Ruling Request; U.S. International Trade Commission; General Exclusion Order; Investigation No. 337-TA-545; Certain Laminated Floor Panels.

HQ H279327 January 10, 2017 OT:RR:BSTC:IPR H279327 JW CATEGORY: 19 U.S.C. §1337; Unfair Competition John W. McIlvaine The Webb Law Firm One Gateway Center 420 Ft. Duquesne Blvd., Suite 1200 Pittsburgh, PA 15222 RE: Ruling Request; U.S. International Trade Commission; General Exclusion Order; Investigation No. 337-TA-545; Certain Laminated Floor Panels. Dear Mr. McIlvaine: This is in response to your letter, dated August 26, 2016, which included Appendices A to F (“Ruling Request”); as well as your supplemental letter and corresponding attachment dated November 25, 2015 (“Supplement I”); and supplemental letter and corresponding physical samples dated November 28, 2016 (“Supplement II”); on behalf of your client, Innovations 4 Flooring Holding N.V., in which you requested an administrative ruling, pursuant to 19 C.F.R. § 177, whether certain of Innovations 4 Flooring Holding N.V.’s laminated floor panels are subject to the above-referenced general exclusion order (“545 GEO”) issued by the U.S. International Trade Commission (“ITC” or “Commission”). The information in brackets is confidential and intentionally omitted. FACTS: Innovations 4 Flooring Holding N.V. (“Innovations”) is a corporation of Curaçao with its principal place of business at Landuis Joonchi, Kaya Richard J. Beaujon z/n, Willemstad, Curaçao. See Ruling Request (August 26, 2016) at 1. Innovations provides licenses to several different non-U.S. entities to manufacture, sell and import certain laminated floor panels into the United States; specifically those described by U.S. Patent Nos. 8,745,952; 8,978,336; and 9,271,250 and pending U.S. Patent Application No. 14/969,576 (collectively, “Innovations’ Patents”). Id. As such, Innovations qualifies as a “person who, as an importer or exporter of merchandise, or otherwise, has a direct and demonstrable interest in the question or questions presented in the ruling request” where “person” is defined as “an individual, corporation, partnership, association, or other entity or group.” 19 C.F.R. Part 177.1 (c). Innovations is listed as the assignee for Innovations’ Patents. See Assignment Records for U.S. Patent Nos. 8,745,952; 8,978,336; and 9,271,250 and pending U.S. Patent Application No. 14/969,576 at http://portal.uspto.gov/pair/PublicPair. Innovations’ Patents are all part of the same patent family and generally disclose the same subject matter (i.e., their specifications and drawings are the same), but claim different aspects of the inventions disclosed therein. See U.S. Patent Nos. 8,745,952; 8,978,336; and 9,217,250; U.S. Patent Application No. 14/969,576. U.S. Patent No. 9,217,250 is a continuation of application no. 14/251,766, which is now U.S. Patent No. 8,978,336, which in turn was a continuation of application no. 13/316,871, which is now U.S. Patent No. 8,745,952, which was a continuation of application no. PCT/NL2010/050365 filed on June 14, 2010. See U.S. Patent No. 9,217,250. Pending application no. 14/969,576 is a continuation of application no. 14/617,543, which is now U.S. Patent No. 9,217,250. U.S. Patent Application Publication No. US 2016/0186443 A1. Innovations seeks a determination as to whether the laminated floor panels described by Innovations’ Patents and imported by Innovations’ licensees (“Innovations’ floor panels”) are subject to the 545 GEO. See Ruling Request (August 26, 2016) at 1. In the Matter of Certain Laminated Floor Panels, Investigation No. 337-TA-545 The 545 GEO issued as a result of the above-referenced ITC investigation (the “545 Investigation”). The 545 Investigation was instituted based on a complaint filed by Unilin Beheer B.V. of the Netherlands, Flooring Industries Ltd. of Ireland, and Unilin Flooring N.C. LLC of Thomasville, North Carolina (“Complainant”), which initially named thirty parties as respondents. See In the Matter of Certain Laminated Floor Panels, Inv. No. 337-TA-545 (Int’l Trade Comm’n July 3, 2006) (“ALJ Decision”) at 1-3. The ITC instituted the investigation to determine whether there was a violation of subsection (a)(1)(B) of section 337, as amended, 19 U.S.C. § 1337, in the importation into the United States, the sale for importation into the United States, or the sale within the United States after importation of certain laminated floor products by reason of infringement of one or more of claims 1, 14, 17, 19, 20, 21, 37, 52, 65, and 66 of U.S. Patent No. 6,006,486; claims 1, 2, 10, 13, 18, 19, 22, 23, 24, and 27 of U.S. Patent No. 6,490,836; and claims 1-6 of U.S. Patent No. 6,874,292. Id. The complaint was subsequently amended to add certain respondents to the investigation and to assert claims 1, 5, 13, 17, 27, and 28 of U.S. Patent No. 6,928,779 against certain accused panels. Id. The investigation was later terminated with respect to U.S. Patent No. 6,006,486 and Complainant limited