DESIGN PATENT CASE ALERT: Parker v. Kimberly- Clark, 2012 U.S. Dist. LEXIS 2565 (N.D. Ill. Jan. 10, 2012)

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1 DESIGN PATENT CASE ALERT: Parker v. Kimberly- Clark, 2012 U.S. Dist. LEXIS 2565 (N.D. Ill. Jan. 10, 2012) Design Patent: D589,611 Sanitary Napkin D589,611 ISSUE: Order Granting Motion to Dismiss for Failure to State a Claim CASE: Design patent D589,611 is for the design of a sanitary napkin. Plaintiff Parker sued Kimberly- Clark for infringement. Kimberly- Clark moved to dismiss under Rule 12(b)(6) for failure to state a claim upon which relief could be granted. The court granted the motion to dismiss. The court compared the accused product with the patented design side- by- side and found there was not enough similarity to deceive an ordinary observer. Figure 1 of 611 Patent Accused Poise Hourglass Pad The court observed that the 611 Patent had flat ends with sharp corners whereas the accused design had one rounded end and one heart shaped end. 1

2 Comparing the bottom right perspective view of the patented design with the bottom view of the accuse design, the court observed the accused design does not have an hourglass shape, and the patented design has an I shaped adhesive strip and horizontal adhesive strips whereas the accused design has six parallel adhesive strips running longways down the pad. Comparing a side view of the 611 Patent with a top left perspective view of the accused design, the court observed that the patented design is very flat and thin, whereas the accused design is supple and thick. The Court also compared the two designs in light of the prior art. Fig. 2 of prior art Patent No. 500,131 Figure 1 of the 611 Patent 2

3 The court stated the 611 patented design was strikingly similar to prior art patent 500,131 for a sanitary napkin, and that the 131 Patent seems to be closer in design to the 611 Patent than does the [accused design]. The court observed that both the prior art 131 Patent and the 611 Patent have straight ends and an hourglass shape and [t]he edges of the 611 Patent appear to be sharper than those of the 131 Patent, and the 611 Patent [sic 131 Patent] also seems to lack the I shaped adhesive strips of the 611 Patent. The court stated [w]hat this comparison illustrates is the narrow range of coverage that the 611 Patent has and is further proof that an ordinary observer would not be confused. COMMENT: Motion to Dismiss under Rule 12(b)(6) The court dismissed this case under Rule 12(b)(6). A motion to dismiss has become an effective weapon in the arsenal of design patent defendants. 1 Much time and expense can be saved when a defendant obtains a dismissal at the beginning of the case before discovery begins. Two Supreme Court cases decided within the last five years, Bell Atlantic Corp. v. Twombly 2 and Ashcroft v. Iqbal, 3 have set forth standards allowing a district court to evaluate the merits of a case on a motion to dismiss for failure to state a claim. Under these standards, the complaint must allege facts stating a claim plausible on its face, 4 which means the factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. 5 These standards are broad enough to allow a district court to apply the ordinary observer test to the patented and accused designs and prior art. If the comparison does not allow a court to draw a reasonable inference of infringement, then the complaint should be dismissed. Such a reasonable inference cannot be drawn when the patented and accused designs are plainly dissimilar. 6 In addition, a practical three- way test asks whether the overall visual differences between the accused design and the patented design are greater than the differences between the patented design and the prior art. 7 If so, then a reasonable inference of infringement does not exist. The court found both these situations present and dismissed the case. A motion to dismiss for failure to state a claim must be judged by the complaint. In this case, the complaint did not attach either the 611 patent or the accused design, but the complaint referred to both and both were central to the plaintiff s claims. Therefore, the court could rely on uncontested pictures of the 611 patent and accused design furnished by the parties and could consider the motion without converting it into a motion for summary judgment. 8 Further, the court could take judicial notice of a publicly available prior art reference. 9 3

