Applied Biosys. v. United States

• Decision Date: 28 June 2010
• Docket Number: Court No. 03-00251.,Slip Op. 10-72.
• Citation: 715 F.Supp.2d 1327
• Parties: APPLIED BIOSYSTEMS (A DIVISION OF APPLERA CORPORATION), Plaintiff, v. UNITED STATES, Defendant.
• Court: U.S. Court of International Trade

715 F.Supp.2d 1327

APPLIED BIOSYSTEMS (A DIVISION OF APPLERA CORPORATION), Plaintiff,

v.UNITED STATES, Defendant.

Slip Op. 10-72.

Court No. 03-00251.

United States Court ofInternational Trade.

June 28, 2010.

Rodriguez, O'Donnell, Gonzalez and Williams, P.C. (Thomas J. O'Donnell, Michael A. Johnson, and Laura A. Austrins) for Plaintiff Applied Biosystems (A Division of Applera Corporation).

Tony West, Assistant Attorney General; Barbara S. Williams, Attorney-in-Charge, International Trade Field Office, Commercial Litigation Branch, Civil Division, U.S. Department of Justice (Amy M. Rubin); and Yelena Slepak, Office of the Assistant Chief Counsel, International Trade Litigation, U.S. Customs and Border Protection, Of Counsel, for Defendant United States.

Before: WALLACH, Judge.

OPINION

WALLACH, Judge:

I

INTRODUCTION

This action involves classification under the Harmonized Tariff Schedule of the United States (“HTSUS”) of certain thermal cyclers and thermal cycler parts. U.S. Customs and Border Protection (“Customs”) classified these goods under HTSUS Heading 8419, which includes “machinery, plant or laboratory equipment ... for the treatment of materials by a process involving a change of temperature” as well as “parts thereof.” Plaintiff Applied Biosystems (A Division of Applera Corporation) (“Plaintiff”) argues that these goods should instead be classified under HTSUS Heading 9032, which includes “[a]utomatic regulating or controlling instruments and apparatus” as well as “parts and accessories thereof.” ¹

The court has jurisdiction under 28 U.S.C. § 1581(a). Defendant United States (“Defendant”) seeks summary judgment in its favor. See Defendant's Motion for Summary Judgment (“Defendant's Motion”). Plaintiff opposes summary judgment and seeks trial. See Plaintiff's Motion for Denial of Defendant's Motion for Summary Judgment and to Fix a Date and Place for Trial (“Plaintiff's Motion”). ² The parties have stipulated that the thermal cycler parts at issue are of a kind that should be classified under the same HTSUS heading as the thermal cyclers. See infra Part IV.C. Defendant's Motion is GRANTED, and Plaintiff's Motion is DENIED. HTSUS Heading 8419 accurately describes the function of a thermal cycler, namely “treatment of materials by a process involving a change of temperature.” In contrast, HTSUS Heading 9032 describes only those elements of a thermal cycler that regulate heating and cooling and does not describe those elements that actually heat and cool.

II

BACKGROUND

AProcedural History

This action covers certain thermal cyclers and thermal cycler parts imported by Plaintiff between March 2000 and July 2002. See Summons. ³ Customs classified the thermal cyclers under HTSUS Subheadings 8419.89.90 (2000-2001) and 8419.89.95 (2002) and assessed duties at some rate between 4.2 percent ad valorem and 4.7 percent ad valorem. See id.; Complaint ¶ 11; Answer to Complaint (“Answer”) ¶ 11. ⁴ It classified the parts under HTSUS Subheadings 8419.90.80 (2000-2001) and 8419.90.95 (2002) and assessed duties at the 4 percent ad valorem rate applicable to these subheadings. See Complaint ¶ 12; Answer ¶ 12. ⁵

In nine protests that were timely as to the 162 entries that remain part of this action, Plaintiff asked Customs to reclassify the thermal cyclers under HTSUS Subheading 9032.89.60 (2000-2002) and the parts under HTSUS Subheading 9032.90.60 (2000-2002). See Summons; Plaintiff's Response to Defendant's Statement of Material Facts As to Which There Are No Genuine Issues to Be Tried (“Plaintiff's Response to Defendant's Fact Statement”) ¶ 2. ⁶ The duty rate applicable to these subheadings is 1.7 percent ad valorem. See HTSUS Subheading 9032.89.60 (2000-2002); HTSUS Subheading 9032.90.60 (2000-2002).

After Customs denied those protests, Plaintiff initiated the instant action. See Summons. The court designated this action as a test case and suspended under it nine additional actions initiated by Plaintiff. See June 1, 2005 Order. Defendant then moved for summary judgment in its favor, see Defendant's Motion, and Plaintiff moved for denial of Defendant's Motion and “to set a date and place for the trial of this action,” Plaintiff's Motion at 1.

