In 2011, Pacific Coast Marine Windshields Limited (Pacific Coast) brought suit (No. 12-CV-0033) against Malibu Boats, LLC (Malibu) in the Middle District of Florida, alleging infringement of U.S. Patent No. D555,070. The District Court held that Pacific Coast was barred from alleging infringement due to prosecution history estoppel, and Pacific Coast appealed. 

On January 8, 2014, the Federal Circuit held that “the principles of prosecution history estoppel apply to design patents” but reversed the district court’s summary judgment of non-infringement because “the accused infringing design was not within the scope of the subject matter surrendered during prosecution.”


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The Patent Law Treaties Implementation Act of 2012 has resulted in new rules being proposed for implementing the Act. 

On October 21, 2013, 78 FR 62367 was published as a final rule to implement the Patent Law Treaty, which generally does not affect design patents, but does provide restoring the right of priority after the 6-month period to claim priority, within 2 months from the expiration of the 6-month period and upon grant of a petition that shows the delay was unintentional.


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On October 11, 2013, Skechers U.S.A. Inc (Skechers) filed a Complaint against Shoe Confession LLC, Perry Ellis International, Inc. and PEI Licensing, Inc. (Perry) in the U.S. District Court for the Central District of California (Skechers U.S.A. Inc. et al. v. Shoe Confession LLC et al. 2:13-cv-07573).

The Complaint alleges willful and intentional infringement of Skechers’ D651,788, D652,613, D652,614, and D650,980 design patents, trade dress infringement, and unfair competition, as related to Skechers’ GO RUN® shoe and the Defendants’ Pro Player Phaze 2M shoe.


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The Court of Appeals for the Federal Circuit (CAFC) recently issued a precedential unanimous opinion in High Point Design LLC et al. v. Buyers Direct, Inc. reversing in part, vacating in part, and remanding the district court’s decision in relation to design patent D598,183 (“the ‘183 patent”).

The case primarily addressed the validity of design patents in terms of obviousness and functionality, and also considered the sufficiency of pleadings of trade dress infringement.  In its discussion, the CAFC clarified the proper standards for determining the obviousness and functionality of design patents.   By way of disclosure, Buyers Direct, Inc. (“BDI”) was represented on appeal by Andrew M. Ollis, Frank J. West, and Philippe J.C. Signore of Oblon Spivak.


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Further to our prior post on Toyo's ITC filing, according to a news release of September 16, 2013, the ITC voted to investigate Toyo's claims and will set a target date for completing the investigation within 45 days. 




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