United States Federal Circuit

In an infringement suit over a design patent for a nail buffer, summary judgment of noninfringement is affirmed where: 1) the "point of novelty" test should no longer be used in the analysis of a claim of design patent infringement; 2) the "ordinary observer" test should be the sole test for determining whether a design patent has been infringed; 3) under the ordinary observer test, infringement will not be found unless the accused article "embodies the patented design or any colorable imitation thereof"; 4) when a district court conducts claim construction in design patent cases, the level of detail to be used in describing the claimed design is a matter within the court's discretion, and absent a showing of prejudice, the court's decision to issue a relatively detailed claim construction will not be reversible error; and 5) in this case, the accused design could not reasonably be viewed as so similar to the claimed design that a purchaser familiar with the prior art would be deceived by the similarity between the claimed and accused designs.

Appellate Information

• Decided 09/22/2008
• Published 09/22/2008

Judges

• BRYSON, Circuit Judge., Before MICHEL, Chief Judge, and NEWMAN, ARCHER, MAYER, LOURIE, RADER, SCHALL, BRYSON, GAJARSA, LINN, DYK, PROST, and MOORE, Circuit Judges.

Court

• United States Federal Circuit

Counsel

• For Appellant:
  
• Robert G. Oake, Jr., Oake Law Office, of Allen, TX, argued for plaintiff-appellant., F. David LaRiviere, LaRiviere, Grubman & Payne LLP, of Monterey, CA, for amicus curiae Monster Cable Products, Inc., William Dunnegan, Dunnegan LLC, of New York, NY, for amicus curiae Industrial Designers Society of America.   With him on the brief was Nikitas E. Nicolakis., Edward D. Manzo, Cook, Alex, McFarron, Manzo, Cummings & Meher, Ltd., of Chicago, IL, for amici curiae Elite Group, Inc., et al., Kevin T. Kramer, Pillsbury Winthrop Shaw Pittman LLP, of Washington, DC, for amicus curiae Federal Circuit Bar Association.   With him on the brief were Edward R. Reines, Federal Circuit Bar Association, of Washington, DC, and Mark P. Walters, Darby & Darby, of Seattle, WA., George M. Sirilla, Pillsbury Winthrop Shaw Pittman LLP, of McLean, VA, for amicus curiae Daisy Manufacturing Company, Inc. With him on the brief was Stephanie F. Goeller, of Washington, DC., Frank A. Angileri, Brooks Kushman P.C., of Southfield, MI, for amicus curiae Ford Global Technologies, LLC. With him on the brief was Marc Lorelli., Christopher J. McGeehan, Greer, Burns & Crain, Ltd., of Chicago, IL, for amicus curiae Intellectual Property Law Association of Chicago., Vandana Koelsch, Howrey LLP, of Washington, DC, for amicus curiae Bar Association of the District of Columbia., Tracy-Gene G. Durkin, Sterne, Kessler, Goldstein & Fox P.L.L.C., of Washington, DC, for amicus curiae Intellectual Property Owners Association.   With her on the brief was David K.S. Cornwell.   Of counsel on the brief were Steven W. Miller, The Procter & Gamble Company, of Cincinnati, OH, and Richard F. Phillips, Exxon Mobil Corporation, of Houston, TX. Of counsel was Herbert C. Wamsley, Intellectual Property Owners Association, of Washington, DC., William T. Fryer, III, of Bethesda, MD, for amicus curiae Professor William T. Fryer, III., Christopher J. Renk, Banner & Witcoff, Ltd., of Chicago, IL, for amici curiae Electrolux Home Products, Inc., et al.   With him on the brief were Erik S. Maurer, of Chicago, IL, and Robert S. Katz, of Washington, DC. Of counsel was Christopher B. Roth., Christopher V. Carani, McAndrews, Held & Malloy, Ltd., of Chicago, IL, for amicus curiae American Intellectual Property Law Association.   With him on the brief was James Pooley, Morrison & Foerster LLP, of Palo Alto, CA., Perry J. Saidman, Saidman DesignLaw Group, of Silver Springs, MD, for amicus curiae Apple Inc., Alan L. Barry, Bell, Boyd & Lloyd LLP, of Chicago, IL, for amici curiae LKQ Corporation, et al.   With him on the brief were Heather A. Boice and Brian J. Arnold., Valerie K. Friedrich, Baker & McKenzie LLP, of Houston, TX, for amicus curiae Houston Intellectual Property Law Association.


• For Appellees:
  
• Frederick Linton Medlin, Kirkpatrick & Lockhart Preston Gates Ellis LLP, of Dallas, TX, argued for defendants/third party plaintiffs-appellees.   With him on the brief was Linda G. Moore.   Of counsel was Jeffrey L. Snow, of Boston, MA.