anderson v. kimberly-clark - appellee brief
TRANSCRIPT
February 24, 2014
No. 14-1117
IN THE
United States Court of Appeals FOR THE FEDERAL CIRCUIT
MUFFIN FAYE ANDERSON,
Plaintiff-Appellant, v.
KIMBERLY-CLARK CORPORATION,
Defendant-Appellee,
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON IN
CASE NO. 12-CV-1979, JUDGE RICHARD A. JONES
KIMBERLY-CLARK CORPORATION’S
APPELLEE BRIEF
STEVEN J. NATAUPSKY Counsel of Record BORIS ZELKIND COLIN B. HEIDEMAN KNOBBE, MARTENS, OLSON & BEAR, LLP 2040 Main Street, 14th Floor Irvine, CA 92614 (949) 760-0404 Attorneys for Defendant-Appellee Kimberly-Clark Corporation
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CERTIFICATE OF INTEREST
Counsel for Defendant-Appellee Kimberly-Clark Corporation certifies:
1. The full name of every party or amicus represented by me is:
Kimberly-Clark Corporation
2. The name of the real party in interest (if the party named in the caption is not
the real party in interest) represented by me is:
Not applicable.
3. All parent corporations and any publicly held companies that own 10 percent
or more of the stock of the party represented by me are:
None.
4. The names of all law firms and the partners or associates that appeared for
the party or amicus now represented by me in the trial court or agency or are
expected to appear in this court are:
Steven J. Nataupsky, Boris Zelkind, Colin B. Heideman
(KNOBBE MARTENS OLSON & BEAR LLP).
KNOBBE, MARTENS, OLSON & BEAR, LLP
Dated: February 24, 2014 By: /s/ Colin B. Heideman Steven J. Nataupsky Boris Zelkind Colin B. Heideman Attorneys for Defendant-Appellee, KIMBERLY-CLARK CORPORATION
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TABLE OF CONTENTS
Page No.
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I. STATEMENT OF RELATED CASES ........................................................... 1
II. JURISDICTIONAL STATEMENT ................................................................ 1
III. STATEMENT OF THE ISSUES .................................................................... 1
IV. STATEMENT OF THE CASE ....................................................................... 1
V. STATEMENT OF THE FACTS ..................................................................... 4
A. Appellant’s ’328 Patent And Design Patent Infringement Claims .................................................................................................... 4
B. Kimberly-Clark Has Designed Absorbent Undergarments For Over 40 Years ....................................................... 6
C. Kimberly-Clark’s Allegedly Infringing Products ................................. 8
D. Kimberly-Clark’s Competitors’ Products ............................................. 8
E. The District Court’s Judgment .............................................................. 9
VI. SUMMARY OF ARGUMENT ..................................................................... 11
VII. ARGUMENT ................................................................................................. 11
A. Standard Of Review ............................................................................ 12
B. The Legal Standard ............................................................................. 12
C. The District Court Did Not Commit Any Procedural Errors ................................................................................................... 14
1. The District Court Relied On Evidence Available To It On A Rule 12(c) Motion .................................................. 14
a. The Court Properly Considered the Asserted ’328 Patent ...................................................................... 14
b. The Court Properly Considered Photographs Of The Accused Products ............................................... 15
i. The Appearance of Defendant’s Accused Products Is Central To Plaintiffs’ Claim And The Authenticity Of The Photographs Is Not Disputed ......................................................... 15
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TABLE OF CONTENTS (cont’d)
Page No.
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ii. The Court Can Take Judicial Notice Of The Appearance Of Kimberly-Clark’s Products ................................................... 16
c. The District Court Properly Considered The Prior Art ’950 Publication .............................................. 17
2. The Timing Of The Rule 26(f) Conference Is Irrelevant ................................................................................... 18
3. The District Court Properly Granted Appellant’s Motion To File An Amended Complaint .................................. 18
D. The District Court’s Judgment Of Noninfringement Should Be Affirmed ............................................................................ 19
1. The District Court Correctly Concluded That The Five Accused Kimberly-Clark Products Do Not Infringe The ’328 Patent ........................................................... 19
a. Kimberly-Clark’s Depend® Products Do Not Infringe The ’328 Patent ................................................. 21
b. Kimberly-Clark’s GoodNites® Product Does Not Infringe The ’328 Patent .......................................... 22
c. The Court Correctly Found That, If Appellant’s Allegations Are Accepted As True, The ’328 Patent Is Invalid ..................................... 24
2. The Court Properly Concluded That Kimberly-Clark Could Not Be Liable For Allegedly Infringing Products Made and Sold By Its Competitors ............................................................................... 25
VIII. CONCLUSION and STATEMENT OF RELIEF ......................................... 27
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TABLE OF AUTHORITIES
Page No(s).
