1294
`
`598 FEDERAL REPORTER, 3d SERIES
`
`Program for Small Business Concerns
`Owned and Controlled by Service Disabled
`Veterans (SDVOSBC), which permits a
`contracting officer to award contracts on
`the basis of competition restricted to
`“small business concerns owned and con—
`trolled by service-disabled veterans.” See
`15 U.S.C. § 657f. While the SDVOSBC
`enabling legislation and associated admin-
`
`istrative regulations repeatedly refer to
`contract preferences for small businesses
`
`owned by disabled veterans, they do not
`confer any rights directly on the veterans
`themselves.
`See 15 U.S.C.
`§ 657f;
`13
`C.F.R.§ 125.8(g); 13 C.F.R. § 125.14; 48
`C.F.R. § 6.206; 48 C.F.R. § 18.116. The
`Companies therefore could have advanced
`
`Griswold’s claims in the prior litigation,
`making them subject to claim preclusion.
`
`C. Manifest Injustice Exception,
`
`[8] Griswold further argues the district
`court erred by failing to apply a manifest
`injustice exception. The Supreme Court,
`however, has cautioned against departing
`from accepted principles of res judicata.
`In Federated Department Stores, Inc. v.
`Mattie,
`the Court explained that “[t]he
`doctrine of res judicata serves vital public
`interests beyond any individual judge’s ad
`hoc determination of the equities in a par—
`ticular case. There is simply ‘no principle
`of law or equity which sanctions the rejec-
`tion by a federal court of the salutary
`principle of res judicata.’”
`452 US. 394,
`401, 101 S.Ct. 2424, 2429, 69 L.Ed.2d 103
`(1981) (quoting Heise’r v. Woodmfif 327
`US. 726, 733, 66 S.Ct. 853, 856, 90 L.Ed.
`970 (1946)). Even if a manifest injustice
`exception were to exist, the application of
`res judicata would not be unjust in this
`case.
`Griswold
`could
`have
`advanced
`
`claims under the Veterans Act during his
`control of the prior litigation and thus has
`already had his day in court.
`
`IV. CONCLUSION
`
`The district court did not err by holding
`that Griswold was in privity with the Com—
`panies in the prior litigation and that both
`suits involved the same cause of action.
`We therefore affirm the district court’s
`order granting Appellees’ motion to dis—
`miss on the grounds of res judicata.
`AFFIRMED.
`
`w
`
`1’
`0 gm NUMBER SYSTEM
`
`CROCS, IN0., Appellant,
`V.
`
`INTERNATIONAL TRADE
`COMMISSION,
`Appellee,
`
`and
`
`Double Diamond Distribution,
`Ltd., Intervenor,
`
`and
`
`Holey Soles Holdings, Ltd.,
`and Effervescent, Inc.,
`Intervenors.
`
`No. 2008-1596.
`
`United States Court of Appeals,
`Federal Circuit.
`
`Feb. 24, 2010.
`
`Rehearing and Rehearing En Banc
`Denied May 20, 2010.
`
`Background: Assignee of a patent relat—
`ing to foam footwear and a patent for an
`ornamental footwear design appealed final
`decision of the United States International
`Trade Commission,
`in its unfair competi—
`tion action against competitors, finding no
`infringement and no domestic industry for
`the design patent, and obviousness for the
`other patent.
`
`
`
`
`
`
`
`

