Ruling Request; U.S. International Trade Commission; Limited Exclusion Order; Investigation No. 337-TA-1067; Certain Road Milling Machines and Components Thereof

HQ H324012 April 2, 2022 OT:RR:BSTC:EOE H324012 CATEGORY: 19 U.S.C. § 1337; Unfair Competition Mr. James R. Barney Finnegan, Henderson, Farabow, Garrett & Dunner, LLP 901 New York Avenue, NW Washington, D.C. 20001-4413 VIA EMAIL: james.barney@finnegan.com; cat-wirtgen-177-customs@finnegan.com RE: Ruling Request; U.S. International Trade Commission; Limited Exclusion Order; Investigation No. 337-TA-1067; Certain Road Milling Machines and Components Thereof Dear Mr. Barney: Pursuant to 19 C.F.R. Part 177, the Exclusion Order Enforcement Branch (“EOE Branch”), Regulations and Rulings, U.S. Customs and Border Protection (“CBP”) issues this ruling letter. We find that Caterpillar Prodotti Stradali S.r.l., Caterpillar Americas CV, Caterpillar Paving Products Inc. and Caterpillar Inc. (collectively, “Caterpillar”) has met its burden to show that Caterpillar’s updated PM600 and PM800 cold planar machines (“Updated Machines” or “articles at issue”) do not infringe claims 11 and 17 of U.S. Patent No. 7,530,641 (“the ‘641 patent”). Thus, CBP’s position is that the Updated Machines are not subject to the modified limited exclusion order (“LEO”), dated November 4, 2021, that the U.S. International Trade Commission (“Commission” or “ITC”) issued in Investigation No. 337-TA-1067 (“the underlying investigation” or “the 1067 investigation”) pursuant to section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. § 1337 (“section 337”). We further note that determinations of the Commission resulting from the underlying investigation and a related proceeding under 19 C.F.R. Part 210 are binding authority on CBP and, in the case of conflict, will by operation of law modify or revoke any contrary CBP ruling or decision pertaining to section 337 exclusion orders. This ruling letter is the result of a request for an administrative ruling from CBP under 19 C.F.R. Part 177, which was conducted on an inter partes basis. The process involved the two parties with a direct and demonstrable interest in the question presented by the ruling request: (1) your client, Caterpillar, the ruling requester and respondent in the 1067 investigation; and (2) Wirtgen America, Inc. (“Wirtgen”), complainant in the 1067 investigation. See, e.g., 19 C.F.R. § 177.1(c). The parties were asked to clearly identify confidential information, including information subject to the administrative protective order in the underlying investigation in all of their submissions to the CBP. See 19 C.F.R. §§ 177.2 and 177.8. If there is additional information in this ruling letter not currently bracketed in red [[ ]] that either party believes constitutes confidential information, and should be redacted from the published ruling, then the parties are asked to contact CBP within ten (10) working days of the date of this ruling letter. See, e.g., 19 C.F.R. § 177.8(a)(3). Please note that disclosure of information related to administrative rulings under 19 C.F.R. Part 177 is governed by, for example, 6 C.F.R. Part 5, 31 C.F.R. Part 1, 19 C.F.R. Part 103, and 19 C.F.R. § 177.8(a)(3). See, e.g., 19 C.F.R. § 177.10(a). In addition, CBP is guided by the laws relating to confidentiality and disclosure, such as the Freedom of Information Act (“FOIA”), as amended (5 U.S.C. § 552), the Trade Secrets Act (18 U.S.C. § 1905), and the Privacy Act of 1974, as amended (5 U.S.C. § 552a). A request for confidential treatment of information submitted in connection with a ruling requested under 19 C.F.R. Part 177 faces a strong presumption in favor of disclosure. See, e.g., 19 C.F.R. § 177.8(a)(3). The person seeking this treatment must overcome that presumption with a request that is appropriately tailored and supported by evidence establishing that: the information in question is customarily kept private or closely-held and either that the government provided an express or implied assurance of confidentiality when the information was shared with the government or there were no express or implied indications at the time the information was submitted that the government would publicly disclose the information. See Food Marketing Institute v. Argus Leader Media, 588 U. S. , , 139 S. Ct. 2356, 2366 (2019) (concluding that “[a]t least where commercial or financial information is both customarily and actually treated as private by its owner and provided to the government under an assurance of privacy, the information is ‘confidential’ within the meaning of exemption 4.”); see also U.S. Department of Justice, Office of Information Policy (OIP): Step-by-Step Guide for Determining if Commercial or Financial Information Obtained from a Person is Confidential Under Exemption 4 of the FOIA (updated 10/7/2019) and OIP Guidance: Exemption 4 after the Supreme Court’s Ruling in Food Marketing Institute v. Argus Leader Media (updated 10/4/2019). BACKGROUND ITC Investigation No. 337-TA-1067 Procedural History at the ITC The Commission instituted Investigation No. 337-TA-1067 on August 25, 2017, based on a complaint filed by Wirtgen America, Inc. of Antioch, Tennessee. Certain Road Milling Machines and Components Thereof, Inv. No. 337-TA-1067, EDIS Doc. ID 684600, Public Commission Opinion (Aug. 7, 2019) (“Comm’n Op.”) at 1 (citing 82 Fed. Reg. 40595-96 (Aug. 25, 2017)). The complaint alleged a violation of section 337 by reason of infringement of certain claims of U.S. Patent Nos. 7,530,641 (“the ‘641 patent”); 7,828,309 (“the ‘309 patent”); 9,624,628 (“the ‘628 patent”); 9,644,340 (“the ‘340 patent”); and 9,656,530 (“the ‘530 patent”). Comm’n Op. at 1. The notice of investigation named Caterpillar Bitelli SpA of Minerbio BO, Italy; Caterpillar Prodotti Stradali S.r.L. of Minerbio BO, Italy; Caterpillar Americas CV of Geneva, Switzerland; Caterpillar Paving Products, Inc. of Minneapolis, Minnesota; and Caterpillar Inc., of Peoria, Illinois. Id. at 1-2. The Commission’s Office of Unfair Import Investigations (“OUII”) was named as a party, but later withdrew from the investigation. Id. at 2 (citation omitted). On October 1, 2018, the presiding Administrative Law Judge (“ALJ”) issued his final initial determination (“FID”) finding a violation of section 337. Id. Specifically, the ALJ determined that a violation of section 337 occurred in the importation into the United States, the sale for importation, or the sale within the United States after importation, of certain road milling machines and components thereof with respect to the ‘309 and ‘530 patents, but that such violation did not occur with respect to the ‘641 and ‘340 patents. Id. On April 17, 2019, the Commission issued a notice in which it determined to review in part the FID. Comm’n Op. at 3. In the notice, the Commission determined