its assertions of infringement to claims 1, 2, 10, 18, and 23 of U.S. Patent No. 6,490,836; claims 3 and 4 of U.S. Patent No. 6,874,292; and claims 5 and 17 of U.S. Patent No. 6,928,779. See In the Matter of Certain Laminated Floor Panels, Investigation No. 337-TA-545, Commission Opinion, (January 5, 2007) (“Commission Opinion”) at 1-2. The presiding Administrative Law Judge (“ALJ”) issued a final initial determination on July 3, 2006, finding a violation of section 337, as amended, which the Commission affirmed in part and reversed in part. Id. at 1. Ultimately, the ITC provided relief in the form of a general exclusion order that bars the entry for consumption into the United States of laminated floor panels covered by one or more of claims 1, 2, 10, 18, and 23 of U.S. Patent No. 6,490,836 (“the `836 Patent”), claims 3 and 4 of U.S. Patent No. 6,874,292 (“the `292 Patent”), and claims 5 and 17 of U.S. Patent No. 6,928,779 (“the `779 Patent”). See 545 General Exclusion Order (January 5, 2007); see also ITC Notice, 72 Fed. Reg. 1241-42 (January 10, 2007). Certain parties appealed aspects of the ITC’s determination, which the Court of Appeals for the Federal Circuit (“Federal Circuit”) affirmed. See Yingbin-Nature (Guangdong) Wood Indus. Co. v. U.S. Int’l Trade Comm’n, 535 F.3d 1322 (Fed. Cir. 2008). The independent claims of the patents at issue in the 545 GEO are listed below with the specific parts relevant to this Ruling Request highlighted in bold and underlined. Independent claims 1, 2, 10, and 23 of the ‘836 Patent read as follows: 1. A floor covering comprising a hard floor panel having a substantially planar underside and at least two opposed side edges, said side edges including complementary coupling parts configured to cooperate with identical cooperative complementary coupling parts of another one of said panel, said coupling parts comprising substantially a tongue and a groove extending along panel side edges generally parallel to the panel underside and including integrated mechanical locking elements, said tongue, groove and locking elements formed in one piece with the panel, said tongue, groove and locking elements arranged to prevent drifting apart of the floor panel when coupled by said coupling parts to another one of said floor panel in a direction perpendicular to the adjacent side edges of the coupled panels, and parallel to the underside of the panel; a coupling part of said panel, when engaged with a complementary coupling part of another one of said panel, configured and arranged to produce a biasing force between such coupled panels tending to urge the panels towards each other; at least one of said coupling parts including an elastically bendable portion having a relaxed unbent position, and which, when in a coupled condition, is at least partially bent out of its normal relaxed position and thereby provides said biasing force; wherein the elastically bendable portion of said one of said coupling part comprises a lower lip defined at least in part by a lower side of the groove of said coupling parts, said lower lip cooperating with a mating portion of a tongue of a cooperating coupling part; wherein said lip when bent extends in a downward direction relative to the panel underside when the panel is coupled by cooperative complementary coupling parts to another one of said panel; wherein the panel comprises a core comprising a material selected from the group consisting of HDF and MDF board; said lower lip is substantially formed of said core; one of said locking elements comprises a recess in said lower lip, said recess having a lowermost bottom area; said groove having a deepest point within the panel; and wherein said elastically bendable portion of the lower lip comprises a portion of said lower lip located between the deepest point of said groove and the lowermost bottom area of said recess; wherein the bendable portion of the lower lip includes a side wall of said recess that slopes downwardly in a direction extending from a distally outer area of said lip towards a proximally inner area of said lip. * * * * 2. A floor covering comprising a hard floor panel having a substantially planar underside and at least two opposed side edges, said side edges including complementary coupling parts configured to cooperate with identical cooperative complementary coupling parts of another one of said panel, said coupling parts comprising substantially a tongue and a groove extending along panel side edges generally parallel to the panel underside and including integrated mechanical locking elements, said tongue, groove and locking elements formed in one piece with the panel, said tongue, groove and locking elements arranged to prevent drifting apart of the floor panel when coupled by said coupling parts to another one of said floor panel in a direction perpendicular to the adjacent side edges of the coupled panels, and parallel to the underside of the panel; a coupling part of