[00:00:14] Speaker 03:
Next case for argument is 15-1866, Otter Products versus United States.

[00:01:16] Speaker 03:
Ms.

[00:01:26] Speaker 03:
Farrell, I think we're all ready to proceed.

[00:01:35] Speaker 03:
Thank you, Your Honor.

[00:01:36] Speaker 03:
Just to clarify just up front, so we based on these recent orders, so you've gotten the material from the CIT.

[00:01:43] Speaker 03:
Yes, Your Honor.

[00:01:44] Speaker 03:
It includes the products and also the information that

[00:01:47] Speaker 03:
the other side wanted with respect to declarations and so forth.

[00:01:51] Speaker 01:
Yes, Your Honor.

[00:01:52] Speaker 01:
It says confidential document that was part of an exhibit.

[00:01:54] Speaker 01:
It was a transferral as well as a declaration.

[00:01:57] Speaker 01:
And we have the exhibits that were transferred as well as a declaration.

[00:02:00] Speaker 03:
Let me just ask your friend on the other side that he agrees.

[00:02:03] Speaker 03:
There's no dispute there that all of that information has been provided.

[00:02:07] Speaker 03:
That is correct.

[00:02:08] Speaker 03:
Thank you.

[00:02:09] Speaker 03:
Thank you both.

[00:02:12] Speaker 01:
Thank you, Your Honors.

[00:02:13] Speaker 01:
May it please the court, Beverly Farrell for the United States.

[00:02:16] Speaker 01:
Your Honors, the trial court erred fundamentally in this case because it did not use the common meaning of the word container when it began its analysis.

[00:02:27] Speaker 01:
What the court did instead was design a new definition based on running an adjustum generis analysis of a definition that happened to have a list of, not exclusive list,

[00:02:41] Speaker 01:
of examples of what would fall within the meaning of container.

[00:02:48] Speaker 01:
And that was the fundamental error that the trial court committed.

[00:02:51] Speaker 01:
When it did that, when it conducted the adjustment generis analysis, it came to the conclusion that containers of heading 4202 are containers that require you to open

[00:03:02] Speaker 01:
or close them to use the articles inside.

[00:03:05] Speaker 03:
OK, before we get into that argument with respect to error there, do you disagree?

[00:03:11] Speaker 03:
The Court of International Trade, as I understand it, said we're going to look at what the essential characteristics are here.

[00:03:18] Speaker 03:
And it came up with four kind of categories, organizing, storing, protecting, and caring.

[00:03:23] Speaker 03:
Am I right so far?

[00:03:24] Speaker 01:
Yes, Your Honor.

[00:03:25] Speaker 03:
Does the government take issue with respect to that?

[00:03:29] Speaker 01:
Your Honor, yes.

[00:03:31] Speaker 01:
With respect to those four categories, we know that this court has used those four categories in understanding the just and generous analysis for heading 4202, both the first portion of heading 4202 as well as the second portion of heading 4202, because that heading is broken in two pieces by a semicolon.

[00:03:52] Speaker 01:
And that second portion is actually circumscribed by the materials of which those articles are made

[00:04:00] Speaker 01:
The first portion, different set of exemplars, but it doesn't have that type of limiting factor of what is your material.

[00:04:07] Speaker 01:
This court, since totes, even before totes back during the tutsis in understanding the predecessor heading, which dealt with travel bags and those types of articles, looked at four factors.

[00:04:22] Speaker 01:
Organizing, storing.

[00:04:24] Speaker 02:
Is there a single case that you can cite where we

[00:04:27] Speaker 02:
didn't require that all four factors be satisfied?

[00:04:31] Speaker 01:
Your Honor, we're not aware that they were required or not required.

[00:04:35] Speaker 01:
They were always mentioned, but there are instances where this court has used the word or.

[00:04:40] Speaker 02:
And the reason the reason that we've never actually said it, but we've also never had we've never endorsed a factual circumstance in which all four were not satisfied.

[00:04:49] Speaker 01:
That's right, Your Honor.

[00:04:50] Speaker 01:
I mean, there were there were instances where one factor is kind of mentioned offhandedly in the totes case.

[00:04:58] Speaker 01:
The court mentions offhandedly carrying because it notes, well, it has handles, but it's sitting in the trunk of a car.

[00:05:05] Speaker 01:
And so it doesn't really consider that the handles are playing the role of carrying because it's actually sitting in the trunk of a car and being conveyed by the car.

[00:05:15] Speaker 01:
So there's not clarity that these four factors are actually mandatory.

[00:05:21] Speaker 01:
And when you look at the items, the exemplars in the heading,

[00:05:26] Speaker 01:
For example, organizing.

[00:05:28] Speaker 01:
The trial court grappled with that.

