                                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”