said panel, when engaged with a complementary coupling part of another one of said panel, configured and arranged to produce a biasing force between such coupled panels tending to urge the panels towards each other; at least one of said coupling parts including an elastically bendable portion having a relaxed unbent position, and which, when in a coupled condition, is at least partially bent out of its normal relaxed position and thereby provides said biasing force; wherein said floor panel is rectangular and includes two pairs of opposed side edges; said coupling parts and locking elements are provided on all side edges of the panel; and wherein said locking elements are provided on at least two side edges that are perpendicular to and meet each other whereby, when the panel is coupled with complementary coupling parts of identical ones of said panel at all opposed edges, the panels are locked together by said locking elements at all coupled side edges; wherein said coupling parts are configured and arranged to enable coupling of complementary coupling parts of identical ones of said panel to each other by rotation of one panel relative to the other, said coupling parts configured such that upon rotation of one panel relative to the other panel the elastically bendable portion of one coupling part is bent; and wherein at coupled side edges of the coupled panels the coupling parts are configured such that one panel is movable relative to the other by shifting the one relative to the other in a direction parallel to the coupled side edges; said shifting of one panel relative to the other maintaining the bent condition of the elastically bendable portion of the lower lip while the panels are coupled. * * * * 10. A floor covering comprising a laminated hard floor panel having a wood-based core material selected from the group consisting of High Density Fibreboard (HDF) and Medium Density Fibreboard (MDF), said panel comprising a first pair and a second pair of opposed side edges, said panel further comprising generally complementary coupling parts located at both of the pairs of said side edges, said coupling parts comprising a tongue and a groove, said tongue and groove when coupled along adjacent side edges of two ones of said panel comprising integral mechanical locking elements, said coupling parts as well as said mechanical locking elements being integral and made in one piece with said core material, said coupling parts together with said locking elements arranged so as to enable a locking in a direction perpendicular to the plane of the floor covering as well as in a direction perpendicular to the coupled side edges and parallel to a plane including the panels that are coupled, wherein said coupling parts and the mechanical locking elements of at least said second pair of opposite side edges are configured such that two identical ones of said floor panel are coupled by shifting them laterally towards each other in a substantial planar fashion, and wherein the locking elements of said second pair of opposite side edges provide a snap-together coupling providing a snap-action during the coupling of two panels by shifting them laterally towards each other, said snap action being delivered substantially by said core material; wherein said locking elements comprise a recess located in a lower lip extending at least to a side edge and defining at least in part a lower side of said groove; and a protrusion provided at a lower side of said tongue; wherein the-panels at the side edge comprising the groove, of at least one of the side edge of both pairs of the side edges, include an upper lip above the groove, said upper lip defining at least in part an upper side of said groove, and said upper lip terminating at a distal outer end, wherein said lower lip extends distally beyond the distal outer end of the upper lip, and further wherein the recess is located in the lower lip in an area of the lower lip that is located at least partly beyond the distal outer end of the upper lip. * * * * 23. A floor covering comprising a laminated hard floor panel having a wood-based core material selected from the group consisting of High Density Fibreboard (HDF) and Medium Density Fibreboard (MDF), said panel comprising a first pair and a second pair of opposed side edges, said panel further comprising generally complementary coupling parts located at both of the pairs of said side edges, said coupling parts comprising a tongue and a groove, said tongue and groove when coupled along adjacent side edges of two ones of said panel comprising integral mechanical locking elements, said coupling parts as well as said mechanical locking elements being integral and made in one piece with said core material, said coupling parts together with said locking elements arranged so as to enable a locking in a direction perpendicular to the plane of the floor covering as well as in a direction perpendicular to the coupled side edges and