[00:00:09] Speaker 05: Good morning. [00:00:09] Speaker 05: We have four argued cases this morning. [00:00:12] Speaker 05: The first of these is number 14-1464, High Point Design LLC versus Buyers Direct, Inc. [00:00:21] Speaker 05: Mr. Ellis, is that how you pronounce it? [00:00:23] Speaker 03: Yes, that's right. [00:00:23] Speaker 03: Thank you. [00:00:29] Speaker 01: I'd like to reserve that. [00:00:40] Speaker 01: I'd like to start with the patent issues which are before this court at the summary judgment stage. [00:00:52] Speaker 01: The first issue I'd like to discuss is claim construction which affects both the validity and infringement analysis. [00:00:58] Speaker 05: Could I ask you a question? [00:01:01] Speaker 05: So given part of your argument, at least on the infringement issue, it appears to be that you should consider the flipper with a foot inside it. [00:01:13] Speaker 05: And I didn't see that there were any cases that the parties decided that addressed that question. [00:01:22] Speaker 05: But when I look at the MPEP, it seems to me [00:01:25] Speaker 05: that if you want to claim a design, for example, with a foot in it or a body in it, that the MPEP contemplates that you're going to draw that in the design patent to show the particular environment in which the thing is displayed. [00:01:42] Speaker 05: And I'd like you to address that as to whether you can claim that the foot changes the shape of the thing without drawing the foot. [00:01:54] Speaker 05: as part of the design in the past. [00:01:57] Speaker 01: Yes, Your Honor, thank you. [00:01:59] Speaker 01: We also are not aware of any case law that directly addresses that point. [00:02:03] Speaker 01: In the NPEP, it is permissible but not required to illustrate, for example, in phantom lines an environment that may show a foot or even in solid lines if that's desired. [00:02:15] Speaker 01: But it's not required with a respectfully request. [00:02:18] Speaker 01: And in contested foods... Well, it's not required in the sense that [00:02:23] Speaker 05: You don't have to claim that, but if you don't show it, how can you claim it? [00:02:29] Speaker 01: Well, Your Honor, we believe that the article itself can be compared to the patented design at any point in its lifetime. [00:02:38] Speaker 01: And in both Contessa Foods and in International Seaway, this court had stated that in an infringement analysis, it's appropriate to compare the accused products to the patented design at any point in its life. [00:02:51] Speaker 05: Yeah, except those were cases in which the design didn't change. [00:02:54] Speaker 05: It was just a question of the vantage point for seeing the design. [00:02:59] Speaker 01: That is correct, Your Honor. [00:03:00] Speaker 01: And again, there are no cases that are factually identical to the cases here. [00:03:04] Speaker 01: But we believe that the analysis and the statements concerning when it is appropriate to compare an accused product to a patented design is equally applicable here. [00:03:19] Speaker 01: even if the design changes a little bit, that's still appropriate. [00:03:24] Speaker 01: It's still an appropriate comparison to make. [00:03:30] Speaker 01: Again, it's consistent with Contessa, and there's no requirement that we're aware of to show the foot on the body. [00:03:38] Speaker 01: There are many design patents. [00:03:39] Speaker 01: I think we showed an illustration of a t-shirt where it's clearly on a, it's illustrated as if it was on a mannequin or a body, but there's no body shown. [00:03:49] Speaker 01: So it's common practice to our knowledge to approach design patents this way. [00:03:55] Speaker 05: But if it's not shown in the patent on the human being, how is the competitor supposed to know what the thing looks like when it is on the human body? [00:04:10] Speaker 01: It's not necessary to determine what it looks like when it's on the human body. [00:04:15] Speaker 01: It's just simply a question of if at any point in time [00:04:18] Speaker 01: the article that's accused looks substantially identical to the patented design, there may be infringement. [00:04:25] Speaker 01: And so for example, although it's not on the record, we have learned during the course of this appeal that High Point advertises at trade shows using mannequins. [00:04:36] Speaker 01: They advertise in other instances with showing the foot in the accused Fazibaba slipper. [00:04:44] Speaker 01: And so [00:04:45] Speaker 01: those instances are just as appropriate to make the comparison with the foot in it or without. [00:04:50] Speaker 04: I guess your point is, if the fuzzy baba, just a photo of it by itself, looks like some kind of very sad, shapeless bag, but then once it's being worn by a customer, all