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Ashcroft v. Iqbal, 556 U.S. 662 (2009)....................................................................................... 13
Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)....................................................................................... 13
Cafasso v. Gen. Dynamics C4 Sys., 637 F.3d 1047 (9th Cir. 2011) ....................................................................... 13
Colida v. Nokia, Inc., 347 Fed. Appx. 568 (Fed. Cir. 2009) ............................................................ 24
Datel Holdings, Ltd. v. Microsoft Corp., 712 F. Supp. 2d 974 (N.D. Cal. 2010) ........................................................... 26
Dvora v. Gen. Mills, Inc., No. CV 11-1074-GW (PLAx), 2011 U.S. Dist. LEXIS 55513, (C.D. Cal. May 16, 2011) .............................................................................. 26
Egyptian Goddess, Inc. v. Swisa, Inc., 543 F.3d 665 (Fed. Cir. 2008) ..................................................... 10, 19, 20, 22
Hoganas AB v. Dresser Indus., Inc., 9 F.3d 948 (Fed. Cir. 1993) ..................................................................... 15, 17
Imation Corp. v. Koninklijke Philips Elecs. N.V., 586 F.3d 980 (Fed. Cir. 2009) ....................................................................... 12
Int’l Seaway Trading Corp. v. Walgreens Corp., 589 F.3d 1233 (Fed. Cir. 2009) ..................................................................... 25
Mack v. S. Bay Beer Distribs., Inc., 798 F.2d 1279 (9th Cir. 1986), overruled on other grounds by Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104 (1991) ........ 15, 17
Marder v. Lopez, 450 F.3d 445 (9th Cir. 2006) ........................................................................... 9
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TABLE OF AUTHORITIES (cont’d)
Page No(s).
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Mayfield v. Sara Lee Corp., No. C 04-1588 CW, 2005 U.S. Dist. LEXIS 42458 (N.D. Cal. Jan. 13, 2005) ............................................................................... 26
McGlinchy v. Shell Chem. Co., 845 F.2d 802 (9th Cir. 1988) ......................................................................... 12
McZeal v. Sprint Nextel Corp., 501 F.3d 1354 (Fed. Cir. 2007) ..................................................................... 12
Miller v. Ghirardelli Chocolate Co., 912 F. Supp. 2d 861 (N.D. Cal. 2012) ........................................................... 26
Or. Natural Desert Ass’n v. United States Forest Serv., 550 F.3d 778 (9th Cir. 2008) ......................................................................... 12
Parrino v. FHP, Inc., 146 F.3d 699 (9th Cir. 1998) ............................................................. 14, 15, 16
Spreewell v. Golden State Warriors, 266 F.3d 979 (9th Cir. 2001) ......................................................................... 13
Swartz v. KPMG LLP, 476 F.3d 756 (9th Cir. 2007) ................................................................... 14, 15
Vigil v. Walt Disney Co., 2000 U.S. App. LEXIS 32071 (Fed. Cir. Apr. 5, 2000) .......................... 16, 17
Vigil v. Walt Disney Co., No. C-97-4147-MHP, 1998 U.S. Dist. LEXIS 22853 (N.D. Cal. Dec. 1, 1998), aff’d in relevant part without published opinion, 2000 U.S. App. LEXIS 32071 (Fed. Cir. Apr. 5, 2000) ........................................... 16, 17
OTHER AUTHORITIES
28 U.S.C. § 1295 .................................................................................................... 1, 2
Fed. Cir. R. 30 ............................................................................................................ 2
Fed. R. Civ. P. 8 ....................................................................................................... 12
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TABLE OF AUTHORITIES (cont’d)
Page No(s).
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Fed. R. Civ. P. 12 ......................................................................................... 12, 13, 14
Fed. R. Civ. P. 26 ............................................................................................... 11, 18
Fed. R. Evid. 201 ..................................................................................................... 16
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Appellee Kimberly-Clark Corporation (“Kimberly-Clark”) hereby submits
this brief in response to the Informal Brief of Appellant, Muffin Faye Anderson
(“Appellant”).
