Trumpf Medical Sys., Inc. v. United States , 2010 CIT 123 ( 2010 )

Slip Op. 10-123
UNITED STATES COURT OF INTERNATIONAL TRADE
TRUMPF MEDICAL SYSTEMS, INC.
Plaintiff,
v.
UNITED STATES, Before: Pogue, Judge
Court No. 07-00316
Defendant.
OPINION AND ORDER
[Plaintiff’s motion for summary judgment in tariff classification
matter granted in part; defendant’s cross motion denied.]
Dated: October 27, 2010
Simons & Wiskin (Philip Yale Simons and Jerry P. Wiskin) for
the Plaintiff.
Tony West, Assistant Attorney General; Barbara S. Williams,
Attorney in Charge, International Trade Field Office, U.S.
Department of Justice (Mikki Cottet) for the Defendants.
Pogue, Judge: This case concerns the proper tariff
classification of certain surgical light systems imported into the
United States by Trumpf Medical Systems, Inc. (“Trumpf” or
“Plaintiff”). U.S. Customs and Border Protection (“Customs”)
liquidated Trumpf’s merchandise as lamps or light fittings under
various Subheadings of Heading 9405 of the Harmonized Tariff
Court No. 07-00316 Page 2
Schedule of the United States (“HTSUS”).1 Trumpf argues that its
merchandise is properly classified as surgical instruments or
appliances under HTSUS Heading 9018.2 Plaintiff and the United
1
The government points to Subheading 9405.10.6020:
Lamps and lighting fittings including searchlights and
spotlights and parts thereof, not elsewhere specified or
included; illuminated signs, illuminated nameplates and the
like, having a permanently fixed light source, and parts
thereof not elsewhere specified or included:
Chandeliers and other electric ceiling or wall lighting
fittings, excluding those of a kind used for lighting
public open spaces or thoroughfares:
Of base metal:
Other.[]
Items falling under this Subheading are charged an ad valorem
duty of 7.6 percent. Provisions like Heading 9405.10.6020 are
referred to as basket or residual provisions. See E.M. Indus.,
Inc. v. United States, 22 CIT 156, 165, 195 F.Supp.2d 1473, 1480
(1998). “‘Classification of imported merchandise in a basket
provision, however, is appropriate only when there is no tariff
category that covers the merchandise more specifically.’” Chevron
Chem. Co. v. United States, 23 CIT 500, 506, 59 F.Supp. 2d 1361,
1368 (1999).
2
Specifically, Plaintiff argues that its merchandise falls
under HTSUS Subheading 9018.90.60:
Instruments and appliances used in medical, surgical, dental
or veterinary sciences . . . parts and accessories thereof:
Other instruments and appliances and parts and
accessories thereof:
Other:
Electro-medical instruments and appliances
and parts and accessories thereof:
Electro-surgical instruments and
Court No. 07-00316 Page 3
States (“Defendant” or the “Government”) both move for summary
judgment.
The court has jurisdiction pursuant to 28 U.S.C. § 1581(a).
Because the common meaning of the terms of Heading 9018 does
not support the government’s narrow interpretation of the Heading’s
scope, the court grants, in part, the Plaintiff’s motion.
BACKGROUND
I. Undisputed Facts
Certain relevant facts are undisputed.
A. Surgical Lights
Plaintiff’s undisputed evidence identifies six characteristics
particular to surgical lights – High Illumination/Brightness, Color
Rendition of Tissue, Light Field Diameter, Shadow Reduction, Limited
Heat/Irradiance and Depth of Illumination – and a category of
factors related to their purchase and sale.3
B. Trumpf’s Surgical Lights
The parties also agree to certain background facts related to
the surgical light systems that Trumpf imported into the United
States. Specifically, between November 2003 and July 2005 Trumpf
appliances, . . . ; all the foregoing
and parts and accessories thereof.
Items falling under this Subheading enter duty-free
3
These characteristics and categories are further detailed
in Appendix A.
Court No. 07-00316 Page 4
imported its “Helion” and “Xenion” surgical light systems.4 (Pl.’s
Stmt. of Uncontested Material Facts (“Pl.’s Stmt.”) ¶ 4(citing
McArver Aff. ¶ 3).)5
These surgical light systems “consist of a surgical light and
a ceiling mounted moveable arm to which the surgical light is
attached.” (Compl. ¶ 6.) The movable arm allows “the surgeon to
position the surgical lamp in the most favorable position during
surgery.”(Id.)
Among other various parts, the system includes:
• a surgical light or lights with a support boom and
cardanic joint6 (Ex. C to McArver Aff.)
4
Trumpf uses different light bulbs to provide specific
levels of illumination while limiting heat emission. Instead of
using the traditional incandescent light bulb, the surgical light
systems either use halogen gas –- the Helion model –- or xenon
gas –- the Xenion model. (McArver Aff. ¶ 3.) According to
Trumpf, its Xenion lights have many advantages over halogen.
Xenion lights “provide brighter illumination tha[n] halogen
lights, are more cost efficient and tend to last longer[,]” (id.)
and emit less heat. (Xenion Surgical Light User Manual
(“Xenion”), Ex. B to McArver Aff., 13.)
“Halogen” is “[a]ny of a group of five chemically related
nonmetallic elements including flourine, chlorine, bromine,
iodine, and astatine.” Webster’s II New Riverside University
Dictionary 560 (1988). A halogen is “electronegative,” that is,
it has a “negative electric charge.” Academic Press Dictionary of
Science and Technology 728, 983 (1992). “Xenon” is “noble,” that
is, inert, gas. See id. 1471, 2384.
5
The parties appear to agree that the following entries are
composed of Trumpf’s light systems: 233-3171894-2, 233-319579-6,
233-3317878-0, 233-3373454-1, 233-3366253-6, 233-3366242-9, 233-
5540047-6, 233-5480395-1, 233-5480419-9.
6
The court understands this to be a fixed point joint around
which shafts/arms rotate.
Court No. 07-00316 Page 5
• ceiling mounts (Ex. C to McArver Aff.; McArver Aff. ¶ 4)
• a central axis with (1) extension arms, (2) suspension
arms, or (3) tracking arms (Ex. C to McArver Aff. See
also McArver Aff. ¶ 5)7
• spring (or “sprung”) arms (McArver Aff. ¶ 5; Helion
Surgical Light User Manual (“Helion”), Ex. B to McArver
Aff., 12; Xenion, Ex. B to McArver Aff., 12; Ex. C to
McArver Aff.)
• transformer(s) (McArver Aff. ¶ 6)8
• a control panel (Helion, Ex. B to McArver Aff., 12;
Xenion, Ex. B to McArver Aff., 12; McArver Aff. ¶ 5,) and
• for Helion lights, a switch box (McArver Aff. ¶ 9;
Helion, Ex. B to McArver Aff., 12.)