of a sudden it sort of poofs up, pops up, and now looks like it has some structure that looks more and more like your patented drawings, then that's something we should consider. [00:05:15] Speaker 01: Yes, Your Honor. [00:05:15] Speaker 01: And again, in this case, not only that, but we have seen evidence, and this goes to part of our concern, that the record's not fully developed with respect to infringement. [00:05:23] Speaker 01: We have seen, in fact, advertising where High Point is using exactly those views in order to sell these products. [00:05:29] Speaker 01: And then naturally, in the case of the flipper, that is the purpose of the article, is to be worn on the foot. [00:05:35] Speaker 01: I mean, that's the purpose of the design, the look that would be of most interest. [00:05:39] Speaker 05: But why shouldn't you have to show, if the thing on and off the foot looks different, [00:05:44] Speaker 05: Why shouldn't you be required to show that in the design patents so people know what is being claimed? [00:05:51] Speaker 01: Your Honor, I think of it more as an option. [00:05:54] Speaker 01: There are, for example, it is a possibility to, you can claim, I think both in utility patents or design patents, a snapshot, that a particular product has a particular look or structure at a given point in time. [00:06:07] Speaker 01: And design patents, for example, in graphical user interfaces are permitted to but not required to do a sequence, if you wish. [00:06:14] Speaker 01: But if not, the test is quite simple. [00:06:17] Speaker 01: And it's simply whether at any point in time the accused product looks substantially similar to the patented design. [00:06:24] Speaker 05: Well, in terms of the infringement here, even if one were to treat it on the foot and compare it to the patented design, there still seem to be some potentially significant differences. [00:06:38] Speaker 05: You want to address that question? [00:06:40] Speaker 01: Yes, Your Honor, absolutely. [00:06:41] Speaker 01: And we recognize that, in fact, the design patent case law recognizes that virtually no article is exactly identical to a particular patent to design. [00:06:50] Speaker 01: The question in the case law and analysis is, are those differences substantial or are they insubstantial? [00:06:56] Speaker 01: And this is a very fact-intensive question. [00:07:00] Speaker 01: In Egyptian goddess, this court pointed out that where there is prior art that may be relatively close and to be considered, the features which distinguish the prior art [00:07:09] Speaker 01: from the patented design may be particularly relevant to the infringement analysis. [00:07:14] Speaker 01: And here, for example, the features with respect to protruding fluff and the fact the toe is not raised, there's no protruding side welts, all those features also distinguish the accused product, just as for the prior art. [00:07:29] Speaker 01: And so all features are not necessarily equal. [00:07:32] Speaker 01: Next, the Borum case, the Supreme Court has advised that [00:07:36] Speaker 01: The basic test is to give such attention as an ordinary purchaser usually gives. [00:07:41] Speaker 01: The record is clear in this instance, Your Honor, that the ordinary purchaser here is probably an impulse purchase. [00:07:49] Speaker 01: It's a relatively inexpensive article. [00:07:51] Speaker 01: There's not as much deference given in that instance. [00:07:55] Speaker 01: These are all fact-intensive questions that are part of the analysis. [00:07:59] Speaker 01: Turning to the specific features. [00:08:00] Speaker 04: Wouldn't you agree though that [00:08:03] Speaker 04: If your patent is somehow able to survive a validity inquiry, it's because we have to look very carefully and find all the differences between the patents designed and the prior art design and to give weight to that and say, all right, this is just different enough from that very close prior art slipper. [00:08:26] Speaker 04: That's why we're going to say it passes validity. [00:08:30] Speaker 04: But that same kind of analysis also applies in the infringement inquiry. [00:08:34] Speaker 04: So for the same basic reason why your patent has survived validity, it might also be the same thinking for why the defendant here, or the DJ plaintiff here, is able to prevail on infringement. [00:08:51] Speaker 01: Your Honor, the question is certainly a fair one. [00:08:53] Speaker 01: But if we look closely at the analysis and the specific features that have been identified, [00:08:58] Speaker 01: We can see that not all the features are being treated the same way. [00:09:02] Speaker 01: I think the patent office, which is the only neutral party that's done an evaluation to date, now we have the