Kellogg v. Nike, 2007 WL 4118898 (D. Neb. 2007)
Design patent claim construction usually involves a court examining a series of drawings. When submitting his patent application, Kellogg included a statement that his invention covered a “cap with vents formed along the seams extending radially from the center.” During prosecution, the PTO removed that statement under MPEP 1503.1. In particular, the Examiner found that the “since illustration in the drawing views is its own best description, the statement preceding the claim is not necessary and should be removed.”
Soon after Markman, the Federal Circuit determined that claim construction is also a requirement of design patent litigation. Elmer v. ICC Fabricating (Fed. Cir. 1995). The claim construction process usually involves the judge writing a paragraph describing the “visual impression” created by the drawings. Contessa v. Conagra (Fed. Cir. 2002). As construed, design patent claims should only include non-functional aspects of the design. Durling (Fed. Cir. 1996).
Here, the court described what he saw:
An ornamental design for a vented baseball-styled cap as defined by the overall visual impressions as shown in figures 1 through 4. The cap has a hemispherical cap portion with a brim extending generally from one side of the cap portion. The hemispherical cap portion has four oblong-shaped vents that have sharply narrowing v-shaped ends. The vents are symmetrically shaped and extend along the seams of the panels of the cap in a generally “X”-shaped fashion with the center of the “X” being located at the top center of the cap.
Of course, one problem with this type of claim construction is the difficulty in determining the level of detail. For instance, under this construction, a fitted cap could infringe even though the drawing clearly shows an adjustable cap. On the other side, the required shaping and symmetry is quite detailed. It is also unclear from the claim construction whether the claim is open ended — thus could a cap sporting five vents be infringing?
- These questions will be answered in the upcoming Egyptian Goddess en banc appeal.