Some of the systems also include accessories such as cameras,
flat panel screens, and various electrical and electronic
components.9 (Compl. ¶ 6.) Trumpf imports the surgical light
systems in an unassembled condition. (Id. ¶ 7; McArver Aff. ¶ 10.)
However, the systems themselves are complete, that is, they need no
additional parts in order to function. (Compl. ¶ 7; McArver Aff. ¶
7
The number of extension or suspension arms depends upon
the number of surgical lights and/or flat panel displays included
in the system, as there is one suspension or extension arms per
surgical light or flat panel display. (McArver Aff. ¶ 8.)
8
The system requires one transformer per surgical light.
(McArver Aff. ¶ 6.)
9
Specific options available to customers include laser
guided focusing, which “simplifies the precise positioning of the
luminous field on very small areas” (Helion, Ex. B to McArver
Aff., 15; Xenion, Ex. B to McArver Aff., 14,) fittings for MedTV
camera systems (Helion, Ex. B to McArver Aff., 15; Xenion, Ex. B
to McArver Aff., 15,) external brightness controllers (Helion,
Ex. B to McArver Aff., 15,) and anti-drift systems. (Id.)
Court No. 07-00316 Page 6
10.) Indeed, the customer assembles the system
by simply screwing the surgical lights to the suspension
arms, screwing the suspension arms to the extension arms
and attaching the unit to the ceiling of an operating
room with a mounting bracket which is welded to the top
of the central axis.
(Pl.’s Stmt. ¶ 8. See also McArver Aff. ¶ 10.)
Trumpf normally manufactures these systems in accordance with
its customers’ specifications.10 (Pl.’s Stmt. ¶ 9; McArver Aff. ¶
7.) Moreover, Trumpf’s surgical lights “are specially manufactured
to have specific properties to provide the surgeon and the operating
team with optimal illumination in an operating theater[,]” that is,
“to provide a certain light intensity, low heat generation, control
of shadows and depth of focus.”11 (Pl.’s Stmt. ¶ 15 (citing McArver
Aff. ¶ 15; Moore Aff. ¶ 11; Stauffer Aff. ¶ 10; Grattan Aff. ¶ 10).)
Regarding the trueness of light color, Trumpf claims to approximate
“daylight on a bright day” by using a color temperature of 4300 K
(Ex. A to McArver Aff. 5; Helion, Ex. B to McArver Aff., 27; Xenion,
Ex. B to McArver Aff., 25,) and a CRI of 93. (Helion, Ex. B to
10
Once the axis of the light is manufactured with the chosen
number of arms to accommodate the requested number of lights,
cameras, and flat panel displays, extra arms cannot be added,
even at time of assembly. (McArver Aff. ¶¶ 7-8, 11.) Moreover,
arms wired for surgical lights cannot be used as arms for cameras
or flat panel displays and vice versa. (McArver Aff. ¶ 8.)
Therefore, if a customer cancels its order, Trumpf cannot easily
resell its surgical lights. (McArver Aff. ¶ 12.)
11
Customers can also select light type, size, control type
(electronic or mechanical), camera and/or flat panel display,
axis type, and arm types. (McArver Aff. ¶ 7.)
Court No. 07-00316 Page 7
McArver Aff., 27; Xenion, Ex. B to McArver Aff., 25.) Moreover,
users can adjust the luminous intensity, diameter of luminous field,
and position of luminous field. (Helion, Ex. B to McArver Aff., 18-
20; Xenion, Ex. B to McArver Aff., 17.) Finally, the lights are
equipped with a sterile handle.12 (Ex. A to McArver Aff. 5, 7;
Helion, Ex. B to McArver Aff., 24; Xenion, Ex. B to McArver Aff.,
18, 22-23.)
Trumpf sells its products only to hospitals and physicians and
only “for use in office surgical suites and clinics.” (McArver Aff.
¶ 13. See also Grattan Aff. ¶ 4; Moore Aff. ¶ 3; Stauffer Aff. ¶ 3;
Burgess Aff. ¶ 3.) Neither Trumpf nor its competitors sell their
lights to distributors or other sellers of home or commercial
lights.13 (McArver Aff. ¶ 13.) Purchasing agents with which
12
This handle is detachable in order to allow for cleaning
and disinfection. (Helion, Ex. B to McArver Aff., 24; Xenion, Ex.
B to McArver Aff., 18, 22-23.)
13
The “normal” or “standard” practice in the industry to
sell surgical lights is as follows. (Burgess Aff. ¶ 9; Grattan
Aff. ¶ 11; Moore Aff. ¶ 9.) The sales consultant meets with the
hospital purchasing agent, the operating room business manager,
and the operating room manager. (Id. See also Grattan Aff. ¶¶ 10,
11; Moore Aff. ¶ 10; Stauffer Aff. ¶ 9.) These hospital
personnel discuss with the surgeons the preferred surgical light
specifications. (Burgess Aff. ¶ 9. See also Grattan Aff. ¶ 11;
Moore Aff. ¶ 10; Stauffer Aff. ¶ 9.) After receiving reports from
hospital personnel as to these specifications, Trumpf installs in
the operating suite a demonstration surgical light and surgeons,
for two weeks, use the lights in actual surgical procedures.
(Burgess Aff. ¶ 9. See also Grattan Aff. ¶¶ 10, 11; Moore Aff. ¶
10; Stauffer Aff. ¶ 9.) If the surgeons consider the light
satisfactory, the hospital personnel place an order with Trumpf
and Trumpf will install a completely new light system. (Burgess
Aff. ¶ 9. See also Grattan Aff. ¶¶ 10, 11; Moore Aff. ¶ 10;
Court No. 07-00316 Page 8
Trumpf’s sales staff interact “do not purchase lamps or lighting
fittings which provide illumination in an office setting.” (Grattan
Aff. ¶ 9; Moore Aff. ¶ 8; Stauffer Aff. ¶ 8. See also Burgess Aff.
¶ 8.) Trumpf and its competitors similarly do not describe their
surgical lights as “lamps” or “lighting fittings.” (Burgess Aff. ¶¶
5, 6. See also Grattan Aff. ¶ 7; Moore Aff. ¶¶ 5, 6; Stauffer Aff.
¶ 6.) Trumpf’s competitors consist of other manufacturers and
sellers of surgical light systems; Trumpf does not compete with
manufacturers, sellers, or wholesalers “of lamps and lighting
fittings used in a house or office building.” (Burgess Aff. ¶ 6. See
also Grattan Aff. ¶ 8; Moore Aff. ¶ 7; Stauffer Aff. ¶ 7.)