benefit of its views weighing in in the re-examination and finding the patent valid over the prior... Well, they didn't consider the infringement question. [00:09:14] Speaker 01: That's correct. [00:09:15] Speaker 01: But the way it analyzed the prior art and compared it to the patent is instructive. [00:09:23] Speaker 01: So for example, [00:09:26] Speaker 01: It singled out only two of the four or five features that were discussed in the record in these briefings. [00:09:33] Speaker 01: And I'll give you an illustration. [00:09:35] Speaker 01: The opening of the foot is a different shape in the prior art products than in the patented design. [00:09:42] Speaker 01: And we've suggested that that was a basis for distinction. [00:09:45] Speaker 01: The patent office apparently disagreed. [00:09:47] Speaker 01: They didn't point to that feature. [00:09:49] Speaker 01: So not all features are being treated equally here. [00:09:53] Speaker 05: It seems to me kind of odd for us to be saying, well, they didn't consider this feature in determining validity. [00:10:00] Speaker 05: And therefore, we're going to say it has nothing to do with infringement. [00:10:04] Speaker 01: Well, I respectfully disagree, Your Honor, in the sense that, again, in Egyptian goddess, the features that are focused on in distinguishing over making the patent valid are suggested that those are appropriate features to focus on. [00:10:17] Speaker 01: And conversely, we say the ones that we're not focused on [00:10:21] Speaker 01: and informed the infringement analysis equally. [00:10:24] Speaker 04: Well, what's wrong with what the district court said when it said that the overall impression of the fuzzy baba is this kind of soft, malleable, shapeless product with an indistinguishable soul. [00:10:41] Speaker 04: But then when you look at the drawings in the design patent, there's a sense of structure to that patented product. [00:10:49] Speaker 04: You see these [00:10:51] Speaker 04: upward curves in the outer shell of the slipper that really suggests that your patent design, it has some innate structure to it as compared to the fuzzy baba which is just starting to get close to being almost like a sock. [00:11:12] Speaker 01: Your honor, well first of all the district court we believe imported a number of limitations into the claim constructions including that the patented design was tough and sturdy [00:11:21] Speaker 01: that it had a thick sole that was sturdy, it was made of tough material, and also including all of these, it relied on all of these distinctions, including as well as the structured feature and imposed on the design the idea that it couldn't change shape. [00:11:36] Speaker 04: That's reading a lot into... Let's get to my question, which is, what if I just read the district court as saying, in a world of relativism, the design patent drawings [00:11:49] Speaker 04: look like a slipper with much more innate structure to it, that it has a pre-programmed shape to it. [00:12:00] Speaker 04: Whereas when we look at something like the Fuzzy Baba, it's so soft and malleable that it has, relatively speaking, a much less sense of structure to it. [00:12:14] Speaker 01: Because, Your Honor, again, we believe that the proper interpretation is a very simple question or infringement at the end of the day. [00:12:20] Speaker 01: It simply is, does the accused product look like the patented design at any point in its lifetime? [00:12:26] Speaker 05: But the problem is, if you look, for example, at page 20 of the red brief and you compare the two, there do seem to be quite a few differences. [00:12:34] Speaker 05: They're not necessarily all identified by the district court, but it's de novo review on summary judgment, so we're not [00:12:41] Speaker 05: bound by what the district court said, nor do we have to remand if he got it wrong, as long as the result is right. [00:12:52] Speaker 01: Well, a couple points. [00:12:53] Speaker 01: The one I believe, is that a four-way comparison on page 20? [00:12:57] Speaker 01: Well, you don't have the brief. [00:13:01] Speaker 01: First of all, Your Honor, this is one of two different views. [00:13:04] Speaker 01: There's also a view of the flipper with the foot in it, and there's a separate view [00:13:09] Speaker 01: on page 11 of our reply brief, for example, of another fuzzy bottle slipper that shows the opening essentially identical, even by itself, to that particular view. [00:13:19] Speaker 01: And part of the issue we respectfully submit, Your Honor, is that, again, because these things, the view may change depending even on a particular slipper or how it's even been set on the table. [00:13:33] Speaker 01: The complete analysis for infringement requires consideration of all of