not to review any issues relating to the ‘340, ‘641, and ‘530 patents and reversed the finding of no invalidity as to only claim 36 of the ‘309 patent. Id. Thus, the Commission found a violation of section 337 as to claim 29 of the ‘309 patent and claims 2, 5, 16, and 23 of the ‘530 patent, and requested written submissions on remedy, the public interest, and bonding. Id. On March 15, 2021, the Court of Appeals for the Federal Circuit (“Federal Circuit”) issued a decision in an appeal and cross-appeal Wirtgen and Caterpillar filed, respectively, challenging the Commission’s final determination in the 1067 investigation. The Federal Circuit affirmed the Commission’s determination as to the ‘530 patent and the ‘309 patent, but reversed in part, vacated in part, and remanded as to the ‘641 patent. Caterpillar Prodotti Stradali S.R.L. v. ITC, 847 Fed. Appx. 893, 2021 U.S. App. LEXIS 7457 (Fed. Cir. 2021). Specifically, the Federal Circuit reversed and vacated the Commission’s finding, adopted from the FID, that Wirtgen failed to prove the knowledge required for inducement and, as such, remanded as to the ‘641 patent for further proceedings. Id. at 899-900; see also Commission Order (Remand) at 3 (dated June 7, 2021). On June 17, 2021, Caterpillar submitted comments in response to the Commission’s Notice requesting written submissions following the Federal Circuit’s remand. Certain Road Milling Machines and Components Thereof, Inv. No. 337-TA-1067 (Remand), EDIS Doc. 745051, Caterpillar's Response to the Notice of Commission Request for Written Submissions Pursuant to a Court Remand (June 17, 2021). In the submission, Caterpillar argued that it had “updated its machines to remove the previously accused reverse-travel feature” and a remand to the ALJ was necessary to “assess this updated design and issue a no violation finding if he finds it to be noninfringing.” Id. at 3. On June 22, 2021, Wirtgen submitted a reply to Caterpillar’s comments in response to the Commission’s Notice. Certain Road Milling Machines and Components Thereof, Inv. No. 337-TA-1067 (Remand), EDIS Doc. 745305, Wirtgen's Reply Comments Concerning Proceedings on Remand (June 22, 2021). In November 2021, after receiving comments from the parties, the Commission issued a modified LEO, dated November 4, 2021, and two modified cease and desist orders in the 1067 investigation that added claims 11 and 17 of the ‘641 patent. Certain Road Milling Machines and Components Thereof, Inv. No. 337-TA-1067 (Remand), EDIS Doc. 755957, Modified Limited Exclusion Order (Nov. 4, 2021) (“Modified 1067 LEO”); Certain Road Milling Machines and Components Thereof, Inv. No. 337-TA-1067 (Remand), EDIS Doc. 755956, Modified Cease and Desist Order for Caterpillar Paving Products, Inc. (Nov. 4, 2021); Certain Road Milling Machines and Components Thereof, Inv. No. 337-TA-1067 (Remand), EDIS Doc. 755955, Modified Cease and Desist Order for Caterpillar Inc. (Nov. 4, 2021). The Legacy Products in the Underlying Investigation The legacy products in the underlying investigation were cold planers (also referred to as road milling machines). Certain Road Milling Machines and Components Thereof, Inv. No. 337-TA-1067, EDIS Doc. ID 684600, FID at 7, 12. In particular, Wirtgen accused Caterpillar’s PM600 Series (e.g., the PM620 and PM622 models) and PM800 Series (e.g., the PM820, PM822, and PM825 models) cold planer machines of infringing the asserted claims of the patents at issue. Id. at 8 (citation omitted). Wirtgen further accused Caterpillar’s PM300 Series (e.g., the PM310, PM312, and PM313 models) cold planer machines of infringing the asserted claims of the ‘641 patent. Id. The ALJ determined that the PM620 model was representative of the PM600 Series and PM800 Series products, and that the PM312 model was representative of the PM300 Series products. Id. The Patents and Claims in the Modified 1067 LEO The Modified 1067 LEO prohibits the entry for consumption of road-milling machines and components thereof that infringe claim 29 of the ‘309 patent, claims 2, 5, 16, or 23 of the ‘530 patent, or claims 11 or 17 of the ‘641 patent manufactured for or on behalf of, or imported by or on behalf of, Caterpillar, or any of their affiliated companies, parents, subsidiaries, contractors, joint venture, agents, distributors, or other related business entities, or their successor or assigns. See ¶ 1 of Modified 1067 LEO. Claims 11 and 17 of the ‘641 Patent The ’641 patent is titled “Automotive construction machine, as well as method for working ground surfaces” and in general concerns “operating a road-milling machine in reverse without uncoupling the milling drum.” FID at 137 (citation omitted); see also ‘641 Patent Abstract; Ex. 1 (copy of U.S. Patent No. 7,530,641). The invention relates to a method for use when the machine is traveling in the same direction that the machine’s milling drum is rotating. Id. This method includes a monitoring device to monitor the distance between the milling drum and the ground surface and triggers an event when the monitoring device detects a deviation that falls below a pre-determined distance. Id. In the ’641 patent, independent claim 11 is a method claim. Other method claims, such as claims 15 and 17, depend from claim 11. The text of Claim 11 is reproduced below: 11. Method for working ground surfaces (2) with a construction machine (1) that is automotive by means of traveling devices (8) and in which a milling drum (12) supported in a machine frame (4) is driven by a drive engine (6), where the milling drum (12) is moved into a raised position when it is not in milling mode, characterized in that, the milling drum (12) remains coupled with the drive engine (6) when in raised position and with a direction of travel in which the rotating direction of the milling drum (12) corresponds to the rotating direction of the traveling devices (8), in that a distance is monitored between the rotating, raised milling drum (12) and the ground surface (2) or an obstacle located in front of the milling (12) when seen in the direction of travel, and in that the milling drum (12) is uncoupled from the drive engine (6), and/or the traveling devices (8) are uncoupled from the drive engine (6) and/or the machine frame (4) is raised and/or an alarm signal is generated when detecting that the deviation falls below a pre-determined distance between the milling drum (12) and the ground surface (2). See ‘641 patent, col. 8:4-27 see also FID at 138-9 (citing JX-0004). During the 1067 investigation, the parties disputed the construction of one term in claim 11. FID at 140. Specifically, the parties disputed the construction of the term “deviation,” which appears in independent claims 1 and 11 of the ‘641 patent. Id. at 140. The ALJ construed the term “deviation” as used in the ‘641 patent to mean “a change, difference, or departure.” Id. at 150-53. 