[00:00:00] Speaker 04: case number 21167, USA Dogs Incorporated against Crocs Incorporated. [00:00:07] Speaker 04: Mr. Bukowicz. [00:00:09] Speaker 02: Good morning, Your Honor. [00:00:10] Speaker 02: May it please the Court? [00:00:11] Speaker 02: There are two summary points about this case that I'd like to start with. [00:00:15] Speaker 02: The first is that this case presents an important issue of law with broad implications for district courts and the Board, which is whether the prior art [00:00:25] Speaker 02: needs to show each and every view of a claim design in order to anticipate a design patent. [00:00:31] Speaker 02: And before the ordinary observer test, as initially announced in Gorham v. White, even needs to be applied. [00:00:38] Speaker 02: Now, I want to be clear that this is a question of law and not one of substantial evidence, as Crocs has submitted, because the whole point here is that the Board did not make factual findings. [00:00:50] Speaker 02: the board simply did not apply the ordinary observer test and said that it was not possible because certain views were missing prior. [00:00:59] Speaker 01: All right. [00:00:59] Speaker 01: I'll go ahead and address that question first because I think there's a lot of other things we have to talk about too. [00:01:05] Speaker 01: But as I read the board's opinion, it didn't say that you have to have every single view. [00:01:12] Speaker 01: What it said is in this particular case, there were too many aspects of the design that [00:01:19] Speaker 01: weren't disclosed by the particular view, by the figure 11. [00:01:25] Speaker 01: So I don't read the board as having taken a broad legal position that you can't do an ordinary observer analysis whenever views are missing. [00:01:37] Speaker 01: They simply said that in this particular case, it was impossible to do. [00:01:41] Speaker 02: Your Honor, I think in some sense that's correct that the Board did say that it's not taking a firm position that you could never anticipate, but it did not actually apply the ordinary observer test. [00:01:56] Speaker 02: And it's circular, in our view, to say that it is not possible or there are too many views missing without considering the underlying facts and without actually applying the ordinary observer test. [00:02:07] Speaker 01: acknowledged the Egyptian goddess rule and said it wasn't doing an element by element analysis, simply saying that an ordinary observer couldn't have formed an opinion, at least as of 2003. [00:02:21] Speaker 02: Your Honor, I think that's correct that the board announced the Egyptian goddess test. [00:02:29] Speaker 02: I think it did something different in actual application. [00:02:32] Speaker 02: And in actual application, [00:02:34] Speaker 02: The board did not articulate, for example, the nature of the ordinary observer. [00:02:39] Speaker 02: The board did not articulate what the important visual features may have been to the ordinary observer. [00:02:46] Speaker 02: It made no factual finding as to how crowded or uncrowded the prior art is. [00:02:51] Speaker 02: It simply misinterpreted the examiner's underlying finding on that. [00:02:56] Speaker 02: And it did not even consider the disclaimed features in the figures that are supposedly missing. [00:03:02] Speaker 02: So we would submit as well. [00:03:04] Speaker 01: Oh, go ahead. [00:03:05] Speaker 02: I'm sorry. [00:03:06] Speaker 02: What we would submit is that while missing views may in some instances, depending on these underlying facts, counsel against a finding of anticipation because this is a standard of consumer confusion effectively, there is no threshold for the number of views that need to be shown in the prior art. [00:03:27] Speaker 02: And if that were the test, then it would effectively [00:03:31] Speaker 02: preclude, it would run contrary to Gorham and would effectively preclude anticipation in any instance where the prior art is missing certain views. [00:03:45] Speaker 00: Can I express to you a bit of confusion as to what the board and you and your opposing counsel are talking about? [00:03:55] Speaker 00: It seems to me where you have a situation where [00:03:58] Speaker 00: you have, let's say as with this patent, seven views in the patent and let's say two views in the prior art. [00:04:07] Speaker 00: It seems to me there are two separate questions