`

`CROCS, INC. v. INTERNATIONAL TRADE COM’N
`Cite85598 F.3d 1294 (Fed. Cir. 2010)
`
`1295
`
`Holdings: The Court of Appeals, Rader,
`Circuit Judge, held that:
`
`(1) accused shoes infringed the design pat—
`cut;
`
`(2) articles protected by design patent sat-
`isfied technical prong of domestic in—
`dustry requirement of unfair competi-
`tion statute; and
`
`(3) patent relating to foam footwear was
`non-obvious.
`
`Reversed and remanded.
`
`1. Customs Duties @856)
`
`Court of Appeals for the Federal Cir-
`cuit reviews the International Trade Com~
`
`legal determinations without
`mission’s
`deference and its factual findings for sub—
`stantial evidence; “substantial evidence” is
`such relevant evidence as a reasonable
`
`mind might accept as adequate to support
`a conclusion.
`
`See publication Words and Phras-
`cs for other judicial constructions
`and definitions.
`
`2. Patents @252
`
`In many cases, the considerable effort
`in fashioning a detailed verbal description
`for a design patent does not contribute
`enough to the infringement analysis to jus-
`tify the endeavor; depictions of the claimed
`design in words can easily distract from
`the proper infringement analysis of the
`ornamental patterns and drawings.
`3. Patents @7180
`
`Design patents are typically claimed
`as shown in drawings, and claim construc—
`tion must be adapted to a pictorial setting;
`thus an illustration depicts a design better
`than it could be by any description and a
`description would probably not be intelligi—
`ble without the illustration.
`
`4. Patents @100
`
`As a rule, the illustration in drang
`views is its own best description of a de—
`sign patent
`
`5. Patents @3252
`
`In determining whether an accused
`product infringes a patented design,
`the
`Court of Appeals for the Federal Circuit
`applies the “ordinary observer” test, with-
`out any “point of novelty” perspective; to
`show infringement under the proper test,
`an ordinary observer,
`familiar with the
`prior art designs, would be deceived into
`believing that the accused product is the
`same as the patented design.
`
`6. Patents @252
`
`Under the “ordinary observer” test
`for determining whether an accused prod-
`uct infringes a patented design, when the
`differences between claimed and accused
`
`designs are viewed in light of the prior art,
`the attention of the hypothetical ordinary
`observer may be drawn to those aspects of
`the claimed design that differ from the
`prior art, and if the claimed design is close
`to the prior art designs, small differences
`between the
`accused design and the
`claimed design assume more importance to
`the eye of the hypothetical ordinary ob-
`server;
`the ordinary observer, however,
`will likely attach importance to those dif-
`ferences depending on the overall effect of
`those differences on the design, and even if
`the claimed design simply combines old
`features in the prior art, it may still create
`an overall appearance deceptively similar
`to the accused design, so as to warrant
`upholding a finding of infringement.
`
`7. Patents @252
`
`The “ordinary observer” test for de-
`termining whether an accused product in—
`fringes a patented design applies to the
`patented design in its entirety, as it
`is
`claimed; minor differences between a pat-
`ented design and an accused article’s de—
`sign cannot, and shall not, prevent a find-
`ing of infringement.
`
`

`

`1296
`
`598 FEDERAL REPORTER, 3d SERIES
`
`8. Patents @252
`Accused shoes embodied the overall
`
`effect of patented design for ornamental
`footwear in sufficient detail and clarity to
`cause market confusion, and, thus, the ac-
`cused shoes infringed the design patent, in
`light of side-by—side comparisons of the
`accused shoes and the patented design.
`
`9. Customs Duties @322
`
`The test for the technical prong of the
`domestic industry requirement of a patent-
`based unfair competition statute, whether
`the industry produces articles covered by
`the asserted claims, is essentially the same
`as that for infringement, Le, a comparison
`of domestic products
`to the asserted
`claims; in other words, the technical prong
`requires proof that the patent claims cover
`the articles of manufacture that establish
`
`the domestic industry, or, put simply, the
`complainant must practice its own patent.
`Tariff Act of 1930, § 337(a)(2), 19 U.S.C.A.
`§ 1337(a)(2).
`
`10. Customs Duties r3:422
`
`Articles protected by patent for an
`ornamental footwear design satisfied tech—
`nical prong of domestic industry require-
`ment of unfair competition statute, by pro-
`ducing articles covered by the asserted
`claims, where, an ordinary observer, famil—
`iar with the prior art designs, would have
`considered the protected shoes the same
`as the patented design. Tariff Act of 1930,
`§ 337(a)(2), 19 U.S.C.A. § 1337(a)(2).
`
`11. Patents @916(2, 3), 16.13, 36.1(1)
`Obviousness of a patent is a question
`of law based on underlying factual inqui—
`ries including:
`(1) the scope and content of
`the prior art;
`(2) the level of ordinary skill
`in the art;
`(3) the differences between the
`prior art and the claimed invention; and
`(4) the extent of any objective indicia of
`non-obviousness.
`
`12. Patents 6:16.26
`
`Commission (ITC) unreasonably deter—
`mined that foam straps were known in the
`art without acknowledging that prior art
`references rendered the material out of
`
`place for use as a strap, and, thus, the ITC
`could not have properly concluded that a
`person of ordinary skill would have used
`foam to attach a foam base portion to a
`wearer.
`
`13. Patents $316.26
`
`“Passive restraint system” employed
`by the patent relating to foam footwear
`facilitated a loose anatomical fit that made
`the claimed invention more comfortable
`
`than prior art products, when the prior art
`taught away from the passive restraint
`system, and, thus, the patent yielded more
`than predictable results, rendering it non—
`obvious.
`
`14. Patents ®16(4), 36.1(1)
`
`Secondary considerations can be the
`most probative evidence of non-obvious-
`ness of a patent in the record, and enables
`a court
`to avert
`the trap of hindsight.
`
`15. Patents $36.10)
`
`Secondary considerations of non—obvi—
`ousness may often establish that a patent-
`ed invention appearing to have been obvi—
`ous in light of the prior art was not.
`
`16. Patents €936.10)
`
`Evidence of secondary considerations
`of non-obviousness is not just a cumulative
`or confirmatory part of the obviousness
`calculus under patent law but constitutes
`independent evidence of nonobviousness.
`
`17. Patents $536.20)
`
`On secondary considerations of non-
`obviousness, a prima facie case of nexus is
`made between commercial success and a
`
`patented invention when the patentee
`shows both that there is commercial suc-
`
`relating to foam
`In finding patent
`footwear obvious, the International Trade
`
`cess, and that the product that is commer-
`cially successful is the invention disclosed
`
`