Trumpf has obtained approval for U.S. sale of its surgical
light systems from the U.S. Food and Drug Administration (“FDA”),
and Trumpf’s surgical lights meet the requirements of the Medical
Device Directive. (Burgess Aff. ¶ 4; Grattan Aff. ¶ 5; Moore Aff.
¶ 4; Stauffer Aff. ¶ 4. See also Helion, Ex. B to McArver Aff., 8;
Xenion, Ex. B to McArver Aff., 8.)14
II. Disputed Facts
Although both parties claim there are no material facts at
issue, they present differing descriptions of the use of Trumpf’s
merchandise and of the composition of some specific entries at
Stauffer Aff. ¶ 9.)
14
It does not appear that traditional lamps used in homes or
office settings require FDA approval. (Moore Aff. ¶ 4.)
Court No. 07-00316 Page 9
issue.
A. Use of Surgical Lights
Trumpf states that its surgical light systems “are used for
intra-operative diagnostic purposes as well as providing proper
illumination for a surgical procedure.” (Blessing Aff. ¶ 4; Cobbs
Aff. ¶ 4. See also Helion, Ex. B to McArver Aff., 8; Xenion, Ex. B
to McArver Aff., 8 (The lights are “intended for local illumination
of the part of the patient being examined or operated upon in a
hospital or in a doctor’s surgery.”).) The subject lights “allow
proper visualization intraoperatively of anatomic structures such
as nerves, arteries, veins, intestines, and other glandular
structures in order that vital structures are not unintentionally
injured.” (Blessing Aff. ¶ 4. See also Cobbs Aff. ¶ 4.)
The above-described use, Trumpf states, is the lights’ only
use. (Grattan Aff. ¶ 13 surgical light systems “are only used to
illuminate a portion of a patient’s body during surgery or for
diagnostic purposes... I have never seen or heard of [] surgical
light systems being used for another non-surgical related purpose”).
Accord Stauffer Aff. ¶ 11.) Manuals for Helion and Xenion lights
specifically state that the surgical lamps “may only be operated by
surgeons, doctors or specially[-]trained personnel” and “[a]ny other
use of the surgical light [besides the medical uses listed in the
manual] is regarded as improper use.” (Helion, Ex. B to McArver
Aff., 8; Xenion, Ex. B to McArver Aff., 8.) Moreover, health
Court No. 07-00316 Page 10
professionals consider Trumpf’s surgical lights as “surgical
appliance[s] or instrument[s]” and not as lamps or lighting
fittings. (See Burgess Aff. ¶ 5; Grattan Aff. ¶ 6; Moore Aff. ¶ 5;
Stauffer Aff. ¶ 5. See also Blessing Aff. ¶ 5 (“I consider a
surgical light as a diagnostic instrument or appliance.”). Accord
Cobbs Aff. ¶ 5.) Trumpf insists that a “standard lamp or lighting
fixture,” such as those “used in an office setting or a house,” are
not used for illumination during a surgical procedure. (See Blessing
Aff. ¶ 7; Cobbs Aff. ¶ 6.)
The government does not agree that Trumpf’s lights are
specifically designed for diagnostic purposes. See HQ967747 (Mar.
21, 2006). Instead, the government describes Trumpf’s lights as
specialized spotlights. See id. (citing HQ 967159 (Nov. 17, 2004)).
The government presents evidence that a surgical lighthead from
another company, STERIS Corp. (“STERIS”),15 has been used in art
15
STERIS manufactures surgical lights. Its lights are
called Harmony Surgical Lighting and Visualization System
(“HSLVS”).
The government classifies STERIS’s lights under HTSUS 9405.
See HQ 967159 (Nov. 17, 2004). STERIS light include “1) a
central axis, composed of carbon steel, that allows the lights
and apparatus to move in circular motion around the patient to
assist the surgeon during the surgical process. 2) the spring
loaded arms, composed of carbon steel, that extend from the
central axis and allow for either the lights or equipment to be
mounted. 3) flat panel monitor adapters, composed of carbon
steel, that connect with a spring load arm to mount a flat LCD
monitor to the lighting system. 4) ceiling sets that allow for
the lighting system to be mounted into the ceiling and consist of
mounting components (nuts, bolts and clamp rings) to attach to
the ceiling; a carbon steel suspension tube to which the lighting
assembly is attached and which houses the system cables and
Court No. 07-00316 Page 11
conservation laboratories. (See Rosenfeld Decl. ¶8 (“[T]he type of
illumination provided by the STERIS lighthead is also desirable in
the art conservation environment.”).) According to the government,
the qualities of a STERIS lamp that provide illumination “that does
not distort color and high intensity without heat, are also
properties of lamps used in museum and art exhibition environments.”
(Id. at ¶9.) “[T]he ability to increase and decrease the pattern
size of illumination is a feature found in spotlights, including
theater spotlights and display spotlights used in museum and retail
stores.” (Id. at ¶4).
Trumpf does not contest the qualities of a STERIS light or a
spotlight, but asserts that these qualities are not necessarily
those of a surgical light. Trumpf does not offer specific evidence
to this effect but nonetheless asserts that a STERIS light is not
mentioned as a surgical light in the affidavit, essentially relying
on the lack of the word “surgical light”. (Pl.’s Resp. to Def.’s
Additional Stmt. of Material Facts to which No Genuine Issue Exists
¶8.) Trumpf also notes that their light systems are not comparable
to STERIS lamp heads in that Trumpf’s surgical light systems are
only used in a surgical setting. See Pl.’s Resp. to Questions at 3.
B. Unassembled Surgical Light System
Trumpf describes some of the entries at issue as parts of its
wires; and a plastic ceiling hood or cover. 5) lighting heads of
carbon steel that provide the essential lighting function of the
HSLVS.” Id.
Court No. 07-00316 Page 12
surgical light systems. These entries are listed in Appendix B.16
The parties agree that the imports in these entries can be used
as part of surgical light systems.17 Moreover, there appears to be
no dispute as to the actual contents of the entries. However, the
parties do dispute whether the entries were entered as “‘complete,’
‘unassembled’” surgical light systems or discrete items also entered
for other potential uses. The government argues that Trumpf has not
presented evidence that the individual components are parts of
surgical light systems, (see Def.’s Resp. to Pl.’s Stmt. of Material
Fact Not in Dispute ¶4; Def.’s Additional Stmt. of Material Fact ¶3-
4 (claiming certain entries are not in fact complete “surgical light
systems.”)), noting that neither the entry papers nor the commercial
16
Trumpf has dropped its claims regarding Entry No. 233-
3185814-4. (See Pl.’s Resp. to Def.’s Additional Stmt. of
Material Fact as to which no Genuine Issue Exists ¶2.)
