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 of said outer peripheral portion of said tongue between said groove and said tongue; said panel at said first pair of sides comprising at least one intermediate tongue contact surface on said tongue positioned along the outer peripheral portion of said tongue intermediate the upper and lower tongue contact surfaces; said panel at said first pair of sides comprising at least one intermediate groove contact surface intermediate the upper and lower groove contact surfaces; and said intermediate tongue and groove contact surfaces of two of said panels cooperating with each other upon coupling of two of said panels. * * * * 13. A floor covering panel comprising hard floor panel having a perimeter defining at least a first pair of opposed substantially parallel edges and substantially planar and parallel upper and lower sides; said pair of edges being provided with complementary coupling parts substantially in the form of a tongue and groove extending distally along the length of said pair of edges and being formed in the panel material which is located between said planar upper and lower sides; the coupling parts further including locking elements; said coupling parts and locking elements cooperating upon coupling of said coupling parts such that coupled ones of said panel are locked in a direction perpendicular to the plane of the panel as well as in a direction perpendicular to the edges and parallel to a plane including the panel; said groove having an upper lip and a lower lip, said lower lip extending distally beyond said upper lip: said upper lip defining a first clearance below said upper side of said panel and defining an upper lip contact surface adjacent said clearance, said first clearance defining an upper chamber below said upper side and above said tongue upon coupling of cooperating coupling parts; said lower lip having an inwardly and downwardly inclined lower lip contact surface formed therein; said tongue having an upper tongue contact surface and a lower tongue contact surface located along the tongue periphery such that the upper and lower tongue contact surfaces respectively abut the upper and lower lip contact surfaces when adjacent panels are coupled; and at least one second chamber being defined between the tongue and groove in the area along the tongue periphery between the respective upper tongue contact surface and the lower tongue contact surface when adjacent panels are coupled. The following claim terms, used in the patents at issue in the 545 GEO, and relevant to this Ruling Request, were construed by the ALJ (and subsequently affirmed by the Commission) to be interpreted as follows: Claim Term ITC ALJ Claim Construction  “shifting them laterally towards each other in a substantial planar fashion” “[T]he administrative law judge interprets the language as requiring that the panels slide towards each other essentially in a substantial planar fashion.” ALJ Decision at 62.  “at least partially bent out of its normal relaxed position” and “at least slightly bent out of its normal relaxed unbent position” “after bending and once the panels are coupled, at least a portion of the elastically bendable portion remains changed from its initial uncoupled position which is the ‘normal’ or ‘relaxed’ position.” Id. at 65.  “tongue” “a coupling part extending from the edge of a board, where the coupling part provides primary coupling in the horizontal direction and primary locking in the vertical direction.” Id. at 67.  “groove” “a coupling part that cooperates with a tongue to connect two panels together.” Id. at 67.  “clearance” in claim 1 of the ‘779 Patent “an open space between two coupled panels, one panel containing a tongue, and one panel containing a groove, that is not created by normal machining tolerances.” Id. at 72.  “clearance” in claim 13 of the ‘779 Patent “an indentation, of either the tongue panel or groove panel of an uncoupled joint, that is not created through normal machining tolerances.” Id. at 72.   Innovations’ Floor Panels The Ruling Request dated August 26, 2016 states that “[t]he Innovations floor panel includes a panel with two different types of interlocking means.” Ruling Request (August 26, 2016) at 1. Specifically, it notes, “[t]he panel includes a first pair of opposite sides provided with a first type of interlocking means and a second pair of opposite sides provided with a second type of interlocking means.” Id. at 1-2. The Ruling Request refers to the first type of interlocking means as the “Terbrack” type and states that this interlocking configuration was previously disclosed in U.S. Patent No. 4,426,820 (“the ‘820 Patent”), which expired on February 17, 2001. Id. at 2. The Ruling Request refers to the second type of interlocking means as a “triple-lock interlocking configuration.” Id. The Innovations’ website also describes Innovations’ floor panels as including two types of locking systems. See Ruling Request (August 26, 2016) Appendix A; http://innovations4flooring.com/. Innovations’ website calls these locking systems: (1) the “3L TripleLock,” which is described as “a one piece drop-lock system for the short side that eliminates the need for additional plastic inserts;” and (2) the “Click4U,” which is described as “an angle-system for the long side combined with 3L TripleLock on the short side.” Id. The 3L TripleLock is the same as the “triple-lock interlocking means” (hereinafter, this locking system will be referred to as the “3L TripleLock”) and the Click4U’s “angle-system for the long side” is the same as the “Terbrack” type interlocking means (hereinafter, this locking system will be referred to as the “Click4U”). Supplement I (November 25, 2016) at 3-4. Innovations’ floor panels that are the subject of this ruling are depicted in the following drawings, which show the coupling parts with the two locking mechanisms, i.e., the 3L TripleLock and the Click4U. See Ruling Request (August 26, 2016) Appendix A; http://innovations4flooring.com/; https://youtube/u4GndM_mquM.