I. STATEMENT OF RELATED CASES
Kimberly-Clark is not aware of any related cases.
II. JURISDICTIONAL STATEMENT
The United States District Court for the Western District of Washington
granted Kimberly-Clark’s motion for judgment on the pleadings, dismissed the
action with prejudice, and entered final judgment, finding that Kimberly-Clark has
not infringed Appellant’s design patent. Since this case arises under the United
States patent laws, this Court has jurisdiction over this appeal pursuant to 28
U.S.C. § 1295(a)(1).
III. STATEMENT OF THE ISSUES
Whether the trial court properly granted Kimberly-Clark’s motion for
judgment on the pleadings.
IV. STATEMENT OF THE CASE
The district court properly recognized the baseless nature of Appellant’s
design patent infringement claim. In doing so, the district court undertook a
detailed infringement analysis and provided a thorough and well-reasoned opinion.
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(A2-A7.)1 The district court concluded that the accused products do not infringe
Appellant’s design patent and that Appellant’s conduct was suggestive of bad faith.
(A6 at n. 2.) Despite the district court’s guidance that Appellant “reconsider her
approach if she continues to assert the ’328 patent” (id.), Appellant now appeals
the district court’s decision.
On November 19, 2012, Appellant filed a complaint (captioned “First
Amended Complaint”) for design patent infringement, alleging that nine different
products2 infringed now-expired U.S. Patent No. Des. 401,328 (“the ’328 patent”).3
(A25-A28.) Kimberly-Clark timely filed its Answer and Counterclaims on
December 11, 2012. (A29-A42.) Appellant filed an Answer to the Counterclaims
on December 26, 2012. (A43-A55.)
1 Because Appellant is pro se and did not submit an appendix, Kimberly-
Clark is filing an appendix herewith pursuant to Federal Circuit Rule 30(e).
2 The nine allegedly infringing products are identified in the complaint as: (1) “Boys and Girls Overnighter Boxer and Good-Nites Boxers for nighttime” (2) “Depend-certainty”; (3) “Depend For Women Moderate Absorbency”; (4) “Silhouelle For Women”; (5) “Assurance Underwear For Men”; (6) “Assurance Underwear For Men”; (7) “Depend Underwear For Men Maximum Absorbency”; (8) “Depend Real Fit For Men Briefs Maximum Absorbency”; and (9) “Assurance Casual Style ‘Boxers’ For Men Maximum Absorbency.” (A27 at ¶ 7.)
3 The ’328 patent expired on November 17, 2012. (A51.)
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On January 9, 2013, after being informed that Kimberly-Clark does not
manufacture four of the products identified in the complaint (i.e., products sold
under the Assurance® and Certainty® brands), Appellant filed a motion for leave to
file a second amended complaint. (A56-A59.) That motion included Appellant’s
proposed Second Amended Complaint, which deleted all allegations relating to the
Assurance® and Certainty® products. (A58 at ¶ 7.) The district court granted the
unopposed motion (A60), but Appellant never filed the proposed second amended
complaint.
On March 6, 2013, Kimberly-Clark moved for judgment on the pleadings
because Appellant’s complaint failed to state a plausible claim for relief. (A63-
A84.) Specifically, Kimberly-Clark sought judgment on the claims relating to the
five Kimberly-Clark products because those products are plainly dissimilar from
the patented design. (Id. at A73-A82.) Kimberly-Clark sought judgment on the
claims relating to the four allegedly infringing products made by Kimberly-Clark’s
competitors on the grounds that Kimberly-Clark could not be liable for such
products. (Id. at A82-A84.) In support of its motion, Kimberly-Clark submitted
photographs showing the allegedly infringing products, as well as publicly
available patents and patent applications. (A91-A216.)
Appellant opposed Kimberly-Clark’s motion for judgment on the pleadings
(see A217-A223), but did not dispute that the photographs of the products, as
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submitted by Kimberly-Clark, accurately represented the appearance of the
allegedly infringing products. (See id.) Appellant did not dispute that four of the
allegedly infringing products are made by Kimberly-Clark’s competitors. (Id.)