which have not been separately addressed here. [00:04:13] Speaker 00: One is whether you can make a determination of anticipation because there may be features in the claim design that aren't clearly shown in the prior art design. [00:04:25] Speaker 00: In other words, that there are [00:04:27] Speaker 00: missing features. [00:04:29] Speaker 00: Another issue is whether they're potentially added features. [00:04:33] Speaker 00: In other words, designs in the prior art that are missing from the patented design. [00:04:42] Speaker 00: So which of those two things do you think that the board here was addressing? [00:04:48] Speaker 00: It was saying we can't make a determination because we're not sure that the features shown in the patented design [00:04:57] Speaker 00: exist in the prior art or is it because there's a possibility that the prior art contains additional design features which aren't in the patent and therefore the ordinary observer wouldn't see them as being the same? [00:05:10] Speaker 00: Do you understand what I'm talking about? [00:05:11] Speaker 02: I do your honor and I think the board was talking about the former because there is no dispute that it is actually a croc shoe and the same shoe that was on the website, that that is the printed publication. [00:05:23] Speaker 02: So it is the former in the sense that [00:05:26] Speaker 02: that the prior art supposedly did not show certain views of the claim design, and the sense of the prior art was missing those. [00:05:35] Speaker 00: But I would submit that... Not that the prior art might have had additional features. [00:05:40] Speaker 02: That's correct, Your Honor. [00:05:41] Speaker 02: But I would submit that both are potentially relevant, at least as a matter of law, to the ordinary observer test. [00:05:49] Speaker 02: And the ordinary observer test is supposed to focus [00:05:52] Speaker 02: on what a consumer, what an ordinary purchaser, not an expert, but what an ordinary purchaser would think and whether they would be confused when viewing the prior art vis-a-vis the claim design. [00:06:05] Speaker 01: And certainly it's the case... Well, didn't the board say that when you take it back to the correct point in time, which is 2003, an ordinary observer wouldn't necessarily conjure up [00:06:18] Speaker 01: the rest of the design elements or the overall picture because today we could do that because we've seen them so many times. [00:06:28] Speaker 01: But the board was concerned that you would be putting, making too many assumptions about what an ordinary observer would anticipate the rest of the shoe to look like. [00:06:43] Speaker 02: I don't think that's what the board [00:06:45] Speaker 02: found, Your Honor, and that would have required at least some articulation of the underlying facts. [00:06:51] Speaker 02: What the Board said is, and I'm quoting, it is not possible from the photographs of Figure 11 to determine whether shoe design of Figure 11 is substantially the same as the shoe design claimed in the 789 patent, and later talks about a sufficient gap in the evidence. [00:07:07] Speaker 02: And the problem that we have is that there was no finding about the evidence. [00:07:11] Speaker 02: If we had been in a situation where the board had articulated what it believed certain important visual features were and certain what the nature of the ordinary observer was and actually correctly opined that the prior art, for example, was crowded and acknowledged the disclaimed features, we might be in a different position. [00:07:33] Speaker 02: Which leads me to the second point that I wanted to make, which is that this case, [00:07:38] Speaker 02: and talked about the important consequences here as a rule, but this case is particularly well suited to address this issue. [00:07:46] Speaker 01: Well, let's talk about the point that I wanted to talk about first, which is whether we should even be here. [00:07:56] Speaker 01: I mean, you would concede, would you not, that as of the filing of the complaint that [00:08:04] Speaker 01: dogs had, I mean a filing of the appeal, that dogs had been dissolved, right? [00:08:09] Speaker 02: That's correct, Your Honor. [00:08:11] Speaker 01: Alright, so dogs would have no capacity to sue except as it relates to its dissolution activities, right? [00:08:22] Speaker 02: Well, but the question, that