The 3L TripleLock Innovations’ website describes the 3L TripleLock as “a one piece drop-lock system for the short side. . . .” See Ruling Request (August 26, 2016) Appendix A; http://innovations4flooring.com/. The two pictures below respectively depict (1) a coupling part of an Innovations’ floor panel with the 3L TripleLock; and (2) two coupled Innovations’ floor panels showing the locking profile of the 3L TripleLock. See Supplement I (November 25, 2016) at 3.

The 3L TripleLock is also described in Innovations’ Patents. See e.g. Ruling Request (August 26, 2016) Appendix B; U.S. Patent No. 8,745,952. An example of a locking mechanism described in Innovations’ Patents is depicted in the pictures below, which respectively show one floor panel in the uncoupled state (Fig. 6), and the steps for realizing a coupling between two floor panels 37a, 37b as according to Fig. 6 (Figs. 7A-7F). See Ruling Request (August 26, 2016) at 2; U.S. Patent No. 8,745,952 Figs. 6 and 7A-7F. In Figure 6, the first coupling part is labeled as 39, and the second coupling part, which is substantially complementary to the first coupling part 39, is labeled as 40. U.S. Patent No. 8,745,952, col. 10, ll. 32 and 65-66. The Ruling Request notes that “[u]ltimately, the downward tongue (46) may be snap-fit into the upward groove (43) to engage the panels in the triple-lock interlocking configuration.” Ruling Request (August 26, 2016) at 2.

The Click4U’s Angle-System for the Long Side The Click4U, as stated supra, is described by Innovations’ website as consisting of “an angle-system for the long side combined with 3L TripleLock on the short side.” See Ruling Request (August 26, 2016) Appendix A; http://innovations4flooring.com/. The interlocking configuration of the 3L TripleLock was discussed above. See supra. The drawing below illustrates a coupling part of the Innovations’ floor panel with the Click4U’s “angle-system for the long side”. See Supplement I (November 25, 2016) at 2.
The Ruling Request states that the “first interlocking means,” or as described by Innovations’ website, the “angle-system for the long side” interlocking means of the Click4U, is in all material respects the interlocking means disclosed in U.S. Patent No. 4,426,820 (“the ‘820 Patent”). See Ruling Request (August 26, 2016) at 2; Ruling Request (August 26, 2016) Appendix A (http://innovations4flooring.com/); Ruling Request (August 26, 2016) Appendix C (U.S. Patent No. 4,426,820 Patent). The ‘820 Patent discloses an embodiment whereby panels are engaged into each other through a curved recess and a complementary projection. See ’820 Patent, col. 6, ll. 21-24. The drawings below illustrate an interlocking means disclosed in the ‘820 Patent. ‘820 Patent, Figs. 24-6.


The two pictures below of the Click4U locking system of Innovations’ floor panels illustrate respectively, (1) a coupling part with a curved recess (the picture on the left); and (2) a complementary coupling part with a complementary projection (the picture on the right). See Ruling Request (August 26, 2016) Appendix A; http://innovations4flooring.com/; https://youtube/u4GndM_mquM.