[00:05:30] Speaker 04:
What do you think we meant in avenues and leather, the 2005 one, where we said we have previously held that the, quote, the common characteristic, the unifying purpose of the goods in heading 4202 consists of organizing, storing, protecting, and carrying various items?

[00:05:49] Speaker 01:
When one talks in terms of a unifying characteristic,

[00:05:54] Speaker 01:
The court didn't say that it was mandatory that all four be met, but rather that these four factors are somehow a unifying characteristic of the heading.

[00:06:03] Speaker 04:
And so that's an example of where we've said and, and we were quoting ourselves when we said and.

[00:06:09] Speaker 01:
Yes, Your Honor.

[00:06:10] Speaker 01:
But it's unclear that the and was meant to be a mandatory and.

[00:06:15] Speaker 01:
Sometimes and can just be used as these are the four things, this, this, and this, but not that all four are mandatory.

[00:06:23] Speaker 02:
But even if it's not, even if all four aren't mandatory, and I'm not sure I agree with you that we haven't said that they're mandatory in the past, but even if all four were mandatory, if you're looking at it, doing a similarity analysis, you'd have to at least say that you have to have more than one.

[00:06:41] Speaker 01:
You might say that, Your Honor, but fundamentally the meaning of the word container has been defined to mean container store and also something that holds or carries.

[00:06:52] Speaker 01:
So two of the factors are factors that are almost inherent in the meaning of the word container.

[00:06:58] Speaker 01:
So virtually all containers are understood by definition, common meaning, that they do hold within, they carry something within themselves, and that they store.

[00:07:09] Speaker 01:
Because if you're holding something within yourself, unless you are removing or using the article that's being held within, unless you're actually using that article, when that article is not currently being used,

[00:07:21] Speaker 01:
If that container still encloses that article, it's storing by definition.

[00:07:26] Speaker 01:
I don't understand.

[00:07:28] Speaker 03:
So if all the functionality is available with this case on it, I mean, it's functional.

[00:07:33] Speaker 01:
Right.

[00:07:33] Speaker 03:
So I use it just because I don't use it every second of the day, that means it's being stored when I'm not using it?

[00:07:39] Speaker 01:
Yes, Your Honor, because container, the common meaning of the word container is to contain or store.

[00:07:44] Speaker 01:
Indeed, the trial court found that as one of the meanings of the word container.

[00:07:50] Speaker 01:
So the fact that it can store or contain, it's doing that simultaneously.

[00:07:57] Speaker 01:
So the fact that you're not using an article at that exact moment in time, if you set it aside, the moment it's set aside, that container is now serving a purpose of storing because it's not using the articles that are being contained

[00:08:12] Speaker 01:
by the container, whether you're removing them from the container or whether you're using them in the container.

[00:08:18] Speaker 01:
When you're not actually using the articles that are being contained, then at that moment in time, they're being stored because the common meaning of a container is to contain or store articles.

[00:08:32] Speaker 01:
So it's actually in the definition, at least according to the trial court, one of the definitions the trial court found to be the common meaning of the word container includes storing.

[00:08:41] Speaker 04:
Of course, the CIT went further and said when it comes to understanding of storing and then you look at the listed items like trunks, suitcases, vanity cases, attache cases, briefcases, school satchels, etc., the notion of storing in all those examples is literally

[00:09:05] Speaker 04:
taking an item, putting it into something, and putting it away so you're no longer really using that item.

[00:09:13] Speaker 04:
The phone cases we're talking about here, to the extent this is a case or a container, you're using that phone as it resides inside or attached to the case at hand.

[00:09:30] Speaker 01:
Well, Your Honor, there are also two exemplars in this heading, a binocular case

[00:09:35] Speaker 01:
and a camera case.

[00:09:36] Speaker 01:
And the camera case is not a camera bag where you throw the camera and film and things like that.

[00:09:41] Speaker 01:
It's an actual form-fitted case that goes over a camera.

[00:09:46] Speaker 02:
But the camera's not usable while the case is going over it.

[00:09:50] Speaker 01:
If the case is open, or in some instances now, there are cases that are similar to the cases here, where they're made of plastic and they see through.

[00:10:01] Speaker 01:
And you can attach, you can swap out and attach

[00:10:04] Speaker 01:
The lenses.

[00:10:05] Speaker 01:
Well, there might, but we're talking about things that are normally understood.

[00:10:09] Speaker 03:
And I think for camera cases, the normal understanding is that you've got a camera in a case.

[00:10:14] Speaker 03:
When you want to use the camera, you remove it from the case.

[00:10:18] Speaker 03:
I'm not going to dispute with you or debate with you.

[00:10:21] Speaker 03:
whether there might be some conceivable products on the market that allow you to use the camera while it's in the case.