may be right with respect to suing, but that's not what we have here in the sense that dogs was sued. [00:08:30] Speaker 00: And under Colorado. [00:08:31] Speaker 00: Wait a moment. [00:08:32] Speaker 00: In the Nevada statute that you cite, 78.585, it says explicitly the dissolved corporation can continue to litigate as a plaintiff, as a party. [00:08:50] Speaker 02: Thank you, Your Honor. [00:08:50] Speaker 02: You're right. [00:08:51] Speaker 02: I may have misquoted that. [00:08:52] Speaker 02: What I was focused on, and I think that's correct, that for a period of time, [00:08:56] Speaker 02: that the dissolved corporation can both sue and be sued. [00:09:01] Speaker 02: And from a standing perspective, there is an active lawsuit where DOGS is accused of infringing the 789 patent. [00:09:09] Speaker 02: And that is the epitome of standing to us. [00:09:12] Speaker 01: But it's not really standing, is it? [00:09:15] Speaker 01: It's capacity to sue. [00:09:18] Speaker 01: Capacity to continue to act. [00:09:21] Speaker 02: And under state law, [00:09:23] Speaker 02: dogs does have the capacity to sue and be sued for a period of time, it can still be sued by creditors. [00:09:30] Speaker 02: That is the state law. [00:09:31] Speaker 02: And that is why dogs is still a defendant. [00:09:34] Speaker 01: But dogs is completely absolved from all liability in connection with the infringement claim, right? [00:09:43] Speaker 02: Crocs has not conceded that, no. [00:09:46] Speaker 02: In fact, Crocs has taken the position that Crocs has definitely not conceded that. [00:09:50] Speaker 01: Well, they've taken the position that the successor in interest, that the assets that were transferred are subject to a possible offset. [00:10:00] Speaker 01: But that doesn't mean dogs as a corporation that doesn't exist anymore. [00:10:03] Speaker 01: It wasn't released. [00:10:06] Speaker 01: It was clearly released with respect to all the pre-infringement activity. [00:10:11] Speaker 01: The only thing that was carved out was the fact that the assets [00:10:15] Speaker 01: might have to answer the assets now in the hands of somebody else. [00:10:20] Speaker 02: Our position, Your Honor, if I understand the question, our position is that Mojave, and that's why they have moved to substitute, Mojave now is the successor in interest. [00:10:31] Speaker 02: The problem that we have here is that Crocs has not conceded that Mojave is the successor in interest and USA Dogs remains the defendant in the underlying litigation. [00:10:42] Speaker 02: It is, it is, and I think this is the standing question that we're talking about, which is, is there a threat of liability or an offset? [00:10:51] Speaker 01: But Mohamed's been substituted into the underlying litigation. [00:10:54] Speaker 02: They've been joined. [00:10:55] Speaker 02: They have been joined. [00:10:56] Speaker 02: They have not been substituted. [00:10:58] Speaker 02: And for this exact reason. [00:11:00] Speaker 02: And it's because Crocs has not conceded that. [00:11:03] Speaker 02: And so USA Dogs, just the same as we can, we can talk about a line of cases such as Nike, the Adidas, which the court issued this year, [00:11:11] Speaker 02: there is a real threat of liability. [00:11:15] Speaker 02: It's not imaginary in the sense that they remain a defendant, they were not substituted out, and Crox has refused to concede anything, nor have they ever. [00:11:25] Speaker 02: And so our position, Your Honor, is that yes, Mojave is the successor in interest, but [00:11:31] Speaker 02: there's a little bit of a shell game problem going on here from Crocs' side, which is it wants this case dismissed, yet holding on to the fact that USA Doves may still be liable, whether it be affirmative liability or an offset. [00:11:46] Speaker 01: Well, even the mere fact that, but the fact that they won't concede something doesn't make, doesn't change the reality of what it is, right? [00:11:56] Speaker 02: Well, but it's no different than any other case where there is a threat [00:12:00] Speaker 02: of litigation and somebody files in appeal, for example, in Nike v. Adidas. [00:12:06] Speaker 01: Well, what rights does dogs still have in the re-exam? [00:12:14] Speaker 02: Our position, Your Honor, is that they don't have any, which is why Mojave has moved to substance. [00:12:21] Speaker 