pressure fingers, and rollers designed to hold the long strip font firmly under tension, and to allow the operator to move the font from side to side through the carrier by means of a crank to select the desired letters on the font. A lever automatically shifts the carrier forward or backward for setting upper- or lower-case letters. The carrier will accept only the fonts specifically made for it by the manufacturer of the machines, and thus will not accept photographic negatives or slides in the ordinary range of sizes. In this connection, plaintiff's witness Owen knew of no carriers in photographic enlargers that would accept the type font used with the instant machines and move it with precision from one letter to another (R.123).

4

Type is set or composed with the Staromat and Starsettograph in the following manner: The operator inserts the type font into the special carrier in the head of the machine. He then places a sheet of photosensitive paper or film on the platen, moistens it with an activating fluid, turns on the lamp (which remains on until the entire job is completed), and shifts the font to select the first letter. An image of the first letter is projected through the red filter and appears on the sensitized typesetting paper or film, which is not sensitive to red light. Guided by this trial image, the operator raises or lowers the head to control the size of the letter being projected, and moves the platen by a lever to position the type image on the photosensitive paper in accordance with his design. For example, the platen is moved forward or backward to set one line of type over another in a headline comprised of two lines. Platen movement is calibrated in 1-millimeter increments, "so that positions can be gotten back to again, if you have to reproduce the job" (R. 51).

The letters on the font (exhibit 4) are five-sixteenths inch, and can be used without enlargement or reduction. To set larger or smaller type, the head of the machines must be raised or lowered. Thus, through enlargement or reduction of the characters on a single font, there is an infinite choice of type sizes available ranging from approximately 2 to 51⁄2 inches.

So that the composed type will reproduce well in the various stages of printing, the machines adjust focus and exposure in relation to the size of the type being set, to obtain the sharpest and blackest image possible. The Staromat performs this function automatically by means of an electronic control box that is part of the machine as imported. The Starsettograph also performs this function, but not automatically. When the type is correctly positioned and the operator triggers an exposure, the red filter automatically swings out of the way so that

4 Unlike a photographic enlarger in which the light is turned off after each exposure, the light source for the instant machines remains on constantly once the machines are turned on, which is necessary for the proper positioning of the letters in setting type.

light projects through the font onto the photosensitive paper or film.5 The light goes through only the letter or symbol on the font that is brought into position, which would be an area approximating threeeighths by one-half inch.

The imported machines are designed to utilize a patented photocomposing process (exhibit B), the essence of which is to permit the optical control of letter positioning during the photographic setting— "that is, the operator can visually watch the formation of a word through single letters, as in writing, and can regulate the positioning of the various letters" (exhibit B, col. 1, lines 16-18). The image of a letter begins to develop immediately on the phototypesetting paper or film because of the special activator fluid in the platen. By the time the operator has selected the next letter, the image of the first has blackened sufficiently so that it acts as a guide to position a red or safe trial image of the second type character on the paper in the desired relation to the first by shifting the platen. In order to correctly position the second letter, the operator must see where the first letter is located. The foregoing operation is repeated letter by letter and line by line on the same sheet of photosensitive paper, which remains in full view throughout. Hence, the operator of the machines is able to see the entire typesetting job as it progresses, which aids the composition and positioning of the type on the sheets of paper or film.

The paper or film on which type has been set is placed into a fixing bath to terminate its sensitivity. The life of the exposed paper is about 6 months to 1 year, as contrasted to paper used for black and white photographic enlargements, which will last about 50 years. A short life for the exposed phototypesetting paper is adequate since the product is usually pasted into a total composition with other materials, the whole page is then photographed, and the negative is used to make a printing plate.

Staromat and Starsettograph machines are designed for composing type used in headlines, advertisements, various printed forms, and catalogs. Plaintiff's witness Klein testified that from his knowledge of the list of buyers of the machines, none of the machines were sold to photographic enlargement houses (R. 71). Defendant's witness Fielder identified as typesetters several phototypesetting machines that operate similarly to a photographic enlarger or have enlargement capabilities (R. 159-62). Additionally, Fielder testified that the

• The red filter is connected to a solenoid spring, so that when exposure is triggered, the solenoid pulls the filter out of the path of the light, and when exposure is completed, the filter returns to position automatically covering the hole through which the light is transmitted. Owen had never seen an enlarger incorporating a red filter that automatically swings in and out of place (R. 120). However, he had seen red filters that had been attached to enlargers which could be moved manually that were at one time used in the place of a timer. but "they are somewhat vistigial organs of the past" (R. 120-21, 132).

Staromat "operates on the same principle as a photographic enlarger" (R. 148).

As shown on pages 4 and 5 of plaintiff's brochure (defendant's exhibit A), the imported machines can produce a wide range of typographic styles and special effects. Thus, typefaces can be set in condensed, extended, italicized, and backslanted styles. Typefaces can also be screened, reversed, shaded, drop-shadowed, or combined with tone. In addition to setting type in a straight line, type may be composed in a variety of circular, spiral, bounced, staggered, jumbled, step, and repeat or tight settings, and letters may be intentionally blurred, smeared, or distorted to create special effects.

Summary of Parties' Contentions

Defendant contends that its classification of the imported machines under item 722.18, TSUS, is supported by the common meaning of the term "enlarger," and by legislative history. Moreover, defendant maintains that since the imports are specifically provided for as enlargers under item 722.18, these imports must in any event be excluded from classification as typesetting machines under item 668.25 by virtue of headnote 1(v), schedule 6, part 4, which excludes from part 4 articles specifically provided for elsewhere in the schedules.