[00:10:27] Speaker 03:
But I think can one not fairly assume that when we're talking about camera cases, we're talking about something that is stored in a case and removed from that case when it is being used?

[00:10:36] Speaker 01:
No, Your Honor, because a typical camera case that's form fitted actually has a piece that flips over.

[00:10:43] Speaker 01:
The old style cameras that had the interchangeable SLRs where you took the single lens reflex, you could take it off.

[00:10:50] Speaker 01:
and snap a new one in, those camera cases actually came up and over the camera and they clipped on the top.

[00:10:56] Speaker 01:
You would then open it and it would hang down and you would use it while the camera was still inside the case.

[00:11:02] Speaker 03:
And what we're talking about here, you don't have to open it, right?

[00:11:04] Speaker 03:
It's in the case and in order to be functional, it's just in its normal state.

[00:11:09] Speaker 03:
There's no need for opening or closing.

[00:11:11] Speaker 01:
There's no need for opening or closing, Your Honor.

[00:11:13] Speaker 03:
So isn't that something that differentiates that from the camera case?

[00:11:16] Speaker 01:
No, Your Honor, because, well, it may differentiate it from one style of camera case that I'm referring to, but there are, as technology moves forward, you can have cases that surround the camera that we provided samples to the court, links to types of cases that customs had encountered.

[00:11:34] Speaker 01:
One is where there's plastic that surrounds the camera.

[00:11:37] Speaker 01:
but it's usable inside because they're using it underwater.

[00:11:40] Speaker 01:
It's for underwater photography.

[00:11:41] Speaker 02:
Right.

[00:11:41] Speaker 02:
Isn't that more like an accessory than a case though?

[00:11:44] Speaker 02:
I mean, you're stretching here to find one example that you think might be able to, you could pull out to somehow say that these fall within that.

[00:11:54] Speaker 02:
And again, those are things that probably are technology that has post-dated the original adoption of these categories.

[00:12:03] Speaker 02:
So if we want to look at what these categories were really intended to encompass, we should be thinking about camera cases at the time that these categories were laid out.

[00:12:15] Speaker 02:
And those camera cases are clearly the kind that Judge Post was talking about, where you have to remove the camera from the case for it to be operable.

[00:12:23] Speaker 02:
And we've said not only is the question of do you satisfy these things, but also is there not another category that is more appropriate?

[00:12:33] Speaker 01:
Well, Your Honor, you don't have to remove the camera from the case to use it.

[00:12:36] Speaker 01:
You just have to open it and let the flap fall down.

[00:12:39] Speaker 01:
And it's true with binoculars as well, the binocular case where the lens caps open and just hang down, and then they're put back over.

[00:12:48] Speaker 01:
So you don't have to remove it from that.

[00:12:50] Speaker 01:
And Your Honor, the position that these articles are somehow locked in time in 1989 when the tariff is enacted, I don't think that that's how this court has perceived

[00:13:04] Speaker 01:
the way to interpret this tariff.

[00:13:06] Speaker 01:
These are EU-nominated articles.

[00:13:08] Speaker 02:
I never said they were locked in time, but I said if we're trying to determine what the factors are that would make them similar, we should at least consider what they were considering when they came up with those factors, and those factors that this court has repeatedly endorsed and considered.

[00:13:28] Speaker 01:
Right, Your Honor.

[00:13:29] Speaker 01:
And this court has never endorsed that the article has to be removed.

[00:13:34] Speaker 01:
to be used.

[00:13:36] Speaker 01:
So that's not a factor this court has considered.

[00:13:38] Speaker 01:
The only four factors this court has ever considered are organizing, storing, protecting, and carrying.

[00:13:45] Speaker 01:
And as we said earlier, the two factors of storing and carrying are inherent in the meaning of the word container.

[00:13:53] Speaker 01:
So organizing and protecting now are the two items that aren't inherent in the meaning of the word container.

[00:14:01] Speaker 04:
But maybe it's possible that

[00:14:03] Speaker 04:
For the factor of storing, what the CIT was getting at was that taking the item out of the container so that you can use the item is part and parcel with the meaning of storing.

[00:14:17] Speaker 04:
In that sense, the CIT would not have created a fifth factor.

[00:14:21] Speaker 04:
It would simply have been applying one of the four factors.

[00:14:25] Speaker 01:
But, Your Honor, it's also possible that storing doesn't have to be that of these four factors.

[00:14:31] Speaker 01:
that then all four are not mandatory at every single moment of the life of that particular article.

[00:14:37] Speaker 01:
It may be that sometimes it's protecting, sometimes it's storing.