19 C.F.R. Part 177 Ruling Request Procedural History On October 14, 2020, prior to the issuance of the Modified 1067 LEO, such that the LEO as initially issued in the 1067 investigation was in effect and, therefore, did not include the ‘641 patent, Caterpillar requested an administrative ruling under 19 C.F.R. Part 177 that the Updated Machines did not infringe claims 2 ,5, 16, and 23 of ‘530 patent or claim 29 of the ‘309 patent. See HQ H314355 at 1. As noted in that ruling, “it was the EOE Branch’s position that unless, and until, the Commission includes the claims of the ’641 patent in an exclusion order issued under 19 U.S.C. § 1337, CBP would not have authority to exclude articles from entry on this basis or address whether any articles infringe the claims of the ’641 patent in response to a request for an administrative ruling submitted under 19 C.F.R. Part 177.” Id. at 8-9. Thus, HQ H314355 found that the Updated Machines were not subject to the (initial) LEO issued in the 1067 investigation because they do not infringe claims 2, 5, 16, and 23 of the ’530 patent or claim 29 of the ’309 patent. Id. Additionally, HQ H314355 remains binding on CBP under 19 C.F.R. 177 and continues to establish admissibility with respect to the ’530 and ’309 patent for devices that implement the redesigns. On November 24, 2021, following the issuance of the Modified 1067 LEO, which included the additional patent claims from the ‘641 patent, Caterpillar submitted to the EOE Branch another request for an administrative ruling pursuant to 19 C.F.R. Part 177 that included Exhibits 1-27 (collectively, “Ruling Request”). Exhibit 22, the [[ ]], was not provided to CBP as part of the Ruling Request due to the “highly confidential nature” of the exhibit, but Caterpillar was willing to provide the exhibit to CBP through other means. See Ruling Request at 13. Caterpillar specifically “request[ed] that Customs issue a ruling finding (1) that the updated PM600 and PM800 Machines do not infringe claims 11 and 17 of the ’641 patent, and (2) that future imports of these machines would not violate the modified LEO that issued on November 5, 2021.” Id. at 2. As part of the Ruling Request, Caterpillar included a copy of the finalized and executed non-disclosure agreement with Wirtgen and provided a copy of the Ruling Request to Wirtgen. See Caterpillar Email to EOE Branch (dated November 24, 2021). On December 3, 2021, the EOE Branch had an initial conference call with Caterpillar and Wirtgen and discussed their views with respect to a schedule for the inter partes proceeding. See EOE Branch email to Parties (dated December 1, 2021). On December 7, 2021, after the parties were not able to reach an agreement, the EOE Branch established the schedule for this inter partes proceeding. See EOE Branch email to Parties (dated December 7, 2021). On January 13, 2022, the parties requested modification of the schedule such that the “deadline for Wirtgen America’s response to Caterpillar’s ruling request [would be changed] from January 18 to January 21[.]” See Caterpillar email to EOE Branch (dated January 13, 2022). On January 14, 2022, the EOE Branch agreed to this modification. See EOE Branch email to Parties (dated January 14, 2022). On January 20, 2022, the parties again requested a modification of the schedule such that: (1) the deadline for Wirtgen America’s response to Caterpillar’s ruling request would be changed from January 21 to January 24; (2) Caterpillar’s reply to Wirtgen’s response would be changed from January 28 to February 3; and (3) all subsequent dates would be extended by six days. See Caterpillar email to EOE Branch (dated January 20, 2022). On the same day as the request from the parties, the EOE Branch agreed to this modification. See EOE Branch email to Parties (dated January 20, 2022). On February 7, 2022, the parties requested an additional modification to the schedule such that the deadline for all subsequent dates would be extended by six days. See Wirtgen email to EOE Branch (dated February 7, 2022). On February 9, 2022, the EOE Branch agreed to this modification. See EOE Branch email to Parties (dated February 9, 2022). On January 24, 2022, Wirtgen provided its response to the Ruling Request, which included Exhibits 28-39 (collectively, “Wirtgen Response”). On February 3, 2022, Caterpillar provided its reply to Wirtgen’s Response, which included Exhibits 40-47 (collectively, “Caterpillar Reply”). On February 18, 2022, Wirtgen provided its sur-reply (“Wirtgen Sur-Reply”) to Caterpillar’s Reply, which included Exhibits 48-49. On February 25, 2022, in line with the schedule, the EOE Branch held an oral discussion with the parties. Due to the national emergency over the coronavirus pandemic, the oral discussion was held remotely by video conference, and the parties provided their respective presentation materials to the EOE Branch on the day of the oral discussion (hereinafter, “Caterpillar Presentation” and “Wirtgen Presentation”). On March 4, 2022, both Caterpillar and Wirtgen filed their post-oral discussion submissions (respectively, “Caterpillar Post-Oral Discussion Submission” and “Wirtgen Post-Oral Discussion Submission”). Caterpillar’s Post-Oral Discussion Submission included Exhibit 50 (Transcript of the Oral Discussion held on February 25, 2022). The Articles at Issue The articles at issue in the Ruling Request are Caterpillar’s PM600 and PM800 Updated Machines. Ruling Request at 2. The articles at issue are road-milling machines, specifically “updated” PM600 series and PM800 series machines that include a new drum shutoff design. Ruling Request at 18. As noted supra, CBP previously issued a ruling (HQ H314355) regarding other redesigns to the Updated Machines before the Commission issued the Modified 1067 LEO. Thus, in addition to the features noted here, we incorporate by reference, the description of the Updated Machines as outlined in HQ H314355. The Updated Machines have continued since 2020 to implement the earlier redesigns relevant to claims 2, 5, 16, and 23 of the ’530 patent and claim 29 of ’309 patent at issue in H314355, as well as the new drum shutoff design relevant to claims 11 and 17 of the ’641 patent that is the subject of this ruling request. Id. at 1-2. Road milling machines are used for road construction and “have a rotating milling drum that removes or ‘mills’ existing pavement.” FID at 12. “As the [milling] drum rotates, spike-like cutting tools (also referred to as bits) on the [milling] drum grind the pavement into millings.” Id. at 13. The below picture depicts the milling drum that was present on the “legacy” machines from the underlying investigation, as well as the Updated Machines at issue in this ruling request. Ex. 12 at CX-0212.0199 (annotations added); FID at 156-7; Ruling Request at 12-13.