the views of both slippers. [00:13:39] Speaker 01: that are presented here. [00:13:43] Speaker 05: Well, right. [00:13:43] Speaker 05: But if one of the views is quite different, that's significant, even though another view might be similar, right? [00:13:50] Speaker 01: But again, Your Honor, this is where I come back to the teachings in Contessa International Seaway, which is that the test that this Court has repeatedly provided is that the accused product must be considered throughout their entire lifetime. [00:14:03] Speaker 01: And that's why we submit that even if the Court were to find at one point [00:14:07] Speaker 01: In this case, as it's stuffed and sold on Amazon in that particular view, it did not look like the patented design. [00:14:13] Speaker 01: That did not foreclose a comparison at other points in time in the product's life. [00:14:18] Speaker 01: You have to consider all the different views, right? [00:14:22] Speaker 01: No, Your Honor, I think of it more like this. [00:14:24] Speaker 01: If one goes... Oh, all the different views of the figures? [00:14:27] Speaker 05: Or all the different views of the product? [00:14:28] Speaker 05: All the different views of the product and the design. [00:14:31] Speaker 05: So if there were one view in which it looks similar, but two others in which it was quite dissimilar, you'd have to consider all of those, right? [00:14:39] Speaker 01: Absolutely, Your Honor. [00:14:40] Speaker 01: And the way that I would consider that analysis is the following, to make an analogy to utility patents, is that if at any point there is infringement, [00:14:49] Speaker 01: then infringement is present. [00:14:50] Speaker 01: So for example, if we imagine... Really? [00:14:52] Speaker 05: That seems to be contrary to what you just said. [00:14:55] Speaker 05: I thought you agreed that in determining infringement, you had to consider all the different views. [00:15:01] Speaker 05: Are you saying that in any one view, it's similar, that that creates infringement? [00:15:05] Speaker 05: Yes. [00:15:05] Speaker 01: Just like the minimus infringement, for example. [00:15:08] Speaker 01: Or if we imagine a mechanical device... What case says that? [00:15:12] Speaker 01: Again, there are no cases with facts directly analogous to this one. [00:15:18] Speaker 01: And so this is a novel question of dealing with a flexible product like this one in a design patent case. [00:15:23] Speaker 01: But the comparison I would ask the court to consider, for example, with respect to utility patent is, if we imagine a mechanical structure that had a vertical member in one instance and fold it down, for example, to have it be parallel in another instance, in one end, the claim required it to be in the vertical position, and it could fold down. [00:15:42] Speaker 01: It would only be infringing at the time that the arm was in a vertical position. [00:15:46] Speaker 01: And we think that it's directly analogous to here in the design patent context. [00:15:52] Speaker 04: What picture of the fuzzy baba shows that the front top surface has a defined S-curve that bands continuously? [00:16:03] Speaker 01: The closest pictures, Your Honor, are going to be, if you look at the reply brief, on page 13 with the ones in the foot. [00:16:13] Speaker 05: And we recognize that there are slight differences. [00:16:15] Speaker 05: You don't see the S curve because in a top view you don't see it. [00:16:20] Speaker 05: So you're saying let's ignore the S curve because you don't see it in page 12 of your gray brief either. [00:16:26] Speaker 01: Page 12 of the reply brief I think is the one. [00:16:30] Speaker 01: It's in the evidence that's cited in the gray brief where it's just the expert declaration which has the full comparison of all the drawings. [00:16:36] Speaker 01: But I think page 12 of the reply brief is the one that I would point to with that respect. [00:16:40] Speaker 01: And I recognize [00:16:41] Speaker 01: that there are some slight differences there. [00:16:43] Speaker 04: Well, there's a flat plane there, or there's a flat line there on the Fuzzy Baba, whereas your patent design right there, it curves upward to the point where the front of the foot opening is higher up than compared to the front of the foot opening for the Q's product. [00:17:08] Speaker 01: Yes, Your Honor. [00:17:08] Speaker 01: We recognize that there is a difference in the extent to which the foot opening comes up in that instance. [00:17:13] Speaker 04: And this is kind of a crowded art, right? [00:17:17] Speaker 04: Yes, Your Honor, but again... And so therefore differences like this start to matter more and more, right? [00:17:24] Speaker 01: It is a crowded art and that may in fact be the case that that