La Crosse Technology, Ltd. v. United States

United States Court of Appeals
for the Federal Circuit
______________________
LA CROSSE TECHNOLOGY, LTD.,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
______________________
2012-1370
______________________
Appeal from the United States Court of International
Trade in No. 07-CV-0114, Senior Judge R. Kenton Mus-
grave.
______________________
Decided: July 25, 2013
______________________
WILLIAM RANDOLPH RUCKER, Drinker Biddle & Reath
LLP, of Chicago, Illinois, argued for plaintiff-appellant.
AMY M. RUBIN, Trial Attorney, Civil Division, Com-
mercial Litigation Branch, Department of Justice, of New
York, New York, argued for defendant-appellee. With her
on the brief were STUART F. DELERY, Acting Assistant
Attorney General, JEANNE E. DAVIDSON, Director, and
BARBARA S. WILLIAMS, Attorney in Charge, International
Trade Field Office, of New York. Of counsel on the brief
was CHI S. CHOY, Office of Assistant Chief Counsel,
2 LA CROSSE TECHNOLOGY, LTD. v. US
United States Customs and Border Protection, of New
York, New York.
______________________
Before NEWMAN, BRYSON, and O'MALLEY, Circuit Judges.
Opinion for the court filed by Circuit Judge O’MALLEY.
Opinion concurring in part and dissenting in part filed by
Circuit Judge BRYSON.
O’MALLEY, Circuit Judge.
Plaintiff-Appellant La Crosse Technology, Ltd. (“La
Crosse”) disputes the Harmonized Tariff Schedule of the
United States (“HTSUS”) classification of several models
of imported electronic devices that measure and display
atmospheric and weather conditions. The devices also
display the time and date. Upon liquidation, U.S. Cus-
toms and Border Protection (“Customs”) classified all the
subject devices as “other clocks” under HTSUS subhead-
ing 9105.91.40. La Crosse challenged Customs’ classifica-
tion, and the United States Court of International Trade
reclassified many of the imported devices. The trade
court divided the subject devices into three general cate-
gories: Weather Station models, Professional models, and
Clock models. The trade court classified the Weather
Station models under HTSUS subheading 9025.80.10
(which includes thermometers, barometers, hygrometers,
and combinations of these instruments), the Professional
models under subheading 9015.80.80 (which includes
certain “meteorological . . . instruments and appliances”),
and the Clock models under subheading 9105.91.40
(which includes certain clocks). On appeal, La Crosse
challenges the trade court’s classification of a number of
devices the court categorized as Weather Station and
Clock models. For the reasons below, we find that the
models at issue on appeal are properly classified under
HTSUS subheading 9015.80.80. Thus, we reverse the
judgment of the Court of International Trade with respect
LA CROSSE TECHNOLOGY, LTD. v. US 3
to the models at issue on appeal and order Customs to
reliquidate these models in accordance with their classifi-
cation under subheading 9015.80.80.
I. BACKGROUND
La Crosse imports electronic devices that measure
atmospheric conditions (e.g., outdoor temperature, indoor
temperature, and/or humidity) and display the measured
information alongside temporal information (e.g., the time
and date). All the devices at issue on appeal include
wireless instruments that measure outdoor conditions
and a base unit containing instruments that measure
indoor conditions. The devices also contain an LCD
display, a barometer to measure air pressure, and a
microprocessor. The microprocessor uses an algorithm to
analyze historical barometric measurements to provide a
weather forecast. The forecast indicates “whether the
weather will improve or deteriorate” and is displayed as a
“‘tendency’ arrow, a series of icons, or an image of a boy
(‘Oscar outlook’) whose clothes indicate which type of
weather is predicted.” 1 La Crosse Tech., Ltd. v. United
States, 826 F. Supp. 2d 1349, 1351–52 (Ct. Int’l Trade
2012).
Customs initially classified all the devices at issue as
“other clocks” under 9105.91.40. See La Crosse, 826 F.
Supp. 2d at 1353. La Crosse challenged Customs’ classifi-
cation in the United States Court of International Trade,
arguing that the articles were “more than clocks.” Id. at
1 Tendency arrows indicate whether the air pres-
sure is increasing (which indicates that weather is ex-
pected to improve or remain good) or decreasing (which
indicates that weather is expected to become worse or
remain poor). Forecast icons include images of the sun,
the sun partially concealed by clouds, and clouds with
rain.