BDescription Of The Imported Goods ⁷

A thermal cycler is an apparatus for “controlled automated performance of polymerase chain reactions .” U.S. Patent No. 5,475,610 (December 12, 1995) at 243 ¶ 1, cited in Plaintiff's Statement of Material Facts Supplemental to Defendant's Statement of Material Facts (“Plaintiff's Fact Statement”) ¶ 37. ⁸ A polymerase chain reaction (“PCR”) amplifies-that is, massively replicates-certain deoxyribonucleic acid (“DNA”) sequences over multiple cycles. See Plaintiff's Fact Statement ¶ 10. These reactions occur in a liquid mixture comprising the subject DNA, primers, an enzyme known as DNA polymerase, nucleotide precursors, and a buffer solution. See id. ¶ 21. In the first step (denaturation), the mixture is initially heated (typically to 94°C) so that the single strands of each DNA double helix unwind. See id. ¶ 22. In the second step (annealing), the mixture is then rapidly cooled so that a primer binds to the target segment of each strand. See id. In the third step (synthesis), the mixture is again heated (typically to 72°C) so that the DNA polymerase forms a new complementary DNA segment for each target segment. See id. These three steps are repeated for each cycle. See id. ¶ 23. ⁹ If the subject DNA contains the target segment and each reaction is perfect, then 20 cycles will produce more than a million copies of each such segment and 30 cycles will produce more than a billion copies. See id. ¶ 28.

As its name suggests, a thermal cycler automates this thermal cycling. See id. ¶ 42. The apparatus fits on a countertop and has four pertinent elements:

1) A sample block into which tubes containing the reaction mixture are inserted;

2) A means of heating and cooling the sample block;

3) Sensors that measure the temperature of the sample block; and

4) A computer that calculates temperatures and directs the heating and cooling.

See U.S. Patent No. 5,475,610 at 243 ¶ 1; Plaintiff's Fact Statement ¶¶ 45, 66, 86-92, 95, 108, 112-13; Exhibits 2-7, Deposition of Douglas Grunewald (April 30, 2009) Confidential Exs. 2-6, Annex E, Plaintiff's Motion; see also U.S. Patent No. 5,038,852 (August 13, 1991) at 38 ¶ 1; U.S. Patent No. 5,333,675 (August 2, 1994) at 60-61 ¶ 1; U.S. Patent No. 5,656,493 (August 12, 1997) at 55-56 ¶¶ 1-4; U.S. Patent No. 7,133,726 B1 (November 7, 2006) at 14 ¶ 1. The thermal cyclers at issue in the instant action incorporate either solid state thermoelectric devices for both heating and cooling or a combination of resistance heaters for heating and chillers for cooling. See Plaintiff's Fact Statement ¶¶ 95, 108, 112-13.

III

STANDARD OF REVIEW

In a classification case, “the court construes the relevant (competing) classification headings, a question of law; determines what the merchandise at issue is, a question of fact; and then” determines “the proper classification under which [the merchandise] falls, the ultimate question in every classification case and one that has always been treated as a question of law.” Bausch & Lomb, Inc. v. United States, 148 F.3d 1363, 1366 (Fed.Cir.1998).

The court will grant a motion for summary judgment “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 judgment as a matter of law.” USCIT R. 56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Accordingly, summary judgment in a classification case is appropriate only if “the material facts of what the merchandise is and what it does are not at issue.” Diachem Indus. Ltd. v. United States, 22 CIT 889, 892, 1998 WL 647429 (1998) (citation omitted).

The court determines the proper classification de novo by applying the HTSUS General Rules of Interpretation (“GRIs”) and the HTSUS Additional U.S. Rules of Interpretation (“ARIs”) in numerical order. See Faus Group, Inc. v. United States, 581 F.3d 1369, 1372 (Fed.Cir.2009); Carl Zeiss, Inc. v. United States, 195 F.3d 1375, 1379 (Fed.Cir.1999); Rollerblade, Inc. v. United States, 112 F.3d 481, 483-84 (Fed.Cir.1997). ¹⁰ GRI 1 provides in relevant part that “classification shall be determined according to the terms of the [HTSUS] headings and any relative section or chapter notes.” GRI 1 (2000-2002). ¹¹ “Absent contrary legislative intent, HTSUS terms are to be construed according to their common and commercial meanings, which are presumed to be the same.” Carl Zeiss, 195 F.3d at 1379 (citing Simod Am. Corp. v. United States, 872 F.2d 1572, 1576 (Fed.Cir.1989)).

“To assist it in ascertaining the common meaning of a tariff term, the court may rely on its own understanding of the terms used and may consult lexicographic and scientific authorities, dictionaries, and other reliable information sources.” Baxter Healthcare Corp. v. United States, 182 F.3d 1333, 1337-38 (Fed.Cir.1999) (citation omitted). Although not dispositive, the Explanatory Notes maintained by the Harmonized System Committee of the World Customs Organization do “clarify the scope of the HTSUS subheadings and offer guidance in their interpretation.” Franklin v. United States, 289 F.3d 753, 758 (Fed.Cir.2002) (citation omitted); see H.R. Conf. Rep. No. 100-576, 100th Cong., 2d Sess. 549 (1988) at 26-27, reprinted in 1988 U.S.C.CA.N. 1547, 1582.

IV

DISCUSSION

Jurisdiction is available under 28 U.S.C. § 1581(a). See 28 U.S.C. § 1581(a); June 14, 2005 Joint Statement of Jurisdiction. There is no genuine issue as to any material fact concerning the thermal cyclers. See infra Part IV.A. Customs properly classified the thermal cyclers under HTSUS Heading 8419. See infra Part IV.B. The thermal cyclers are completely described by this heading, see infra Part IV.B.1,...