Case 1:20-cv-00393-LMB-WEF Document 1462-5 Filed 04/05/23 Page 1 of 5 PageID# 39599
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`Exhibit 5
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`Exhibit 5
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`Case 1:20-cv-00393-LMB-WEF Document 1462-5 Filed 04/05/23 Page 2 of 5 PageID# 39600
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`UNITED STATES INTERNATIONAL TRADE COMMISSION
`Washington, D.C.
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`In the Matter of
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`Investigation No. 337-TA-1199
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`CERTAIN TOBACCO HEATING
`ARTICLES AND COMPONENTS
`THEREOF
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`LIMITED EXCLUSION ORDER
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`The United States International Trade Commission (“Commission”) has determined that
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`there is a violation of section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. § 1337, in the
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`unlawful importation, sale for importation, or sale within the United States after importation by
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`Altria Client Services LLC; Philip Morris USA, Inc.; and Philip Morris Products S.A.
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`(collectively, “Respondents”) of certain tobacco heating articles and components thereof that
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`infringe claims 1-3 and 5 of U.S. Patent No. 9,930,915 (“the ’915 patent”) and claims 27-30 of
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`U.S. Patent No. 9,901,123 (“the ‘123 patent”) (collectively, “the Asserted Patents”).
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`Having reviewed the record in this investigation, including the written submissions of the
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`parties, the Commission has made its determination on the issues of remedy, public interest, and
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`bonding. The Commission has determined that the appropriate form of relief includes a limited
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`exclusion order prohibiting the unlicensed entry of tobacco heating articles and components
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`thereof manufactured abroad by or on behalf of, or imported by or on behalf of, Respondents or
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`any of their affiliated companies, parents, subsidiaries, or other related business entities, or their
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`successors or assigns.
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`The Commission has also determined that the public interest factors enumerated in
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`19 U.S.C. § 1337(d) do not preclude the issuance of the limited exclusion order, and that the
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`Case 1:20-cv-00393-LMB-WEF Document 1462-5 Filed 04/05/23 Page 3 of 5 PageID# 39601
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`bond during the period of Presidential review shall be in the amount of zero (0) percent of the
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`entered value of the covered articles (i.e., no bond).
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`Accordingly, the Commission hereby ORDERS that:
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`1.
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`Tobacco heating articles and components thereof that infringe one or more of
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`claims 1-3 and 5 of the ’915 patent or claims 27-30 of the ’123 patent that are
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`manufactured abroad by or on behalf of, or imported by or on behalf of,
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`Respondents, or their affiliated companies, parents, subsidiaries, or other related
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`business entities, or their successors or assigns, are excluded from entry for
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`consumption into the United States, entry for consumption from a foreign trade
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`zone, or withdrawal from a warehouse for consumption, for the remaining term of
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`the patent, except under license of, or with the permission of, the patent owner or
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`as provided by law.
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`2.
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`The tobacco heating article and components therof that are subject to this Order
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`(“covered articles”) are as follows: electric tobacco heating device systems and
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`the associated tobacco sticks sold for use with the device systems.
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`3.
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`Notwithstanding paragraphs 1-2 of this Order, covered articles are entitled to
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`entry into the United States for consumption, entry for consumption from a
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`foreign-trade zone, or withdrawal from a warehouse for consumption under bond
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`in the amount of zero (0) percent of the entered value of the products (i.e., no
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`bond), pursuant to subsection (j) of Section 337 (19 U.S.C. § 1337(j)) and the
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`Presidential Memorandum for the United States Trade Representative of July 21,
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`2005 (70 Fed. Reg. 43,251), from the day after this Order is received by the
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`United States Trade Representative until such time as the United States Trade
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`2
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`Case 1:20-cv-00393-LMB-WEF Document 1462-5 Filed 04/05/23 Page 4 of 5 PageID# 39602
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`Representative notifies the Commission that this Order is approved or
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`disapproved but, in any event, not later than sixty (60) days after the date of
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`receipt of this Order. All entries of covered articles made pursuant to this
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`paragraph are to be reported to U.S. Customs and Border Protection (“CBP”), in
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`advance of the date of the entry, pursuant to procedures CBP establishes.
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`4.
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`At the discretion of CBP and pursuant to the procedures it establishes, persons
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`seeking to import articles that are potentially subject to this Order may be
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`required to certify that they are familiar with the terms of this Order, that they
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`have made appropriate inquiry, and thereupon state that, to the best of their
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`knowledge and belief, the products being imported are not excluded from entry
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`under paragraphs 1-2 of this Order. At its discretion, CBP may require persons
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`who have provided the certification described in this paragraph to furnish such
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`records or analyses as are necessary to substantiate the certification.
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`5.
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`In accordance with 19 U.S.C. § 1337(l), the provisions of this Order shall not
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`apply to covered articles that are imported by and for the use of the United States,
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`or imported for, and to be used for, the United States with the authorization or
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`consent of the Government.
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`6.
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`The Commission may modify this Order in accordance with the procedures
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`described in section 210.76 of the Commission’s Rules of Practice and Procedure
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`(19 C.F.R. § 210.76).
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`7.
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`The Secretary shall serve copies of this Order upon each party of record in this
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`investigation and upon CBP.
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`8.
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`Notice of this Order shall be published in the Federal Register.
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`Case 1:20-cv-00393-LMB-WEF Document 1462-5 Filed 04/05/23 Page 5 of 5 PageID# 39603
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`By order of the Commission.
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`Issued: September 29, 2021
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`Lisa R. Barton
`Secretary to the Commission
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`4
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