could be given a little different weight. [00:17:30] Speaker 04: And so differences like this start to matter more and more? [00:17:32] Speaker 01: They may, Your Honor. [00:17:33] Speaker 01: But we believe, for example, that even in, and again, the way the patent office analyzed prior art is again instructive because that also lacks the S-curve. [00:17:43] Speaker 01: They didn't point to that as a distinguishing feature. [00:17:45] Speaker 01: And whether this would be a substantial difference when the design is viewed as a whole, considering all of the views we submit is still a question for the fact finder at the end of the day. [00:17:57] Speaker 01: Okay, anything more? [00:17:59] Speaker 05: All right, thank you, Mr. Ellis. [00:18:01] Speaker 05: We'll give the floor to Robert. [00:18:13] Speaker 02: Okay, Mr. Davies? [00:18:15] Speaker 02: May I please report? [00:18:16] Speaker 02: Davies, I just had two questions. [00:18:17] Speaker 02: One of kind of a housekeeping nature. [00:18:19] Speaker 02: In the previous case, we addressed obviousness and functionality and we sent those issues back. [00:18:28] Speaker 02: They are not the subject of this appeal. [00:18:31] Speaker 02: Are they still alive and kicking in the district court? [00:18:34] Speaker 02: What will happen? [00:18:36] Speaker 00: The obviousness issue is pending. [00:18:40] Speaker 00: Okay. [00:18:40] Speaker 00: But we see this as a non-victimant case largely. [00:18:44] Speaker 02: So, depending on how this case turns out, they may or may not be addressed. [00:18:52] Speaker 00: One other question. [00:18:58] Speaker 02: Getting back to what was being discussed with Mr. Aulis, how are we to consider, what consideration are we to give to the decision of the board that sustained [00:19:11] Speaker 02: upheld the patent, the validity of the patent, in the face of the Penta and the Laurel Hill. [00:19:18] Speaker 00: So a couple of things on that. [00:19:19] Speaker 02: What does that do in terms of this case? [00:19:21] Speaker 00: I don't think it does much because we're focused on the infringement, as we were talking about this morning. [00:19:25] Speaker 05: Well, it sounds as though you're not defending the invalidity decision. [00:19:30] Speaker 00: No, I'm happy to defend it, Your Honor. [00:19:33] Speaker 00: It's not as clear, but I'm happy to talk about it. [00:19:36] Speaker 00: Well, I'm just thinking in terms of the validity decision. [00:19:38] Speaker 00: In terms of the validity decision, [00:19:41] Speaker 00: If you look at page 44, which is really, I think, the easiest way to see the relevant images for the validity arguments, page 44 of our brief, the images of the design patent are in the middle, and the products that the pen office, the prior art of the pen office were looking at are on the side. [00:19:59] Speaker 02: And it's close. [00:20:00] Speaker 02: Oh, I understand. [00:20:01] Speaker 00: But what do we? [00:20:02] Speaker 00: No, no. [00:20:02] Speaker 00: But the differences that we're going to talk about, or I hope to talk about the five differences that we've been discussing this morning, are different differences. [00:20:09] Speaker 00: They're not intellectually inconsistent to say the patent is valid or invalid, and fringe or unfringe. [00:20:16] Speaker 00: They're definitely distinct inquiries. [00:20:17] Speaker 00: But there is the overlap that Judge Chen was talking about. [00:20:19] Speaker 02: Are we to give any particular credence or consideration to the decision of the board that came down recently on this? [00:20:28] Speaker 00: Well, I mean, this court hasn't reviewed that decision. [00:20:30] Speaker 00: I mean, I think for its persuasiveness, it stands on its merits. [00:20:34] Speaker 00: But I don't think its source should push you in one direction or another. [00:20:38] Speaker 04: OK. [00:20:38] Speaker 04: Thank you. [00:20:39] Speaker 04: I have another question on this issue, which is this court's prior decision in 2013 at one point questioned whether the Laurel Hill and Penta can serve as the so-called Rosen reference in a 103. [00:20:56] Speaker 04: So now we have in front of us those exact same references being used as 102 references. [00:21:05] Speaker 04: How does that work? [00:21:06] Speaker 04: Is there a suggestion there that there's a little bit of a tension? [00:21:11] Speaker 04: Maybe a lot of tension? [00:21:13] Speaker 00: Certainly there's tension. [00:21:15] Speaker 00: I think you can explain it, because the inquiry that this court made clear is really more of the ordinary designer inquiry. [00:21:24] Speaker 00: There's more of a precise inquiry, so the differences probably register differently. [00:21:29] Speaker 00: But I do want to focus on