Both the “legacy” machines and the Updated Machines have a drum enclosure formed by two side plates and a scraper blade enclosing the milling drum. FID at 162; Ex. 12; Ruling Request at 9. “[T]he lower portion of the scraper blade is called the ‘moldboard.’” Ruling Request at 9. The picture below depicts the side plates and scraper blade that create the drum enclosure that is present on both the “legacy” machines and the Updated Machines. Id; Ex 12 (annotations in the original).
The side plates and moldboard can be raised or lowered by hydraulic cylinders. Ruling Request at 12. In the Updated Machines, it is undisputed that the side plates and moldboard have four unique control states: (1) “locked,” (2) “float,” (3) “raise,” and (4) “lower.” Id. at 11-12; Wirtgen Response at 14. The control states [[ ]] Caterpillar Reply at 9-10; Ex. 44 ¶¶ 15-16. If at least one of these three variables is not in the “lower” or “float” control state while the machine is traveling in reverse, the milling drum will disengage. Caterpillar Reply at 10; Ex. 44 at ¶17. First, in the “locked” mode, the hydraulic cylinder will be in a state where the side plates and moldboard cannot move in a downward direction and can either stay in their initial position or move in an upward direction. Ruling Request at 11-12; Wirtgen Response at 14; Ex. 18 at ¶ 8. Second, in “float” mode, the hydraulic cylinders will extend or retract in reaction to the forces applied to the side plates or moldboard. Ruling Request at 11-12; Wirtgen Response at 14. Third, in the “raise” mode, the hydraulic cylinder will be in a state where the side plate or moldboard is being raised. Ruling Request at 11-12; Wirtgen Response at 14. Fourth, in the “lower” mode, the hydraulic cylinder will be in a state where the side plate or moldboard is being lowered. Ruling Request at 11-12; Wirtgen Response at 14. The Updated Machines have an operator’s console that has buttons that allow the operator to control the side plates and moldboard. Ruling Request at 12; Wirtgen Response at 14. The picture below shows the operator’s console with LEDs that indicate when the side plates and moldboard are in “float” or “locked” mode. Ruling Request at 12 (annotations in the original).
The green light next to the padlock icon will be illuminated on the console for one of the side plates or the moldboard when the control mode is set to “locked” mode. Id. The “legacy” PM600 and PM800 machines’ [[  ]]. FID at 162-164; Caterpillar Reply at 6; Ex. 41 at 2-3; Ex. 27 at 83. For the Updated Machines, Caterpillar replaced the [[ ]] with a new drum shutoff feature. [[ ]] the milling drum [[ ]]. Ruling Request at 12-13; Ex. 18 at ¶ 10. The Updated Machines’ new drum shutoff feature also causes the milling drum to shut off immediately if the operator commands either of the side plates or moldboard to go up, e.g., changes the control mode to “raise” or “locked” mode, while the Updated Machine is traveling in reverse. Id. at 13; Ex. 18 at ¶ 11. In the Updated Machines, the operator can change the control mode of one of the side plates or moldboard by pressing the buttons on the operator’s console. Caterpillar Reply at 2; Wirtgen Response at 14; Ex. 35. In order for a side plate or moldboard to enter the “raise” control state, the operator must press the raise switch, causing the hydraulic cylinder(s) to retract, raising the respective side plate or moldboard. Caterpillar Reply at 3; Wirtgen Response at 14; Ex. 35 at ¶¶ 58-61. In order for a side plate or moldboard to enter the “lock” control state, the operator must double press the raise switch, causing the respective side plate or moldboard to remain in a locked position. Caterpillar Reply at 3; Wirtgen Response at 14; Ex. 35 at ¶¶ 58-61. As such, for a side plate or moldboard to enter the “Lower” control state, the operator must press a lower switch, causing the hydraulic cylinder(s) to extend, lowering the respective side plater or moldboard. Caterpillar Reply at 3; Wirtgen Response at 14; Ex. 35 at ¶¶ 58-61. For a side plate or moldboard to enter the “Float” control state, the operator must release the raise switch and lower switch, causing the respective side plate or moldboard to lower due to gravity to either full extension of the respective hydraulic cylinder(s) or until resting on the ground surface or an obstacle. Caterpillar Reply at 3; Wirtgen Response at 14; Ex. 35 at ¶¶ 58-61. The below image shows the operator’s console with the buttons to change the control mode of one of the side plates or moldboard. Ex. 23 (annotations in the original).
The differences between the “legacy” machines’ drum exposure shutoff feature and the Updated Machines’ new drum shut off mechanism are [[ ]] Caterpillar Reply at 8; Wirtgen Response at 15. The [[ ]] redesign in the Updated Machines generally consists of the following changes. First, [[ ]] Caterpillar Reply at 5-10. Second, the Updated Machines [[ ]]. Id. With [[ ]] the Updated Machines no longer trigger an event that automatically shuts off the milling drum when the machine is traveling in reverse and the ground pushes up one of the side plates or the moldboard to a position that exposes the milling drum. Id. at 8. The Updated Machines’ new drum shutoff feature uses [[ ]]. Caterpillar Ruling Request at 17; Caterpillar Presentation at 20; Ex. 26 at 85. Caterpillar introduced a public Systems Operation Testing and Adjusting manual that describes how the PM600 and PM800 machines’ updated rotor shutoff feature operates. Id. The manual explains “[t]he control modes are determined [[ ]] through inputs from left front keypad, right front keypad, left rear keypad, right rear keypad, upper left control station keypad, and upper right control station keypad.” Id. In order to implement the new drum shutoff feature, Caterpillar added [[ ]] Caterpillar Reply at 6. The [[ ]]. The new drum shutoff feature includes [[ ]] The [[ ]] for the new drum shutoff feature will cause the milling drum to shut off instantaneously if the moldboard or one of the side plates is not in the “lower” or “float” control mode while the machine is traveling in reverse. Caterpillar Reply at 10; Ex. 44 at ¶ 17 ([[ ]]). The new drum shutoff redesign will shut the milling drum off if either the side plates or moldboard enters a different control state while traveling in reverse (i.e., the operator presses a button and the moldboard or one of the side plates enter “raise” or “lock” control modes). Id. ISSUE Whether Caterpillar has met its burden to show that the Updated Machines, in addition to the previous ruling (HQ H314355), do not infringe claims 11 and 17 of the ‘641 patent, and as such are not subject to the Modified 1067 LEO. LEGAL FRAMEWORK Section 337 Exclusion Order Administration The Commission shall investigate any alleged violation of section 337 to determine, with respect to each investigation conducted by it under this section, whether there is a violation of this section. See 19 U.S.C. § 1337(b)(1) and (c). If the Commission determines, as a result of an investigation under this section, that there is a violation of this section, it shall direct that the articles concerned, imported by any person violating the provision of this section, be excluded from entry into the United States unless the Commission finds based on consideration of the public interest that such articles should not be excluded from entry. See 19 U.S.C. § 1337(d)(1). When the Commission determines there is a violation of section 337, it generally issues one of two types of exclusion orders: (1) a limited exclusion order or (2) a general exclusion order. See Fuji Photo Film Co., Ltd. v. ITC, 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. ITC, 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. 