast as required by element (f) of claim 23 of the ‘928 patent. Likewise, the ALJ also determined that the redesigned SCC8500 crane did not meet the required element (f) because the redesigned crane’s counterweight did not move rearward of the mast. Thus, based on these findings, to infringe on the ‘928 patent, as a threshold a crane would have to utilize a moveable counterweight structure. However, a second threshold limitation in element (f) that was not discussed by the ALJ or the Commission is the requirement that a moveable counterweight structure be able to move forward of a point that is directly below the top of the mast. You assert that the SCC5000 series cranes do not infringe the ‘928 patent because the moveable counterweight structure utilized by this crane model does not have its center of gravity move forward to a point directly below the top of the mast. See RR at 10. A review of the SCC5000 crane’s schematics shows that its counterweight does move rearward of the top of the mast, however, it shows that counterweight’s center of gravity is unable to be moved forward of a point directly below the top of the mast. A comparison of the SCC5000 crane’s moveable counterweight and the claims of the crane that is the subject of the ‘547 patent cited supra in the FACTs section demonstrate that the SCC5000 crane’s counterweight functions similar to the claims described in this particular patent. However, because the SCC5000 crane’s moveable counterweight’s center of gravity does not move to a position that is forward of a point directly below the top of the mast , this crane model would not satisfy all the requirements of element (f). Therefore, the SCC5000 series cranes do not satisfy the independent claim 23 of the ‘928 patent. Trade Secret Claims A trade secret consists of any formula, process, pattern, device or compilation of information used by an entity (business, corporation, etc.) that gives the entity an opportunity to obtain an advantage over competitors who do not know or use the trade secret. Kewanee Oil Co. v. Bicron Corp. Et. Al., 416 U.S. 470 (1974) (citing Restatement of Torts § 757, comment b (1939)); See also, Uniform Trade Secrets Act (“USTA”) § 1(4). A misappropriation of a trade secret(s) occurs when another entity not privy to the trade secret gains the knowledge of it without the trade secret owner’s consent through improper means, such as theft, wiretapping, aerial reconnaissance, or improper disclosure from a former employee or licensee of the trade secret owner. Kewanee Oil at 475; USTA § 1(2). However, misappropriation does not occur if the trade secret is “discovered by fair and honest means, such as by independent invention, accidental disclosure, or by [ ] reverse engineering”. Kewanee Oil at 475. Misappropriation of trade secrets is considered a method of unfair competition. TianRui Group Co. Ltd., v. ITC, 661 F.3d 1322, 1327 (Fed. Cir. 2011). Because there is no explicit federal statute governing trade secret law, a trade secret claim in federal courts would be governed by the state trade secret law of the appropriate state in which the misappropriation occurred. BBA Nonwovens Simpsonville, INC., v. Superior Nonwovens, LLC, 303 F.3d 1332, 1337 (Fed. Cir. 2002). However, even though there is presently no federal statute governing trade secret misappropriation, the International Trade Commission (“Commission”) has long interpreted § 337 to apply to trade secret misappropriation because § 337 authorizes the Commission to exclude articles from entry into the United States when the Commission has found “[u]nfair methods of competition [or] unfair acts in the importation of [those] articles,” See 19 U.S.C. § 1337(a)(1)(A),. TianRui at 1326. In TianRui, the U.S. Court of Appeals for the Federal Circuit (“CAFC”) held that “a single federal standard, rather than the law of a particular state, should determine what constitutes a misappropriation of trade secrets sufficient to establish ‘unfair methods of competition’ under section 337.” See CO at 10 (citing TianRui, 661 F.3d, at 1327). Sources of applicable law include the USTA and federal common law. Id. Paragraph (a)(1)(A) of Section 337, which governs the importation of articles derived from federal common law forms of unfair competition, such as misappropriation of trade secrets, provides in pertinent part the following: (a) Unfair methods of competition declared unlawful. (1) Subject to paragraph (2), the following are unlawful, and when found by the Commission to exist shall be dealt with, in addition to any other provision of law, as provided in this section: (A) Unfair methods of competition and unfair acts in the importation of articles (other than articles provided for in subparagraphs (B), (C), (D), and (E)) into the United States, or in the sale of such articles by the owner, importer, or consignee, the threat or effect of which is-- (i) to destroy or substantially injure an industry in the United States; (ii) to prevent the establishment of such an industry; or (iii) to restrain or monopolize trade and commerce in the United States. 