In the Matter of: : Investigation No. 337-TA-406 CERTAIN LENS-FITTED FILM PACKAGES : Enforcement Proceedings (11)

Yesterday, we filed a motion to withdraw as counsel of record for Respondent Anthony Cossentino.

Subsequent to filing this motion, we received notice that the ALJ completed his Enforcement Initial Determination.

Because of the 10 day response period for filing any necessary petitions for review, we are currently withdrawing our motion to withdraw; however, we reserve the right to refile the motion later, if necessary.

The record supports imposition of a $13,675,000 penalty against respondent Benun, joint and severally with Jazz, for violation of the cease and desist order.

In accordance with Commission rule 210.39, all material heretofore marked in camera because of business, financial, and marketing data found by the administrative law judge to be cognizable as confidential business information under Commission rule 201.6(a) is to be given in camera treatment continuing after the date this investigation is terminated.

Counsel for the parties shall have in the hands of the administrative law judge those portions of the E D (II) which contain bracketed confidential business information to be deleted from any public version, no later than April 27,2004.

Also, as stated in said September 24 Order, at the time that the Commission decides whether to review the E D (11) it will set forth a briefing schedule concerning the recommended enforcement measures.

determined not to review the initial advisory opinion issued by the presiding administrative law judge (“ALJ”) on February 13,2004, in the above-captioned proceedings under section 337 of the Tariff Act of 1930.

FOR FURTHER INFORMATION CONTACT: Jean Jackson, Esq., telephone 202-205-3 104, Office of the General Counsel, U.S. International Trade Commission, 500 E Street, S.W., Washington, D.C. 20436.

SUPPLEMENTARY INFORMATION: The Commission instituted this investigation on March 25, 1998, based on a complaint by Fuji Photo Film Co., Ltd. (“Fuji”) of Tokyo, Japan, alleging unfair acts in violation of section 337 of the Tariff Act of 1930, 19 U.S.C. 8 1337, by several respondents in the importation and sale of certain lens-fitted film packages (“LFFPs”), i.e., disposable cameras, that infringed one or more claims of 15 U.S. patents held by complainant Fuji.

On May 15,2003, the Commission concluded the enforcement proceedings finding, inter alia, that several respondents, including CSI, had violated the general exclusion order issued in the Lens Fitted Film Packages investigation.

On May 29, 2003, the presiding administrative law judge (ALJ) issued his initial determination (ID) in the above-referenced bond forfeiture proceeding.

On July 14,2003, the Commission determined to review the issue of the ALJ’s inclusion of offers for sale as an element of injury compensable under the bond.

The Commission determines that the Federal Circuit orders operate to limit recovery under the bond to damages to Fuji flowing from imports or sales during the Presidential review period.

The investigation is remanded to the presiding administrative law judge to conduct any further proceedings necessary in order to make additional findings of fact on the following matters:

Attached is the title page, the conclusions of law and the order, which are not confidential and which form a portion of said initial advisory opinion.

Each of counsel for the private parties and the staff received a copy of this notice on February 13,2004.

The administrative law judge hereby CERTIFIES to the Commission his IAO together with the record consisting of the exhibits admitted into evidence.

In accordance with Commission rule 210.39, all material heretofore marked & camera because of business, financial, and marketing data found by the administrative law judge to be cognizable as confidential business information under Commission rule 201.6(a) is to be given in camera treatment continuing after the date this investigation is terminated.

) Investigation No. 337-TA-406 Enforcement Proceedings (11) Order No. 126: Denying Fuji’s Motion Nos. 406-176,406-177 and 406-178 For Partial Summary Determination On November 17,2003, complainant Fuji Photo Film Co., Ltd. (Fuji) filed cross-motions for summary determination on the issue of reloaded reloads (Motion Docket No. 406-176) and on the issue of the effective date of the Federal Circuit’s lifting of the stay of the Commission’s remedial orders (Motion Docket No. 406-178).