4 LA CROSSE TECHNOLOGY, LTD. v. US
1355 (internal quotation marks omitted). According to La
Crosse, the devices at issue on appeal were constructed to
do far more than indicate the time of day and should have
been classified as meteorological appliances under
HTSUS Heading 9015 because of their ability to forecast
the weather. Id. La Crosse contended that the subject
merchandise was prima facie classifiable under Heading
9015 using General Rule of Interpretation (“GRI”) 1,
which applies “when an imported article is described in
whole by a single classification heading or subheading” of
HTSUS. CamelBak Prods., LLC v. United States, 649
F.3d 1361, 1364 (Fed. Cir. 2011). The government, on the
other hand, argued that classification pursuant to GRI 1
was inappropriate because the devices at issue were
composite goods that were not described by a single
HTSUS heading or subheading. La Crosse, 826 F. Supp.
2d at 1356. According to the government, classification
pursuant to GRI 3(b) was appropriate, and the devices
were not properly classified under Heading 9015 using
such an analysis. Id. The parties filed cross-motions for
summary judgment, and the trade court granted-in-part
and denied-in-part each of the parties’ motions.
The trade court agreed with the government that
“GRI 3 applies because the subject merchandise is prima
facie classifiable under more than one heading.” Id. The
court determined that the devices at issue were composite
goods that were properly classified pursuant to GRI 3(b),
which bases classification of goods on the “‘material or
component which gives them their essential character.’”
Id. at 1356–58 (quoting GRI 3(b)). For the purpose of
classifying the goods, the court divided the devices into
three general categories: Professional models (which are
not at issue on appeal), Weather Station models, and
Clock models. Id. at 1352. The court then examined the
“primary functionality and marketing” of the devices in
each category to determine their essential character. Id.
at 1359.
LA CROSSE TECHNOLOGY, LTD. v. US 5
With respect to the Weather Stations, the court noted
that La Crosse marketed the devices as “Wireless Tem-
perature Stations” or “Wireless Weather Stations” and
determined that the devices “ha[d] a concentration of
weather related features which predominate in number
over clock functions.” Id. at 1360. Concluding that the
devices’ forecasting ability was “imprecise and lack[ed]
the character of meteorological equipment” under Head-
ing 9015, the court classified the Weather Stations as
combination instruments under subheading 9025.80.10.
Id. at 1361.
Regarding the Professional models, the court deter-
mined “[t]he essential character . . . is also given by their
weather-related functions because they overwhelmingly
predominate over the clock functions.” Id. The Profes-
sional models included the features of the Weather Sta-
tion models, but also contained “wind and rain sensors, as
well as the ability to download weather data to a comput-
er for further analysis.” Id. These additional capabilities,
in the court’s view, made it appropriate to classify the
Professional models as meteorological equipment under
subheading 9015.80.80, HTSUS. Id.
In classifying the Clock models, the trade court fo-
cused on the “numerous and predominant clock-related
functions and clock-related marketing.” Id. The court
noted that La Crosse described these models as atomic or
projection clocks in marketing materials. Id. The trade
court also observed that, although the Clock models
display weather information (including a forecast), the
Clock models “display[ed] time information in larger type
size than weather information.” Id. Consequently, the
court determined that the Clock models were properly
classified under subheading 9105.91.40. Id. at 1362.
La Crosse timely appealed. We have jurisdiction pur-
suant to 28 U.S.C. § 1295(a)(5).
6 LA CROSSE TECHNOLOGY, LTD. v. US
II. ARGUMENTS ON APPEAL
On appeal, La Crosse challenges the Court of Interna-
tional Trade’s classification of a number of the Clock and
Weather Station models, which the trade court placed
under subheadings 9105.91.40 and 9025.80.10, respective-
ly. 2 According to La Crosse, the models at issue on appeal
should have been classified pursuant to GRI 1 as “meteor-
ological . . . instruments and appliances” under
9015.80.80, HTSUS. The government, however, contends
that the trade court properly classified the models pursu-
ant to GRI 3(b).