19 U.S.C. § 1337(a)(1)(A). In light of this section and the federal common law regarding trade secrets, the elements of misappropriation of trade secrets in a section 337 investigation are as follows: (1) the existence of a process that is protectable as a trade secret (e.g., that is (a) of economic value, (b) not generally known or readily ascertainable, and (c) that the complainant has taken reasonable precautions to maintain its secrecy); (2) that the complainant is the owner of the trade secret; (3) that the complainant disclosed the trade secret to respondent while in a confidential relationship or that the respondent wrongfully took the trade secret by unfair means; (4) the demonstration of a domestic industry affect by the misappropriation; and (5) that the respondent has used or disclosed the trade secret causing actual substantial injury to the complainant. Certain Sausage Casings, Inv. No. 337-TA-148/169, Initial Determination (July 31, 1984) (nonreviewed in pertinent part); USTA, §1(4). If the ITC finds a violation of § 1337(a)(1)(A) for the misappropriation of a trade secret, then § 1337(d) provides the Commission authority to direct the exclusion from entry of articles found to be produced using the misappropriated trade secrets. 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). Accordingly, because Sany is a named party in the ‘887 LEO, the burden is on Sany to establish that the SCC5000 series crane, does not use the protected trade secrets. Trade Secret Nos. (1), (3), (4), and (6): In your ruling request, you asserted that the SCC5000 series crane is not subject to Trade Secret Nos. (1), (3), (4), or (6) because this product was developed prior to the time that the ALJ determined these trade secrets to be misappropriated and this product was developed under different circumstances than the crane at issue in the ‘887 Investigation. See RR at 9. The ALJ determined that these trade secrets were misappropriated because evidence supported a finding that the secrets were disclosed by former Manitowoc employees hired by the respondent in 2010 and that these former employees developed the crane (the SCC8500 ultralift crane) that was the subject of the ‘887 investigation after said disclosures. Id. at 152, 155, 179, 188, 193, and 195. Based on when Trade Secret Nos. (1), (3), (4), and (6) were found to be misappropriated and the circumstances surrounding the misappropriation, a crane would fall within the scope of these trade secrets if it were developed after 2010 and under similar circumstances. Thus, a dispositive finding would be when a particular crane was developed and whether former Manitowoc employees were involved in the development. The SCC5000 series crane was developed prior to 2010 and did not have any former Manitowoc employees involved in its development. Because the SCC5000 was developed prior to the time that Manitowoc’s trade secrets were determined to be misappropriated, there is no circumstantial evidence to support that this crane series was developed using misappropriated trade secrets. After a review of the arguments and evidence submitted, we find that the record supports your assertion that the SCC5000 series crane does not misappropriate Trade Secret Nos. (1), (3), (4), or (6). Trade Secret No. (14): In your ruling request you asserted that the SCC5000 series crane does not fall within the scope of Trade Secret No. (14) because Sany uses a pricing scheme based on a [ ]. See RR at 10. The ALJ determined that Trade Secret No. (14) covered the Complainant’s financial information on dealer discounts and profit margins for the Complainant’s cranes sold [ ] See FID at 171-182; CO at 48, 62-65. The ALJ found that the respondent misappropriated Trade Secret No. (14) because this information was disclosed to the respondent when it was developing and setting the pricing information for its cranes in the [ ] Id. at 180-182. Based on when Trade Secret No. (14) was found to be misappropriated and the circumstances surrounding the misappropriation, a crane would fall within the scope of these trade secrets if it were developed after 2010 and under