The Ruling Request states that “[d]uring installation of the Innovations floor panel, a first panel is held at an inclined position to insert a sideward ‘Terbrack’-based edge partially into a corresponding recess of a complementary ‘Terbrack’-based edge of an adjacent panel” and “[a]s the panel is angled downwards, the ‘Terbrack’-based coupling is slid into engagement. . . .” Ruling Request (August 26, 2016) at 3. The pictures below depict, respectively, (1) the insertion of the Click4U’s complementary projection into its corresponding curved recess; and (2) two coupled Innovations’ floor panels showing the Click4U locking profile. See Supplement I (November 25, 2016) at 3.

In addition, the following picture is an engineering drawing of the Click4U locking profile. Supplement I (November 25, 2016) at 1; Attachment to Supplement I (November 25, 2016).
ISSUE: The issue presented is whether Innovations’ laminated floor panels claimed by Innovations’ Patents and imported by Innovations’ licensees are covered by any of the patents listed in the 545 GEO. LAW AND ANALYSIS: Utility 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). The ITC applies the above framework when conducting an investigation to determine whether the imported articles accused infringe a United States patent, such that they should be refused entry. 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 the articles found to infringe. 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 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 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 issue 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).”). The 545 GEO issued by the ITC provides, in relevant part, that: Laminated floor panels covered by one or more of claims 1, 2, 10, 18, and 23 of the ‘836, claims 3 and 4 of the ‘292 patent, and claims 5 and 17 of the ‘779 patent are excluded from entry into the United States for consumption, entry for consumption from a foreign-trade zone, or withdrawal from warehouse for consumption, for the remaining term of the listed patents, except under license of the patent owner or as provided by law. The ITC’s order here 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 laminated floor panels, regardless of the identity of their manufacturer or importer of record, that are covered by the relevant patent claims. Additionally, “exclusion orders must be read in the context of the investigations in which they were issued and the Commission’s findings in that investigation.” In the Matter of Certain GPS Devices and Products Containing Same, Investigation No. 337-TA-602, Advisory Opinion (April 20, 2010) at 4. As further explained by the ITC: The language of Commission limited exclusion orders directed to articles of named respondents “that infringe” or articles “covered by” generally refers to articles found by the Commission to infringe and articles that are “‘essentially the same,’ meaning that the differences between them are merely ‘colorable’ or ‘unrelated to limitations in the claim of the patent.’” Id. citing Yingbin-Nature, 535 F.3d at 1332, which cites Acumed LLC v. Stryker Corp., 525 F.3d 1319, 1324 (Fed. Cir. 2008). Likewise, determinations by the ITC finding non-infringement of a respondent’s accused articles have the same effect, such that an article is not subject to an exclusion order when it is essentially the same as an article determined not to infringe during the investigation at the ITC. Notwithstanding the above, the Federal Circuit has recognized that issuance of a general exclusion order by the ITC binds named parties and non-named parties alike and shifts to 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 the party seeking admissibility to establish that the articles at issue are not covered by any of the relevant patents. See also Vastfame Camera, 386 F.3d 1108, 1113 (Fed. Cir. 2004). CLAIMS 1, 2, 10, 18, AND 23 OF U.S. PATENT NO. 6,490,836 The subject matter of the `836 Patent, as indicated in the abstract, pertains to a floor panel which, at least at the edges of two opposite sides, is provided with coupling parts in the form of a tongue and a groove which prevent the drifting apart of two coupled floor panels. Of the ‘836 Patent claims identified in the 545 GEO, claims 1, 2, 10, and 23 are independent claims