Danger Will Robinson: Classifying Robot Controllers

These days, marketers describe everything as "smart." There are smart televisions, a smart toaster, and even a smart toothbrush. The question is, how smart do these devices (or their parts) have to be to turn them into automatic data processing machines, or as normal people call them, "computers?"

That is the question presented, at least in this summary, in Fanuc Robotics America, Inc. v. United States.

We have talked about the complexity that is ADP classifications a number of times. Go back and read this and this.

The gist of this case is that Fanuc makes industrial robots (really robot arms) that do industrial robot tasks like spot welding, painting, and materials handling. The robot is not a general purpose device that can, if properly programmed, perform other tasks like playing ping pong, mixing cocktails, or doing your yard work. For that, you need a Class M-3 Model B-9 Non-Theorizing Environmental Control Robot.

Personally, I like the upgrade and continue to wait for Lost in Space Season Two. Come on already, Netflix.

Credit: https://ew.com/movies/tv-movie-robot-upgrades/?slide=5910697#5910697
In this case, Fanuc was importing 10 printed circuit assemblies that are part of the robot controller. The assemblies all have the kind of functions you might find in a computer. One is a CPU. One is a memory board. One controls input and output. If any one of those boards were imported by a computer manufacturer for use in assembling a computer, they might reasonably be classified as units or parts of an ADP system. The problem here, is that they were imported for use in a robot with a specific end use. [More on that below.]

Plaintiffs try to address that concern by pointing out that the boards are not part of the robot; they are part of the controller for the robot. Fanuc believes the controller is an ADP machine. I am not sure what the Fanuc controller looks like or how the user interface works. But, I am pretty certain that in the absence of the Fanuc controller, these robot arms could be controlled by a standard computer with an appropriate adapter. That raises the serious question of whether a programmed controller that is doing work that could otherwise be done by a computer is an ADP machine.

The Court of International Trade had no problem resolving the classification of  the controller. It held that the controller is classifiable in 8537 as board, panel, console, etc. for electric control including numerical control apparatus. The controllers distribute electrical signals to the robot and receive signals back from the robot. The controllers, as is also required for classification in 8537, contain at least two items classifiable in 8536 (e.g., switches, relays, and fuses). The Explanatory Notes support this classification by instructing that 8537 includes programmable controllers. Furthermore, Chapter 84, Note 5(E) says:

Machines incorporating or working in conjunction with an automatic data processing machine and performing a specific function other than data processing are to be classified in the headings appropriate to their respective functions or, failing that, in residual headings.

According to the Court, the controllers have a specific function other than data processing. They are robot controllers. Consequently, they are to be classified based on that function. That puts them in 8537, not 8471.

From there, the Court was able to conclude that the various assemblies were parts of the programmable controller of 8537. That put them in Heading 8538. Plaintiff argued, to no avail, that within the controller is a machine that is classifiable as an ADP machine and that the assemblies are parts of that. There is some interesting analysis in the opinion on this point. In theory, classifying parts of even slightly smart devices might, under this theory, require several levels of theoretical deconstruction to see whether the parts satisfy the rules set out in Chapter 84, Note 5 including whether they are freely programmable in accordance with the requirements of the user. The Court cut through that by focusing on the user of the robot and finding that these parts are not programmable by that user to do anything other than the tasks for which the robot was designed.

I think the judges of the Court of International Trade might want to watch more movies in which hackers make connected systems do their bidding. Something like this:

I suspect that Chuck Bartowski (and future Shazam) would be happy to make the Fanuc robot arms play ping pong or mix the perfect Old Fashioned, but hackers are not the "users." The question of who is the user in electronic systems gets very murky very quickly. What if Fanuc's team could do more with the robot arm but has locked it down in the controller so that the customer does not muck up the programming?

Also, as I always wonder, exactly how much freedom is needed to be freely programmable? In CBP Rulings, Customs seems to have arrived at the test of whether a user can load and run multiple different programs on the device. Recently, an import specialist asked me whether the device under consideration can be programmed to play videos from the Internet and also run a virus protection program. Those are pretty specific requests and may not be relevant to all ADP machines. I have also seen CBP ask whether the device can run Word and PowerPoint. Clearly, what CBP is looking for is a general purpose device that can do multiple and different tasks with a change in programming.

Robot arms are probably not there. On the other (robot) hand, complex controllers might be if they are based, for example, on a general purpose operating system such as Window, Linus or Android. Systems running those operating systems generally can be programmed to play games, do word processing, and display pictures, for example.

In the end, the Court found all of the printed circuit assemblies to be classifiable in 8538.90.30 as other printed circuit assemblies of Heading 8538.

One last thing, only because it is an issue I have been contemplating. Is 8471, which describes Automatic Data Processing machines an eo nomine or a use provision? I have always assumed it to be an eo nomine provision and that Note 5 was there to explain what physical and functional characteristics define an ADP machine. The Court seems to have been very swayed by the fact that the parts are used in conjunction with programmable controllers for industrial robots. I have no idea whether the parts are, in reality, generic electronic components or at least of the class and kind of components that might be used in ADP machines. Memory boards, CPUs, and input/output boards are all parts of computers. This seems to be an issue but I also have no doubt that counsel for Fanuc has been down that road.

More to the point, now I wonder whether items of 8471 might be an example of the new category of classification chimera of eo nomine classifications that inherently suggest a particular use. If that is the case, at least for now, how to go forward is murky.


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