`

`CROCS, INC. v. INTERNATIONAL TRADE COM’N
`Citeas 598 F.3d 1294 (Fed. Cir. 2010)
`
`1297
`
`and claimed in the patent; once the paten-
`tee demonstrates a prima facie nexus, the
`burden of coming forward with evidence in
`rebuttal shifts to the challenger.
`
`Brittingham, IV. Of counsel on the brief
`were Michael G. Martin, William A. Rudy,
`and Stephen J. Horace, Lathrop & Gage
`LLP, of Denver, Colorado.
`
`18. Patents 6936.1(2)
`
`On secondary considerations of non—
`obviousness of a patent, copying may in—
`deed be another form of flattering praise
`for inventive features.
`
`Patents @9328( 1)
`
`517,789.
`
`Infringed.
`
`Patents @328(2)
`
`6,237,249. Cited as Prior Art.
`
`Patents @3328(2)
`
`6,993,858. Valid.
`
`James C. Otteson, Wilson Sonsini Good—
`rich & Rosati, of Palo Alto, California,
`argued for appellant. With him on the
`brief were Thomas T. Carmack, of Palo
`Alto, California, and Michael A Berta, Ari-
`ana M. Chung—Han, and Tung~0n Kong,
`of San Francisco, California. Of counsel
`was Michael A. Ladra.
`
`Clint A Gerdine, Attorney, Office of the
`General Counsel, United States Interna—
`tional Trade Commission, of Washington,
`DC, argued for appellee. With him on the
`brief were James M. Lyons, General Coun-
`sel, and Andrea C. Casson, Assistant Gen-
`eral Counsel for Litigation.
`
`Glenn D. Bellamy, Greenebaum, Doll &
`McDonald PLLC, of Cincinnati, Ohio, for
`intervenor Double Diamond Distribution,
`Ltd. With him on the brief was Carrie A.
`
`Shufflebarger.
`
`Finnegan,
`Dunner,
`R.
`Donald
`Henderson, Farabow, Garrett & Dunner,
`L.L.P., of Washington, DC, argued for in-
`tervenors Holey Soles Holdings, Ltd., et
`aL With him on the brief were Don O.
`
`Burley and Jason W. Melvin. Of counsel
`were Elizabeth A Niemeyer and Smith R.
`
`Before LOURIE, RADER, and FROST,
`Circuit Judges.
`
`RADER, Circuit Judge.
`The United States International Trade
`
`“Commission”)
`(“ITC” or
`Commission
`found no violation of 19 U.S.C. § 1337.
`
`Specifically the Commission determined
`that US. Patent No. 6,993,858 (the “’858
`patent”) would have been obvious at the
`time of invention and that none of the
`
`infringed US. Patent No.
`intervenors
`D517,789 (the “’789 patent”). The Com—
`mission also determined that Crocs, Inc.
`(“Crocs”) had not satisfied the technical
`
`prong of the industry requirement under
`section 1337 for the ’789 patent. Because
`the Commission erred in finding that the
`prior art taught all of the claimed elements
`of the '858 patent and incorrectly weighed
`the secondary considerations,
`this court
`reverses the Commission’s finding that the
`'858 patent would have been obvious. Be—
`cause the Commission also erred in claim
`
`construction for the ’789 patent, in apply—
`ing the ordinary observer test for infringe-
`ment, and in applying the technical prong
`of the section 1337 domestic industry re—
`quirement,
`this court reverses the Com-
`mission’s determination on the '789 patent.
`
`I.
`
`Crocs is the assignee of the ’858 and
`'789 patents. Crocs’s ’858 patent, entitled
`“Breathable Footwear Pieces,” issued on
`February 7, 2006, based on a filing in 2003.
`The asserted claims of the ’858 patent,
`independent claims 1 and 2, cover foam
`footwear having a foam base section—an
`upper portion (“upper”) and a sole—~and a
`foam strap. A pair of connectors ties the
`foam strap to the base section. This con—
`
`