[00:14:42] Speaker 01:
I mean, a trunk, if a trunk has to organize, carry, store, and protect, if it has to do all four things at all times, then the minute you take your articles out of the trunk, the trunk stopped doing that job and it stopped being a container.

[00:14:57] Speaker 01:
That makes no sense.

[00:14:59] Speaker 01:
It's still a container.

[00:15:01] Speaker 01:
So I mean, to say that all four factors for a container must simultaneously exist and be occurring at the same time, I think is faulty.

[00:15:10] Speaker 01:
And I think that's where there's tension in saying that all these four factors are mandatory with an and.

[00:15:16] Speaker 01:
Maybe they're mandatory, but at different moments in time.

[00:15:19] Speaker 01:
There's a way to reconcile that, perhaps, that instead of at one moment in time, all four factors are occurring simultaneously.

[00:15:27] Speaker 01:
Will we stop using the cell phone?

[00:15:29] Speaker 01:
and we set it down and we throw it in our book bag, it stops being used.

[00:15:34] Speaker 01:
And it's now being still protected, but simultaneously it's being stored because it's being set aside for future use, just like a trunk would, holding your clothes.

[00:15:44] Speaker 01:
When you're wearing your clothes, the trunk can't be storing those clothes.

[00:15:47] Speaker 01:
So it can't do it 100% of the time.

[00:15:50] Speaker 01:
So if it can do any of these four factors at any given moment in time, then I think it satisfies the heading 4202, similar containers.

[00:15:59] Speaker 03:
Thank you.

[00:15:59] Speaker 03:
I think we have your part here.

[00:16:00] Speaker 03:
Let's keep your rebuttal time and hear from Mr. Mastriani.

[00:16:07] Speaker 00:
Good morning, and may it please the court.

[00:16:08] Speaker 00:
Your Honor, the government continues to do, before this court, what it did before the CIT for which it was criticized.

[00:16:17] Speaker 00:
It defines container, and it also uses the verb contain to define, to define container and advance its position.

[00:16:25] Speaker 00:
It never before the CIT

[00:16:28] Speaker 00:
or before you in its briefs, defines similar container, because that's what we're talking about here.

[00:16:34] Speaker 00:
We're not talking about a container that could be on a ship.

[00:16:37] Speaker 00:
We're not talking about a container that could have propane gas in it or a silo that has silage or other types of agricultural materials in it.

[00:16:45] Speaker 00:
We're talking about containers similar to the exemplars to the left of the semicolon in heading 4202.

[00:16:54] Speaker 00:
That is a wall.

[00:16:55] Speaker 00:
And you cannot cross over into it, as the government also did in this reply brief, by looking at shopping bags and jewelry boxes.

[00:17:05] Speaker 00:
Now, the point is that this appeal involves very simple and very intuitive issues.

[00:17:11] Speaker 00:
And to me, it calls to mind this court's trenchant observation in the Pelletex case.

[00:17:17] Speaker 00:
And that observation is the reader unfamiliar with the convalescent

[00:17:25] Speaker 00:
rephrase here.

[00:17:26] Speaker 00:
The reader unfamiliar with the convoluted method the law uses to decide these cases might wonder why the judges strain so hard to determine something any consumer can tell them.

[00:17:39] Speaker 00:
Well, in this case, the court need not strain hard, if at all.

[00:17:42] Speaker 03:
Can I ask you a point that your friend was kind of committing on, which was on the storing issue?

[00:17:52] Speaker 03:
that like a trunk where it stores at some points but not when you're using the clothes that are in it.

[00:17:58] Speaker 03:
Her view, as I understood it, was anytime you're not using this iPhone in its case, then the function of the case is to store it.

[00:18:10] Speaker 03:
Is that the way you understood the argument?

[00:18:12] Speaker 03:
And if that's right, why is that wrong?

[00:18:15] Speaker 00:
I disagree, because first of all, this is

[00:18:18] Speaker 00:
physical exhibit too.

[00:18:19] Speaker 00:
It's not the actual physical exhibit that council has here, but it's the same one.

[00:18:24] Speaker 00:
This is a commuter case.

[00:18:26] Speaker 00:
When the phone is in here, and as long as it's on, it's available to me.

[00:18:32] Speaker 00:
It buzzes, gives me alerts as to text, calendar alerts, emails.

[00:18:37] Speaker 00:
If it rings, I can see that it's a call.

[00:18:40] Speaker 00:
I can see who's calling.

[00:18:41] Speaker 03:
Yeah, but I think her point was that there might be some few moments in a day, at least, where none of that is happening.

[00:18:49] Speaker 03:
So in those few moments when it's not ringing, buzzing, or doing anything actively, is it performing the function of storing?

[00:18:57] Speaker 00:
I would disagree.