III. LEGAL STANDARDS
“We review the grant of summary judgment by the
Court of International Trade without deference.” Camel-
Bak, 649 F.3d at 1364. “The ultimate issue as to whether
particular imported merchandise has been classified
under an appropriate tariff provision is a question of law
subject to de novo review.” Marcel Watch Co. v. United
States, 11 F.3d 1054, 1056 (Fed. Cir. 1993). Tariff classi-
fication under HTSUS generally involves two steps: “(1)
ascertaining the proper meaning of specific terms within
the tariff provision and (2) determining whether the
merchandise at issue comes within the description of such
terms as properly construed.” Id. The first step presents
a question of law, which we review de novo. Id. The
second step presents a question of fact, which we review
for clear error. Id. “A finding is clearly erroneous when,
although there is evidence to support it, the reviewing
court is left with a ‘definite and firm conviction that a
mistake has been committed.’” Timber Prods. Co. v.
2 The models at issue on appeal are WS-7014, -
7042, -7049, -7159, -7211, -7394, -8025, -8035, -8157, -
9020, -9025, -9031, -9033, -9043, -9055, -9075, -9096, -
9115, -9118, -9119, -9151, -9520, -9600, -9611, and WT-
5130, -5432, and -5442.
LA CROSSE TECHNOLOGY, LTD. v. US 7
United States, 515 F.3d 1213, 1220 (Fed. Cir. 2008) (quot-
ing United States v. United States Gypsum Co., 33 U.S.
364, 395 (1948)). “Absent contrary legislative intent,
HTSUS terms are to be construed according to their
common and commercial meanings . . . .” Carl Zeiss, Inc.
v. United States, 195 F.3d 1375, 1379 (Fed. Cir. 1999).
HTSUS GRIs and Additional U.S. Rules of Interpreta-
tion govern the classification of imported merchandise
and are applied in numerical order. Id.; see also Mita
Copystar Am. v. United States, 160 F.3d 710, 712 (Fed.
Cir. 1998) (“The first step in analyzing the classification
issue is to determine the applicable subheadings, if possi-
ble, under GRI 1.”). In addition, “a court may refer to the
Explanatory Notes of a tariff subheading, which do not
constitute controlling legislative history but nonetheless
are intended to clarify the scope of HTSUS subheadings
and to offer guidance in interpreting subheadings.” Mita
Copystar Am. v. United States, 21 F.3d 1079, 1082 (Fed.
Cir. 1994).
According to GRI 1, “classification shall be determined
according to the terms of the headings and any relative
section or chapter notes.” “We apply GRI 1 as a substan-
tive rule of interpretation, such that when an imported
article is described in whole by a single classification
heading or subheading, then that single classification
applies, and the succeeding GRIs are inoperative.”
CamelBak, 649 F.3d at 1364. HTSUS headings and
subheadings that describe an article by a specific name
are referred to as eo nomine provisions. Id. When goods
are “in character or function something other than as
described by a specific statutory provision—either more
limited or more diversified—and the difference is signifi-
cant,” then the goods cannot be classified under an eo
nomine provision pursuant to GRI 1. Casio, Inc. v. United
States, 73 F.3d 1095, 1097 (Fed. Cir. 1996) (citation and
internal quotation marks omitted).
8 LA CROSSE TECHNOLOGY, LTD. v. US
“When goods are prima facie classifiable under two or
more headings or subheadings of HTSUS, we apply GRI 3
to resolve the classification.” CamelBak, 649 F.3d at
1365. We begin with GRI 3(a), which states:
The heading which provides the most specific de-
scription shall be preferred to headings providing
a more general description. However, when two
or more headings each refer to part only of the
materials or substances contained in mixed or
composite goods or to part only of the items in a
set put up for retail sale, those headings are to be
regarded as equally specific in relation to those
goods, even if one of them gives a more complete
or precise description of the goods.
“We apply GRI 3(a) when the goods, as a whole, are prima
facie classifiable under two or more headings or subhead-
ings to determine which heading provides the most specif-
ic description of the goods.” CamelBak, 649 F.3d at 1365.
When classification cannot be resolved under GRI 3(a), we
turn to GRI 3(b), which provides for classification of goods
as though they consist of the “material or component
which gives them their essential character.” The essen-
tial character analysis varies depending on the type of
goods at issue and generally involves consideration of the
goods’ design, function, and use.