`

`1298
`
`598 FEDERAL REPORTER, 3d SERIES
`
`nection creates frictional forces that keep
`the strap in an ideal position at the rear of
`the base section.
`
`Claim 1 of the '858 patent reads as
`follows (emphasis added):
`
`A footwear piece comprising:
`[a]
`a base section including an upper
`and a sole formed as a single part manu-
`factured from a moldable foam material;
`and
`
`a strap section formed of a rnolda—
`[b]
`ble material that is attached at opposite
`ends thereof to the upper of the base
`section with plastic connectors such that
`the moldable foam material of the strap
`section is in direct contact with the
`
`moldable material of the base section
`and pivots relative to the base section at
`the connectors;
`
`[c] wherein the upper includes an open
`rear region defined by an upper opening
`perimeter, and wherein frictional forces
`developed by the contact between the
`strap section and the base section at the
`plastic
`connectors
`are
`snfiicient
`to
`maintain the strap section in place in
`an intermediary position afier pivoting,
`whereby the strap section lends support
`to the Achilles portion of the human foot
`inserted in the open rear region; and
`[(1] wherein the upper includes a sub
`stantially horizontal portion and a sub—
`stantially vertical portion forming a toe
`region that generally follows the contour
`of a human foot, wherein the toe region
`tapers from an inner area of the base
`section where the larger toes exist to an
`outer area of the base section where the
`
`smaller toes exist; and
`[e] wherein the sole includes a bottom
`surface having front and rear tread pat—
`terns longitudinally connected by a flat
`section.
`
`Claim 2 of the ’858 patent reads as
`follows (emphasis added):
`
`A footwear piece comprising“.
`
`a base section including an upper
`[3]
`and a sole formed as a single part manu—
`factured from a moldable foam material;
`and
`
`a strap section formed of a molded
`[b]
`foam material attached at opposite ends
`thereof to the base section such that the
`strap section is in direct contact with
`the base section and pivots relative to
`the base section; and
`
`[c] wherein the upper includes an open
`rear region defined by an upper opening
`perimeter;
`and wherein the sole in-
`cludes a rear perimeter; and wherein
`the strap section pivots between a first
`contact point on the upper opening pe-
`rimeter and a second contact point on
`the rear perimeter, and wherein fric-
`tional forces developed by the contact
`between the strap section and the base
`section at the points of attachment are
`safiicient to maintain the strap section
`in place in an intermediary position
`after pivoting whereby the strap section
`lends support to the Achilles portion of
`a human foot inserted in the open rear
`region; and
`
`[d] wherein the upper includes a sub
`stantially horizontal portion and a sub-
`stantially vertical portion forming a toe
`region that generally follows the contour
`of a human foot, wherein the toe region
`tapers from the inner area of the base
`section where the larger toes exist to the
`outer area of the base section where the
`
`smaller toes exist; and
`
`[e] wherein a decorative pattern of
`raised bumps is molded or otherwise
`created in the upper near to and extend—
`ing the length of the upper opening pe—
`rimeter; and
`
`[fl wherein a plurality of ventilators
`are formed in both the substantially ver-
`tical portion and the substantially hori-
`zontal portion, and wherein the ventila-
`
`