17
Trumpf surgical light system components may include:
ceiling mounts, an axis to attach suspension arms which rotates
on a horizontal axis, the suspension arms, spring arms which move
on a vertical axis and attach to the suspension arms, mounts for
attaching a camera, mounts for attaching a flat panel monitor, a
flat panel monitor(s). (See Ex. C to McArver Aff., 2.) These
components in various configurations and including some or all of
the aforementioned parts are for the purposes of litigation
referred to as “pendants” by the parties. Trumpf surgical light
systems also may included: surgical lights with a support boom
and a universal joint for rotating on both a horizontal and
vertical axis. (See Ex. C to McArver Aff., 2.) Depending on the
configuration: transformers, a control panel, and switch boxes
may also be necessary for the surgical light system. (McArver
Aff. ¶9.) The actual surgical lights which are part of the
system consist of the light source (incandescent quartz bulb
containing xenon or halogen gas) and the housing. (McArver Aff.
¶¶ 3, 6.)
Court No. 07-00316 Page 13
invoices make reference to surgical light systems. (See Def’s Mem.
in Opp’n to Pl.’s Mot. for Summ. J and in Supp. of Def’s Cross-mot.
for Summ. J. 24. See also, e.g., Def.’s Resp. to Pl.’s Stmt. of
Material Facts not in Dispute ¶4.) Trumpf avers that the entries
listed in Appendix A contained components of their surgical light
systems.
III. The Instant Litigation
Trumpf timely protested Customs’ classification of the
merchandise at issue, and Customs denied in part and granted in part
these protests. See HQ 967747 (Mar. 21, 2006). Having paid all
liquidated duties, Trumpf subsequently commenced this action on
August 28, 2007.
Customs liquidated the merchandise under two types of headings.
See HQ 967747 (Mar. 21, 2006). First, Customs liquidated certain
of Trumpf’s entries under HTSUS 9033.0033,18 as parts and
accessories of “ceiling mounted equipment platforms know as ‘booms’
or ‘orbiters’ which are intended to be used in hospital operating
and recovery rooms, and intensive care environments.” (Id.)
However, after protest by Trumpf, Customs reconsidered and entered
18
“Parts and accessories (not specified or included elsewhere
in this chapter ) for machines, appliances, instruments or
apparatus of chapter 90.”
Court No. 07-00316 Page 14
these items under HTSUS 9402.90.00.20 as “medical furniture.”19
(Id.) Articles imported under Heading 9402.90.00.20 are duty free
and, as a result, Trumpf does not contest this classification.
Second, HQ 967747 classified the surgical lamps under heading
9405.10.6020 as opposed to Heading 9018.90.60. In making this
determination, Customs relied heavily on an earlier ruling, HQ
967159, which addressed the classification of HSLVS lights, like the
STERIS lights, i.e., “overhead light used in surgical suites by
surgeons.” HQ 967159 (Nov. 17, 2004). Using identical language as
in HQ 967159, Customs in HQ 9967747 determined that the lights in
contention here were better classified under 9405 rather than 9018.
Customs stated that:
Lamps which ‘are specially designed for diagnostic,
probing irradiation etc. purposes’ are included in
Heading 9018, HTSUS. However the instant HSLVS parts can
not be said to have been designed for a lamp used in
probing or irradiation. Lamps so designed are those that
are part of an instrument which probes the body, such as
an endoscope, which enables the clinician to see the
internal organ and take a cell sample so as to diagnose
a disease. Lamps used for irradiation are those which
employ radiation to reveal, most commonly, skin diseases.
See HQ 967747.
Before Customs, Trumpf argued that its lights are used for
diagnostic purposes, namely that these lights have “certain
19
These items were ceiling mounted booms and orbiters which
move on gas or electric power. The booms are set up to hold
shelving and receptacles “designed to accept and hold monitoring
devices.” See HQ 967747 (Mar. 21, 2006).
Court No. 07-00316 Page 15
temperature and lighting features which will not harm the patient
during a surgical procedure . . . [and] attachment of visualization
equipment during certain surgical procedures and a handle to
position it during surgery.” Id.;(see also Blessing Aff. ¶4.) The
government did not find Trumpf’s argument persuasive, stating:
Precision overhead room lighting is necessary for the
surgeon to do his or her job. But the instant
merchandise is not used in direct contact or even in
close proximity with the patient for the sole benefit of
diagnosis of disease. While it is specialized lighting
to be sure, it is more akin to the explicitly excluded
spotlight of heading 9405, HTSUS, than it is to the
included lamps attached to endoscopes and the like, that
are used in intimate contact with the patient.
HQ 967747. In response to Customs’ ruling, Trumpf brought the
instant action, contending that the surgical lights described are
better classified to under HTSUS 9018 rather than 9405.
STANDARD OF REVIEW
The court’s review of Customs classification is twofold. “The
proper scope and meaning of a tariff classification term is a
question of law[,]... determining whether the goods at issue fall
within a particular tariff term as properly construed is a question
of fact.” Franklin v. United States, 289 F.3d 753, 757 (Fed. Cir.
2002)(citations omitted).
In classification cases, genuine issues of material fact only
arise when there is a dispute over the use, characteristics, or
properties of the merchandise being classified, see Brother Int’l
Court No. 07-00316 Page 16
Corp. v. United States, 26 CIT 867, 869, 248 F.Supp.2d 1224, 1226
(2002), or where commercial meaning is in question. See Russell
Stadelman & Co. v. United States, 242 F.3d 1044, 1048 (Fed. Cir.
2001). This follows from the familiar summary judgment standard:
summary judgment is appropriate “if the pleadings, discovery and
disclosure materials on file, and any affidavits show that there is
no genuine issue as to any material fact and that the movant is
entitled to judgement as a matter of law.” USCIT R. 56(c) (emphasis
added). Material issues only arise concerning “facts that might
affect the outcome of the suit under the governing law.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
On questions of law, a customs’ classification is subject to
de novo review as to the meaning of the tariff provision, pursuant
to 28 U.S.C. § 2640, but may be accorded a “respect proportional to
its ‘power to persuade.’” United States v. Mead Corp., 533 U.S. 218,
220 (2001) (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140
(1944)).
In interpreting and applying the HTSUS, the court looks to the
General Rules of Interpretation (“GRI”), as well as the Additional
United States Rules of Interpretation (“ARI”). See Orlando Food
Corp. v. United States, 140 F.3d 1437, 1439 (Fed Cir. 1998); Faus
Group Inc. V. United States, 28 CIT 1879, 358 F.Supp 2d. 1244, 1250
(2004). GRI (1) states that
[F]or legal purposes, classification shall be determined
according to the terms of the headings and any relative
Court No. 07-00316 Page 17
section or chapter notes and, provided such headings or
notes do not otherwise require, according to the
following provisions.