The HTSUS Headings and subheadings relevant to
this appeal are as follows:
9015 Surveying (including photogrammetrical
surveying), hydrographic, oceanographic, hydro-
logical, meteorological or geophysical instruments
and appliances, excluding compasses; rangefind-
ers; parts and accessories thereof:
9015.80 Other instruments and appliances
[than rangefinders, theodolites, tachymeters, lev-
LA CROSSE TECHNOLOGY, LTD. v. US 9
els, and photogrammetrical surveying instru-
ments and appliances];
9015.80.80 Other [than optical instruments,
appliances, and seismographs]
9025 Hydrometers and similar floating instru-
ments, thermometers, pyrometers, barometers,
hygrometers and psychrometers, recording or not,
and any combination of these instruments; parts
and accessories thereof:
Thermometers and pyrometers, not combined
with other instruments:
9025.19 Other [than liquid filled]:
9025.19.80 Other [than pyrometers]
9025.80 Other instruments
9025.80.10 Electrical
9105 Other clocks [than wrist watches, pocket
watches and other watches, clocks with watch
movements, and instrument panel clocks]:
Wall Clocks:
9105.21 Electrically operated:
9105.21.40 With opto-electronic display only
9105.21.80 Other:
9105.91 Electronically operated:
9105.91.40 With opto-electronic display only
IV. ANALYSIS
We agree with the government that the devices at is-
sue are properly classified pursuant to GRI 3(b), which
10 LA CROSSE TECHNOLOGY, LTD. v. US
requires examination of the essential character of each
model. La Crosse contends that classification pursuant to
GRI 1 is appropriate because the models at issue are
prima facie classifiable as meteorological appliances
under Heading 9015. According to La Crosse, Heading
9015—which covers “meteorological . . . instruments and
appliances”—describes each device in whole.
La Crosse’s argument, however, does not give proper
weight to the significant timekeeping functions and
features of the devices at issue. All the relevant devices
display the time and date, and many others have time
alarms with snooze timers. HTSUS Heading 9015 de-
scribes, in relevant part, meteorological devices. But
nowhere does it mention devices capable of timekeeping.
Instead, such devices are described by other HTSUS
headings (e.g., 9105, HTSUS). We disagree with La
Crosse that the time-related features are incidental to the
devices at issue, like a common household appliance with
a built-in clock. Instead, the key function of the devices at
issue is to measure and display information. A not-
insignificant portion of the display of each model is devot-
ed to providing time-related information. Indeed, the
timekeeping functionality of the products at issue initially
led Customs to classify all the devices at issue as clocks.
We find that the time-related functions of the devices at
issue are “substantially in excess” of the features de-
scribed in Heading 9015. Casio, 73 F.3d at 1098 (citation,
quotation, and emphasis omitted). Consequently, Head-
ing 9015 does not describe the products as a whole, and
classification under GRI 1 is inappropriate. 3
3 Classification under GRI 3(a) similarly is not ap-
propriate because the goods as a whole are not classifiable
under two headings. Instead, the devices are described in
part by several HTSUS headings. On appeal, neither
party contends that classification under GRI 3(a) would
be appropriate.
LA CROSSE TECHNOLOGY, LTD. v. US 11
Because we conduct our analysis under GRI 3(b), we
examine the essential character of the devices at issue.
Determining the essential character of goods requires a
fact-intensive analysis that includes consideration of
various factors depending on the type of goods involved.
Home Depot U.S.A., Inc. v. United States, 491 F.3d 1334,
1336–37 (Fed. Cir. 2007). In this case, the trade court
conducted an essential character analysis, and classified a
number of the devices at issue as clocks under HTSUS
subheading 9105.91.40. La Crosse, 826 F. Supp. 2d at
1361–62. The court focused on the fact that La Crosse
described these models as clocks in its marketing litera-
ture, “[t]he array of time-related features is equal [to] or
greater than the weather-related functions,” and the fact
that the models display weather information in smaller
type size than time information. Id.
Although we agree that time-related functions are an
important aspect of the models the trade court classified
as clocks, we conclude that the trade court committed
error in determining that the essential character of the
Clock models was related to timekeeping. As La Crosse
points out, the devices the trade court classified as clocks
monitor weather conditions and provide weather forecasts
that consumers often use to plan their activities. In
addition, these weather-related features add significant
cost to the products at issue, making them considerably
more expensive than a standard clock. See CamelBak,
649 F.3d at 1369 (observing the “higher prices CamelBak
charges and consumers pay for the subject articles as
compared to conventional backpacks” and determining
that products were not properly considered conventional
backpacks pursuant to GRI 1). As a consequence, we
conclude that it is the Clock models’ meteorological capa-
bilities, as opposed to their time-related functions, that
provide their essential character.