Nor did Appellant dispute that each of the five allegedly infringing Kimberly-Clark
products is “plainly dissimilar” from the patented design. (Id.) Kimberly-Clark
submitted a reply brief (A224-A231), and the district court granted Kimberly-
Clark’s motion (A2-A7). Appellant now appeals.
V. STATEMENT OF THE FACTS
A. Appellant’s ’328 Patent And Design Patent Infringement Claims
The ’328 patent issued in 1998 and claims the appearance of an “absorbent
disposable undergarment.” (A50-A55.) Figures 1, 2 and 3 of the ’328 patent are
shown below:
Front-Angle View Front View Rear View
(A52-A53.) As is immediately apparent from these figures, the claimed design has
numerous prominent ornamental features, including:
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(1) A bloomers-style shape with extended tubular leg portions;
(2) A first material that covers only the outer leg and the upper area in the
front of the garment, and is not used in the crotch area;
(3) A second, different material that covers the crotch area and also
extends to the top of the garment in the rear;
(4) An inverted U-shaped border on the front of the garment separating
the first and second materials;
(5) Two vertical borders on the rear of the garment separating the first
and second materials and extending from the leg openings to the waistband;
(6) A band, similar to the waistband, around each of the leg openings;
(7) Ruffles around each of the leg openings;
(8) An arched crotch area;
(9) Bunching of the second material in the crotch area to form a billowy
appearance;
(10) The garment is wider at the leg openings than at the waistband; and
(11) The leg openings are substantially parallel to the waist opening.
Notably, the second material forms a portion of the outer layer of the garment and
is visible from the exterior of the garment. The claimed design is not a design in
which a second material is attached to the interior of the garment.
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Appellant’s complaint alleged that nine different products infringe the ’328
patent. (A27 at ¶ 7.) Appellant attached the ’328 patent, as well as a receipt
showing Appellant’s purchase of the allegedly infringing products, to the
pleadings. (A49-A55.) Appellant did not attach pictures or samples of the
products to the pleadings. (See id.).
B. Kimberly-Clark Has Designed Absorbent Undergarments For Over 40 Years
Kimberly-Clark has been an innovative leader of household products for
over 140 years and its brands include Kleenex®, Cottonelle®, Scott®, Huggies®,
Kotex®, Depend®, Poise®, Pull-Ups®, Viva®, and GoodNites®. Kimberly-Clark
has a long history of designing and manufacturing undergarments, including
absorbent undergarments. For example, over 40 years ago, Kimberly-Clark filed a
patent application for an undergarment having an “improved crotch construction
[in] which at least one auxiliary layer of absorbent material is disposed over the
crotch area on the inner surface thereof[.]” (A106, U.S. Pat. No. 3,599,638 (“the
’638 patent”) at Abstract.) That application disclosed the following design:
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(Id.) Since the issuance of the ’638 patent in 1971, Kimberly-Clark has obtained
numerous additional patents relating to absorbent undergarments, and those patents
disclose a wide variety of potential product configurations and designs. Some of
those designs are reproduced below, with the patent numbers and filing year:
Pat. No. 4,690,681 (1986) Pat. No. 4,940,464 (1989) Pat. No. 4,938,757 (1989)
(A110-A163.) In July, 1994, more than three years before Appellant filed her
application for the ’328 patent, Kimberly-Clark filed a patent application
containing a design for an absorbent swimming garment having a conventional
boxer-short design, as shown below:
Int’l Pat. Publ. No.
WO 96/03950 (1994)
(A165-A193 (claiming priority to U.S. Application No. 08/283,101).) That
application published in 1996 as WO 96/03950 (“the WO ’950 publication”). (Id.)
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C. Kimberly-Clark’s Allegedly Infringing Products
Of the nine allegedly infringing products, only five are manufactured or sold
by Kimberly-Clark. Four of those products are sold under the Depend® brand and
one is sold under the GoodNites® brand. (A27 at ¶ 7.) As shown below, the
Depend® products are all shaped like briefs, and the GoodNites® boxers have a
boxer-short appearance that is virtually identical to the design shown in the WO
’950 publication.
(A195-A204.) D. Kimberly-Clark’s Competitors’ Products
Appellant’s complaint also asserts that Kimberly-Clark is liable for
infringement because three products sold under the Assurance® brand, and a
product sold under the Certainty® brand, infringe the ’328 patent. (A27 at ¶ 7.)
The packaging of those products, however, clearly indicates that the products are
not Kimberly-Clark’s, but in fact are sold by Kimberly-Clark’s competitors.