GRI (1) is “intended to make it quite clear that the terms of the
headings and any relative Section or Chapter Notes are paramount,
i.e., they are the first consideration in determining
classification.” 1 World Customs Org., Harmonized Commodity
Description & Coding Sys., Explanatory Notes 1 (3 ed. 2002)
(“Explanatory Notes”).20 Thus, interpretation of tariff headings,
and the court’s analysis, originate in the language of the Headings,
Subheadings, Section Notes and Chapter Notes of the relevant parts
of the HTSUS, in this case, Chapters 90, and 94.21
ANALYSIS
As noted above, the government contends that the Trumpf
lighting systems are to be classified under Heading 9405. (“Lamps
20
The Explanatory Notes are not “controlling legislative
history but nonetheless are intended to clarify the scope of
[the] HTSUS [] and to offer guidance” in the court’s
interpretation. Mita Copystar Am. v. United States, 21 F.3d
1079, 1082 (Fed. Cir. 1994).
21
Relevant to the entries in Appendix A, GRI (2) states that
an article may be entered in an unfinished state and still fall
under a particular heading. However, that article must have the
same “essential character” as the finished article. GRI (3)
Explanatory Note VIII provides: “The factor which determines
essential character will vary as between different kinds of
goods. It may, for example, be determined by the nature of the
material or component, its bulk, quantity, weight or value, or by
the role of a constituent material in relation to the use of the
goods.”
Court No. 07-00316 Page 18
and lighting fittings including searchlights and spotlights and
parts thereof, not elsewhere specified or included.”). But the
Explanatory Notes to chapter 94, subpart (II)(l) specifically
exclude from Heading 9405 “[m]edical diagnostic, probing,
irradiation, etc., lamps (Heading 90.18).” Id. 9405 (II)(l). Thus,
if Trumpf’s merchandise is properly classified under Heading 9018,
it cannot be classified under Heading 9405. Therefore, the court
will first consider the language of Heading 9018, and the Chapter
Notes thereto, to determine their application here.22
I. HTSUS Heading 901823 24
A. Merchandise Included in Heading 901825
22
The court notes that Heading 9018 is a “use” provision.
See ARI 1(“ In the absence of special language or context which
otherwise requires--
(a) a tariff classification controlled by use (other than actual
use) is to be determined in accordance with the use in the United
States at, or immediately prior to, the date of importation, of
goods of that class or kind to which the imported goods belong,
and the controlling use is the principal use . . .”)
23
Heading 9018 falls under Chapter 90: “optical,
photographic, cinematographic, measuring, checking, precision,
medical or surgical instruments and apparatus; parts and
accessories thereof.”
24
The court notes that the language of the HTSUS for all
relevant years remains unchanged.
25
Merchandise under Chapter 90 also includes “parts and
accessories” of such “instruments and apparatus”; Chapter Note 2
instructs that “parts and accessories for machines, apparatus,
instruments or articles of [Chapter 90] are to be classified
according to the following rules”:
(a) Parts and accessories which are goods included in any of
Court No. 07-00316 Page 19
1. “Appliance” or “instrument”
The Chapter Notes to Heading 9018 do not define “appliance” or
“instrument,” though dictionaries use these terms somewhat
interchangeably. These dictionary definitions indicate that an
“appliance” constitutes a “device,[26] apparatus[27], or instrument
the headings of [Chapter 90] or of [C]hapter 84[] [or] 85
(other than headings 8485, 8548 or 9033) are in all cases to
be classified in their respective headings;
(b) Other parts and accessories, if suitable for use
solely or principally with a particular kind of
machine, instrument or apparatus, or with a number of
machines, instruments or apparatus of the same heading
(including a machine, instrument or apparatus of
heading 9010, 9103 or 9103) are to be classified with
the machines, instruments or apparatus of that kind;
(c) All other parts and accessories are to be
classified in heading 9033.
Moreover, components of a machine that work together to perform a
certain function are classified in the heading appropriate to
that function. See Chapter Note 3 (Incorporating by reference
Section XVI Note 4 (“Where a machine (including a combination of
machines) consists of individual components (whether separate or
interconnected by . . . by electric cables or by other devices)
intended to contribute together to a clearly defined function
covered by one of the headings in [Chapter 90], then the whole
falls to be classified in the heading appropriate to that
function.”)). See also Explanatory Notes Heading 9018 (“Subject
to the provisions of Notes 1 and 2 to [Chapter 90], parts and
accessories of apparatus or appliances of this heading remain
classified here.”).
26
A “device” is “[s]omething constructed or devised for a
particular purpose, [especially] a machine used to perform one or
more relatively simple tasks.” Webster’s II New Riverside
University Dictionary 370 (1988).
A “machine” is “a device or system along with its source of
power and auxiliary equipment” or, more broadly, “[a] system,
[usually] of rigid bodies, constructed and connected to change,
transmit, and direct applied forces in a predetermined way to
Court No. 07-00316 Page 20
for performing or facilitating the performance of a particular
function.” Dorland’s Illustrated Medical Dictionary 116 (27th ed.
1988). See also 1 Oxford English Dictionary 575 (“[A] thing applied
as a means to an end” or an “apparatus”); Academic Press Dictionary
of Science and Techonology 140 (“[I]n general, any tool or machine
that is used to carry out a specific task or produce a desired
result.”). Similarly, an “instrument” is “any tool, appliance, or
apparatus.” Dorland’s Illustrated Medical Dictionary 842. See also
7 Oxford English Dictionary 1050 (“a tool[] or implement”28);
Webster’s Third New International Dictionary 1172 (2002) (A
“utensil”29 or a surgical “implement”); Academic Press Dictionary of
Science and Technology 1117 (“[A] mechanical tool or device,
especially one designed for precise operations”); Webster’s II New
Riverside University Dictionary 633 (“A means by which something is
accomplished”). These definitions are broad in nature. An
accomplish a particular objective, as performance of useful
work.” Id. 712. See also Academic Press Dictionary of Science
and Technology 1289 (a machine is “any device that transmits or
modifies energy...[or is] an assembly of interrelated parts, each
with a definite motion and separate function; used to perform a
specific task.”)
27
An “apparatus” is a “machine” or “group of machines used
together or in succession to accomplish a task.” Webster’s II New
Riverside University Dictionary 118.
28
The term “implement” includes “tool[s], utensil[s], or
instrument[s] for doing a task.” Webster’s II New Riverside
University Dictionary 614.
29
A “utensil” is “[a]ny useful tool . . . .” Webster’s II
New Riverside University Dictionary 1272.
Court No. 07-00316 Page 21
appliance, device or machine, need only accomplish one “simple task”
or serve a “particular function” in providing “useful work.”30
Trumpf’s light systems qualify under the broad common meaning
of these terms because the light systems perform a specific task.