With respect to the models the trade court classified
as combination instruments under subheading 9025.80.10
12 LA CROSSE TECHNOLOGY, LTD. v. US
(i.e., the Weather Station models), the trade court ob-
served that the devices “have a concentration of weather-
related features which predominate in number over the
clock functions.” La Crosse, 826 F. Supp. 2d at 1360.
Based on the significant weather-related features these
models possess, we agree with the trade court that “the
essential character of the Weather Stations is given by
the weather-related functions.” Id.
Having determined that the essential character of all
the devices at issue on appeal is related to their meteoro-
logical (as opposed to time-related) capabilities, we must
now determine which HTSUS subheading best describes
these goods. There are two competing subheadings rele-
vant to this appeal that describe meteorological devices—
9025.80.10 and 9015.80.80. We examine the scope of each
subheading below.
Heading 9025 describes “[h]ydrometers and similar
floating instruments, thermometers, pyrometers, barome-
ters, hygrometers and psychrometers, recording or not,
and any combination of these instruments.” With respect
to combinations of instruments, the Explanatory Notes to
Heading 9025 provide: “This heading also includes combi-
nations of the instruments referred to above . . . except
when the addition of one or more other devices gives the
combination the character of equipment or appliances
covered by more specific headings (e.g., heading 90.15 as
meteorological instruments).” (emphasis omitted).
Heading 9015 describes, in relevant part, “meteorolog-
ical . . . instruments and appliances.” The Explanatory
Notes to 9015 state: “It should be noted that this group
does not cover thermometers, barometers, hygrometers
and psychrometers, nor combinations of such instruments
(heading 90.25).” (emphasis omitted).
Headings 9025 and 9015, read together and viewed in
light of their respective Explanatory Notes, thus set out
mutually exclusive categories of meteorological devices.
LA CROSSE TECHNOLOGY, LTD. v. US 13
Heading 9025 is limited to the instruments it expressly
names and combinations of those instruments. Heading
9015, on the other hand, broadly encompasses meteorolog-
ical instruments and appliances other than the instru-
ments and combinations explicitly described in Heading
9025.
In simplest terms, Heading 9105 is not descriptive of
the devices at issue on appeal, and Headings 9025 and
9015, while both relevant to such devices, establish mu-
tually exclusive classifications. It is our job to decide
which of the two mutually exclusive categories more
appropriately encompasses the defining characteristics of
these products.
Because all of the devices on appeal have forecasting
capabilities, we conclude that they are properly classified
under subheading 9015.80.80. The trade court erred in
concluding otherwise. The trade court discounted the
importance of the devices’ forecasting function because
they were “imprecise and lack the character of meteoro-
logical equipment.” La Crosse, 826 F. Supp. 2d at 1360.
The relevant HTSUS headings and subheadings, howev-
er, do not distinguish the various types of meteorological
devices based on the precision of the forecasts they pro-
vide. The devices’ forecasting features shape their classi-
fication.
Although the devices include thermometers, barome-
ters, and often hygrometers (to measure humidity), they
are not merely combination instruments that fit the
description of Heading 9025. The thermometers and
barometers described in 9025 are instruments that meas-
ure current conditions. Such instruments potentially
could record historical measurements as well. By con-
trast, the ability of the devices at issue on appeal to
provide a predictive weather forecast by analyzing baro-
metric readings goes well beyond merely measuring and
recording information about existing or past atmospheric
14 LA CROSSE TECHNOLOGY, LTD. v. US
conditions. This forecasting function thus distinguishes
the meteorological devices at issue on appeal from the
instruments described by Heading 9025.
Forecasting is the defining characteristic of the devic-
es at issue that provides their essential character. Fore-
casting is featured prominently in the names of many of
the devices. See, e.g., JA129 (describing model WS-9055
as a “Wireless Forecast Station”); JA132 (describing
model WS-9075 as a “Wireless Forecast/Moon Station”).
Forecast information takes up a significant portion of the
devices’ displays. And, the record indicates that the
forecasting feature is a significant driver of consumers’
purchasing decisions. See JA86 (indicating that a fore-
casting device significantly outsold a similar device that
lacked forecasting capability). Thus, the forecasting
feature is central to the devices at issue and takes the
devices at issue out of the narrow scope of the instru-
ments described by Heading 9025, and into the broader
category of meteorological devices described by Heading
9015, and more specifically by subheading 9015.80.80.