Accused Kimberly-Clark Products
Depend® For Women Moderate
Absorbency
Depend® Silhouette For Women
Depend® Real Fit For Men Briefs
Maximum Absorbency
Depend® Underwear for Men
Maximum Absorbency
GoodNites® Boxers
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(A205-A216.) The Assurance® brand products are sold by Wal-Mart Stores, Inc.
(A212-A213) and the Certainty® brand product is sold by Walgreen’s (A215-
A216).
E. The District Court’s Judgment
The district court granted Kimberly-Clark’s motion for judgment on the
pleadings. The district court first concluded that Kimberly-Clark could not be
liable for products sold by its competitors. (A3 at n. 1.) In doing so, the Court
indicated that it could take judicial notice of the uncontested fact that Kimberly-
Clark is not “responsible” for those products. (Id.) Alternatively, the court took
Appellant’s proposed second amended complaint, in which Appellant deleted all
allegations relating to the Assurance® and Certainty® products, as an admission
that Kimberly-Clark was not responsible for those products. (Id.)
The district court also concluded that the five accused Kimberly-Clark
products do not infringe the ’328 patent. (A3-A6.) The district court relied only
on the asserted ’328 patent and photographs of the accused products submitted by
Kimberly-Clark. Consistent with Ninth Circuit precedent, the court considered the
photographs of the accused products because “they are central to the allegations of
[Appellant’s] complaint” and because Appellant did “not contend that Kimberly-
Clark’s photographs are anything other than true depictions of its accused
products.” (A4 (citing Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006)).)
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Relying on the undisputedly accurate photographs of the accused products,
the district court undertook the design patent infringement analysis set forth in
Egyptian Goddess, Inc. v. Swisa, Inc., 543 F.3d 665 (Fed. Cir. 2008). The district
court found that, “[i]n this case, a side-by-side comparison of the drawings of the
’328 Patent to the accused products suffices to demonstrate that there is no
infringement.” (A5.) The Court expressly identified “the most striking”
differences between the accused products and the patented design, and noted that it
“could recount other differences” as well. (A6.) Given the numerous and obvious
differences, the district court granted Kimberly-Clark’s motion for judgment on the
pleadings.
As an alternative basis for its decision, the district court took judicial notice
of the WO ’950 publication and concluded that, if the court were to accept
Appellant’s infringement allegations as true, the court would have to declare the
’328 patent invalid. (A5-A6.)
The district court concluded by noting that, “[e]ven construing [Appellant’s]
opposition and her complaint with the utmost liberality, she has fallen well short of
a viable infringement claim.” (A6 at n. 2.) The district court further noted, sua
sponte, that Appellant’s conduct was suggestive of bad faith and arguably
warranted sanctions. (Id.)
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VI. SUMMARY OF ARGUMENT
The district court’s decision is grounded in well-established precedent and
should be affirmed. The Court properly relied on: (1) the asserted patent; (2)
undisputedly accurate photographs of the accused products; and optionally (3) a
published patent application. Each of these documents is either: (a) subject to
judicial notice, or (b) integral to Appellant’s complaint and the authenticity of the
document cannot be (and is not) disputed. Relying on such evidence, the district
court applied the law as set forth in this Court’s precedent and concluded that
Appellant’s complaint failed to state a plausible claim for design patent
infringement.
VII. ARGUMENT
Appellant does not dispute the Court’s finding that Kimberly-Clark does not
manufacture four of the nine allegedly infringing products. Nor does Appellant
dispute that, if the Court properly relied on the ’328 patent and the pictures of the
allegedly infringing products, the Court’s noninfringement determination was
correct. The only issues raised in Appellant’s informal brief(s) are procedural, i.e.,
whether the district court: (1) improperly considered evidence not attached to the
pleadings (Appeal Nos. 1 & 4); (2) failed to consider that a Rule 26(f) conference
had not occurred (Appeal No. 2); and (3) improperly granted Appellant’s motion to
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file a second amended complaint (Appeal No. 3). Because no error occurred, the
district court’s thorough decision should be affirmed.
A. Standard Of Review
When reviewing a district court’s judgment on the pleadings, this Court
applies the law of the regional circuit. Imation Corp. v. Koninklijke Philips Elecs.