2. Professional Use
The Explanatory Notes instruct that Heading 9018 covers a “wide
range of instruments and appliances which in [the] vast majority of
cases are used only in professional practice.” Explanatory Notes
9018 (emphasis added). For example, the Heading includes articles
used by doctors, surgeons, and dentists “either to make a diagnosis,
to prevent or treat an illness or to operate.” Id.31 As stated
above, Trumpf claims that its surgical light systems have but “one
commercial use and that is assisting surgeons during an operation
in an operating theater.” (Compl. ¶ 8).
Arguing to the contrary, the government states that STERIS
lightheads, though another brand of surgical lightheads, are used
in art conservatories. Through the affidavit of a lighting
designer, the government claims that the use of a STERIS lighthead
30
Further, in our case law, “there is no ‘judicial
determination’ of what a machine is. It remains simply a question
of common meaning . . . .” Victoria Distributors, Inc. v. United
States 56 Cust.Ct. 284, 288, 1966 WL 9504 (1966).
31
Heading 9018 will also cover a number of medical tools,
such as “hammers, mallets, saws . . . or articles of cutlery
(scissors, knives, shears etc.) . . . only when they are clearly
identifiable as being for medical or surgical.” Id.Court No. 07-00316 Page 22
in an art conservatory confirms that these types of light systems
are used in forums outside of the medical industry. See Rosenfeld
Decl.
To the court, however, even assuming that a lighthead similar
to Trumpf’s has another potential use, the Explanatory Notes for
Heading 9018 provide some flexibility. The phrase “in the vast
majority of cases” indicates an understanding that a single example
of an appliance used outside of the medical profession does not
preclude coverage under this heading.
While the parties do not agree that Trumpf’s surgical light
systems are used solely for medical and surgical purposes, all of
the evidence submitted indicates that the light systems’ design is
still “clearly identifiable” as for medical use; moreover, there is
no dispute that these lights are commonly seen only in the medical
setting. See Pl.’s Resp. To Questions Exhibit A. Accordingly, the
court cannot conclude that the government has raised a material
issue of fact on the issue of professional use.
3. “Diagnostic”
Of particular significance here, the Explanatory Notes state
that Heading 9018 includes “[l]amps which are specially designed for
diagnostic, probing, irradiation etc. purposes.” Id. (I)(R)
(emphasis added).32 The parties dispute the meaning of the term
32
Torches such as those in the shape of a pen are excluded
(heading 85.13) as are other lamps which are not clearly
identifiable as being for medical or surgical use (heading
Court No. 07-00316 Page 23
“diagnostic,” and whether the illumination33 that Trumpf’s surgical
light systems provide constitutes a “diagnostic purpose.”
Unsurprisingly, “diagnostic” denotes “relating to or based on
a diagnosis.” Academic Press Dictionary of Science and
Technology 625. “Diagnosis” specifically means “the identification
of a disease or condition on the basis of its signs and symptoms.”
Id. In medical terms, “diagnostic” “pertain[s] to or subserv[es]
diagnosis; [or is] distinctive of or serving as a criterion of a
disease, as signs and symptoms.” Dorland’s Illustrated Medical
Dictionary 461. Thus, a light system that is configured in such a
way as to assist a health professional to detect the “signs and
symptoms” of a condition or disease has a diagnostic use.
In its classification ruling, Customs stated that because
Trumpf’s surgical lights do not come in “direct contact...or []
close proximity with the patient for the sole benefit of diagnosis
of disease” HQ 967747 (Mar. 21, 2006), they cannot be defined as
a diagnostic tool. Trumpf claims that this idea of proximity is not
necessary to assist a physician in diagnosis. In addition, Trumpf
claims that the lights are within “several feet” of the patient
94.05). Id. (I)(R)
33
Both parties agree that Trump’s surgical lights provide
illumination (See Def.’s Resp. to Pl.’s Stmt. of Material Facts
not in Dispute ¶10; Def.’s Resp. to Questions at 4; Pl.’s Mem. at
10; Cobbs ¶ 4; Blessing ¶ 4; 21 C.F.R. § 878.4580 (citing the
Food and Drug Administration (“FDA”)).
Court No. 07-00316 Page 24
during operations and are thus in close proximity to the patient.
Trumpf further claims that surgery is often required for diagnosis,
and that the surgical lights assist in examination, probing and
observation of a patient. (Pl.’s Mem. At 22-23).
The notion of spacial proximity is not included in the
definition of “diagnostic,” the meaning of which turns upon the role
the instrument plays in assisting a physician to identify and
determine diseases and conditions. Surgical lighting is, of course,
not the only factor in diagnosis. When a variety of diagnostic
tools are required, lighting may not even be the main tool used in
a diagnosis. However, a surgical light does assist in diagnosis by
providing proper and specific illumination, without which operations
and exploration into a patient’s condition would be extremely
difficult.
Rules of statutory interpretation support this view.
Specifically, under the rule of noscitur a sociis, if the language
of a statute is ambiguous, “the meaning of an unclear word or phrase
should be determined by the words immediately surrounding it.”
Black’s Law Dictionary (9th ed. 2009) 1160-61; See also X-Acto
Crescent Products Co., Inc. v. United States 27 Cust. Ct. 190, 190-
191, Not Reported in F.Supp., WL 6228 (1951). Therefore, the
meanings of the words “probing” and “irradiation” should shed light
upon the meaning of “diagnostic,” and provide clues about what may
be included in the “etc.” in this list.
Court No. 07-00316 Page 25
“Probing” is “exploring or searching with the aid of a probe.”
Webster’s II New Riverside University Dictionary 937; medically, a
probe is a “slender, flexible instrument designed for introduction
into a wound, cavity or sinus tract for purposes of exploration.”
Dorland’s Illustrated Medical Dictionary 1355. Further, to
“irradiate” is “[t]o send forth in a way analogous to the emission
of light.” Webster’s II New Riverside University Dictionary 644. In
medical terms, “irradiation” is “treatment by photons, electrons,
neutrons, or other ionizing radiations...the application of rays,
such as ultraviolet rays, to a substance to increase its vitamin
efficiency” Dorland’s Illustrated Medical Dictionary 856.
It follows that the act of irradiation is similar to
illumination in that, in both cases, rays are emitted. Even though
irradiation provides treatment for a patient, proper illumination
assists a doctor to explore a field (similar to a probe), in order
to diagnose a disease or condition. Thus, in context, the term
diagnostic is broad enough to include Trumpf’s surgical lighting
systems.
Because the Defendant presents no evidence to dispute Trumpf’s
evidence that its surgical light’s “chief use” is “as an aid to
physicians in identifying a disease or illness from its signs and
symptoms” Instrumentation Associates, Inc. v. United States 58
Cust.Ct. 471, 479, 269 F.Supp. 777, 783 (Cust.Ct. 1967), the light
systems can be considered a diagnostic tool.
