Ruling Request; U.S. International Trade Commission; General Exclusion Order; Investigation No. 337-TA-1155; Certain Luxury Vinyl Tile and Components Thereof.

HQ H339732 June 11, 2024 OT:RR:BSTC:EOE H339732 JW CATEGORY: 19 U.S.C. § 1337; Unfair Competition Mr. Smith R. Brittingham IV Finnegan, Henderson, Farabow, Garrett & Dunner, LLP 901 New York Avenue, NW Washington, DC 20001-4413 VIA EMAIL: smith.brittingham@finnegan.com; anthony.delmonaco@finnegan.com RE: Ruling Request; U.S. International Trade Commission; General Exclusion Order; Investigation No. 337-TA-1155; Certain Luxury Vinyl Tile and Components Thereof. Dear Mr. Brittingham: 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 in response to VILOX Sweden AB’s (“VILOX”) request for an administrative ruling (dated September 25, 2023), which included Exhibits 1 to 13 (collectively, “Ruling Request”). We find that VILOX has met its burden to establish that the floor panels manufactured by [[ ]] -- submitted as the physical sample for consideration during this inter partes proceeding, and as described in detail below -- are not subject to the general exclusion order (“GEO”) issued in U.S. International Trade Commission (“Commission” or “ITC”) Investigation No. 337-TA-1155 (“the underlying investigation” or “the 1155 investigation”), pursuant to Section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. § 1337 (“Section 337”). However, as explained below, the admissibility determination in this ruling only applies to the embodiment of that physical sample as representative of the articles at issue for which VILOX has requested a ruling and submitted evidence to support such a determination and, specifically, the findings regarding the presence of particular features in the floor panels manufactured by [[ ]] that are the basis for the non-infringement determination. We further note that determinations of the Commission resulting from the underlying investigation or 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 that the EOE Branch 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, VILOX, the ruling requester; and (2) Mohawk Industries Inc. of Calhoun, Georgia; Flooring Industries Ltd. Sarl of Bertrange, Luxembourg; and IVC US Inc. of Dalton, Georgia (collectively, “Mohawk”), complainants in the 1155 investigation. See e.g., 19 C.F.R. § 177.1(c). The parties were asked to clearly identify confidential information with [[red brackets]] in all of their submissions to CBP. See, e.g., EOE Branch Email to Parties, dated October 6, 2023; see also 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, 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). I. BACKGROUND ITC Investigation No. 337-TA-1155 The Commission instituted the 1155 investigation on May 16, 2019, based upon a complaint, as amended, filed on behalf of Mohawk Industries Inc. of Calhoun, Georgia; Flooring Industries Ltd. Sarl of Bertrange, Luxembourg; and IVC US Inc. of Dalton, Georgia. Certain Luxury Vinyl Tile and Components Thereof, Investigation No. 337-TA-1155, EDIS Doc. No. 721148, Commission Opinion (Public) at 2 (October 5, 2020) (“Comm’n Op.”) citing 84 Fed. Reg. 22161 (May 16, 2019). The Commission instituted the investigation to determine: [W]hether there is a violation of subsection (a)(1)(B) of section 337 in the importation into the United States, the sale for importation into the United States, the sale for importation, or sale within the United States after importation of certain products identified in paragraph (2) by reason of infringement of one or more of claims 7,8,13,15-17, 20-23, and 30 of the ‘460 patent; claims 1-21 of the ‘490 patent; and claims 1-27 of the ‘655 patent, and whether an industry in the United States exists as required by subsection (a)(2) of section 337. Certain Luxury Vinyl Tile and Components Thereof, Investigation No. 337-TA-1155, EDIS Doc. No. 716630, Initial Determination and Recommended Determination (Public) at 1 (August 7, 2020) (“ID/RD”) citing 84 Fed. Reg. 22161 (May 16, 2019). Further, pursuant to 19 C.F.R. § 210.10(b)(1): [T]he plain language description of the accused products or category of accused products, which defines the scope of the investigation, is “interlocking luxury vinyl tile floor panels and components thereof.” Id. The notice of investigation named forty-five respondents. Comm’n Op. at 2, citing 84 Fed. Reg. 22161 (May 16, 2019). The Office of Unfair Import Investigations (“OUII”) was also a party to the investigation. Id. Thirty-five of the respondents were terminated on the basis of settlement, consent order, or termination by Mohawk. Comm’n Op. at 2 (citations omitted). The other ten respondents were found in default. Id. at 2-3. On January 15, 2020, Mohawk filed a motion, which was supplemented three times, for summary determination that Complainants demonstrated a domestic industry and the defaulting respondents violated Section 337. Id. at 3 (citations omitted). On May 15, 2020, the presiding Administrative Law Judge (“ALJ”) issued an ID/RD (Order No. 36) granting the motion for summary determination. Id. (citation omitted). The ALJ also recommended, inter alia, the issuance of a GEO. Id. (citation omitted). On June 30, 2020, the Commission determined to review the ID in part. Id. On review, inter alia, the Commission affirmed the finding of violation of Section 337 as to the defaulting respondents. Id. Written submissions on remedy, public interest, and bonding were also requested. Id. at 4. On July 15, 2020, Complainants and OUII submitted briefs on remedy, public interest, and bonding requesting, inter alia, that the Commission issue a GEO. Id. On July 22, 2020, OUII submitted a reply to Complainants’ response, and no other submissions were received. Id. On September 16, 2020, the Commission issued a GEO. Certain Luxury Vinyl Tile and Components Thereof, Investigation No. 337-TA-1155, EDIS Doc. No. 719813, General Exclusion Order (September 16, 2020). Paragraphs 1 and 2 of the 1155 GEO state: Certain luxury vinyl tile floor and components thereof (as defined in paragraph 2 below) that infringe one or more of claims 7, 8, 13, 15-17, 20-23, and 30 of the ‘460 patent; claims 1-6, 8, 10, 11, 13-16, and 18 of the ‘490 Patent; or claims 1-4, 6-16, 18, and 20-26 of the ‘655 Patent are excluded from entry for consumption into the United State, entry for consumption from a foreign-trade zone, or withdrawal from a warehouse for consumption, for the remaining terms of the Asserted Patents, except under license from, or with the permission or, the patent owner or as provided by law. The certain luxury vinyl tile floor and components thereof subject to this exclusion order (i.e., “covered articles”) are as follows: interlocking luxury vinyl tile floor panels and components thereof. Id. at ¶¶ 1 and 2. The Patents and Claims in the 1155 GEO The 1155 GEO bars the unlicensed entry for consumption into the United States of luxury vinyl tile floor and components thereof (as defined in ¶ 2 of the GEO) that infringe one or more of claims 7, 8, 13, 15-17, 20-23, and 30 of the ‘460 patent; claims 1-6, 8, 10, 11, 13-16, and 18 of the ‘490 patent; or claims 1-4, 6-16, 18, and 20-26 of the ‘655 patent. See Certain Luxury Vinyl Tile and Components Thereof, Investigation No. 337-TA-1155, EDIS Doc. ID 719813, General Exclusion Order (September 16, 2020). Of these claims, the independent claims include claim 7 of the ‘460 patent; claims 1 and 13 of the ‘490 patent; and claims 1 and 18 of the ‘655 patent. 1. The ’460 Patent The ’460 patent is titled “Floor Covering, Floor Element and Method for Manufacturing Floor Elements.” ID/RD at 43. The text of independent claim 7 of the ’460 patent is reproduced below: 7. Floor covering, consisting of floor elements, which, at least at a first pair of two opposite sides, comprise coupling parts, which substantially are performed as a male coupling part and a female coupling part, which are provided with vertically active locking portions, which, when the coupling parts of two of such floor elements cooperate with each other, effect a locking in vertical direction, perpendicular to a plane of the floor covering, and also are provided with horizontally active locking portions, which, when the coupling parts of two of such floor elements cooperate with each other, effect a locking in horizontal direction, perpendicular to the respective sides and in the plane of the floor covering, wherein said coupling parts are of a type allowing that two of such floor elements can be connected to each other at said sides by pushing one of these floor elements with the male coupling part, by means of a downward movement, into the female coupling part of the other floor element; wherein said floor elements comprise at least a substrate; wherein said substrate substantially consists of a filled synthetic material composite; wherein said substrate forms at least one side of said first pair of opposite sides, such that at least one of said coupling parts, either the male coupling part or the female coupling part, is at least partially made of said filled synthetic material composite; wherein the floor elements have a second pair of opposite sides, which also are provided with mutually cooperating coupling parts, which substantially are made as a male and a female coupling part, which are provided with vertically active locking portions and horizontally active locking portions; and wherein the coupling parts of the second pair of opposite sides allow that two of such floor elements can be interconnected at this pair of sides by providing one of these floor elements with the male coupling part, by means of a turning movement, in the female coupling part of the other floor element. See, e.g., ’460 patent, col. 30:32-67 (emphasis added). The parties disputed three claim terms for the ‘460 patent. ID/RD at 49. These terms were ultimately construed as follows: Claim Term Construction  “by pushing” (claim 7) “by exerting a force on” (ID/RD at 53)  “filled synthetic material composite” (claim 7) “a composite having a matrix formed of a synthetic material and filler contained within that matrix” (ID/RD at 53)  “said substrate substantially consists of a filled synthetic material composite” (claim 7) “the substrate is substantially made up of (or composed of) a filled synthetic material composite” (ID/RD at 54)   2. The ‘490 Patent The ‘490 patent is titled “Floor Panel.” ID/RD at 98. The text of independent claims 1 and 13 of the ’490 patent are reproduced below: 1. A floor panel comprising: a substrate; and a top layer located above the substrate; wherein the top layer is connected to the substrate by means of glue; wherein the substrate is single-layered and includes a closed cell foamed PVC board having a density of more than 450 kilograms per cubic meter; wherein the substrate has a thickness of 2 to 10 millimeters; wherein the substrate forms at least half of the thickness of the floor panel; wherein the top layer includes a back layer, a printed synthetic film located above the back layer and a transparent or translucent thermoplastic layer located above the printed synthetic film; wherein the transparent or translucent thermoplastic layer includes a vinyl-based material; wherein the back layer includes PVC with plasticizers and fillers; wherein the floor panel is rectangular and oblong and includes a pair of long edges and a pair of