Wednesday, November 13, 2019

CAFC finds error in SD Cal analysis of design patent infringement in Columbia Sportswear case; also discusses "false testimony" issue

The outcome in Columbia Sportswear :

Because we conclude that the court did not err in holding claims 2
and 23 of the ’270 patent invalid but that it did err in granting summary
judgment of infringement for the ’093 patent [D657,093],
we affirm-in-part, reverse-in-part, and remand for further

Of the issue of false testimony within the case:

Second, Columbia submits that Dr. Block’s testimony
regarding Fottinger entitles it to a new trial. Specifically,
Dr. Block testified at trial that Fottinger’s use of a “25
mesh” with half-millimeter spots yielded an embodiment
with 36% coverage. Both Seirus and Columbia agree that
this testimony was incorrect. Appellant’s Br. 68; Appellee’s
Br. 64. Seirus characterizes Dr. Block’s testimony as an
error in interpreting how the dot pattern in Fottinger repeated, Appellee’s Br. 67, while Columbia characterizes it
as intentionally introduced false testimony, Appellant’s Br.

We have considered the issue of false testimony in at
least two cases
, Fraige v. American-National Watermattress Corp.,
996 F.2d 295 (Fed. Cir. 1993), and Rembrandt
Vision Technologies, L.P. v. Johnson & Johnson Vision
Care, Inc., 818 F.3d 1320 (Fed. Cir. 2016). Both came to us
after denials of motions under Rule 60(b), which specifically provides for relief from a judgment in the case of
fraud. Even putting aside this procedural difference, however, the facts here—
a few lines of mistaken expert testimony—are in stark contrast to the facts in those cases. For
example, in Fraige, the defendant’s fraudulent conduct was
so significant that the court imposed sanctions against the
defendant under Fed. R. Civ. P. 11 and referred the matter
of misconduct to the United States Attorney. 996 F. 2d at
296–97. In Rembrandt, an expert falsely testified about
performing experiments material to the issues in the case
and withheld data that would have undermined his opinions. 818 F.3d at 1323–24. Such conduct infects the
proceedings and can result in an unfair trial, but the record
here is not comparable. Even if Dr. Block purposefully misrepresented the contents of Fottinger, Fottinger itself was
in the record for the jury to consider. The jury could have
easily verified any representations about the reference.
Moreover, Columbia had ample opportunity to cross-examine Dr. Block on his incorrect understanding of Fottinger’s
disclosure. Under these circumstances and given the uncomplicated nature of the evidence, we cannot conclude
that Dr. Block’s misstatements warrant a new trial

Of the infringement matter:

Given the record in this case, we are persuaded that
the district court erred in granting summary judgment of
infringement for two reasons: (1) the court improperly declined to consider the effect of Seirus’s logo in its infringement analysis and (2) the court resolved a series of
disputed fact issues, in some instances relying on an incorrect standard, that should have been tried to a jury.
The district court relied on one precedent from this
court—L.A. Gear—for the proposition that logos should be
wholly disregarded in the design-infringement analysis. In
that case, the parties did not dispute that the patented and
accused designs were substantially similar. L.A. Gear, 988
F.2d at 1125. In fact, “copying [was] admitted.” Id. In
evaluating infringement there, we explained that design
infringement is not avoided “by labelling.” Id. at 1126. A
would-be infringer should not escape liability for design patent infringement if a design is copied but labeled with its
name. But L.A. Gear does not prohibit the fact finder from
considering an ornamental logo, its placement, and its appearance as one among other potential differences between
a patented design and an accused one. Indeed, the fact
finder is tasked with determining whether an ordinary observer would find the “effect of the whole design substantially the same.” Gorham, 81 U.S. at 530. It would be
inconsistent with this mandate to ignore elements of the
accused design entirely, simply because those elements included the name of the defendant.


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