Plaintiff argues that the imported machines have features that dedicate them for use in typesetting which are not embraced by the meaning of the term "enlarger" as used in item 722.18, but are encompassed by the provision for "typesetting machines" in item 668.25. Further, plaintiff contends that legislative history supports the classification of the imports as typesetting machines.

Opinion

1

Resolution of the issue requires a determination of the meaning of the eo nomine provision for "enlargers" as this term is used in item 722.18, TSUS. Fundamentally, in the absence of a special commercial designation, the language of a tariff statute is to be construed in accordance with its common meaning. Further, the common meaning of the word "enlarger" is a matter of law to be determined by the court; and in making such determination, the court may rely upon its own understanding of the word or term used and may consult standard lexicographic and scientific authorities. The testimony of witnesses respecting common meaning is advisory only and has no binding effect on the court. United States v. National Carloading Corp. et al., 48 CCPA 70, C.A.D. 767 (1961); United States v. E. Besler & Company et al., 64 CCPA 121, 124, C.A.D. 1193, 557 F. 2d 270 (1977); United States v. Corning Glass Works, 66 CCPA 25, C.A.D. 1216, 586 F. 2d 822 (1978).

In support of its position that the imported machines fall within the common meaning of the term "enlarger," defendant cites:

LaCour and Lathrop, "Photo Technology" (1966), at page 113: Enlargers

Basically all enlargers consist of a light source, a means of distributing the light evenly, a negative carrier, a lens, a focusing device, a means of changing the distance of the lens to a negative and an easel for holding the paper.

and

Webster's Third New International Dictionary (1963), at page 754:

One that enlarges, specif.: an optical projector used to produce a photographic enlargement.

Defendant maintains that the manner in which the imported devices operate coincides with the common meaning of the term "enlarger." Plaintiff, on the other hand, while conceding that the imported machines can enlarge (or reduce) the size of the font characters in the process of phototypesetting, vigorously argues that enlargement is only one aspect of the patented photocomposing process for which the machines were designed, and that the imports have additional features enabling the operator to select and compose type used in printing, which features distinguish the imports from photographic enlargers. In short, plaintiff contends that in the photocomposing of type the instant machines do not function simply as enlargers, but rather as typesetters. I agree.

The record amply supports the conclusion that the phototypesetting function performed by the Staromat and Starsettograph is more than photographic enlargement. The Government's classification of the machines as enlargers is thus predicated upon a single phase of the machines' typesetting function. In addition to their enlargement capability, the imports incorporate features for type selection and positioning that are not encompassed by the common meaning of the term "enlarger." Simply put, I find that the machines in issue are designed for photocomposing of type, and in performing that function they do more than simply enlarge.

As indicated supra, the photocomposing process performed by the machines in issue is covered by a patent (No. 3,196,016), introduced in evidence by defendant (exhibit B). That the essence of the patented process is not photographic enlargement, but rather the facilitation of letter positioning, is made abundantly clear from the following portion of the patent specification (exhibit B, col. 1, lines 14-18):

*** A special advantage of the invention (photocomposing process) is the optical control during the photographic setting

If the photocomposing process set forth in patent No. 3,196,016 (1965) was simply photographic enlargement, it is obvicus that the patent would not have been issued in the light of the prior art in the photography field.

that is, the operator can visually watch the formation of a word through single letters, as in writing, and can regulate the positioning of the various letters. [Italic added.]

The patented photocomposing process utilized by the machines is further described in the portion of the descriptive pamphlet covering the Staromat introduced in evidence by defendant (exhibit A, p. 3):

7

*** Special sensitized typesetting paper or film is wetted in a special activator and is squeezed onto the print stage, or it is held on the stage with magnetic strips and the activator is applied with a hand applicator. The image is projected, distortion free, through a red filter that automatically swings out of place when the electronically controlled exposure is made by a foot switch. The image appears in black on the paper within seconds, as you simultaneously position the next letter through the red filter that returns to position in the light path. The operation is repeated letter by letter, and line by line on the same sheet of paper, which remains in full view throughout. This ability to see the entire typesetting as you work, permitting easier composition and flexible positioning, is but one of the essential advantages of Staromat over other comparable phototypesetting equipment. *** [Italic added.]

The pamphlet further states that "The Starsettograph uses the same positive visual control system *** as the Staromat" (exhibit 3).

Illustrating how a word is composed photographically under optical control, the specification of the patent reads (col. 2, lines 39-40): "The device used works similar to a photographic enlarger." [Italic added.] Significantly, the specification does not say that the device used "is" a photographic enlarger.

Although the imported machines are somewhat "similar" to enlargers, the common meaning of the term "enlarger" does not embrace the features incorporated in the imports that are designed to facilitate the selection and precise positioning of a series of continuously developing images (viz, type characters) according to the operator's design. As previously mentioned, these mechanisms include a font carrier for the selection of individual letters for exposure, and a movable platen designed for the positioning of type. Also, as previously noted, the platen is tray-shaped so that the photosensitive paper or film can be moistened with developer fluid to permit the rapid positioning of a sequence of type characters, which is the key to the patented photocomposing process used by the instant machines. Consequently, each exposed letter immediately begins to develop,

7 The patent specification states (col. 2, lines 22-25): "These materials are approximately 200 to 300 times less sensitive than normal paper for photographic enlarging, and are generally used for contact printing only." [Italic added.]

8 Defendant's exhibit A, p. 3, states: "With a single conveniently-placed, multi-purpose, hand-sized control knob, the operator simultaneously changes magnification and advances the font from letter to letter. Anotherl ever automatically s hifts from upper to lower case letters, or visa versa. [Italic added.]