`

`CROCS, INC. v. INTERNATIONAL TRADE COM’N
`CiteasS98 F.3d 1294 (Fed.Cir. 2010)
`
`1299
`
`tors extend up a majority of the height
`of the vertical portion;
`
`[g] wherein the vertical portion of the
`upper includes an upper strip, wherein
`the ventilators are formed in the upper
`strip, and wherein the upper strip ex-
`tends from the toe region to the points
`of attachment for the strap section, and
`wherein the sole includes a. lower strip
`that parallels the upper strip and is
`separated by a line that extends from
`the toe region to a heel of the footwear
`piece, and wherein the lower strip verti—
`cally rises in a direction toward the heel;
`and
`
`[h] wherein the sole includes a bottom
`surface having front and rear tread pat-
`terns longitudinally connected by a flat
`section without tread patterns bounded
`by raised side portions; and
`[i] wherein the sole further includes a
`top surface having a support base in-
`cluding a raised pattern where a foot
`contacts the support base.
`
`The ’789 patent, entitled “Footwear,”
`issued on March 28, 2006, based on a filing
`in 2004. The ’789 patent has one claim
`and seven figures.
`It claims an ornamen-
`tal footwear design as depicted in the fig-
`ures:
`
`
`
`

`

`1300
`
`598 FEDERAL REPORTER, 3d SERIES
`
`
`
`II.
`
`Crocs of Niwot, Colorado filed a com.
`plaint and an amended complaint on
`March 31, 2006 and April 27, 2006, respec—
`tively. Crocs’s amended complaint alleged
`unfair competition under 19 U.S.C. § 1337
`by respondents due to importation into the
`United States of foam footwear. Crocs
`
`asserted that the imported footwear in-
`fringes claims 1 and 2 of the ’858 patent,
`the design in the ’789 patent, and Crocs’s
`trade dress. Crocs later withdrew its
`
`The complaint
`trade dress complaint.
`named eleven respondents:
`(1) Collective
`Licensing International, LLC (“Collec—
`tive”) of Englewood, Colorado;
`(2) Double
`Diamond Distribution Ltd. (“Double Dia-
`mond”) of Saskatoon, Saskatchewan;
`(3)
`
`of
`(“Effervescent”)
`Inc.
`Effervescent
`Fitchburg, Massachusetts;
`(4) Gen—X
`Sports, Inc. (“Gen—X”) of Toronto, Ontario;
`(5) Holey Soles Holding Ltd.
`(“Holey
`Soles”) of Vancouver, British Columbia;
`(6) Australia Unlimited,
`Inc. of Seattle,
`Washington;
`(7) Cheng’s Enterprises Inc.
`of Carlstadt, New Jersey;
`(8) D. Myer &
`Sons, Inc. of Baltimore, Maryland;
`(9) In-
`ter—Pacific Trading Corp. of Los Angeles,
`California;
`(10) Pali Hawaii of Honolulu,
`Hawaii; and (11) Shaka Shoes of Kailua—
`Kona, Hawaii. Crocs added a twelfth re-
`spondent, Old Dominion Footwear, Inc. of
`Madison Heights, Virginia, on October 10,
`2006. After some settlements and some
`
`five
`determinations of non—infringement,
`respondents remained in the investigation:
`
`