01: Right, and they didn't as of the point in time that the notice of appeal was filed. [00:12:27] Speaker 02: That is our position. [00:12:28] Speaker 02: That is a disputed issue. [00:12:32] Speaker 01: And what about Mojave? [00:12:33] Speaker 01: I mean, how can they possibly join this appeal when, to the extent they were, even if we accept the fact that they're a successor in interest, they were the ones who should, they were a successor in interest long before the notice of appeal was filed. [00:12:48] Speaker 01: And so they should, under Rule 43, it's very clear that they had to have filed the notice of appeal. [00:12:56] Speaker 01: They can't wait to join after the fact. [00:12:59] Speaker 02: We included, this was a procedural issue, which is the board in the underlying re-examination refused to allow Mojave to participate. [00:13:11] Speaker 02: And so for purposes of the notice of appeal, USA Dogs filed that notice of appeal, but there was a footnote included indicating that Mojave would immediately... But Mojave did not appeal from the board order, right? [00:13:25] Speaker 01: That didn't let them become a third-party requester. [00:13:30] Speaker 02: The board did not decide that issue. [00:13:33] Speaker 02: The issue that the board decided was whether Mojave could participate in an oral argument. [00:13:38] Speaker 01: No, that's not true. [00:13:39] Speaker 01: Go back and look at what the board said. [00:13:41] Speaker 01: The board decided several different things. [00:13:44] Speaker 01: I know you argued that in your brief, but that's not what the board did. [00:13:47] Speaker 01: The board said it's untimely because it should have been done within 20 days of becoming a successor in interest, and you didn't present enough evidence to prove to us [00:13:57] Speaker 01: that you are the successor in interest, and it's cited to Agilent. [00:14:00] Speaker 01: So it wasn't just limiting its discussion to the oral argument. [00:14:07] Speaker 02: Your Honor, all that we asked the board to do at that time was for Mojave to be able to argue that was the first action taken after the asset transfer. [00:14:18] Speaker 01: Well, then that makes it even a stronger case that Mojave is not a third-party requester. [00:14:24] Speaker 02: It was a matter of timing, Your Honor. [00:14:26] Speaker 02: The appeal briefs had already been filed and everything in the case had been, everything in the underlying re-examination other than the oral argument was finished at the time of the asset transfer. [00:14:41] Speaker 02: Mojave had no other reason to do that. [00:14:44] Speaker 00: See, my understanding is in the district court context that the addition of a successor and interest did not [00:14:54] Speaker 00: necessary, not necessary to add it as a party, that it happens automatically and that it's a matter of convenience as to whether the successor and interest is actually added as a party or not. [00:15:07] Speaker 00: But the parties really haven't briefed this issue very thoroughly. [00:15:11] Speaker 00: I mean, obviously, there's very little law, if any, concerning the board, but there is quite a bit of law [00:15:18] Speaker 00: in the context of District Court Rule 25 and Appellate Rule 43 in District Court context? [00:15:27] Speaker 02: Your Honor, I think it's a factual matter here. [00:15:31] Speaker 02: I'm sorry, Your Honor, if I may finish the question. [00:15:34] Speaker 02: Yeah, so as a factual matter, the parties in the District Court did brief the issue, the same issue that's presented here, [00:15:42] Speaker 02: which is whether Mojave became the successor in interest for purposes of, and I'll use the term broadly, the set of Crocs disputes, and Judge Brimmer found that Mojave is the successor in interest, that it did purchase the assets. [00:15:59] Speaker 02: And that issue was briefed, was decided, and unlike what it was before the board, Mojave actually had a chance to be heard, which did not happen in front of the board. [00:16:15] Speaker 04: Anything else for Mr. Brekowitz at the moment? [00:16:22] Speaker 04: Let's save you a rebuttal time. [00:16:23] Speaker 04: Okay, let's hear from the other side. [00:16:25] Speaker 04: Mr. Brekowitz. [00:16:26] Speaker 03: Thank you, Your Honor, and may it please the Court. [00:16:29] Speaker 03: I do want to start, if it's okay with Your