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 appropriate only if two exceptional circumstances apply. See Kyocera Wireless Corp. v. ITC, 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 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 [general exclusion order] by satisfying the heightened burdens of §§ 1337(d)(2)(A) and (B).”). In addition to the action taken above, the Commission may issue an order under 19 U.S.C. § 1337(i) directing CBP to seize and forfeit articles attempting entry in violation of an exclusion order if their owner, importer, or consignee previously had articles denied entry on the basis of that exclusion order and received notice that seizure and forfeiture would result from any future attempt to enter articles subject to the same. An exclusion order under § 1337(d)—either limited or general—and a seizure and forfeiture order under § 1337(i) apply at the border only and are operative against articles presented for customs examination or articles conditionally released from customs custody but still subject to a timely demand for redelivery. See 19 U.S.C. §§ 1337(d)(1) (“The Commission shall notify the Secretary of the Treasury of its action under this subsection directing such exclusion from entry, and upon receipt of such notice, the Secretary shall, through the proper officers, refuse such entry.”); id., at (i)(3) (“Upon the attempted entry of articles subject to an order issued under this subsection, the Secretary of the Treasury shall immediately notify all ports of entry of the attempted importation and shall identify the persons notified under paragraph (1)(C).”). Significantly, unlike district court injunctions, the Commission can issue a general exclusion order that broadly prohibits entry of articles that violate section 337 of the Tariff Act of 1930 without regard to whether the persons importing such articles were parties to, or were related to parties to, the investigation that led to issuance of the general exclusion order. See Vastfame Camera, Ltd. v. ITC, 386 F.3d 1108, 1114 (Fed. Cir. 2004). The Commission also has recognized that even limited exclusion orders have broader applicability beyond just the parties found to infringe during an investigation. See Certain GPS Devices and Products Containing Same, Inv. No. 337-TA-602, Comm’n Op. at 17, n. 6, Doc ID 317981 (Jan. 2009) (“We do not view the Court’s opinion in Kyocera as affecting the issuance of LEOs [limited exclusion orders] that exclude infringing products made by respondents found to be violating Section 337, but imported by another entity. The exclusionary language in this regard that is traditionally included in LEOs is consistent with 19 U.S.C. § 1337(a)(1)(B)–(D) and 19 U.S.C. § 1337(d)(1).”). Moreover, “[t]he Commission has consistently issued exclusion orders coextensive with the violation of section 337 found to exist.” See Certain Erasable Programmable Read Only Memories, Inv. No. 337-TA-276, Enforcement Proceeding, Comm’n Op. at 11, Doc ID 43536 (Aug. 1991) (emphasis added). “[W]hile individual models may be evaluated to determine importation and [violation], the Commission's jurisdiction extends to all models of [violative] products that are imported at the time of the Commission’s determination and to all such products that will be imported during the life of the remedial orders.” See Certain Optical Disk Controller Chips and Chipsets, Inv. No. 337-TA-506, Comm’n Op. at 56–57, USITC Pub. 3935, Doc ID 287263 (July 2007). Lastly, despite the well-established principle that “the burden of proving infringement generally rests upon the patentee [or plaintiff],” Medtronic, Inc. v. Mirowski Family Ventures, LLC, 571 U.S. 191 (2014), the Commission has held that Medtronic is not controlling precedent and does not overturn its longstanding practice of placing the burden of proof on the party who, in light of the issued exclusion order, is seeking to have an article entered for consumption. See Certain Sleep-Disordered Breathing Treatment Systems and Components Thereof, Inv. No. 337-TA-879, Advisory Opinion at 6–11. In particular, the Commission has noted that “[t]he Federal Circuit has upheld a Commission remedy which effectively shifted the burden of proof on infringement issues to require a company seeking to import goods to prove that its product does not infringe, despite the fact that, in general, the burden of proof is on the patent to prove, by a preponderance of the evidence, that a given article does infringe[.]” Certain Integrated Circuit Telecommunication Chips, Inv. No. 337-TA-337, Comm’n Op. at 21, n.14, USITC Pub. 2670, Doc ID 217024 (Aug. 1993), (emphasis in original) (citing Sealed Air Corp. v. ITC, 645 F.2d 976, 988–89 (C.C.P.A. 1981)). This approach is supported by Federal Circuit precedent. See Hyundai Elecs. Indus. Co. v. ITC, 899 F.2d 1204, 1210 (Fed. Cir. 1990) (“Indeed, we have recognized, and Hyundai does not dispute, that in an appropriate case the Commission can impose a general exclusion order that binds parties and non-parties alike and effectively shifts to would-be importers of potentially infringing articles, as a condition of entry, the burden of establishing noninfringement. The rationale underlying the issuance of general exclusion orders—placing the risk of unfairness associated with a prophylactic order upon potential importers rather than American manufacturers that, vis-a-vis at least some foreign manufacturers and importers, have demonstrated their entitlement to protection from unfair trade practices—applies here [in regard to a limited exclusion order] with increased force.”) (emphasis added) (internal citation omitted). Patent Infringement Determining patent infringement requires two steps. Advanced Steel Recovery, LLC v. X-Body Equip., Inc., 808 F.3d 1313, 1316 (2015). The first is to construe the limitations of the asserted claims and the second is to compare the properly construed claims to the accused product. Id. To establish literal infringement, every limitation recited in a claim must be found in the accused product whereas, under the doctrine of equivalents, infringement occurs when there is equivalence between the elements of the accused product and the each claimed element of the patented invention. Microsoft Corp. v. GeoTag, Inc., 817 F.3d 1305, 1313 (Fed. Cir. 2016). One way to establish equivalence is by showing, on an element-by-element basis, that the accused product performs substantially the same function in substantially the same way with substantially the same result as each claim limitation of the patented invention, which is often referred to as the function-way-result test. See Intendis GmbH v. Glenmark Pharms., Inc., 822 F.3d 1355, 1361 (Fed. Cir. 2016). As for the first step above, “claim construction is a matter of law.” SIMO Holdings, Inc. v. H.K. uCloudlink Network Tech., Ltd., 983 F.3d 1367, 1374 (Fed. Cir. 2021). Moreover, the ultimate construction of a claim limitation is a legal conclusion, as are interpretations of the patent’s intrinsic evidence (the patent claims, specifications, and prosecution history). UltimatePointer, L.L.C. v. Nintendo Co., 816 F.3d 816, 822 (Fed. Cir. 2016) (citing Teva Pharms. USA, Inc. v. Sandoz, Inc., 574 U.S. 318, 325-6, (2015). “Importantly, 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.” Phillips v. AWH Corp., 415 F.3d 1303, 1313 (Fed. Cir. 2005) (en banc). “In some cases, the ordinary meaning of claim language as understood by a person of skill in the art may be readily apparent even to lay judges.” Id. at 1314. In others, courts look to public sources such as “the words of the claims themselves, the remainder of the specification, the prosecution history, and extrinsic evidence