infringement. [00:21:31] Speaker 00: I'm here for you. [00:21:35] Speaker 04: Yeah, I do have another question. [00:21:36] Speaker 04: Go ahead. [00:21:37] Speaker 04: For a Rosen reference, our law says it has to be basically the same as the claim design. [00:21:44] Speaker 04: For a 102 reference, apparently, the court says the anticipating reference has to be substantially the same as the claim design. [00:21:54] Speaker 04: What do you think is the daylight between those two standards? [00:21:58] Speaker 04: They sound very similar. [00:22:01] Speaker 00: OK, you can go on with your essential argument now. [00:22:05] Speaker 00: So I think to step back, the biggest point I think that I'd like to start with is just that the overall inquiry is about deception. [00:22:13] Speaker 00: And that's what this court said in Egyptian Goddess, and it's really relying on Gorham. [00:22:17] Speaker 00: Is somebody going to be tricked or confused thinking that they want to buy the slipper that's set out in the 103 pan, and they go into the store and they buy our product? [00:22:26] Speaker 00: Are they going to be tricked to see it because they're so similar? [00:22:29] Speaker 00: And there are five key differences. [00:22:31] Speaker 05: What about their suggestion that you can look at one angle of view and limit your infringement analysis to that? [00:22:42] Speaker 05: Let's look at it from a top view and then we don't have to worry about the S thing. [00:22:49] Speaker 00: Two answers if you want. [00:22:50] Speaker 00: You asked counsel for a case and there was no case that says that. [00:22:54] Speaker 00: But I'm happy to look at any view. [00:22:55] Speaker 00: We can start with the top view and that's on page 20 of our brief and you look at the top view. [00:22:59] Speaker 00: We have a narrow opening and they have an egg shape. [00:23:03] Speaker 00: We have a slipper socket that goes on either foot. [00:23:06] Speaker 00: They have a slipper that has to go on the left or the right foot. [00:23:09] Speaker 00: You can look at. [00:23:11] Speaker 04: The district court didn't say any of these differences, right? [00:23:16] Speaker 00: The district court said one of the differences is indistinguishable sole that is part of the egg shape. [00:23:22] Speaker 00: So that rationale is definitely there for sure. [00:23:25] Speaker 00: She made the point that you were asking about. [00:23:27] Speaker 00: inherent structure in these designs. [00:23:30] Speaker 00: And I think just to add a little gloss to that, this is a patent on a quote slipper. [00:23:34] Speaker 00: It's not a patent on a quote slipper sock and there are such patents. [00:23:37] Speaker 00: So I think by using the word slipper and then you take the Egyptian goddess sense that you don't just take a human that doesn't know anything about this. [00:23:45] Speaker 00: People know what slippers are. [00:23:47] Speaker 00: They have this inherent, so you call it pre-programmed structure. [00:23:50] Speaker 00: And so that's what the district court relied on. [00:23:52] Speaker 00: But as Judge Stike was saying, it doesn't really matter. [00:23:56] Speaker 00: For this point, it's de novo review. [00:23:58] Speaker 00: And this court reviews judgments, not statements or opinions. [00:24:02] Speaker 00: And so I don't think we can dwell on that. [00:24:09] Speaker 00: Go ahead. [00:24:09] Speaker 00: So another difference that we've talked about, the profile. [00:24:13] Speaker 00: The one that hasn't come up so far is on page 30. [00:24:15] Speaker 00: And that's the underside of the items. [00:24:17] Speaker 00: The pattern of the gripper soles in ours is uniform across theirs. [00:24:22] Speaker 00: in T-sections or abstinence. [00:24:25] Speaker 00: Should we talk about the foot issue, which got a lot of prominence in the reply brief. [00:24:31] Speaker 00: So we didn't really get a chance to sort of explain as much as we might have about that. [00:24:38] Speaker 00: But again, we're happy to look at it with the foot. [00:24:41] Speaker 00: There's still many differences that are apparent even with the foot in it. [00:24:44] Speaker 00: And this is on page, happy to look at the design on page 12 of the reply brief. [00:24:51] Speaker 00: The front shape of the slipper is still very distinct. [00:24:54] Speaker 00: There's actually additional differences. [00:24:56] Speaker 00: When you look at it with the foot, the shape of the fluff around the foot opening is different, and it's much more apparent with the foot in it. [00:25:04] Speaker 00: But I don't think that's the right analysis. [00:25:06] Speaker 00: There's no foot in the patent. [00:25:07] Speaker 00: The cases don't talk, the Egyptian goddesses, they don't talk about the nail device at