Following up on our earlier post, Keurig’s suit against Rogers Family Co. (“Rogers”) has been dismissed on summary judgment.  The district court granted Rogers’ motion for summary judgment of non-infringement of U.S. Patent No. D502,362 and two utility patents.

In a Memorandum and Order on Summary Judgment (“Order”), the court compared the accused product with the claimed design in order to determine if the two are plainly dissimilar.  The following is a comparison provided on page 12 of the Order:

Although no written construction of the design patent claim was given in its Markman ruling, the court did analyze several features of the claimed design on summary judgment to determine if they were functional.  The court reviewed affidavits filed in support of summary judgment briefing and provided comments on the experts’ opinions.  Regarding the round shape of the lid, the tapered shape of the filter, and depending skirt, Keurig’s expert opined that alternative shapes could have been used for the design.  Regarding the tapered shape, “the Court finds that general tapered shape of the filter does ‘[a]ffect the quality of the [beverage cartridge],’ and therefore is a functional aspect of the patented design that cannot be considered in the comparison.” Order at 16.  However, the court further noted that “the specificshape of the tapered filer remains a relevant point of comparison.” (emphasis in original).  The remaining aspects were treated as ornamental.

After a detailed comparison that highlighted certain similarities and differences between the claimed design and the accused product, the court found that the overall designs are plainly dissimilar.  The court stated that the filter in the accused produce is more or less hemispherical and the claimed filter is shaped like a triangular prism.  This difference was important as the filter was found by the court to be the most prominent feature.  The court noted that, “[i]n contrast to Crocs, the Court is confident that ‘[i]f the claimed design and the accused designs were [scrubbed of all identifying logos] and mixed up randomly ... an ordinary observer could [in fact] properly restore them to their original order without very careful and prolonged effort.’” Order at 17-18.  The court granted Rogers’ motion for summary judgment of non-infringement of U.S. Patent No. D502,362.