concerning relevant scientific principles, the meaning of technical terms, and the state of the art.” Id. “To begin with, the context in which a term is used in the asserted claim can be highly instructive.” Phillips, 415 F.3d at 1314 (“To take a simple example, the claim in this case refers to ‘steel baffles,’ which strongly implies that the term ‘baffles’ does not inherently mean objects made of steel.”). The context in which a claim term is used also includes the full chain of dependence as well as the remaining suite of claims and the written description. See Inline Plastics Corp. v. EasyPak, LLC, 799 F.3d 1364, 1371 (Fed. Cir. 2015) (“Since the specification explicitly mentions the ‘alternative’ . . . there can be no debate concerning the application of the doctrine of claim differentiation.”). The second step to establish infringement involves a comparison of the claims, as properly construed, to the accused product, which is a question of fact. Apple Inc. v. Samsung Elecs. Co., Ltd., 839 F.3d 1034, 1040 (Fed. Cir. 2016) (en banc). LAW AND ANALYSIS Caterpillar’s argument that the Updated Machines do not infringe the asserted claims of the ’641 patent focuses on the removal of the [[ ]] in the legacy devices that the Commission found to infringe and the new design it has implemented. Ruling Request at 2, 18. Specifically, from Caterpillar’s perspective, the Updated Machines do not practice the asserted claims of the ‘641 patent because their new drum shutoff feature does not depend on the ground or the presence of an obstacle on the ground. See e.g., Ruling Request at 11-12. In response, Wirtgen primarily argues that Caterpillar has failed to meet its burden to show that the Updated Machines do not infringe claims 11 and 17 of the ’641 patent, either literally or under the doctrine of equivalents, because the updated drum shutoff feature “uses control states as a proxy for the positions of the side plates and moldboard to detect a deviation in the distance between the milling drum and the ground surface. See e.g., Wirtgen Response at 11-22; Wirtgen Sur-Reply at 5-20. Caterpillar Has Met Its Burden to Show That The Updated Machines Do Not Literally Infringe Claim 11 of The ‘641 Patent Caterpillar argues that limitations 11[f] and 11[g] in claim 11 of the ’641 patent are not met by the Updated Machines: [The Updated Machines] do not monitor the “distance . . . between the rotating, raised milling drum (12) and the ground surface (2) or an obstacle located in front of the milling (12) when seen in the direction of travel,” as required by limitation 11[f] from claim 11 of the ’641 patent”; and [The Updated Machines] do not disengage the milling drum when they detect a “deviation” that “falls below a pre-determined distance between the milling drum (12) and the ground surface (2),” as required by limitation 11[g] from claim 11 of the ‘641 patent. See Ruling Request at 16 (emphasis added). Wirtgen disagrees and argues that the Updated Machines “satisfy the claimed monitoring element 11[f] when the side plates and moldboard are all in the either the ‘Lower’ or ‘Float’ control state” and “satisfy the claimed detecting a deviation element 11[g] when any of the side plates or moldboard changes from the ‘Lower’ or ‘Float’ control state to either the ‘Raise’ or ‘Hold’ [same as the “locked” mode] control state.” Wirtgen Response at 15. With respect to the Updated Machines, there is no dispute regarding the Updated Machines’ design or [[ ]]. Wirtgen Post-Oral Discussion Submission at 5 (“There is not a factual dispute concerning the design or operating software on the Updated Machines.”). The sole question presented is whether the Updated Machines satisfy limitations 11[f] and 11[g]. 11[f] is Not Met as The Updated Machines Do Not Indirectly Monitor The Distance Between The Milling Drum And The Ground There is no disagreement among the parties that, similar to the legacy machines from the underlying investigation, [[ ]]. See Caterpillar Post-Oral Discussion Submission at 4. The dispute, however, centers on whether the Updated Machines perform indirect monitoring. Caterpillar argues that the Updated Machines’ drum shutoff feature does not indirectly monitor the distance between the milling drum and the ground surface because functioning of the new drum shutoff feature “do[es] not depend on the ground, an obstacle on the ground, or a distance between the drum and the ground[.]” Ruling Request at 16. As noted above, in Wirtgen’s view, the Updated Machines indirectly monitor when the side plates and moldboard are either in the “Lower” or “Float” control state. Wirtgen Response at 15. The specification of the ‘641 patent notes that “[t]he distance between the milling drum and the ground surface can be measured either directly or indirectly.” ‘641 patent, col. 2:57-62; FID at 162; Wirtgen Post-Oral Discussion Submission at 4. The ALJ found that the “legacy” drum exposure shut off “indirectly monitor[s] the distance between the milling drum and the ground surface.” FID at 162. When analyzing the legacy PM620 machine, the ALJ found that it “uses the side plates, the side plate position sensing cylinders, the moldboard, the moldboard switch and the steering and transmission ECMs to indirectly monitor the distance between the milling drum and the ground surface. Id. To support this finding, the ALJ referred to a Caterpillar Technical Presentation that described the operation of the reverse shutoff feature on the PM620 as follows: [[ ]] Id. at 162-63. With the backdrop of the ALJ’s findings, we turn to the question whether there is indirect monitoring in the Updated Machines. First, the [[ ]] Caterpillar Reply at 5-10; Caterpillar Presentation at 21; Ex. 46 at 3-4; Wirtgen Post-Oral Discussion Submission at 5. Instead, Caterpillar has [[ ]] Wirtgen Post-Oral Discussion Submission at 6; Ex. 50 at 113:14-21; Caterpillar Presentation at 20; Ex. 26 at 85 ([[ ]]). Caterpillar argues that the Updated Machines’ drum shutoff feature does not depend on the ground because the control modes can only be changed by the act of a human operator pushing a button on the console. See Caterpillar Post-Oral Discussion Submission at 5; Caterpillar Reply at 11-12; Ex. 44 at ¶ 8. The public manuals for the Updated Machines confirm that the control modes are changed by an operator pressing a button. Ex. 26 at 85 (“The control modes are determined by the ECMs through inputs from the left front keypad, right rear keypad, upper left control station keypad, and upper right control station keypad.”). Wirtgen does not dispute this point. Caterpillar, therefore, has demonstrated that, in the Updated Machines, the milling drum will not disengage when a side plate or moldboard is pushed up or changes positions and that the control modes for a side plate or moldboard, as implemented in the source code, do not automatically change when a side plate or moldboard is pushed up by the ground or an obstacle. Caterpillar Reply at 10-11; Ex. 23; Ex. 24. As shown in the Exhibit 24 (a video of the Updated Machines in operation), the milling drum no longer shuts off when [[ ]]. Id. In that video, while the Updated Machine is traveling in reverse, the moldboard is pushed up by an orange block until the moldboard is positioned above the bottom of the milling drum. Id. After the moldboard is pushed up and is positioned above the bottom of the milling drum, the milling drum remains engaged and the moldboard remains in the “float” control mode. Id. Below is a screenshot from that video showing that the milling drum remains engaged and the moldboard remains in the “float’ control mode when the moldboard has been pushed up and is positioned above the bottom of the milling drum. Id.; Ex. 24 at 00:52.