[00:18:58] Speaker 00:
Because the point is, when the judge at the CIT made the point, she said, the essential characteristic or purpose of storing implies some future use as opposed to present use.

[00:19:11] Speaker 00:
Storing is, by definition, inconsistent with use.

[00:19:15] Speaker 00:
The phone, whether it has a case on or not, if it's off,

[00:19:19] Speaker 00:
It's not storing itself.

[00:19:21] Speaker 00:
It's just there.

[00:19:22] Speaker 00:
It's the same argument for carrying.

[00:19:25] Speaker 00:
The phone, the case does not carry the phone.

[00:19:28] Speaker 00:
The phone carries the case, if you will.

[00:19:31] Speaker 00:
So I disagree that the storing characteristic that is shared by and unites all of the exemplars is found in the Otterbox case.

[00:19:43] Speaker 03:
In your view of

[00:19:44] Speaker 03:
The first issue we were talking to your friend about, which is, do you have to meet all four of these criteria, or is any one sufficient?

[00:19:52] Speaker 03:
What is your position on that?

[00:19:53] Speaker 00:
We believe that while there may not be a de jure test, and I think this court in Lenron made that comment about totes, that we didn't express an actual test, it's still a de facto test.

[00:20:05] Speaker 00:
Because all of your law, starting with totes, avenues of letter one and two, sports graphics, SGI, process plastics,

[00:20:13] Speaker 00:
says that in a Judaism generis analysis, the court must identify all of the characteristics that unify the exemplars.

[00:20:24] Speaker 00:
All means all.

[00:20:25] Speaker 00:
You cannot discriminate.

[00:20:26] Speaker 00:
You cannot say, we've identified four.

[00:20:29] Speaker 00:
We're only going to use one in this case.

[00:20:30] Speaker 00:
We use two in that case.

[00:20:32] Speaker 00:
Maybe we'll even think about three in the future.

[00:20:35] Speaker 00:
All of these characteristics unite the exemplars.

[00:20:40] Speaker 00:
And if they're missing in

[00:20:42] Speaker 00:
the merchandise that's under consideration, especially where it has a specific and primary use that's totally inconsistent with the exemplars, which this product does have, then there's no similarity.

[00:20:59] Speaker 02:
Couldn't there conceivably though be a circumstance in which, yes, you have to consider all of these factors because they are the unifying factors and the court could find that, well,

[00:21:10] Speaker 02:
Three out of four are present here and as to the fourth, there's nothing inconsistent with the fourth, for instance.

[00:21:18] Speaker 00:
In that hypothetical potentially, but I don't think so because here what trumps everything, even if you found all four characteristics in this item, the fact that it's 100% accessible, 100% of its functionality is usable while the electronic device is in the case,

[00:21:39] Speaker 00:
is something that is not shared by any single one of the exemplars in council.

[00:21:44] Speaker 02:
So then would you agree with the government that that's a fifth factor that we're now applying?

[00:21:49] Speaker 00:
Not at all.

[00:21:51] Speaker 00:
That's the Victoria's Secret.

[00:21:52] Speaker 00:
Victoria's Secret did not come up with this inconsistent, this specific and primary use that's inconsistent with the characteristics or the exemplars in the heading.

[00:22:05] Speaker 00:
It expressed the law from totes, the SGI cases, and they haven't used a letter, certainly.

[00:22:11] Speaker 00:
And I will just point out that the government trolled the internet millions of products.

[00:22:20] Speaker 00:
There are millions of these products that it looked through on the internet.

[00:22:24] Speaker 00:
It came up with three examples.

[00:22:26] Speaker 00:
One is exactly as you said, Your Honor, it's an accessory for a camera when you're using it underwater, when you come up

[00:22:34] Speaker 00:
take it out of the case and you use it just as you would.

[00:22:37] Speaker 00:
The camera case, the leather camera case, that if you go to the link and look at it, you have to unsnap it from the back and then expose the top and the lens and take the lens cap off no less and then to use the camera.

[00:22:55] Speaker 00:
If you look at the user comments in there, there's other functionality problems with it.

[00:22:59] Speaker 00:
You can't charge it, you cannot get to the

[00:23:02] Speaker 00:
the memory card.

[00:23:03] Speaker 00:
That's the problem with trolling the internet like this and having attorney argument.

[00:23:08] Speaker 00:
Government counsel is trying to inject facts into this appeal when it only involves issues of law.

[00:23:15] Speaker 00:
Similarly, with the binocular case, if you look at that link, it talks about it's completely enclosed, the binoculars.

[00:23:24] Speaker 00:
You have to unfold it, remove the lens caps from both the front of the lens and the back of the lens, and then you can use it in there

[00:23:32] Speaker 00:
like this while it's hanging, but the users say and the article criticizes the fact that it's difficult for some people because their nose hits it and it's also difficult to use the focus ring.