similar circumstances. The respondents pricing model, as described in their submission, is based on a [ ,] which differs from the set discounts Manitowoc used in Trade Secret No. (14). In particular, the SCC5000’s pricing is based on a [ ] In addition, because the SCC5000 crane was developed prior to the time that Manitowoc’s financial trade secrets were determined to be misappropriated, there is no circumstantial evidence to support that this crane’s pricing was developed using the misappropriated financial trade secrets. After a review of the arguments and the evidence submitted, we find that if Sany utilizes the pricing scheme as described, then the record supports your assertion that the SCC5000 series crane does not implicate Trade Secret No. (14). However, even though the SCC5000 crane was developed prior to the time Manitowoc’s financial trade secrets were determined to be misappropriated, the SCC5000 series crane has a base lifting capacity of 500 tons, which falls within the lifting capacity scope of Trade Secret (14). Because CBP does not have an objective method for verifying that Sany is not utilizing the misappropriated financial information in its sales or leasing of the SCC5000 series crane, CBP is requiring that Sany file a certification upon ENTRY (along with any other required entry documents) for any imported SCC5000 series crane certifying that Sany is not utilizing the financial pricing information contained in Trade Secret No. (14) when setting the pricing, discounts, or any other financial related values for the sales or leasing of said crane. The ‘887 Exclusion Order permits CBP, at its own discretion, to require the respondent to file this type of certification substantiating that the respondent’s merchandise is not within the scope of the Exclusion Order. Trade Secret No. (15): In your ruling request, you asserted that the SCC5000 series crane does not misappropriate Trade Secret No. (15) because this crane model uses material specifications and manufacturing processes utilized by the respondent prior to 2010, the time when the respondent hired several individuals that were employed by the Complainant. See RR at 10. The ALJ determined that Trade Secret No. (15) encompassed certain manufacturing processes and procedures, including [ ] See FID at 186-190. The respondent submitted evidence comparing the manufacturing process of the SCC5000 series crane with another crane model developed and manufactured prior to 2010. See RR at Exhibits 3 and 4. A review of the comparisons reveals that the SCC5000 series crane is manufactured using [ ] See RR at Exhibit 4, page 1, cols 6-11. After a review of the arguments and evidence submitted, we find that the record supports your assertion that the SCC5000 series cranes are not manufactured using the manufacturing related trade secrets identified above in Trade Secret No. (15). However, as noted supra in the FACTS section, the ALJ imputed the use of the Trade Secret No. (15) processes upon Sany because the former Manitowoc employees disclosed the protected processes to Sany and these employees were involved in the development of the crane at issue in Inv. ‘887. We note that there was no reference or indication in the investigation of any diagnostic or visual tests that could be used to determine whether Sany’s cranes actually used the protected processes. Because there are currently at this time no tests that CBP could utilize to check whether any crane imported by Sany used the protected manufacturing processes we are requiring that Sany file a certification upon ENTRY (along with any other required entry documents) for any imported SCC5000 series crane certifying that said crane does not utilize the Trade Secret No. (15) protected manufacturing processes. HOLDING: As discussed above, the SCC5000 series cranes to be manufactured and imported by Sany, not accused and not at issue before the ITC in the above referenced LEO, do not infringe upon the ‘928 patent or misappropriate the six protectable trade secrets identified by the Commission. As such, the instant cranes are not subject to exclusion from entry for consumption into the United States, entry for consumption from a foreign-trade zone, or withdrawal from a warehouse for consumption. Importation of the SCC5000 series cranes are subject to the filing of a certification with every entry as described above in the ANALYSIS section. This decision is limited to the specific facts set forth herein. If Sany manufactures or imports cranes whose design, welding, and assembly process differs 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