In the video, the milling drum remains engaged until the operator presses the raise button to change the moldboard’s control mode from the “float” to the “raise” control mode. Id; Caterpillar Reply at 10. After the operator presses the raise button, the milling drum disengages. Id. The video from Exhibit 23 is a similar demonstration focusing on the side plates. Accordingly, we find that the Updated Machines’ new drum shutoff feature is independent of obstacles on the ground, or the distance between the drum and the ground because the [[ ]] in the new drum shutoff feature are [[ ]] but [[ ]] that could be changed based on the presence of an obstacle on the ground or the position of the ground. Wirtgen argues that the Updated Machines meet limitation 11[f] because the “control states serve as a proxy” for the positions of the side plates and moldboard to “indirectly monitor a distance between the milling drum and the ground surface.” Wirtgen Sur-Reply at 5; Wirtgen Response at 22; Ex. 35 at ¶ 74 (“[[ ]] are indirectly monitoring the distance between the milling drum and the ground surface [[ ]]”). As support for this argument, Wirtgen note that the side plates and moldboard extend below the milling drum and a safe distance is present between the milling drum and the ground when the Updated Machines are in the “Lower” or “Float” control states. Id. at 22-23. However, Caterpillar has shown that the control modes do not represent the positions or even relative positions of the side plates and moldboard because the side plates and moldboards will remain in the same control mode regardless of their vertical position. Caterpillar Post-Oral Discussion Submission at 5-6; Caterpillar Reply at 11; Ex. 44 at ¶ 18 (“under the updated reverse rotor shutoff feature, when the machine is traveling in reverse with the rotor on, the rotor will remain running as long as the control modes of the sides plates and moldboard are in the ‘lower’ or ‘float’ modes regardless of where the moldboard and side plates are positioned.”). As explained above with respect to the video from Exhibit 24, the moldboard’s control mode remained in the “float” control mode when the moldboard was pushed up and positioned above the bottom of the milling drum. Therefore, Exhibit 23 and Exhibit 24 demonstrate that a side plate or moldboard can be positioned above the milling drum or anywhere within its range of vertical motion while in the “float’ control mode. Moreover, Caterpillar points out that the Updated Machine’s control modes cannot be considered proxies for the position of the side plates and moldboards unless they [[ ]]. Caterpillar Reply at 12. As shown above with regard to the video from Exhibit 24, the control modes [[ ]] Thus, we find that the control modes are not proxies for the position or relative position of either the side plates or moldboard because the side plates and moldboard can remain in the “float” and “lower” control mode regardless of their vertical position and the control modes can only be changed by an operator pressing a button. Wirtgen argues that a milling machine “does not need to know the location of the ground” to satisfy limitation 11[f] and 11[g]. Wirtgen Post-Discussion Submission at 3. Specifically, Wirtgen argues that having such a requirement “improperly reads disclosed embodiments out of the claims, including indirect monitoring of the position of machine elements.” Wirtgen Post-Oral Discussion Submission at 3. However, Wirtgen’s position is in conflict with the claim language. Specifically, 11[f] requires that “a distance is monitored between the rotating, raised milling drum (12) and the ground surface (2) or an obstacle located in from of the milling (12) when seen in the direction of travel[.]” Certain embodiments disclosed in the ‘641 patent involve sensing when machine elements have contacted or been pushed up by the ground. One such embodiment uses a sensor to detect when a machine component positioned lower than the milling drum contacts the ground. ‘641 patent, col. 3:20-31, 5:31-41, 6:1-4; Caterpillar Post-Oral Discussion Submission at 3. The ’641 patent also discloses an embodiment where a sensor detects if a machine component positioned lower than the milling drum gets pushed up by the ground. Id. These embodiments are in contrast with the Updated Machines, which do not monitor the positions of the machine parts or change control modes based on coming into contact with or being pushed up by the ground surface. Therefore, because the Updated Machines’ drum shutoff feature is independent of the distance to ground surface or obstacles on the ground, we find that the Updated Machines do not indirectly monitor a distance between the milling drum and ground surface that is recited in limitation 11[f]. As we find that limitation 11[f] is not met by the Updated Machines, we find that Caterpillar, on this basis, has met its burden to show that the Updated Machines do not infringe claims 11 and 17 of the ‘641 patent. 11[g] is Not Met as The Updated Machines Do Not Shutoff The Milling Drum When They Detect a Deviation That Falls Below a Pre-Determined Distance Between The Milling Drum And The Ground Surface Additionally, Caterpillar argues that the Updated Machines’ drum shutoff feature is not triggered based on a deviation that falls below a predetermined distance between the drum and the ground surface as recited in limitation 11[g] because the drum shutoff relies solely on the operator pressing a button to change the control mode and, therefore, does not rely on the vertical positions of the side plates and moldboard. Ruling Request at 11-16; Caterpillar Post Oral-Discussion Submission at 5-6. 11[g] requires that a remedial action (e.g., a drum shutoff) occurs when a deviation is detected that “falls below a pre-determined distance between the milling drum (12) and the ground surface (2).” ‘641 patent, col. 8:21-27. [[ ]] confirms that the Updated Machine’s milling drum will disengage only when the control modes are in or changed to the “raise” or “lock” control mode while the machine is traveling in reverse, and as discussed above, these control states are not proxies for monitoring the distance between the milling drum and the ground surface. As such, the changes to the control states and the potential disengagement of the milling drum cannot be the result of detecting a deviation or change between a pre-determined distance between the milling drum and ground surface. Caterpillar Reply at 10; Ex. 44 at ¶ 17; Ex. 18 at ¶ 13-14 ([[ ]] the drum keeps running in the new design, which shows that the new shutoff design does not depend on the distance between the drum and the ground (or an obstacle on the ground). Then, the operator kept traveling in reverse and raised the machine up by extending the legs. Because the moldboard was in float mode, it dropped back down below the drum. At this point, the operator pressed the button to raise the moldboard, which triggered the automatic shutoff.”). As mentioned