CAFC does design patents in Sealy case

Sealy lost on obviousness grounds: Because we affirm the Board’s obviousness determination over the Aireloom Heritage reference, we decline to consider Sealy’s challenges to the other four references. We have considered Sealy’s remaining arguments and find them unpersuasive. For the foregoing reasons, we affirm the Board. The obviousness analysis for design patents requires that there be a prior art design that qualifies as a primary reference. Spigen, 955 F.3d at 1383, 1385. Whether a prior art design qualifies as a primary reference depends on whether the prior art reference “creates ‘basically the same’ visual impression as the claimed design.” Id. (cleaned up). The determination of whether a prior art design qualifies as a primary reference is a factual issue. Id. As to copying: Sealy’s “copying” argument during the reexamination proceeding was based mainly on the fact that Sealy’s mattress designs were on the market for over a year before Simmons introduced its alleged copycat products. See Appellant’s Br. 55–57 (citing J.A. 2370–72). The Board, in its decision on rehearing, stated that it “did not overlook evidence of copying,” but instead “agreed with the examiner’s general determination as to secondary considerations,” which included “acknowledging [Sealy’s] assertions as to copying.” Decision on Rehearing, 2019 WL 1489533, at *2. Indeed, the examiner’s general determination noted that Sealy presented argument regarding alleged “copying,” among other secondary considerations. J.A. 2498. The examiner then found Sealy’s secondary considerations to be unpersuasive and to not outweigh the strong evidence of obviousness presented in the Board’s new grounds of rejection. J.A. 2498–99 (“the strong evidence of obviousness presented in the new grounds of rejection by the Board outweighs the secondary considerations”); see also W. Union Co. v. MoneyGram Payment Sys., Inc., 626 F.3d 1361, 1373 (Fed. Cir. 2010) (“[W]eak secondary considerations generally do not overcome a strong prima facie case of obviousness.”). While a more comprehensive discussion of “copying” would be preferred, given the circumstances here—including the appropriate interpretation of “contrast,” the analysis and application of the prior art, and the examiner’s and Board’s more detailed discussion of other secondary considerations—we disagree that the comparatively limited discussion of “copying” alone constitutes a sufficient basis to disturb the Board’s overall determination of obviousness. See MySpace, Inc. v. GraphOn Corp., 672 F.3d 1250, 1263–64 (Fed. Cir. 2012) (finding no error in a district court’s failing to explicitly mention secondary considerations “when the record establishes that the evidence was properly before and considered by the court”).