N.V., 586 F.3d 980, 984-85 (Fed. Cir. 2009); see also McZeal v. Sprint Nextel
Corp., 501 F.3d 1354, 1355-56 (Fed. Cir. 2007) (the standards applicable to Rule
12 motions are not unique to patent law and are evaluated under the law of the
regional circuit). In the Ninth Circuit, a grant of judgment on the pleadings is
reviewed de novo. Or. Natural Desert Ass’n v. United States Forest Serv., 550
F.3d 778, 782 (9th Cir. 2008).
B. The Legal Standard
A party may move for judgment on the pleadings as soon as the pleadings
are closed. Fed. R. Civ. P. 12(c). A Rule 12(c) motion may be based on the
Plaintiff’s failure to state a claim upon which relief can be granted. Fed. R. Civ. P.
12(h)(2)(B), (i). Such a motion under Rule 12(c) “faces the same test as a motion
under Rule 12(b)(6).” McGlinchy v. Shell Chem. Co., 845 F.2d 802, 810 (9th Cir.
1988).
A complaint must contain a “short and plain statement of the claim showing
the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). To
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survive a motion to dismiss, a complaint must contain sufficient factual matter to
state a claim for relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662
(2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also
Cafasso v. Gen. Dynamics C4 Sys., 637 F.3d 1047, 1054 n. 4 (9th Cir. 2011) (Iqbal
applies to Rule 12(c) motions because Rule 12(b)(6) and Rule 12(c) motions are
functionally equivalent). This “plausibility requirement” requires the allegations
in the complaint to “be enough to raise a right to relief above the speculative
level.” Twombly, 550 U.S. at 555. The plaintiff must plead “factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678. Determining whether a complaint
states a plausible claim for relief is “a context-specific task that requires the
reviewing court to draw on its judicial experience and common sense.” Id. at 679.
Generally, in evaluating a motion for failure to state a claim upon which
relief can be granted, “[a]ll allegations of material fact are taken as true and
construed in the light most favorable to the nonmoving party.” Spreewell v.
Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). A “court need not,
however, accept as true allegations that contradict matters properly subject to
judicial notice or by exhibit.” Id. “Nor is the court required to accept as true
allegations that are merely conclusory, unwarranted deductions of fact, or
unreasonable inferences.” Id.; see also Iqbal, 556 U.S. at 678-679 (the modern
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pleading standard “does not unlock the doors of discovery for a plaintiff armed
with nothing more than conclusions”).
While a Rule 12(b)(6) motion is generally limited to the pleadings, a court
may rely on documents outside the pleadings if they are integral to the plaintiff’s
claims and their authenticity is not disputed. Parrino v. FHP, Inc., 146 F.3d 699,
705-06 (9th Cir. 1998) (superseded on other grounds). The court may also rely on
matters subject to judicial notice. Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th
Cir. 2007). This rule prevents plaintiffs from surviving a Rule 12(b)(6) motion by
deliberately omitting documents upon which their claims are based. Id.
C. The District Court Did Not Commit Any Procedural Errors
1. The District Court Relied On Evidence Available To It On A Rule 12(c) Motion
Appellant’s “Appeal No. 1” and “Appeal No. 4” assert that the district court
improperly relied on evidence outside the pleadings. However, the district court’s
decision was based only on: (1) the ’328 patent; (2) photographs of the allegedly
infringing products; and, as an alternative, (3) the WO ’950 publication, each of
which was properly before the court on this motion.
a. The Court Properly Considered The Asserted ’328 Patent
The district court properly relied on Appellant’s ’328 patent because
Appellant attached the patent to her pleadings. (A50-A55.) In addition, it is well
established that a court can take judicial notice of patents and published patent
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applications. Hoganas AB v. Dresser Indus., Inc., 9 F.3d 948, 954 n. 27 (Fed. Cir.
1993); see also Mack v. S. Bay Beer Distribs., Inc., 798 F.2d 1279, 1282 (9th Cir.
1986) (court may take judicial notice of administrative records), overruled on other
grounds by Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104 (1991).