`

`CROCS, INC. v. INTERNATIONAL TRADE COM’N
`CiteasS98 F.3d 1294 (Fed. Cir. 2010)
`
`1301
`
`(3)
`(2) Double Diamond;
`(1) Collective;
`(4) Gen—X; and (5) Holey
`Effervescent;
`Soles. They make accused products in
`Asia and import
`them into the United
`States.
`
`On September 29, 2006, Crocs filed a
`motion for summary determination of in-
`fringement of the ’789 patent. Respon-
`dents answered with motions for summary
`determination of non—infringement of the
`’789 patent. On November 7, 2006,
`the
`presiding administrative law judge granted
`respondents’ motions for summary deter-
`mination of non—infringement of the '789
`patent. On review, the Commission issued
`an Order of Vacatur and Remand of Initial
`
`Determination on February 15, 2007. On
`remand, the administrative judge held an
`evidentiary hearing from September 7
`through 14, 2007.
`
`the administrative
`On April 11, 2008,
`judge concluded that the respondents did
`not Violate section 1337. Specifically, the
`administrative judge found that the '789
`patent was not infringed and that Crocs’s
`products,
`its Beach, Cayman, and Kids
`Cayman shoes, did not satisfy the technical
`prong of the domestic industry require-
`ment.
`In reaching this latter decision, the
`administrative judge found that Crocs’s
`own products did not practice the patent.
`Turning to the utility patent, the adminis—
`trative judge found that claims 1 and 2 of
`the ’858 patent would have been obvious
`under 35 U.S.C.
`§ 103 in light of two
`pieces of prior art:
`(1) the Aqua Clog (the
`base section of claims 1 and 2 of the ’858
`
`patent); and (2) US. Patent No. 6,237,249
`(the “Aguerre ’249 patent”).
`
`With respect to the design patent, the
`’789 patent, the administrative judge pro-
`vided a detailed verbal claim construction:
`
`In summary, when the ’789 patent is
`considered as a whole, the visual impres—
`sion created by the claimed design in-
`cludes:
`footwear having a foot opening
`with a strap that may or may not include
`
`any patterning, is attached to the body
`of the footwear by two round connec-
`tors,
`is of uniform width between the
`two round connectors, has a wrench—
`head like shape at the point of attach—
`ment, and extends to the heel of the
`shoe; with round holes on the roof of
`the upper placed in a systematic pat-
`tern; with trapezoid-shaped holes evenly
`spaced around the sidewall of the upper
`including the front portion; with a rela-
`tively flat sole (except for upward curva—
`ture in the toe and heel) that may or
`may not contain tread on the upper and
`lower portions of the sole, but if tread
`exists, does not cover the entire sole,
`and scalloped indentations that extend
`from the side of the sole in the middle
`
`portion that curve toward each other.
`Initial Determination on Violation of Sec-
`tion 1337 and Recommended Determina-
`
`tion on Remedy and Bond, at 80 (April 11,
`2008)
`(Inv. No. 337—TA—567). Based on
`
`this description, the administrative judge
`found the Holey Soles and Gen—X accused
`products did not
`infringe because their
`strap is not of uniform thickness and does
`not extend to the heel of the shoe. The
`
`same reasoning excused the Collective and
`Effervescent accused products from in—
`fringement but the administrative judge
`added the further explanation that these
`imports did not have round holes in the
`upper portion. He found that the Double
`Diamond accused products did not infringe
`because each of the accused products has
`at least one of the following: a strap that
`dwes not have uniform thickness and does
`
`not extend to the heel of the shoe; holes in
`the upper that are not round; holes in the
`upper that are placed in a web-shaped, not
`systematic, pattern; or a tread pattern
`that covers the entire sole.
`
`On April 24, 2008, Crocs, CLI, and the
`Commission investigative attorney (“IA”)
`filed petitions for review with the Commis-
`sion. On June 18, 2008, the Commission
`
`