while claim 18 is dependent on claim 10. The 3L TripleLock of Innovations’ Floor Panels The 3L TripleLock is found not to infringe claims 1, 2, 10, 18, or 23 of the ‘836 Patent because it does not exhibit a “tongue,” as construed, and therefore does not primarily provide horizontal coupling and vertical locking. As shown in the independent claims of the ‘836 Patent listed above, and reflected in the patent specification, the claims at issue require a floor panel having coupling parts “comprising substantially a tongue and a groove” or “comprising a tongue and a groove.” See also `836 patent, col. 5, ll. 49-51 (“The coupling parts 4-5 can be realized in various forms, although the basic forms thereof will always be formed by a tongue 9 and a groove 10.”) (emphasis added). The ALJ interpreted “tongue” to mean “a coupling part extending from the edge of a board, where the coupling part provides primary coupling in the horizontal direction and primary locking in the vertical direction.” ALJ Decision at 67, 91-92 (emphasis added). During his claim construction analysis, the ALJ found “no support in the patents in issue for a vertical coupling of panels, but instead [found] support only for horizontal coupling of panels.” Id. at 67 (emphasis added). The ALJ’s finding that the patents at issue in the 545 GEO do not cover panels that are primarily coupled in the vertical direction is also in line with the testimony of Complainant’s expert during the 545 Investigation hearing. See ALJ Decision at 67; see also Confidential Hearing Transcript, Testimony of Dr. Joseph R. Loferski, Vol. 3, April 5, 2006, pages 819:15-820:1 ([ ]). The specification of the ‘836 Patent provides further illustration regarding the nature of the claimed invention, particularly in Figs. 8-11 and Figs. 22-25 (shown below). See also ALJ Decision at 41, FN 12 (“FIG. 23, ‘on a larger scale, represents the coupling of two floor panels of FIG. 22’ while ‘FIG. 22 represents a floor panel according to the invention.’ (JX-1 at 5:5-9).” As depicted in Figs. 8-11 and Figs. 22-25 of the ‘836 Patent below, the claimed invention requires correspondence between the tongue 9 and groove 10 in order to provide primary coupling in the horizontal direction and primary locking in the vertical direction to prevent the panels from drifting apart. In comparison, the 3L TripleLock couples vertically and does not exhibit a “tongue” that provides primary coupling in the horizontal direction and primary locking in the vertical direction. Instead, as depicted in the drawings supra, and upon examination of the physical samples provided, it is noted that the 3L TripleLock provides primary coupling in the vertical direction and primary locking in the horizontal direction. See e.g., Figs. 7A-7F of U.S. Patent No. 8,745,952. The 3L TripleLock is capable of being coupled in the vertical direction; hence the 3L TripleLock of Innovations’ floor panels does not satisfy the “tongue” limitation, as construed, to require primary coupling in the horizontal direction and primary locking in the vertical direction. Accordingly, as claims 1, 2, 10, 18, or 23 of the ‘836 Patent all require a “tongue” the 3L TripleLock is found not to meet this limitation. The Click4U of Innovations’ Floor Panels The Click4U is found not to infringe claim 1 or claim 2 of the ‘836 Patent. “Claims 1 and 2 of the ‘836 patent . . . require an elastically bendable portion on the lower lip of the groove that has a relaxed, unbent position, and that when coupled with another coupling part is slightly bent.” Commission Opinion at 7. The Click4U locking system does not meet this limitation. The ALJ interpreted “at least partially bent out of its normal relaxed position” and “at least slightly bent out of its normal relaxed unbent position” to mean “after bending and once the panels are coupled, at least a portion of the elastically bendable portion remains changed from its initial uncoupled position which is the ‘normal’ or ‘relaxed’ position.” ALJ Decision at 65. The ‘836 Patent specification provides further illustration regarding the nature of the claimed invention particularly, as depicted in Figs. 23 and 25 of the ‘836 Patent (reproduced supra), when coupled, the lower lip is bent out of its normal relaxed position with V in Fig. 23 representing the “resultant bending.” See ‘836 Patent, Figs. 23 and 25; see also ‘836 Patent, cols. 9-10, ll. 64-67 and 1-9. In contrast, the engineering drawing of the Click4U locking profile, shows that the lower lip is not bent out of its normal relaxed position; hence the Click4U is found to not infringe claims 1 and 2 of the ‘836 Patent. The Click4U is also found to not infringe claims 10, 18, and 23 of the ‘836 Patent because the limitation that adjacent floor panels be coupled by “shifting them laterally towards each other in substantial planar fashion” is not met. “[T]he administrative law judge interprets the language [‘shifting them laterally towards each other in a substantial planar fashion’] as requiring that the panels slide towards each other essentially in a substantial planar fashion.” ALJ Decision at 62. The ALJ also found that “use of the word ‘substantial’ is a meaningful modifier implying ‘approximate’ and allows for deviations from a purely co-planar relationship.” Id. at 61-62. As depicted previously, to couple Innovations’ floor panels and to insert the projection on the long side into the complementary recess on the long side of an adjacent floor panel, one floor panel must first be held at an inclined position relative to the adjacent floor. As the panel is angled downwards and the projection is slid into the complementary recess of an adjacent panel, the panel must then be rotated downwards to couple the panels. Accordingly, as the Click4U essentially requires coupling by rotation, the limitation that adjacent floor panels be coupled by “shifting them laterally towards each other in a substantial planar fashion” is not met and claims 10, 18, and 23 of the ‘836 Patent are not infringed. CLAIMS 3 and 4 OF U.S. PATENT NO. 6,874,292 The subject matter of the `292 Patent, as indicated in its abstract is similar to that of the `836 patent. The ‘292 Patent also pertains to a floor panel which, at least at the edges of two opposite sides, is provided with coupling parts in the form of a tongue and a groove and thereby prevents the drifting apart of two coupled floor panels. Claims 3 and 4 of the ‘292 Patent identified in the 545 GEO are both dependent, with the former depending from claim 2, which in turn depends from independent claim 1, and the latter depending from claim 3. The 3L TripleLock of Innovations’ Floor Panels As with the `836 Patent, all of the relevant claims from the ‘292 Patent contain limitations requiring a “tongue” and a “groove.” Furthermore, the ALJ provided the same construction for these limitations in both the `836 Patent and the `292 Patent. See ALJ Decision at 65. Accordingly, for the reasons above, the determination here is that the 3L TripleLock is not covered by claims 3 and 4 of the ‘292 Patent. The Click4U of Innovations’ Floor Panels The Click4U is found not to infringe claims 3 and 4 of the ‘292 Patent. Claims 3 and 4 of the ‘292 Patent both depend on independent claim 1 of the ‘292 Patent, which like claims 1 and 2 of the ‘836 Patent require a coupling part with an elastically bendable portion that “when in a coupled condition, is at least slightly bent out of its normal relaxed unbent position.” ‘292 Patent, Claim 1. The ALJ provided the same construction for this limitation in both the ‘836 Patent and the ‘292 Patent. Accordingly, for the reasons above, the Click4U is likewise found not to infringe claims 3 and 4 of the ‘292 Patent. CLAIMS 5 and 17 OF U.S. PATENT NO. 6,928,779 The `836 Patent, the `292 Patent, and the `779 Patent are all related. See Commission Opinion at 5. As with the above, the subject matter of the `779 Patent, as indicated in the abstract, pertains to a floor panel which, at least at the edges of two opposite sides, is provided with coupling parts in the form of a tongue and a groove which prevent the drifting apart of two coupled floor panels. Of the claims identified in the 545 GEO, dependent claims 5 and 17 depend from independent claims 1 and 13, respectively. The 3L TripleLock of Innovations’ Floor Panels Like the `836 Patent and the `292 Patent discussed above, all relevant claims of the `779 Patent contain a limitation requiring a “tongue” and a “groove.” Furthermore, the ALJ provided the same construction for these limitations in the ‘779 Patent as in both the ‘836 Patent and ‘292 