Design patent owner loses in Wallace v. IdeaVillage at CAFC in appeal from DNJ

Egyptian Goddess was cited to thwart design patent owner in Wallace v. IdeaVillage. The patent owner was from New Jersey [ ALLYSON WALLACE, Newark, NJ, pro se. ].



Ms. Allyson Wallace owns U.S. Design Patent No.
D485,990 (the D’990 patent), for an “ornamental design
for a body washing brush, as shown and described” in six
drawings. Ms. Wallace, proceeding pro se, sued Ideavillage
Products Corporation for patent infringement in the
United States District Court for the District of New
Jersey, based on the Ideavillage product called the “Spin
Spa.” Ideavillage moved for summary judgment of noninfringement.
Ms. Wallace, acting through appointed
counsel, submitted a brief and expert report in opposition.
The district court, reviewing the record and receiving
argument, granted summary judgment to Ideavillage.
For the reasons set forth below, we affirm the district
court’s judgment.


As to standards:



In the Third Circuit, the court reviews the
grant of summary judgment de novo. See Al–Sharif v.
U.S. Citizenship & Immigration Servs., 734 F.3d 207, 210
n. 2 (3d Cir. 2013) (en banc).

We review issues unique to patent law under the law
of our circuit. The standard for design patent infringement
is summarized in Egyptian Goddess, Inc. v. Swisa,
Inc., 543 F.3d 665 (Fed. Cir. 2008) (en banc), applying the
“ordinary observer” test of Gorham Manufacturing Co. v.
White, 81 U.S. 511 (1871):

(...)

The ordinary observer
test proceeds in two stages. “In some instances, the
claimed design and the accused design will be sufficiently
distinct that it will be clear without more that the patentee
has not met its burden of proving the two designs
would appear ‘substantially the same’ to the ordinary
observer . . . .” Id. “In other instances, when the claimed
and accused designs are not plainly dissimilar, resolution
of the question whether the ordinary observer would
consider the two designs to be substantially the same will
benefit from a comparison of the claimed and accused
designs with the prior art . . . .” Id.


(...)

The district court correctly applied the law, that “differences
between the claimed and accused designs that
might not be noticeable in the abstract can become significant
to the hypothetical ordinary observer who is conversant
with the prior art.” Egyptian Goddess, 543 F.3d at
678.


Thus, no infringement.




link: http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/15-1077.Opinion.2-26-2016.1.PDF