Court No. 07-00316 Page 26
CONCLUSION
For the foregoing reasons, the court concludes that Plaintiff’s
entries of complete surgical light systems are correctly classified
under HTSUS 9018.90.60 and not under Heading 9405.10.6020, as
classified by Customs. The parties are directed to review the
descriptions and components of the entries identified in Appendix
B and to determine how these entries should be classified consistent
with this Opinion. A draft judgment shall be submitted by November
29, 2010, provided that if the parties cannot agree to the terms of
said judgment, they shall submit statements of their positions with
regard to all of the entries at issue.
It is SO ORDERED
/s/ Donald C. Pogue
Donald C. Pogue, Judge
Dated: October 27, 2010
New York, New York
Court No. 07-00316 Page 27
APPENDIX A
Characteristics of surgical light systems:
1. High Illumination/Brightness
Illumination is “the act of adding light to a surface” (Ex. B
to Pl.’s Mot. Summ. J. 6) and is measured, internationally, in
“lux.”34 (Id.) Industry standards35 dictate that surgical lights
should produce a minimum illuminance of 100,000 lux or 100 klux.
(Ex. A to Pl.’s Mot. Summ. J. 2. Accord Ex. B to Pl.’s Mot. Summ.
J. 6.) Peak central illuminance should not exceed 160 klux, as this
light level will cause glare and increase irradiation. (Ex. A to
Pl.’s Mot. Summ. J. 8. Accord Ex. B to Pl.’s Mot. Summ. J. 12.)
Illumination from a surgical light must be consistent (Ex. B to
Pl.’s Mot. Summ. J. 10,) intense, and uniform. (Ex. A to Pl.’s Mot.
Summ. J. 2.)
2. Color Rendition of Tissue
A surgical light must carefully calibrate the color of the
emitted light such that surgeons are able to view, in true color,
tissue, organs, and skin. The emitted light must be as close to
34
One lux is “equal to the illumination of a surface all of
which is one metre from a uniform point source of light of unit
intensity . . . .” 9 Oxford English Dictionary (2nd 1989) 127.
35
Industry standards come from Illuminating Engineering
Society and the International Electrotechnical Commission. (Ex. B
to Pl.’s Mot. Summ. J. 11-12.) The U.S. Food and Drug
Administration (“FDA”) mandates that companies must follow either
of these guidelines. (Id. 11.)
Court No. 07-00316 Page 28
white as possible, mimicking that of noon sunlight. (Ex. B to Pl.’s
Mot. Summ. J. 7. See also Ex. A to Pl.’s Mot. Summ. J. 2.) One way
of ensuring faithful color is to manipulate color temperature.36
Color temperature is measured in degrees of Kelvin. (Ex. B to Pl.’s
Mot. Summ. J. 7.) According to industry standards, color
temperature should range from 3500 to 6700 Kelvin; surgeons prefer
a color temperature of approximately 4500 Kelvin. (Id.)
Another measure of true color uses the Color Rendering Index
(“CRI”). (Ex. A to Pl.’s Mot. Summ. J. 7.) The CRI “measures the
effect of the light on the color appearance of the objects being
seen.” (Ex. B to Pl.’s Mot. Summ. J. 9.) CRI values anywhere from
85% to 100% are acceptable. (Ex. A to Pl.’s Mot. Summ. J. 7.) A
surgical light rating of 94% is considered “good.” (Ex. B to Pl.’s
Mot. Summ. J. 9.) As a comparison, florescent lights have a CRI of
around 70%. (Ex. A to Pl.’s Mot. Summ. J. 7.)
3. Light Field Diameter
The light pattern37 diameter of the light field is also
36
If the color temperature is too low, emitted light appears
pink or red, whereas if the color temperature is too high,
emitted light appears blue. (Ex. A to Pl.’s Mot. Summ. J. 2; Ex.
B to Pl.’s Mot. Summ. J. 7.) The surgical light color
temperature should fall between these two hues. (Ex. A to Pl.’s
Mot. Summ. J. 2; Ex. B to Pl.’s Mot. Summ. J. 7.)
37
The light pattern is “an area in which the level of
illumination tapers from the center to the periphery so that
illumination at the edge is no less than 20% of that at the
center.” (Ex. B to Pl.’s Mot. Summ. J. 13.)
Court No. 07-00316 Page 29
important; if the diameter is too large, glare can be a problem,
but, if a surgeon needs diffuse light, a small diameter can also
pose problems. (Id. 3.) The light field must be large enough to
illuminate the particular surgery involved. (See id. 7.) Given the
diversity of types of surgeries, surgical lights should allow for
adjustment of the light pattern size. (Id. 3.) In any event,
industry standards dictate that the light pattern diameter should
not be smaller than eight inches. (Ex. B to Pl.’s Mot. Summ. J. 13.)
4. Shadow Reduction
In order to ensure optimal illumination of the surgical site,
the light must minimize contrast shadows.38 (Ex. A to Pl.’s Mot.
Summ. J. 2.) The light, therefore, must have the ability to beam
light around obstacles located between the light and the wound. (Ex.
B to Pl.’s Mot. Summ. J. 9.) The light’s design can involve
lighthead diameter,39 the number of lighthead lamps, the type of
lens, or the type of refraction system. (Id.)
5. Limited Heat/Irradiance
While providing for optimal lighting, a surgical light must
38
Contrast shadows “result from obstructions cast by hands
or instruments” whereas contour shadows “help the surgeon
differentiate between fine tissue striations and vasculature.”
(Ex. A to Pl.’s Mot. Summ. J. 2.) Thus, a good surgical light
must limit contrast shadows but maintain contour shadows. (Id.)
39
The larger the lighthead diameter, the better the shadow
control.
Court No. 07-00316 Page 30
nonetheless limit its radiated energy, or its irradiance. (Id. 8;
Ex. A to Pl.’s Mot. Summ. J. 7.) This is because heat will both
dessicate tissue and make the surgical team uncomfortable. (Ex. A
to Pl.’s Mot. Summ. J. 2-3.) Unfortunately, irradiance increases
with increased illumination. (See Ex. B to Pl.’s Mot. Summ. J. 8.)
For this reason, many surgical lights attempt to limit heat emission
by using light filters, lenses, reflectors, reflector coatings, and
sealed light designs (id. 11,) and/or by designing the light in such
a way that it releases the heat behind the lighthead, (id. 8-9.)
6. Depth of Illumination40
A surgical light must provide sufficient depth of field, that
is, sufficient range of illumination in order to reach tissue on
surgery tables located a certain distance away from the light. (Ex.
A to Pl.’s Mot. Summ. J. 8. See also Ex. B to Pl.’s Mot. Summ. J.
9 (“depth of field . . . indicates the length of the range within
the focused, usable light that is projected”).) Depth of field is
measured as “the depth below the one-metre level reference point at
which the central illumination falls to 20% of its initial value.”