short edges; wherein the floor panel includes first mechanical coupling parts at the pair of long edges and second mechanical coupling parts at the pair of short edges; wherein the first mechanical coupling parts are arranged for horizontal and vertical locking of two of such floor panels using a turning movement along the respective long edges; wherein the first mechanical coupling parts include a tongue and a groove; wherein the tongue and the groove are substantially responsible for the vertical locking; wherein the tongue and the groove include locking parts substantially responsible for the horizontal locking; wherein the first mechanical coupling parts are substantially realized in the substrate; wherein the second mechanical coupling parts comprise a male coupling part and a female coupling part arranged for horizontal and vertical locking of two of such floor panels using a downward movement along the respective short edges; wherein the downward movement is automatically created by the turning movement along the respective long edges; and wherein the second mechanical coupling parts are substantially realized in the substrate. See, e.g., ’490 patent, col. 17:66-18:45 (emphasis added). 13. A floor panel comprising: a substrate; a top layer located above the substrate; and a backing layer located below the substrate; wherein the top layer is connected to the substrate by means of glue; wherein the substrate is single-layered and includes a closed cell foamed PVC board having a density of more than 650 kilograms per cubic meter; wherein the substrate has a thickness of 2 to 10 millimeters; wherein the substrate forms at least half of the thickness of the floor panel; wherein the top layer includes a back layer, a printed synthetic film located above the back layer and a transparent or translucent thermoplastic layer located above the printed synthetic film; wherein the back layer includes PVC with plasticizers and fillers; wherein the transparent or translucent thermoplastic layer includes a vinyl-based material; wherein the top layer has a thickness of 0.5 to 3 millimeters; wherein the floor panel has a thickness of 5 to 15 millimeters; wherein the floor panel is rectangular and oblong and includes a pair of long edges and a pair of short edges; wherein the floor panel includes first mechanical coupling parts at the pair of long edges and second mechanical coupling parts at the pair of short edges; wherein the first mechanical coupling parts are arranged for horizontal and vertical locking of two of such floor panels using a turning movement along the respective long edges; wherein the first mechanical coupling parts include a tongue and a groove; wherein the tongue and the groove are substantially responsible for the vertical locking; wherein the tongue and the groove include locking parts substantially responsible for the horizontal locking; wherein the first mechanical coupling parts are substantially realized in the substrate; wherein the second mechanical coupling parts comprise a male coupling part and a female coupling part arranged for horizontal and vertical locking of two of such floor panels using a downward movement along the respective short edges; wherein the downward movement is automatically created by the turning movement along the respective long edges; and wherein the second mechanical coupling parts are substantially realized in the substrate. See, e.g., ’490 patent, col. 19:8-61 (emphasis added). The parties agreed on the claim construction for a claim term for the ‘490 patent. ID/RD at 102. That term was ultimately construed as follows: Claim Term Construction  “arranged for horizontal and vertical locking of two of such floor panels using a turning movement along the respective long edges” (claims 1 and 13) “allowing for horizontal and vertical locking of two of such floor panels by turning one coupling part into the other coupling part at the respective long edges” (ID/RD at 103)   3. The ‘655 Patent The ‘655 patent is titled “Floor Panel.” ID/RD at 140. The text of independent claims 1 and 18 of the ’655 patent are reproduced below: 1. A floor panel comprising: a substrate; and a top layer located above and glued to the substrate; wherein the substrate includes a closed cell foamed PVC board with fillers; wherein the closed cell foamed PVC board has an average density of more than 300 kilograms per cubic meter; wherein the top layer includes a back layer, a printed synthetic material film located above the back layer and a transparent or translucent synthetic material wear layer located above the printed synthetic material film; wherein the back layer includes a vinyl compound with fillers; wherein the back layer has a thickness of at least 45 percent of the thickness of the top layer; wherein the floor panel includes a first pair of edges and a second pair of edges; wherein the floor panel includes first mechanical coupling parts at the first pair of edges and second mechanical coupling parts at the second pair of edges; wherein the first mechanical coupling parts allow a horizontal and vertical locking of two of such floor panels using a turning movement along the respective edges; wherein the first mechanical coupling parts include a tongue and a groove; wherein the groove is flanked by an upper lip and a lower lip; wherein the first mechanical coupling parts include a vertical locking mechanism having a vertically active locking surface at the upper side of the tongue and a vertically active locking surface at the lower side of the upper lip; wherein the first mechanical coupling parts include a horizontal locking mechanism having a horizontally active locking surface at the lower s