V. CONCLUSION
For the reasons set out above, we reverse the judg-
ment of the Court of International Trade with respect to
the classifications challenged on appeal and order Cus-
toms to reliquidate these models in accordance with their
classification under subheading 9015.80.80.
REVERSED
United States Court of Appeals
for the Federal Circuit
______________________
LA CROSSE TECHNOLOGY, LTD.,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
______________________
2012-1370
______________________
Appeal from the United States Court of International
Trade in No. 07-CV-0114, Senior Judge R. Kenton Mus-
grave.
______________________
BRYSON, Circuit Judge, concurring in part and dissenting
in part.
I agree with the majority that this case must be de-
cided under General Rule of Interpretation 3(b), which
requires a determination as to the “essential character” of
the devices in dispute. I also agree that we must uphold
the trial court’s conclusion as to the proper classification
of the disputed items unless we conclude that the court’s
findings underlying the classification decision constitute
clear error. And I agree with the majority’s conclusion
that the “weather station” models do not fall under
HTSUS heading 9025 as “thermometers, pyrometers,
barometers, hygrometers . . . and any combination of
these instruments.” I therefore concur with the court that
2 LA CROSSE TECHNOLOGY, LTD. v. US
the weather station models must be classified under
heading 9015 as “meteorological instruments and appli-
ances.”
I disagree with the majority on one issue, however.
As to the so-called “clock” models, i.e., models WS-8157,
WT-5130, WT-5432, and WT-5442, I would uphold the
trial court’s conclusion that those devices should be classi-
fied under HTSUS heading 9105 as “other clocks,” be-
cause the trial court permissibly found that the essential
character of those models is that of electrically operated
alarm clocks.
The trial court based its finding as to the essential
character of the clock models on what the court called the
“numerous and predominant clock-related functions and
clock-related marketing.” The court noted that those
models are sold by La Crosse in its catalog and website as
either “Atomic” or “Projection” “clocks.” In its advertising,
La Crosse refers to both the clock functions and the
weather forecasting functions of the devices, but it fea-
tures the clock functions more prominently, referring to
those models variously as “Projection Alarm Clock,”
“Projection Alarm Clock Atomic Precision,” “Wireless
Atomic Projection Alarm,” “Projection Alarm Clock with
Forecast,” “Projection Alarm Clock with Oscar Outlook
Forecaster,” and “Atomic Digital Wall Clock with Forecast
& Weather.” La Crosse’s marketing materials are im-
portant evidence of the items’ essential character. See
The Pillsbury Co. v. United States, 431 F.3d 1377, 1380
(Fed. Cir. 2005).
The time of day is the most prominent feature on
each of the clock models, with the outdoor temperature
and some indication of the forecast (based on an internal
barometer) occupying a less prominent place in the de-
vice’s display panel. Most of the clocks project the time
and temperature on the wall in large numbers. Each of
the clocks also has other time-related functions, such as a
LA CROSSE TECHNOLOGY, LTD. v. US 3
time alarm with a snooze control, a perpetual calendar,
time zone setting, and automatic updates for Daylight
Savings Time.
Based on all that evidence, the trial court found that
the forecasting function of the clocks was subsidiary to
the clock functions and was insufficient to give the devices
the “essential character” of meteorological equipment. To
the contrary, the court found, the clock features and the
“layout of the displays and marketing information”
demonstrated “that the essential character of the Clocks
is given by the clock component.”
Under General Rule of Interpretation 3(b), the trial
court had only two choices with respect to the clock mod-
els: The “essential character” of the clock models was
either as clocks that also had a weather forecasting func-
tion, or as weather forecasting devices that also had a
clock function. The trial court concluded that the first
category fit the “clock” models better than the second.
That is a quintessentially factual determination. I
can see no justification for overriding the trial court’s
factual finding on that issue and substituting this court’s
judgment that the essential character of those four models
is as weather-predicting instruments. It is doubtless true
that each of the clock models is more expensive than it
would be without the weather-related features. That
would also be true, however, if each of the clocks had a
daily updated listing of baseball scores or Dow Jones,
Nasdaq, and S&P 500 averages at the bottom of the clock.
Yet the inclusion of such a feature would not alter the
“essential character” of the device from that of a clock to
that of a sporting results monitor or a securities exchange
reporting device. Because I do not believe the trial court
committed clear error in its conclusion as to the “essential
character” of the clock models, I respectfully dissent from
this court’s ruling as to those four models.