`

`1302
`
`598 FEDERAL REPORTER, 3d SERIES
`
`(1)
`agreed to review the following issues:
`the findings concerning non-infringement
`of the ’789 patent and the lack of satisfac-
`tion of the technical prong of the domestic
`industry requirement; and (2) the finding
`of invalidity with respect to the '858 pat—
`ent. The Commission did not review any
`other issues.
`
`the Commission af—
`On July 25, 2008,
`firmed the finding of no infringement and
`no domestic industry for the '789 patent,
`and obviousness for the '858 patent. The
`Commission augmented the discussion in
`the initial determination about non-in-
`
`fringement of the ’789 patent and lack of
`satisfaction of the technical prong of the
`domestic industry requirement by finding
`that the accused shoes and Crocs’s shoes
`
`lacked even spacing of ventilator holes
`around the front (toe) portion of the upper
`as shown in the ’789 patent design.
`
`For obviousness of the ’858 patent, the
`Commission found that the administrative
`
`judge properly concluded that the princi—
`pal remaining difference between the prior
`art and the claimed invention is the use of
`
`foam for the strap. The Commission up—
`held the administrative judge’s finding that
`the prior art showed foam straps. Finally,
`on secondary considerations of non-obvi-
`ousness, the Commission found that Crocs
`did not show a nexus between its claimed
`shoes and their commercial success. The
`
`administrative
`the
`unlike
`Commission,
`judge, did find that at least one respondent
`copied Crocs’s commercially available shoe.
`The Commission held that the evidence of
`
`copying, however, did not disturb the pri—
`ma facie case of obviousness.
`
`Crocs appeals the Commission’s final de-
`termination. Collective and Gen—X were
`
`dismissed as intervenors from the appeal.
`Double Diamond, Effervescent, and Holey
`Soles are the remaining intervenors.
`
`III.
`
`[1] This court
`
`reviews the Commis-
`
`sion’s legal determinations without defer—
`ence and its factual findings for substantial
`evidence. Cornim Glass Works v. US.
`Int’l Trade Comm’n, 799 F.2d 1559, 1565
`(Fed.Cir.1986).
`Substantial evidence is
`“such relevant evidence as a reasonable
`
`mind might accept as adequate to support
`a conclusion.” Universal Camera Corp. v.
`NLRB, 340 US. 474, 477, 71 S.Ct. 456, 95
`L.Ed. 456 (1951) (quoting Consul. Edison
`COL v. NLRB, 305 US. 197, 229, 59 S.Ct.
`206, 83 L.Ed. 126 (1938)).
`
`A
`
`[2] This court has cautioned, and con-
`tinues to caution, trial courts about exces—
`sive reliance on a detailed verbal descrip-
`tion in a design infringement case. See,
`e.g., Egyptian Goddess, Inc. v. Swisa, Inc,
`543 F.3d 665, 679 (Fed.Cir.2008) (en banc).
`In Egyptian Goddess,
`this court warned
`that misplaced reliance on a detailed ver-
`bal description of the claimed design risks
`undue emphasis on particular features of
`the design rather than examination of the
`design as a whole.
`Id at 679—80.
`In
`many cases,
`the considerable effort
`in
`fashioning a detailed verbal description
`does not contribute enough to the infringe-
`ment analysis to justify the endeavor. See
`id at 680. Depictions of the claimed de-
`sign in words can easily distract from the
`proper infringement analysis of the orna-
`mental patterns and drawings.
`
`typically
`are
`[3, 4] Design patents
`claimed as shown in drawings, and claim
`construction must be adapted to a pictorial
`setting. See, e.g., Contessa Food Prods,
`Inc. v. Conag'ra, Inc, 282 F.3d 1370, 1377
`(Fed.Cir.2002) (construing a design patent
`claim as meaning “a tray of a certain de—
`sign as shown in Figures 1—3”). Thus an
`illustration depicts a design better “than it
`could be by any description and a descrip-
`
`

`

`CROCS, INC. v. INTERNATIONAL TRADE COM’N
`Citeas598 F.3d 1294 (Fed. Cir. 2010)
`
`1303
`
`tion would probably not be intelligible
`without the illustration.” Dobson v. Dor—
`
`nan, 118 US. 10, 14, 6 S.Ct. 946, 30 L.Ed.
`63 (1886).
`“[Als a rule, the illustration in
`the drawing views is its own best descrip-
`tion.” Manual of Patent Examining Pro-
`cedure § 1503.01 (8th ed.2006).
`
`This case shows the dangers of reliance
`on a detailed verbal claim construction.
`
`The claim construction focused on particu—
`lar features of the ’789 patent design and
`led the administrative judge and the Com—
`mission away from consideration of the
`design as a whole. This error is apparent
`in the Commission’s explicit reference to
`two details required by the written claim
`construction but not by the '789 drawings:
`(1) a strap of uniform width, and (2) holes
`evenly spaced around the sidewall of the
`upper. As shown in Figure 1 of the ’789
`patent, the strap bulges to a greater width
`at the middle of the strap on the far left of
`the figure. Thus, the design figure does
`not require a strap of uniform width be-
`tween the two round connectors. Also, as
`shown in Figure 4 of the ’789 patent, the
`holes are not evenly spaced. Figure 4
`shows a gap in the spacing (particularly
`towards the big toe). Nonetheless,
`the
`written claim description required uniform
`strap Width and uniform hole spacing—
`contrary to the claimed invention. This
`error distorts the infringement analysis by
`the ordinary observer viewing the design
`as a whole. The administrative judge and
`the Commission needed to apply the ordi-
`nary observer test to “the design shown in
`Figures 1—7.”
`
`B.
`
`In determining whether an ac-
`[5—7]
`cused product infringes a patented design,
`this court applies the “ordinary observer”
`test, without any “point of novelty” per—
`spective. Egyptian Goddess, 543 F.3d at
`678.
`To show infringement under the
`proper test, an ordinary observer, familiar
`with the prior art designs, would be de—
`
`the accused
`ceived into believing that
`product is the same as the patented de-
`sign.
`See id at 681. When the differ—
`ences between the claimed and accused
`
`designs are viewed in light of the prior art,
`the attention of the hypothetical ordinary
`observer may be drawn to those aspects of
`the claimed design that differ from the
`prior art.
`Id If the claimed design is
`close to the prior art designs, small differ—
`ences between the accused design and the
`claimed design assume more importance to
`the eye of the hypothetical ordinary ob-
`server.
`Id. The ordinary observer, howev-
`er, will likely attach importance to those
`differences depending on the overall effect
`of those differences on the design.
`Id
`Even if the claimed design simply com-
`bines old features in the prior art, it may
`still create an overall appearance decep-
`tively similar to the accused design.
`In
`that case, this court will uphold a finding
`of infringement.
`Id. at 677—78.
`In other
`words, “the deception that arises is a re—
`sult of the similarities in the overall de—
`
`sign, not of similarities in ornamental fea-
`tures in isolation.” Amini Innovation 439
`F.3d at 1371. The ordinary observer test
`applies to the patented design in its entire-
`ty, as it is claimed. See Bmun, Inc.
`1).
`Dynamics Corp. of Am, 975 F.2d 815, 820
`(Fed.Cir.l992).
`“[M]inor differences be-
`tween a patented design and an accused
`article’s design cannot, and shall not, pre-
`vent a finding of infringement.” Payless
`Shoesource, 998 F.2d at 991 (quoting Lit-
`ton Syn, Inc. 7). Whirlpool, 728 F.2d 1423,
`1444 (Fed.Cir.1984)).
`
`[8] Turning to this case, the Commis-
`sion placed undue emphasis on particular
`details of its written description of the
`patented design. Those details became a
`mistaken
`checklist
`for
`infringement.
`Without a View to the design as a whole,
`the Commission used minor differences be-
`
`tween the patented design and the accused
`products to prevent a finding of infringe-
`ment.
`In other words, the concentration
`
`