[00:23:45] Speaker 00:
So those are unavailing.

[00:23:46] Speaker 00:
The fact of the matter is you have to open those products to use them just like the exemplars in the first part of heading 4202.

[00:23:55] Speaker 00:
And the fact of the matter is that no reasonable consumer

[00:24:01] Speaker 00:
I don't see any reasonable consumer.

[00:24:03] Speaker 00:
We could go out there on the quad in front of the White House and stop 1,000 people.

[00:24:06] Speaker 00:
No one's going to equate.

[00:24:07] Speaker 04:
Well, we're not going to add more facts to the party.

[00:24:10] Speaker 00:
Right.

[00:24:10] Speaker 00:
But I don't think, I'm just, the point being, just as the court in Victoria's Secret said, that it's what comes into the mind of a reasonable consumer.

[00:24:21] Speaker 00:
If they see similar container in the Jerusalem generis analysis, and they look at those exemplars, what comes into that reasonable

[00:24:31] Speaker 00:
person's mind as to what would be a similar container.

[00:24:35] Speaker 00:
It's not going to be a case like an OtterBox case that holds an electronic device as fully accessible and fully usable.

[00:24:43] Speaker 04:
Can I get you back to the four factors that we've said we all need to look at when considering the term similar containers?

[00:24:52] Speaker 04:
One of the factors is organizing, and arguably a few of these items listed

[00:25:00] Speaker 04:
don't necessarily organize items in the case.

[00:25:04] Speaker 04:
For example, spectacle cases.

[00:25:08] Speaker 04:
Would you say that maybe spectacle cases serve the function of storing, protecting, and carrying, but they don't necessarily organize the spectacles in the spectacle case?

[00:25:20] Speaker 00:
I could pull out my spectacle case.

[00:25:22] Speaker 00:
I could look at that spectacle case.

[00:25:23] Speaker 00:
I imagine there are people in this courtroom with spectacle cases that have clean cloths in there and other items.

[00:25:31] Speaker 04:
Let's just think about the standard garden variety spectacle case, where it's almost like a clam shell and you put it in, or it's like some leather pouch and you just slide it into the side and that's it.

[00:25:48] Speaker 04:
To me, that isn't really organizing it.

[00:25:51] Speaker 00:
Well, I would just say this.

[00:25:53] Speaker 00:
I do think that does ignore that most people do put other items in their spectacle cases.

[00:25:57] Speaker 00:
But in your scenario, is that organizing?

[00:26:02] Speaker 00:
In our mind, it is.

[00:26:04] Speaker 04:
Well, then what does organizing mean?

[00:26:06] Speaker 04:
Because maybe I don't understand what it means.

[00:26:09] Speaker 00:
The government's definition is to put things into tidy order, i.e.

[00:26:14] Speaker 00:
organized files.

[00:26:15] Speaker 00:
That's the definition used by the government before the CIT.

[00:26:19] Speaker 00:
And the CIT judge said, the cases do not organize electronic devices in even a rudimentary fashion.

[00:26:27] Speaker 00:
Because it's just as organized if it sits there like this,

[00:26:32] Speaker 00:
or if it sits in the case.

[00:26:34] Speaker 00:
It doesn't matter.

[00:26:35] Speaker 00:
The case is just an accessory that's meant for protection.

[00:26:38] Speaker 00:
That's the whole purpose of these products is protection.

[00:26:42] Speaker 02:
Just to stick with this hypothetical here for a minute.

[00:26:44] Speaker 02:
The CIT has specifically said that organization implies more than one article in a case, right?

[00:26:50] Speaker 00:
Generally, yes.

[00:26:51] Speaker 00:
That's correct.

[00:26:51] Speaker 00:
Yes.

[00:26:52] Speaker 00:
Yes.

[00:26:53] Speaker 02:
And so your point is that even if some people only put one thing in their eyeglass case because you could put more than one,

[00:27:04] Speaker 00:
Well, let's just say this, to take your hypothetical further.

[00:27:07] Speaker 00:
Let's just say that spectacle cases don't have an organizing characteristic to them, and ignoring the fact that a healthy minority, if not a pretty good majority of people, do have other items in there.

[00:27:20] Speaker 00:
It's all of the exemplars.

[00:27:23] Speaker 00:
So if you just find some spectacle cases don't have an organizing factor because people don't put something in them along with their spectacles,

[00:27:34] Speaker 00:
then you have all these other exemplars that have numerous things in them.

[00:27:41] Speaker 00:
I mean, the holster has clips and bullets.

[00:27:45] Speaker 00:
The camera cases have extra lenses and lens caps and SD cards and cables and straps and so on and so forth.