Honors, with the standing question, because I think that the discussion previously here has it exactly right, and I want to apologize because I think our papers didn't quite set it out as articulately. [00:16:41] Speaker 03: The problem here is dogs had no standing at the time it filed the appeal because dogs had no liability for infringement because dogs was dissolved in bankruptcy and all of its liabilities were shed. [00:16:55] Speaker 03: So it is no different than anyone else because dogs, since dogs had no potential liability for infringement, [00:17:00] Speaker 03: There is no injury to be redressed with respect to the validity of the 789 patent. [00:17:05] Speaker 03: So DOGS has no standing to have filed. [00:17:08] Speaker 00: What about Mojave? [00:17:09] Speaker 00: They have potential liability for infringement, right? [00:17:13] Speaker 03: So that's the key issue, Your Honor. [00:17:14] Speaker 03: I absolutely agree. [00:17:16] Speaker 03: Here's the problem. [00:17:17] Speaker 03: What should have happened is that Mojave should have filed an appeal. [00:17:24] Speaker 03: from the Patent Office's decision not to allow Mojave to become the real party in interest. [00:17:31] Speaker 00: I don't see that you argued that, but put that aside for a moment. [00:17:35] Speaker 00: That's not a standing issue. [00:17:37] Speaker 00: My first question is Mojave has standing, doesn't it? [00:17:41] Speaker 00: Because it's potentially liable for infringement damages. [00:17:45] Speaker 03: That's not correct, Your Honor. [00:17:46] Speaker 03: They are not liable for infringement damages. [00:17:48] Speaker 00: There is, in order for a party to have standing... You joined them as a defendant in the case, right? [00:17:56] Speaker 03: They joined themselves, Your Honor, in the case as a counterparty plaintiff because they claim that they have claims against Crocs. [00:18:05] Speaker 00: They joined themselves. [00:18:06] Speaker 00: Are you willing to stipulate at this point that they have no liability for infringement damages? [00:18:12] Speaker 00: They could have no liability. [00:18:13] Speaker 00: The only issue [00:18:15] Speaker 00: Now to answer my question, are you willing to stipulate now that Mojave has no liability for infringement damages? [00:18:26] Speaker 03: So I want to answer your question. [00:18:28] Speaker 03: The only caveat is there is an offset that is potentially speculatively available. [00:18:35] Speaker 03: But other than that, they absolutely have no infringement for infringement. [00:18:39] Speaker 03: They have no liability for infringement damages, Your Honor. [00:18:42] Speaker 03: Absolutely not, because they don't engage in infringing activities. [00:18:46] Speaker 00: You're not willing to stipulate that they don't have offset liability, right? [00:18:50] Speaker 03: Well, I would say there is no, under the standard as articulated, they have no liability at this point that is certain under the discussion in consumer... Council, even if Mojave had some potential standing, isn't your better argument that [00:19:18] Speaker 01: And even if they became the successor in interest and could have been able to step into the shoes of dogs for purposes of this appeal, isn't your better argument is that under Rule 43, they had to do that before the filing. [00:19:35] Speaker 01: They had to make the filing on behalf of dogs, which would have put them under Rule 43A2. [00:19:42] Speaker 01: And instead, they didn't. [00:19:46] Speaker 01: And so they can't now say, because there's not an interim death of the corporation, they can't now say that they should be substituted in. [00:19:57] Speaker 01: Isn't that the better argument? [00:19:59] Speaker 03: I think that that is absolutely correct, Your Honor. [00:20:03] Speaker 00: Did you make that argument in your blue brief? [00:20:07] Speaker 03: Well, what we discussed, not expressly, Your Honor, no, to directly answer your question, but it is... But you cite to the rule, do you not? [00:20:14] Speaker 03: We absolutely cite to the rule. [00:20:16] Speaker 03: And what our discussion is, is that the way that they did this, [00:20:19] Speaker 03: is that they filed the appeal as dogs, not Mojave, and tried to do the substitution after and dogs couldn't file the appeal because the one thing that is indisputably true that everyone agrees to is