(Ex. A to Pl.’s Mot. Summ. J. 8.) Ideally, the light should be
positioned such that the surgical site is within the light’s focal
length, that is, positioned so that “the area where the [light]
40
In the literature before the court regarding surgical
lights, depth of illumination is sometimes also referred to as
depth of field, focal length, or depth of focus. (Ex. B to Pl.’s
Mot. Summ. J. 9; McArver Aff. ¶ 15.)
Court No. 07-00316 Page 31
pattern is at its brightest and most focused” shines on the surgical
cavity. (Ex. B to Pl.’s Mot. Summ. J. 9.)
7. Other Factors
Other factors hospitals consider when purchasing surgical lamps
include: abilities to “transfer video signal and power to multiple
flat panel monitors,” “incorporate video camera systems,” and
“integrate into endoscopic automation systems”; conventional
illumination of the operating room; “flexibility” and
“maneuverability”; stability –- that is, the light will not drift
away; sterile control; and ease of cleaning. (Id. 9-10.)
Court No. 07-00316 Page 32
APPENDIX B
1. Entry No. 233-3416935-8
Trumpf describes this entry as containing “70 examination lights,
Helion ® S light[s] specially configured to mount on TRUMPF’s
critical care nursing booms.” (McArver Aff. Dated June 2, 2010
¶3.)41 Trumpf further contends that these are “examination lights”
used for “medical diagnostic uses.” Pl.’s Resp. to Questions at 4).
Defendant contests that these lights are imported for use with the
booms, not the surgical light systems, and that Plaintiff should not
now be able to bring an action for lights not part of the surgical
light systems at issue. Def.’s Resp. to Questions at 7.
2. Entry No. 233-3302102-2
Trumpf’s evidence states that “Entry [No.] []233-3302102-2
contain[ed] seven flat panel display mounts on separate pendants.”
(McAver Aff. Dated June 2, 2010 ¶3-f.) The commercial invoice
number for this entry provides an identical description. (Id. ¶2-3
(Invoice, Ex. F to McArver Aff. Dated June 2, 2010, 28.))42 The
41
The government asserts that this entry simply included
light bulbs. (See Def.’s Resp. to Pl.’s Stmt. of Material Facts
not in Dispute ¶4.)
42
See also McAver Aff. Dated June 2, 2010 ¶2 (“There are no
price lists which identify the components contained in each of
TRUMPF’s surgical light products contained in these entries.”).)
The court interprets Trumpf to claim that all products mentioned
in the affidavit are part of surgical light systems and therefore
Court No. 07-00316 Page 33
government asserts that this entry simply contained pendants and
flat panel mounts. (Def.’s Resp. to Pl.’s Stmt. of Material Facts
not in Dispute ¶4.) According to the government, “pendants” are
suspension systems which are suspended from the ceiling with display
monitors and no lights[.]” (See id.)
3. Entry No. 233-3257991-3
Trumpf describes the contents of Entry No. 233-3257991-3 as; “three
flat panel display mounts on separate pendants” or three systems of
Helion® L+/L lights with flat panel mounts. (McArver Aff. Dated June
2, 2010 ¶3-d.) The government argues that these entries simply
contained pendants with flat panel display mounts and “several
numerous articles not identified as being components of complete
unassembled surgical lights.” (Def’s Resp. to Pl’s Stmt. of Material
Facts not in Dispute ¶4.)43
4. Entry No. 233-5554827-4
The government asserts that Entry No. 233-5554827-4 contained flat
panel mounts with separate pendant systems that are suspended from
the ceiling, with neither lights nor display monitors. (Def’s Resp.
to Pl’s Stmt. of Material Facts not in Dispute ¶4.) The government
claims that these articles are not part of Trumpf’s surgical
do not have their own price lists as separate parts.
43
The invoices also appear to suggest a difference in size
and a difference between flat panel display mounts and flat panel
displays.
Court No. 07-00316 Page 34
lighting system. (Def’s Resp. to Questions at 7). Trumpf states that
this entry contains “six surgical light systems and six flat panel
display mounts on separate pendants” (Pl.’s Resp. to Questions at
4), as well as “six flat panel mounts on separate pendants.” (Id.
at 5.) The entry also includes eighteen transformers for use with
Xenion® L/L lights.
5. Entry No. 233-3302107-1
Plaintiff claims that Entry No. 233-3302-107-1 contained two Helion®
systems and two flat panel display mounts. (McArver Aff. Dated June
2, 2010 ¶3-e.) According to Trumpf, the systems consisted of
pendants and surgical lights in two configurations. (Id.) One
configuration is a Helion® L+ “with a flat panel display and
including the transformer boxes and control units.” (Id.) The other
is a “Helion® M+ light system with a flat panel display and
including the transformer boxes and control units.” (Id.) The
entry also included “two flat panel display mounts on separate
pendants.” (Id.)
6. Entry No. 233-3247748-0
Plaintiffs cite invoices indicating that this entry contained “12
individual systems with Xenion® L/L lights, handles, identified as
‘side rails,’ wall controls and transformers.” (Id. ¶3-g.) The
pendants and the surgical lights were also included. (Id.) “In
addition, this entry also contain[ed] 12 flat panel display mounts
Court No. 07-00316 Page 35
on separate pendants, which are identified on the commercial
invoice.” (Id.)
7. Entry No. 233-3317874-9
Entry No. 233-3317874-9 “contain[ed] eight systems with Helion® L+
lights, their transformers and controls.” (Id. at ¶3-h.) The
systems included the pendants and the lights. (Id.) The entry,
moreover, “contain[ed] eight flat panel display mounts on separate
pendants.” (Id.) The government claims that this entry contained no
lights (Def’s Resp. to Questions at 7). Trumpf contends “that
these components constitute surgical light systems.” (Pl.’s Resp.
to Questions at 6).
8. Entry No. 233-5510440-9
Trumpf asserts that Entry No. 233-5510440-9 consisted of pendants,
surgical lights, and a “flat panel mount on a separate pendant.”
(McArver Aff Dated June 2, 2010 ¶3-c.) Specifically, the imported
systems in this entry contained “two Xenion lights: Xenion® L/
Xenion® M+.” (Id.) This entry also included transformers used with
the Xenion® L/ Xenion® M+ light systems. (Id.) The government again
contends that this entry “contain[ed] several [] articles not
identified as being the components of the complete unassembled
surgical lights system contained in the entry.” (Def’s Resp. to
Pl.’s Statement of Material Fact Not in Dispute ¶4.)
ERRATA
Slip Op. 10-123, issued October 27, 2010
Trumpf Medical Systems, Inc. v. United States
Footnote 33, page 23 - “Trump’s” should be “Trumpf’s”