Patent. Accordingly, for the reasons above, the determination here is that the 3L TripleLock is not covered by claims 5 or 17 of the `779 Patent. The Click4U of Innovations’ Floor Panels The Click4U is found not to infringe claims 5 and 17 of the ‘779 Patent. Claim 1 (upon which claim 5 depends) of the ‘779 Patent requires that the coupling parts upon coupling define a “plurality of separate clearances”; specifically the ALJ noted that there are “at least two separate ‘clearances’ between the tongue and groove of the coupled joint, adjacent to the outer peripheral portion of the tongue, i.e., the portion of the tongue that approaches the deepest part of the groove, beyond the upper and lower contact surfaces . . . [and] intermediate contact surfaces.” ALJ Decision at 120. The ALJ construed the term “clearance” in claim 1 of the ‘779 Patent to mean “an open space between two coupled panels, one panel containing a tongue, and one panel containing a groove, that is not created by normal machining tolerances.” Id. at 72. The “clearances” formed upon coupling are also depicted in various figures in the ‘779 Patent such as Figure 4 provided below. See e.g., ‘779 Patent, Figure 4 (the clearances are labeled 21 and 25’); ‘779 Patent, col. 6, ll. 15-20 (“The inner side 20 of the groove 10 on the front side 19 of the tongue 9 of the two interlocked floor panels 1 preferably do not fit closely against each other such that an intermediate space or clearance 21 is created between them. . . .”); ‘779 Patent, col. 6, ll. 38-40 (“The recess 24 defines a chamber 25’ (FIG. 4) when the floor panels are coupled, the chamber 25 created between the tongue 9 and upper edges 15, 16.”).
As depicted previously, the engineering drawing and figures of the Click4U locking profile, show that the there are no “clearances” formed upon the coupling of two panels. As shown, upon coupling, when the outer peripheral portion of the tongue abuts the corresponding outer surface of the groove no open spaces are formed. Claim 17 of the ‘779 Patent, through its dependency on claim 13 of the ‘779 Patent, “requires a clearance in the upper lip of the groove.” ALJ Decision at 123. The ALJ construed the term “clearance” in claim 13 of the ‘779 Patent to mean “an indentation, of either the tongue panel or groove panel of an uncoupled joint, that is not created through normal machining tolerances.” ALJ Decision at 72. These “clearances” are depicted in Figure 2 of the ‘779 Patent (reproduced below). ‘779 Patent, Figure 2; see also ‘779 Patent, col. 6, ll. 33-40 (saying inter alia, “For example, a chamfer 24 on lip 22 and a recess or clearance 25 can be provided, as represented in FIGS. 2 to 4. . . .”).
As shown in the engineering drawing and figures depicting the Click4U locking system, there are no indentations in either the tongue or groove panel of the uncoupled joints (which upon coupling would help form chambers). Moreover, as previously discussed, upon coupling of the Click4U coupling parts, when the tongue portion abuts the corresponding outer surface of the groove no chambers are created in the Click4U locking profile; hence the Click4U does not infringe claim 13 (and consequently claim 17) of the ‘779 Patent. HOLDING: Innovations’ floor panels are not subject to the 545 GEO because certain limitations required by the relevant claims of the listed patents are not met; namely (1) the 3L TripleLock of the Innovations’ floor panel does not exhibit a “tongue”; and (2) the Click4U of the Innovations’ floor panel (a) does not exhibit an elastically bendable portion that when coupled remains bent out of its normal relaxed position; (b) essentially requires coupling by rotation; (c) does not define a plurality of clearances upon coupling; and (d) does not exhibit any clearances in either the tongue or groove panel of the uncoupled joints. Accordingly, the panels are admissible into the United States and may make entry for consumption, entry for consumption from a foreign-trade zone, and withdrawal from a warehouse for consumption. This decision is limited to the specific facts set forth herein. If the laminated floor panels 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. Part 177.2(b)(1), (2), and (4), and Part 177.9(b)(1) and (2). Sincerely, Charles R. Steuart Chief, Intellectual Property Rights Branch