that dogs had no right in this proceeding. [00:20:34] Speaker 03: And if dogs has no right in the proceeding, dogs cannot file the appeal. [00:20:39] Speaker 03: Mojave had to do the substitution and it had to do the substitution below because according to what Mojave told the PTAB, Mojave was the only party who had any right to do anything. [00:20:50] Speaker 00: But what case says that you have to succeed in a motion to substitute in the lower court or lower tribunal? [00:20:59] Speaker 03: You don't, Your Honor, but you have to then appeal that decision, the proper appeal, which for Mojave. [00:21:05] Speaker 00: What case says that you have to move below and then appeal that decision? [00:21:09] Speaker 00: Because I've looked into this, and I'm not aware of any such cases. [00:21:13] Speaker 00: In fact, the cases seem to say the opposite. [00:21:17] Speaker 00: What case says that you have to appeal [00:21:19] Speaker 00: the decision not to be joined as a party in the lower tribunal. [00:21:26] Speaker 03: I agree with you that there's not a case that says that, Your Honor. [00:21:29] Speaker 03: The cases say that in order to file appeal, you have to have the right to file an appeal. [00:21:35] Speaker 03: And dogs didn't have that right, according to Mojave. [00:21:38] Speaker 01: Well, there are cases that say, at least, that the appropriate practice, the Supreme Court said itself, that you should go back, and the Moreno case said that you should [00:21:49] Speaker 01: go to the district court and asked to be substituted at the time that the change in interest occurs, and then you appeal from a decision if the lower court denies it. [00:22:02] Speaker 01: The Supreme Court did say that. [00:22:04] Speaker 01: Whether that applies in the board context or not is a different question. [00:22:10] Speaker 01: But I guess my question is, even if it doesn't apply, and we would say you automatically get to step into the shoes for purposes of appeal, [00:22:19] Speaker 01: especially if the board didn't let you participate. [00:22:24] Speaker 01: But even then, under Rule 43, you have to do it. [00:22:29] Speaker 01: If the change in circumstances occurs before the suit is filed, then Mojave has to be the one to make the filing. [00:22:40] Speaker 03: Right? [00:22:40] Speaker 03: Right, Your Honor. [00:22:41] Speaker 03: Absolutely, Your Honor. [00:22:42] Speaker 03: Mojave had to file the appeal. [00:22:44] Speaker 03: Because if they had the right, then they had to exercise the right. [00:22:48] Speaker 03: of filing on behalf of dogs that didn't have any such right. [00:22:57] Speaker 03: Briefly, if your honors wish, I want to talk about the substance. [00:23:06] Speaker 00: Thank you. [00:23:07] Speaker 00: Is your position that there are features in the claim design that aren't shown? [00:23:15] Speaker 00: in Figure 11, or is your contention that Figure 11 doesn't preclude the possibility that there are additional features in the prior art? [00:23:27] Speaker 03: Figure 11 does not show the entire design. [00:23:32] Speaker 00: No, OK, but help me address my question. [00:23:36] Speaker 00: Is your position that there are features in the claim design that aren't shown in Figure 11, or is your position that Figure 11 [00:23:45] Speaker 00: doesn't preclude the possibility of additional features in the prior art. [00:23:52] Speaker 03: Our position is that figure 11 doesn't show claims features. [00:23:57] Speaker 03: And that in order to do the first, Your Honor. [00:24:00] Speaker 03: I think the second is also true. [00:24:02] Speaker 03: But the primary problem here is that the standard requires you to compare a design to the whole design. [00:24:09] Speaker 03: And that is not possible where the combination reference figure 11 doesn't actually contain the whole design. [00:24:15] Speaker 00: And what's missing from Figure 11? [00:24:18] Speaker 03: What the board said was missing from Figure 11, including it shows only if you go to page 12 at Appendix 0013, does not show the entire upper with the sidewall or the heel portion. [00:24:30] Speaker 03: These were findings of fact to thereby establish the ornamental design of the inner side of the shoe, including the design of the sidewall ventilator holes on the inner side wall. [00:24:40] Speaker 03: Figure 11 failed to show the inner side of the shoe and