`

`1304
`
`598 FEDERAL REPORTER, 3d SERIES
`
`on small differences in isolation distracted
`
`from the overall impression of the claimed
`ornamental features.
`
`The proper comparison requires a side—
`by—side view of the drawings of the ’789
`
`patent design and the accused products.
`The depiction below shows the '789 patent
`(on the left) and the Double Diamond Re-
`
`vised Beach DAWGSTM (on the right).
`
`
`
`
`The depiction below compares the '789
`patent (on the left), the Groovy DAWGSTM
`
`shoes (in the center), and Big DAWGSTM
`shoes (on the right).
`
`The comparison below shows the ’789 mond Original Beach DAWGSTM shoes (on
`the right).
`patent (on the left) and the Double Dia-
`
`

`

`CROCS, INC. v. INTERNATIONAL TRADE COM’N
`Cileass98 F.3d 1294 (Fed. Cir. 2010)
`
`1305
`
` s
`
`z'3r
`
`
`
`plorer shoes (in the center), and Holey
`The depiction below compares the ’789
`patent (on the left), the Holey Soles Ex— Soles Cricket shoes (on the right).
`
`
`
`A final comparison places the ’789 pat— dies AT shoe on the right.
`ent on the left and the Effervescent Wal—
`
`

`

`1306
`
`598 FEDERAL REPORTER, 3d SERIES
`
`
`
`
`
`These side—by—side comparisons of the
`’789 patent design and the accused prod-
`ucts suggest
`that an ordinary observer,
`familiar with the prior art designs, would
`be deceived into believing the accused
`products are the same as the patented
`design.
`In one comparison after another,
`the shoes appear nearly identical.
`If the
`claimed design and the accused designs
`were arrayed in matching colors and
`mixed up randomly, this court is not confi-
`dent that an ordinary observer could prop-
`erly restore them to their original order
`without very careful and prolonged effort.
`
`One of the overall effects of the design is
`the interaction between the strap assembly
`portion and the base portion of the shoes
`where the strap is attached to the base.
`Multiple major design lines and curves
`converge at that point creating a focal
`point attracting the eye of the ordinary
`observer when viewing the overall effect of
`the design. Another overall effect of the
`design is a visual theme of rounded curves
`and ellipses throughout the design, includ—
`
`ing the strap forming a sort of continua—
`tion of the sidewall of the base to create a
`
`visually continuous ring encircling the en-
`tire shoe. Other examples of rounded
`curves or ellipses in the design are the
`ellipses formed by the strap and the foot
`opening in the base. Both the claimed
`design and the accused designs have these
`overall effects.
`
`