[00:27:53] Speaker 00:
You can go on and on and on and on.

[00:27:55] Speaker 00:
I mean, everybody in this courtroom is intimately familiar with most if not all of these exemplars.

[00:28:01] Speaker 00:
And we all know that these exemplars, for the most part, have

[00:28:05] Speaker 00:
numerous things in there.

[00:28:06] Speaker 00:
And with the spectacle case, what if you have spectacles and you have your sunglass clip on?

[00:28:11] Speaker 00:
Where do you keep those?

[00:28:12] Speaker 00:
You don't put them in your pocket or another item.

[00:28:15] Speaker 00:
You put them in with your spectacles.

[00:28:17] Speaker 00:
And the cleaning cloth, you put them in there.

[00:28:19] Speaker 00:
So I grant you that your hypothetical showing just one item in there may not implicate organizing in the way people normally think about the common and commercial meaning, the dictionary meaning that you, your artist, just

[00:28:34] Speaker 00:
went through in the clear correct case to come to your decision.

[00:28:38] Speaker 00:
The point is that this is what comes into a reasonable person's mind.

[00:28:42] Speaker 00:
And a reasonable person's mind thinks of these items as storing, protecting, organizing, caring.

[00:28:48] Speaker 00:
The fact that they don't all have those characteristics going on at the same time 24-7 is not relevant to the analysis.

[00:28:56] Speaker 00:
They all have those characteristics.

[00:28:58] Speaker 00:
They all have to be considered.

[00:29:00] Speaker 00:
They all have to apply.

[00:29:02] Speaker 00:
If you want to express an actual legal test, fine.

[00:29:05] Speaker 00:
But I don't think you have to, because your case law says that they all have to be considered in connection with heading 4202.

[00:29:12] Speaker 00:
And that's something that the government refuses to acknowledge.

[00:29:15] Speaker 00:
And they continue, and they always will, refuse to acknowledge what a similar container is.

[00:29:21] Speaker 00:
Because even with their definition of contain, the verb, it refers to a can of oil.

[00:29:27] Speaker 00:
Every can of oil I've ever dealt with, from the old style ones where you puncture through with the spout,

[00:29:32] Speaker 00:
is sealed, or in the plastic ones that you run into nowadays, you've got to uncap it.

[00:29:38] Speaker 00:
It's got a sealed cap.

[00:29:39] Speaker 00:
You've got to break the seal and open it and get the oil out.

[00:29:42] Speaker 00:
So every definition that the government has used implicates products that are closed receptacles.

[00:29:51] Speaker 00:
They're not trash cans.

[00:29:53] Speaker 00:
They're not inboxes.

[00:29:54] Speaker 00:
They're not milk crates by any stretch of the imagination.

[00:30:08] Speaker 03:
I'll give you two minutes.

[00:30:10] Speaker 01:
Thank you, Your Honor.

[00:30:11] Speaker 01:
Briefly, Your Honor, Otter is complaining about the government not understanding what similar containers are.

[00:30:18] Speaker 01:
The government analyzed this case as first, what is a container?

[00:30:22] Speaker 01:
Similar container, in the context of heading 4202, of course, this court has explained.

[00:30:28] Speaker 01:
That's a simple adjustum generis analysis.

[00:30:30] Speaker 01:
One does not go out and define similar container.

[00:30:33] Speaker 01:
One simply looks to the court, the court's analysis of the four factors,

[00:30:37] Speaker 01:
and says similar containers are basically right now these four factors.

[00:30:41] Speaker 01:
Question, of course, is whether or not they're all four factors.

[00:30:45] Speaker 01:
And I would argue, Your Honor, that they're not.

[00:30:48] Speaker 01:
The issue of storing, talking about what that means, the meaning of storing, Otter argues that we're conflating somehow that meaning with protecting.

[00:30:58] Speaker 01:
We're not.

[00:30:59] Speaker 01:
The same meaning that we put before the court is the same meaning we have in our briefs here, the trial court, as well as here, which is

[00:31:06] Speaker 01:
Storing means to put something that is not being used in a place where it is available, where it can be kept safely, et cetera, to collect and put something into one location for future use.

[00:31:15] Speaker 01:
The fact that you take this article and set it aside, it is now being stored.

[00:31:20] Speaker 01:
And as Your Honor recognized, yes, cell phones are ubiquitous.

[00:31:24] Speaker 01:
Yes, there are people very close to 24 hours a day with their cell phones.

[00:31:28] Speaker 02:
But there are these brief moments.

[00:31:33] Speaker 01:
There are brief moments in time, however, Your Honor.

[00:31:35] Speaker 01:
when these phones are being set aside.