failed to show the inner side portion of the front, the rear, and the bottom of the shoe. [00:24:47] Speaker 03: All of those portions of the overall design had features in them. [00:24:53] Speaker 03: Without a reference for those features, you cannot compare the entire design. [00:24:59] Speaker 03: And that is, Mojave's argument sort of starts half, missing the first part of the standard. [00:25:07] Speaker 03: And the first part of the standard is, [00:25:09] Speaker 03: that the single prior reference has to be identical in all material respects to the claimed invention. [00:25:15] Speaker 00: Okay. [00:25:15] Speaker 00: So what features exactly are missing from Figure 11? [00:25:20] Speaker 03: As a finding of fact, what the board found was that Figure 11 fails to show the inner side of the shoe and fails to show the inner side portion of the front. [00:25:31] Speaker 00: The inside of the shoe? [00:25:34] Speaker 03: That's right. [00:25:34] Speaker 03: So your honor, yeah, like your shoe, if you look down, the outside of your shoe is on your [00:25:39] Speaker 03: outside right and the left, the inside of the shoe, there is no inside portion of the shoe depicted in Figure 11. [00:25:45] Speaker 03: It's only two outsides. [00:25:48] Speaker 03: So the entire inside of the shoe is not depicted in Figure 11. [00:25:53] Speaker 00: OK, what else isn't depicted? [00:25:57] Speaker 00: Or the bottom of the shoe, Your Honor. [00:25:59] Speaker 00: But the bottom of the shoe is only the contour, right? [00:26:02] Speaker 03: That's right. [00:26:02] Speaker 03: There's a contour and there's the outline of the sole. [00:26:07] Speaker 03: That's right, Your Honor. [00:26:08] Speaker 00: And what else is missing? [00:26:10] Speaker 03: Then the rear of the shoe. [00:26:14] Speaker 03: According to what the PTAB found. [00:26:16] Speaker 00: Is that it? [00:26:19] Speaker 03: Yes. [00:26:20] Speaker 03: Okay. [00:26:24] Speaker 03: It goes on to sort of more specifically discuss those things where it says that it doesn't show the entire upper width of sidewall or the heel portion to thereby establish the ornamental design of the inner side of the shoe. [00:26:37] Speaker 03: including the design of the sidewall ventilator holes on the inner sidewall. [00:26:41] Speaker 03: But that is subsumed within what I previously said the board of thumb was missing. [00:26:45] Speaker 03: So if you don't have the entire design, you cannot do a comparison. [00:26:54] Speaker 00: What Mojave argues is... But that sounds as though unless you have the entire design, you can never make a comparison. [00:27:04] Speaker 03: You have to have sufficient information, your honor, in order to know that you are comparing the entire design. [00:27:13] Speaker 03: Every single case that has discussed this issue says that you have to compare the patented design as a whole to the reference as a whole. [00:27:22] Speaker 03: And if you don't have a whole design in the reference, you cannot do that comparison if you don't have enough information. [00:27:28] Speaker 03: I mean, taking their suggestion to the extreme, if there was just a picture of the top of the shoe and it was identical to the design, [00:27:38] Speaker 03: then you would be able to do that comparison if that was confusing enough and you don't have to, you would just be able to throw out all the rest of the design shoe. [00:27:45] Speaker 03: And there's not been a case ever that has suggested anything like that. [00:27:48] Speaker 03: In fact, all the cases say exactly the opposite, that it has to be identical in all material respects to the claimed invention. [00:27:55] Speaker 03: And that's from High Point, that the ordinary observer test applies to the patent design in its entirety as it is claimed. [00:28:03] Speaker 03: And that's in the Crocs case, in the Braun case. [00:28:05] Speaker 03: And so there's never been a case in which you can have [00:28:09] Speaker 03: the patent design being compared to a reference that doesn't have the whole design, the whole material design in it for purposes of an anticipation finding. [00:28:18] Speaker 03: In the cases that they cite, to suggest that whether or not you have enough information to have the whole design is somehow the same thing as just a gross number of views that you are comparing. [00:28:34] Speaker 03: None of those