the salon. [00:25:13] Speaker 00: I mean, the question is, when you're buying it, are you gonna be tricked? [00:25:16] Speaker 00: And you were buying it with someone's foot in it, and that's why in Appendix 1441, [00:25:21] Speaker 00: They themselves say, yeah, those Amazon pictures, that's how they look when worn. [00:25:25] Speaker 00: And these are all their pictures, foot or no foot. [00:25:27] Speaker 00: These are the pictures that they're asked to put forward. [00:25:30] Speaker 00: And just to put a fine point on it, their opening brief has a picture of their product, the Snoozy, and they call that the inviting design. [00:25:41] Speaker 00: And there's no foot in that. [00:25:42] Speaker 00: So clearly the focus to me has to be on the product, on our product, and on images in the patent, and neither one has. [00:25:49] Speaker 04: But what if theoretically once the accused product is in use then the shape and overall appearance of the accused product starts to look a lot more like the patented design? [00:26:03] Speaker 04: I'm just talking theoretically. [00:26:04] Speaker 04: Then isn't that relevant to the infringement inquiry? [00:26:07] Speaker 04: I mean what you were just saying sort of suggests like all that you worry about is how the accused product looks at the time of purchase. [00:26:16] Speaker 00: I'm not sure that's right. [00:26:19] Speaker 00: time of purchase, but a purchaser imagines the product over the course of its life cycle. [00:26:25] Speaker 00: And again, I think that was probably the mistake that was made in Contessa Foods was the person buying the platter did care about the underside, even though couldn't see it in the store and got home, oh wow, you know, that's not what I expected to find underneath. [00:26:37] Speaker 00: So sure, it's over the life cycle of the product, but the key moment is when I'm purchasing it and I think about the product. [00:26:48] Speaker 05: What's your view about the foot? [00:26:54] Speaker 05: Do they have to show the foot if they want to claim the slipper on the foot in the design patent, if indeed there's a difference between the shape of the design on and off the foot? [00:27:07] Speaker 05: You can certainly imagine cases where it would make an enormous difference whether it was on or off the body. [00:27:16] Speaker 00: I'm not sure I could suggest like a strict rule. [00:27:19] Speaker 00: I mean, you read the guidelines that the patent office has. [00:27:25] Speaker 00: The slipper sock patents have some have feet and some don't. [00:27:28] Speaker 00: I mean, I think if, but to go to the public notice function that your honor was suggesting, it would certainly be a better practice, I think, to show the design that you're claiming. [00:27:39] Speaker 00: And if your design changes in different settings or different environments, I would think we would want people [00:27:46] Speaker 00: to make that clear somehow. [00:27:47] Speaker 00: Exactly how you express that, I think, would probably be up to the inventor. [00:27:57] Speaker 05: Anything more? [00:28:01] Speaker 05: All right. [00:28:07] Speaker 05: Thank you. [00:28:08] Speaker 05: You have two minutes. [00:28:13] Speaker 01: Your Honor, I'd just first like to address the point of sale question. [00:28:18] Speaker 01: Judge Chan asked about whether the point of sale was really the appropriate focus, and counsel suggested that that was really the central time. [00:28:26] Speaker 01: In Contessa, this court held that the ordinary observer analysis is not limited to those features visible at the point of sale, but instead must encompass all or one of the features visible at any time during the normal use of the product. [00:28:38] Speaker 01: And we again believe that that's why it's appropriate [00:28:41] Speaker 01: given that instruction and similar statements in International Seaway to consider the slipper over the life of the product. [00:28:48] Speaker 01: We're not aware of any requirements in the case law or the patent office rules that require that the foot be shown in the slipper. [00:28:56] Speaker 01: And therefore, that's simply an optional feature that may be shown to show that it's not required. [00:29:02] Speaker 01: So again, we believe that analysis should consider the foot. [00:29:07] Speaker 01: From what I understand with respect to validity, Your Honor, [00:29:10] Speaker 01: We don't believe there are seriously contested validity at this point in time. [00:29:13] Speaker 01: And on the other issues, we'll rest on the briefs. [00:29:19] Speaker 01: Unless you have any further questions. [00:29:21] Speaker 01: Okay. [00:29:22] Speaker 01: Thank you, Mr. Omens. [00:29:23] Speaker 01: Thank both counsels. [00:29:24] Speaker 05: The case is submitted.