parallel to a plane including the panels that are coupled, wherein said coupling parts and the mechanical locking elements of at least said second pair of opposite side edges are configured such that two identical ones of said floor panel are coupled by shifting them laterally towards each other in a substantial planar fashion, and wherein the locking elements of said second pair of opposite side edges provide a snap-together coupling providing a snap-action during the coupling of two panels by shifting them laterally towards each other, said snap action being delivered substantially by said core material; at least one of said pairs of edges comprising a lower lip defining at least in part a bottom side of a groove of said coupling parts and extending distally beyond a respective groove opening, and wherein said locking elements comprise a protrusion extending from the lower side of a tongue of said pairs of edges and a cooperating recess in said lower lip, said protrusion and recess fitting together when ones of said panel are coupled by said tongue and groove; wherein, when a complementary tongue and groove are coupled, said protrusion and recess meet each other at contiguous contact surfaces at a common plane of tangency that with respect to a common plane of the coupled panels is inclined inwardly from a distally outer area towards a distally inner area at an angle less than 90°. Independent claim 1 of the ‘292 Patent reads as follows: 1. A floor covering panel comprising a substantially planar under side and at least two opposed side edges; said side edges including cooperative coupling parts configured to cooperate with identical cooperative complementary coupling parts of another one of said panel; said coupling parts comprising substantially a tongue and a groove extending distally transversely along panel side edges including mechanical locking elements; said tongue, groove and locking elements formed in one piece with the panel; said tongue groove and locking elements cooperating to prevent drifting apart of the floor panel when coupled by said coupling parts to another one of said floor panel in directions perpendicular to the adjacent side edges of the coupled panels, and parallel to the undersides of the coupled panels; a coupling part of said panel, when engaged with a cooperating coupling part of another one of said panel, urging the coupled panels towards each other; at least one of said coupling parts including an elastically bendable portion having a relaxed unbent position, and which, when in a coupled condition, is at least slightly bent out of its normal relaxed unbent position to effect said urging of the coupled panels together. Independent claims 1 and 13 of the ‘779 Patent read as follows: 1. A floor covering panel comprising laminated hard floor panel having a wood-based core material comprising a ground wood product and a binding agent unified to form a cured composite; said floor panel having a decorative layer above said core material; said floor panel having an upper side, an under side and a perimeter defining first and second pairs of opposed substantially parallel sides; said first and second pairs of sides both being provided with coupling parts substantially in the form of a tongue and a groove the coupling parts further including locking elements; said groove of at least said first pair of sides including an upper lip and a lower lip, said lower lip extending distally beyond the upper lip; said coupling parts cooperating to establish a locking between coupled parts in a direction perpendicular to the plane of the panel as well as in a direction perpendicular to the side edges and parallel to a plane including the panel when the coupling parts of a plurality of ones of said panel are coupled; said tongue, groove and locking elements being monolithically formed in said composite core; said coupling parts and locking elements of at least said first pair of sides enabling coupling of two of such panels so that the panels are coupled without play in the plane of the coupled panels; the coupling parts of said first pair of sides being engageable and coupled by rotational motion relative to each other; said tongue of said first pair of sides including an upper tongue contact surface and a lower tongue contact surface and an outer peripheral portion of the tongue defined along and between said tongue contact surfaces; said groove of said first pair of sides including corresponding upper and lower groove contact surfaces which engage the upper and lower tongue contact surfaces of said tongue upon coupling of said coupling parts; said lower tongue and groove contact surfaces comprising said coupling parts and locking elements enabling coupling of two of such panels so that the panels are coupled without play in a plane including the coupled panels; said coupling parts of said first pair of sides upon coupling defining a plurality of separate clearances adjacent at least a portion