cases say that. [00:28:37] Speaker 03: In the HUP case, [00:28:38] Speaker 03: They say, well, the advertisement only had one picture in it. [00:28:42] Speaker 03: But that's because when you look at the actual patented issue in the HUP case, there was really only one figure that depicted the entirety of the design, because it was a top-down view and a bottom-up view that were basically the opposite of one another. [00:28:58] Speaker 03: In the Leonard case, [00:28:59] Speaker 03: The Leonard case specifically says that the district court correctly looked at the overall design and didn't actually, and didn't go and try and only look at portions of the design. [00:29:10] Speaker 03: They say that in the Crocs case, that the fact that this court had pictures of only three views meant that the court in the Crocs case was basically saying that you don't need to look at the entire article in order to do a comparison. [00:29:26] Speaker 03: And that's just simply not true. [00:29:28] Speaker 03: The case says that you look at the entire design. [00:29:31] Speaker 03: I know that the Federal Circuit had the actual shoes of the accused products in that case. [00:29:37] Speaker 03: And I don't mean to speak to Your Honor about international seaway, but their argument, I don't think, can be squared with that case. [00:29:45] Speaker 03: Because if a potential difference between one portion of one view of the footbed of a shoe is sufficient to preclude summary judgment, then they can't have [00:29:59] Speaker 03: Anticipation is a matter of law here because there is so much more information missing in this case of a comparison of the views than there was in international seaway. [00:30:20] Speaker 03: I just want to very briefly [00:30:31] Speaker 03: go back to the issue of standing and clarify that when dogs filed the appeal, it didn't have standing because it couldn't have been possibly liable. [00:30:47] Speaker 03: And that whether or not Mojave had standing later in a substitution can't go back and fix dogs' lack of standing at the filing of the appeal. [00:30:59] Speaker 03: If there are no further questions on this issue, I would submit your honors. [00:31:05] Speaker 04: Anything else for Mr. Berkowitz? [00:31:08] Speaker 04: Okay, thank you. [00:31:10] Speaker 04: Then we'll hear from Mr. Berkowitz on rebuttal. [00:31:19] Speaker 00: Mr. Berkowitz? [00:31:22] Speaker 02: I'm sorry, Your Honor. [00:31:24] Speaker 02: So thank you. [00:31:25] Speaker 02: I want to go to the standing issue that came up and in particular comment on the notice of appeal issue. [00:31:32] Speaker 02: So in our view, the notice of appeal is not a standing question. [00:31:39] Speaker 02: At all relevant times, either dogs or Mojave had standing. [00:31:44] Speaker 02: There was an immediate transfer of assets and they had standing. [00:31:49] Speaker 02: Now in terms of the notice of appeal, [00:31:52] Speaker 02: That is a liberal standard under federal rule of appellate procedure three. [00:31:58] Speaker 02: That was an amendment to the advisory committee, amendment to the rule in 1993 and I'll quote the advisory committee note which we did cite in our motion to substitute. [00:32:09] Speaker 02: The rule makes it clear that dismissal of an appeal should not occur when it is otherwise clear from the notice that the party intended to appeal. [00:32:18] Speaker 02: If the court determines it's objectively clear that a party intended to appeal, there are neither administrative concerns nor fairness concerns that should prevent the appeal from going forward. [00:32:27] Speaker 02: And that rule has been discussed and adopted in a second circuit case as well that we cited in our motion to substitute. [00:32:41] Speaker 02: And so, Your Honors, if I may submit that the notice of appeal, the procedural issue of whether Mojave was identified in a footnote or whether it was actually appellant has no bearing on standing and should not be grounds to dismiss. [00:32:56] Speaker 02: And with that, I have nothing further, Your Honors, unless there are questions. [00:33:00] Speaker 04: Any questions for Mr. Berkelitz? [00:33:04] Speaker 04: Okay. [00:33:05] Speaker 04: Hearing none, the case is taken under submission. [00:33:08] Speaker 04: Thanks to both counsels. [00:33:11] Speaker 03: The Honorable Court is adjourned until tomorrow morning at 10 a.m.