4 Design Patent Infringement CAN be Avoided by Adding Design Features In the utility patent context, adding additional elements to a device that otherwise infringes a claim does not avoid infringement. 10 That is not true in the design patent context. The sole test for design patent infringement is the ordinary observer test. Under this test the overall visual impression created by the ornamental features of the claimed design is compared to the overall visual impression created by the ornamental features of the corresponding accused design. If an accused design adds ornamental elements to a patented design that substantially change the overall visual impression of the design, then infringement does not exist. In this case, the plaintiff argued that the complaint was plausible on its face because the accused design copied the general hourglass shape, the small round dots in the interior of the pad, and the prominent boundary around the dots of the claimed design. She further argued that the design features added by defendant such as the paisley and flower print, thin opaque portion around the pad, and pink elastic strip along the sides of the pad should be ignored. The court did not ignore the additional design features in its analysis and this was correct. If a plaintiff wants to compare just portions of the patented and accused designs for infringement (as in this case), then just a portion of the design should be claimed. 11 One way this can be accomplished is by illustrating the portion claimed in solid lines and the remainder of the design in broken lines. 12 Some Observations on Design Patent Claim Drafting It is generally believed that omitting detail in design patent drawings may broaden design patent claim scope. The theory behind this approach is that a detailed drawing is easier to design around because it offers more features that can be omitted or changed to avoid infringement. When just the primary novel features of the design are claimed and these features substantially exist in the accused design, then an argument for infringement can be made. This approach has advantages, but it has disadvantages as well. Just as deleting or modifying design elements can help avoid infringement of a more detailed drawing, adding design features can help avoid infringement of a less detailed drawing as well. One way to avoid this predicament is to place broken lines on the borders of the section portions of the design where the detail was omitted. When this is done, the additional detail in the accused design becomes irrelevant as long as the solid line portions of the design exist in the accused design. But then an additional problem may arise. Although placing section portions of the claimed design in broken lines may help capture more accused designs as infringements, it also makes the claimed design more susceptible to a prior art invalidity challenge. This is because the detail in the prior art that exists in the broken line section portions of the design no longer will be relevant to the comparison. As long as the prior art contains the 4

5 solid line portions of the claimed design, it can act as a potentially anticipating reference or, in an obviousness analysis, a primary prior art reference. In short, increasing the breath of the claim for infringement purposes also will increase the breath of the claim for invalidity purposes. A potential solution for this problem is to add drawings that contain the additional or alternate detail in broken lines. Then, if prior art is encountered that may pose a problem, the detail in broken lines may be converted to solid lines to distinguish the prior art. As long as there is antecedent basis for the solid lines in the broken lines, a new matter rejection can be avoided. Selection of what sections should be placed in broken line borders and what design detail should be drawn in broken lines should be a matter of informed judgment. Decisions should be made only after thoroughly understanding the nature of the design and its proposed commercial embodiments, reviewing and analyzing the prior art, and carefully considering the direction of potential future design around attempts and infringements. 1 As noted by defendant in its memorandum in support of motion to dismiss, the Federal Circuit has affirmed the dismissal of design patent infringement claims under Rule 12(b)(6). See, e.g., Vigil v. Walt Disney Co., 232 F.3d 911 (table) (Fed.Cir. 2000); Kellman v. Coca-Cola Co., 280 F. Supp. 2d 670 (E.D. Mich. 2003) U.S. 544 (2007) U.S. 662 (U.S. 2009) U.S. at U.S. at. 6 See Egyptian Goddess, Inc. v. Swisa, Inc., 543 F.3d 665, 678 (Fed. Cir. 2008). 7 Id. at See, e.g., Venture Assoc. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7 th Cir. 1993) (case referred to in motion to dismiss, page 3, footnote 1). 9 See Pugh v. Tribune Co., 521 F.3d 686, 691, n.2 (7 th Cir. 2008). 10 See Suntiger, Inc. v. Scientific Research Funding Group, 189 F.3d 1327, 1336 (Fed. Cir. 1999). 11 In re Zahn, 617 F.2d 261 (C.C.P.A. 1980). 12 Current 37 CFR states in relevant part [b]roken lines may be used to show visible environmental structure, but may not be used to show hidden planes and surfaces that cannot be seen through opaque materials. Current MPEP Part III entitled Broken Lines states [t]he two most common uses of broken lines are to disclose the environment related to the claimed design and to define the bounds of the claim. With regard to disclosing the environment, the MPEP states [s]tructure that is not part of the claimed design, but is considered necessary to show the environment in which the design is associated, may be represented in the drawing by broken lines and [t]his includes any portion of an article in which the design is embodied or applied to that is not considered part of the claimed design. The MPEP further states [u]nclaimed subject matter must be described as forming no part of the claimed design or of a specified embodiment thereof. 5

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