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Verbal Description of Patented Design Is Critical to Support Obviousness Holding



High Point Design LLC v. Buyer's Direct, Inc.

By Nathan Smith of McDermott Will & Emery LLP

Nathan Smith is counsel in the law firm of McDermott Will & Emery LLP and is based in the Firm's Orange County office. Nathan's practice encompasses all aspects of intellectual property law. In particular, he focuses on strategic portfolio management and counseling in the medical device industry, including offensive and defensive competitive strategies, infringement studies, strategic transactions and domestic and foreign patent prosecution.

Addressing the standards for obviousness and functionality of a design patent, the U.S. Court of Appeals for the Federal Circuit reversed and remanded a district court's grant of summary judgment of invalidity, finding that the lower court's ruling was at too high a level of abstraction and failed to focus on the distinctive visual appearances of the various designs. High Point Design LLC v. Buyer's Direct, Inc., Case No. 12-1455 (Fed. Cir., Sept. 11, 2013) (Schall, J.).

High Point Design filed this declaratory judgment suit in response to a cease and desist letter from Buyer's Direct Inc. (BDI), which alleged that High Point's FUZZY BABAŽ slippers infringed BDI's design patent for an ornamental slipper. High Point later filed a motion for summary judgment of non-infringement and invalidity of BDI's patent.

The district court granted...

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