above, Caterpillar has shown that the control modes can only be changed by the act of a human operator pushing a button on the console. See Caterpillar Post-Oral Discussion Submission at 5; Caterpillar Reply at 11-12; Ex. 44 at ¶ 8; Ex. 26 at 85. Since the drum shut off only occurs when the control mode of a side plate or moldboard is changed from the “lower” or “float” to the “raise” or “lock” control mode, the drum shut off relies exclusively on the operator because the control mode can only be changed when that operator presses the relevant buttons on the console. Further, as mentioned in the discussion above concerning the videos from Exhibit 23 and 24, Caterpillar has shown that the Updated Machines’ milling drum does not disengage when a side plate or moldboard is pushed up by the ground or an obstacle and changes vertical position. Thus, the Updated Machine’s drum shutoff does not depend on the vertical position of the side plate or moldboard. Wirtgen argues that the Updated Machines meet limitation 11[g] because they “use[] the control states as a proxy to detect a deviation in the distance between the milling drum and the ground surface.” Wirtgen Post-Oral Discussion Submission at 22. However, as we found for the reasons mentioned above, the control modes are not a proxy for the positions of the side plates and moldboard because a side plate or moldboard will remain in the same control mode regardless of the position of the machine element and the control will not change based on the vertical position of the side plates and moldboard. The control modes can only be changed by the operator pressing a button. Therefore, a change in control modes cannot constitute a change, difference, or departure that falls below a pre-determined distance between the milling drum and the ground surface because a change in control modes only indicates that an operator has pressed a button and this action is not based on a pre-determined distance involving the vertical position of the side plates and moldboard. Therefore, we find that the Updated Machines do not shutoff the milling drum when they detect a deviation that falls below a pre-determined distance between the milling drum and the ground surface as recited in limitation 11[g] of the ’641 patent as the drum shut off is dependent on the operator pressing a button and does not disengage regardless of the distance between the milling drum and the grounds surface. Conclusion For the reasons above, we find Caterpillar has met its burden to show that the Updated Machines do not infringe claim 11 of the ’641 patent. The Updated Machines do not monitor “a distance … between the rotating, raised milling drum (12) and the ground surface (2) or an obstacle located in front of the milling (12) when seen in the direction of travel” as recited in limitation 11[f]. Additionally, the Updated Machines do not disengage the milling drum when they detect a “deviation” that “falls below a pre-determined distance between the milling drum (12) and the ground surface (2),” as recited in limitation 11[g]. Caterpillar Has Shown a Prima Facie Case That the Doctrine of Equivalents Does Not Apply to The Updated PM600 and PM800 Machines. Wirtgen argues that the Updated Machines infringe claims 11 and 17 of the ’641 patent under the doctrine of equivalents. Wirtgen Response at 13. In CBP HQ H284032, CBP articulated its standard for applying the doctrine of equivalents when administering exclusion orders: CBP will not extend the doctrine of equivalents when administering an exclusion order pursuant to section 337 except in two instances. The first is where the Commission found a violation of section 337, during the underlying investigation, through infringement under the doctrine. The second is, in those cases when the Commission has found only literal infringement of the asserted patents, where a respondent identified in an exclusion order fails to show a prima facie case that the doctrine does not apply to its new or modified article under the “function-way-result” or “insubstantial differences” test based on the administrative record before CBP. HQ H284032 at 26 (emphasis added). In the underlying investigation, the Commission found only literal infringement of the ’641 patent. Caterpillar Post-Oral Discussion Submission at 7; FID at 153 (where the ALJ noted that “Wirtgen does not argue infringement under the doctrine of equivalents”) (internal citations omitted). Therefore, CBP will apply the second prong under the standard provided above. For a party to establish “a prima facie case,” it is not required to reach “a conclusion on the ultimate issue.” Transocean Offshore Deepwater Drilling, Inc. v. Maersk Drilling USA, Inc., 699 F.3d 1340, 1348 (Fed. Cir. 2012). Instead, the party with such a burden must simply “present evidence ‘sufficient to establish a fact or raise a presumption [regarding the relevant issue] unless disproved or rebutted.’” Id. (quoting Black’s Law Dictionary (9th ed 2009)). We find that Caterpillar, the party with the burden allocated under this standard, has not failed to show a prima facie case that the doctrine of equivalents does not apply to the Updated Machines. Caterpillar has submitted evidence that the Updated Machines [[ ]] with operator key presses instead of monitoring a distance between the drum and the ground surface. Caterpillar Post Discussion Submission at 7-8; Ex. 26 at 85 (“The control modes are determined [[ ]] through inputs from the left front keypad, right rear keypad, upper left control station keypad, and upper right control station keypad.”). Caterpillar has established a prima facie case that the Updated Machines do not perform the same function, in the same way, to achieve the same result as the claimed method in the ‘641 patent because the Updated Machines monitor for operator key presses (through the control modes described above) rather than sensors, such as those in the legacy machines at issue before the Commission, that monitored the distance between the milling drum and the ground surface. Therefore, CBP will not extend the doctrine of equivalents to the Updated Machines at issue in this ruling. V. HOLDING We find that Caterpillar has met its burden to establish that the Updated Machines do not infringe claims 11 and 17 of the ’641 patent. In CBP HQ H314355, we previously found that the Updated Machines do not infringe claims 2, 5, 16, and 23 of the ’530 patent and claim 29 of the ’309 patent. Accordingly, we find that the articles at issue are not subject to the Modified 1067 LEO. The decision is limited to the specific facts set forth herein. If articles differ in any material way from the articles at issue 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), (4), and 177.9(b)(1) and (2). Sincerely, Dax Terrill Chief, Exclusion Order Enforcement Branch CC: Mr. Daniel Yonan Sterne, Kessler, Goldstein & Fox P.L.L.C. 1100 New York Avenue, NW Washington, D.C. 20005 dyonan@sternekessler.com; wirtgen4-itc@sternekessler.com