[00:31:37] Speaker 01:
And it is at that moment that this case plays the role of storing simultaneously with protecting.

[00:31:44] Speaker 01:
The other thing that's interesting is we're dealing with technology.

[00:31:47] Speaker 01:
Technology is changing.

[00:31:48] Speaker 01:
This is a new device that's come up.

[00:31:50] Speaker 01:
This is a personal device, like a pair of binoculars or like a camera, even a small electronic camera.

[00:31:58] Speaker 01:
The GoPros have plastic to go around, and the camera's inside, and you can use it.

[00:32:04] Speaker 01:
Your Wi-Fi will send the signal out.

[00:32:06] Speaker 01:
You never have to open the thing.

[00:32:08] Speaker 01:
This technology is advancing.

[00:32:11] Speaker 01:
So the question is whether or not do these cases that we're seeing here, as counsel noted, do these cases, this one is, it's got a hard front, something is being placed inside here.

[00:32:27] Speaker 01:
The fact that it's staying in here and you can still use it while it's inside, that's just fundamental to today's cell phone.

[00:32:35] Speaker 01:
that Otter was clever enough to come up with a device that you never really, I mean, other than to get at the card, or if you have a problem with your battery, or you need to do a restart, there are some times you may want to take it out.

[00:32:46] Speaker 01:
But the trial court's right.

[00:32:47] Speaker 01:
Otter's correct in saying that this stays in there in a semi-permanent fashion.

[00:32:52] Speaker 01:
But that's just the nature of the technology.

[00:32:54] Speaker 01:
There's nothing inconsistent.

[00:32:56] Speaker 01:
In fact, the fact that the phone stays inside here almost semi-permanently really enhances the protecting factor.

[00:33:04] Speaker 01:
of this phone, of this case for a phone.

[00:33:07] Speaker 01:
So there is nothing inconsistent with the four factors.

[00:33:10] Speaker 01:
The fact that it stays inside, it just happens to be that technology allows it.

[00:33:15] Speaker 01:
But more significantly, taking it in and putting it out, off and on.

[00:33:19] Speaker 01:
These phones are thin and they're expensive.

[00:33:22] Speaker 01:
And if you drop them, I would prefer to keep my phone always self-contained inside of its protective case.

[00:33:28] Speaker 01:
Because staying in there most of the time actually enhances.

[00:33:33] Speaker 01:
So the concept of, oh, you don't take it out.

[00:33:37] Speaker 04:
Just curious, are all the phone cases we're talking about here the kinds of phone cases that completely enclose the phone, like the example you just presented there?

[00:33:48] Speaker 01:
This one, Your Honor, is the defender.

[00:33:50] Speaker 01:
The defender has, you can hear the top.

[00:33:53] Speaker 04:
I understand that.

[00:33:54] Speaker 01:
I'm not asking you.

[00:33:55] Speaker 01:
No, Your Honor, they don't.

[00:33:56] Speaker 04:
Because I'm just letting you know the kind of case that I have on my smartphone just goes around the back.

[00:34:05] Speaker 01:
Right, and those have not been classified.

[00:34:07] Speaker 01:
Those have not been, they're not the subject.

[00:34:09] Speaker 01:
In fact, Otter did not appeal those that were classified in that heading.

[00:34:14] Speaker 01:
But certain of them don't get considered.

[00:34:17] Speaker 01:
Certain of those where they just sit on the back

[00:34:20] Speaker 01:
These actually... Can you just explain that?

[00:34:25] Speaker 01:
There were ones where there was just silicon and it was just kind of a case on the back and it didn't really come across the front.

[00:34:31] Speaker 03:
But what are those that you've got in your hand?

[00:34:33] Speaker 01:
This is the commuter version of these articles.

[00:34:36] Speaker 01:
They have two pieces and what comes with is an installation piece of plastic that goes over the front of your screen.

[00:34:45] Speaker 01:
So you just set it down and you rub out the air bubbles and it stays on the front of your screen.

[00:34:50] Speaker 01:
So it comes around the phone, if I may, Your Honor.

[00:34:54] Speaker 01:
I have a sample of a phone, an actual phone inside of an honor case.

[00:34:59] Speaker 03:
OK, I'm just a little uncomfortable about this, doing all of this on rebuttal, because the other side has really not had a chance to respond to this.

[00:35:07] Speaker 01:
Well, Your Honor, then just to go back to what was raised about the fact that the government did not discuss similar, we did.

[00:35:16] Speaker 01:
And once again, the fact that these stay inside the container

[00:35:19] Speaker 01:
is not inconsistent with the four factors.

[00:35:22] Speaker 01:
In fact, it enhances the factor of protecting.

[00:35:25] Speaker 03:
Thank you, Your Honor.