At the same time, Fuji filed a motion for partial summary determination that Fuji’s patent rights have not been exhausted and that an implied license does not exist.

Jazz Photo Corp. (Jazz), in a response dated November 20,2003, opposed the pending motions because they were filed out of time, misconstrue and misapply the case law as well as mischaracterize the legal dispute between Fuji and Jazz and that while Jazz is in full agreement with Fuji that the Federal Circuit, while it had jurisdiction over the matter, can stay the ITC’s orders and can also lift its own stay, the question is not what the Federal Circuit can do, but what the Federal Circuit did do.

administrative law judge set a November 7,2003 deadline for the submission of summary determination motions, Fuji filed the pending motions on November 17,2003, a mere twenty days before the scheduled hearing date of December 8,2003, and Fuji did not request leave to file its summary determination motions out of time.

... that if a Jazz camera included a completely replaced flash lens, but included the original shutter blade, it would nonetheless infringe Fuji’s patents even though the plastic protector over the flash had been replaced ...

... container, and this secondary container can be the film chamber recited in said claim and thus the double cassette system, held by the administrative law judge to be noninfringing in the Enforcement (I) proceedings, would nonetheless ...

... that when the ‘087 patent was originally filed, it contained 32 claims, none of which included the “outermost turn” limitation (Ex. A to Motion) ...

As this Judge has previously stated in Certain Set-Top Boxes and Components Thereof, Inv. No. 337-TA-454 (Set-Top Boxes): Summary determination may be rendered only “if pleadings and any depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to summary determination as a matter of law.” Commission Rule 21 O.l8(b).

When deciding a motion for summary determination, “the administrative law judge must accept all evidence presented by the non-movant as true, must view all of the evidence in the light most favorable to the non-movant and must draw all justifiable inferences in favor of the non-movant.” Certain Lens-Fitted Film Packages, Inv. No. 337-TA-406, Order No. 7 at 3 (July 10, 1998) (denying summary determination that patent in suit was unenforceable due to alleged inequitable conduct before the PTO).

and Components Therefor, Inv. No. 337-TA-483, Order No. 14 at 2 (June 20, 2003) (“The moving party has the burden of demonstrating that there is no genuine issue of material fact and that it is entitled to summary determination as a matter of law.

Moreover, it appears that the other cases relied on by Jazz dealt with situations where, following the period of a stay pending appeal, the original court’s decision was modified or reversed by the appellate court’s ruling.

Order No. 120: Denying Jazz’s Motion No. 406-167 For Partial Summary Determination On The Issue Of Reloaded Reloads On October 3 1,2003, Jazz Photo Corp. (Jazz) moved for summary determination that any “reloaded reloads” can not qualify as foreign shells to the extent they are reloads of Jazz’ own cameras but are to be treated for purposes of Enforcement Proceeding (11) the same as cameras first sold in the United States because the patent rights were exhausted by the District Court verdict in Fuii Photo Film Co., Ltd. v. Jazz Photo COT.

As this Judge has previously stated in Certain Set-Tor, Boxes and Components Thereof, Inv. No. 337-TA-454 (Set-Top Boxes): Summary determination may be rendered only “if pleadings and any depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to summary determination as a matter of law.” Commission Rule 21 O.l8(b).

When deciding a motion for summary determination, “the administrative law judge must accept all evidence presented by the non-movant as true, must view all of the evidence in the light most favorable to the non-movant and must draw all justifiable inferences in favor of the non-movant.” Certain Lens-Fitted Film Packages, Inv. No. 337-TA-406, Order No. 7 at 3 (July 10,1998) (denying summary determination that patent in suit was unenforceable due to alleged inequitable conduct before the PTO).

and Components Therefor, Inv. No. 337-TA-483, Order No. 14 at 2 (June 20, 2003) (“The moving party has the burden of demonstrating that there is no genuine issue of material fact and that it is entitled to summary determination as a matter of law.