Therefore, even if Appellant had not attached the asserted patent to her pleadings,
it would have been proper for the court to take judicial notice of the ’328 patent.
b. The Court Properly Considered Photographs Of The Accused Products
i. The Appearance of Defendant’s Accused Products Is
Central To Plaintiffs’ Claim And The Authenticity Of The Photographs Is Not Disputed
The district court also properly considered photographs of the accused
products. In a design patent infringement case, the appearance of the accused
product is at the heart of a plaintiff’s infringement claim. (A4.) Appellant does
not dispute that the photographs accurately represent the appearance of the accused
products. (Id.) Because the appearance of the accused products is integral to
plaintiff’s infringement claim and the authenticity of the photographs is not
disputed, the district court properly relied on them. Parrino, 146 F.3d at 705-06;
Swartz, 476 F.3d at 763.
Moreover, Appellant purchased the accused products and attached a
receipt—but not pictures or samples—to Appellant’s pleadings. (A49.) Appellant
deliberately chose not to include in her pleadings the products themselves, or
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pictures showing the accused products. This is precisely the type of conduct that
the rule allowing the court to consider certain evidence outside the pleadings is
designed to prevent. Parrino, 146 F.3d at 706. Appellant cannot avoid a motion to
dismiss or a motion for judgment on the pleadings by intentionally omitting
evidence that is critical to Appellant’s claim, i.e., evidence of the actual appearance
of the allegedly infringing products. Id. Accordingly, the district court properly
considered the photographs of the accused products.
ii. The Court Can Take Judicial Notice Of The Appearance Of Kimberly-Clark’s Products
A court may take judicial notice of any fact that is not subject to reasonable
dispute because it can be accurately and readily determined from sources whose
accuracy cannot reasonably be questioned. Fed. R. Evid. 201(b); Vigil v. Walt
Disney Co., No. C-97-4147-MHP, 1998 U.S. Dist. LEXIS 22853, *5 (N.D. Cal.
Dec. 1, 1998), aff’d in relevant part without published opinion, 2000 U.S. App.
LEXIS 32071, *1 (Fed. Cir. Apr. 5, 2000) (see A232). In Vigil, the plaintiff
alleged that the defendant’s duck call and key chain infringed the plaintiff’s design
patent. Id. In granting the defendant’s motion to dismiss, the district court took
judicial notice of the appearance of the defendant’s duck call and key chain, as
submitted by the defendant with its motion to dismiss, because they were “beyond
reasonable dispute.” Id. at *6-*7. The district court conducted its infringement
analysis based on that evidence, concluded that no infringement exists, and
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dismissed the complaint. Id. at *7-*10. This Court affirmed. Vigil, 2000 U.S.
App. LEXIS 32071 (see A232).
Here, as in Vigil, there is no dispute about the appearance of the accused
products. The products are widely available at stores throughout the country and
online, and Appellant does not dispute that the photographs accurately depict the
accused products. (A4.) Thus, the district court may take judicial notice of the
appearance of the accused products, and properly relied on the photographs of the
products submitted by Kimberly-Clark in granting the motion for judgment on the
pleadings.
c. The District Court Properly Considered The Prior Art ’950 Publication
Although it was not necessary for the district court’s decision, the district
court relied on the WO ’950 publication as an alternative basis for granting
Kimberly-Clark’s motion for judgment on the pleadings. (A5-A6.) Contrary to
Appellant’s assertion, the district court properly took judicial notice of the WO
’950 publication, which is a publicly available government document. Hoganas, 9
F.3d at n. 27; Mack, 798 F.2d at 1282.
Thus, the district court did not err in considering the ’328 patent, the
photographs of the allegedly infringing products, and the WO ’950 publication in
deciding Kimberly-Clark’s motion for judgment on the pleadings.
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2. The Timing Of The Rule 26(f) Conference Is Irrelevant
Appellant’s “Appeal No. 2” argues that the district court “incorrectly fail[ed]
to take into account there was no meet and conference [sic] according to FRCP
#26(f).” (Appeal No. 2 at 1; see also Informal Opening Br. at 2 (referring to
Kimberly-Clark’s alleged failure to participate in a Rule 26(f) conference). The
timing of the Rule 26(f) conference is irrelevant to Kimberly-Clark’s motion,
which tests the sufficiency of the complaint. Moreover, Appellant’s assertion that
Kimberly-Clark failed to conduct the Rule 26(f) conference by February 4, 2013,
ignores that the district court vacated that deadline. (A61-A62.) Thus, Appellant’s
“Appeal No. 2” does not provide any basis for disturbing the district court’s
decision.
3. The District Court Properly Granted Appellant’s Motion To File An Amended Complaint
Appellant’s “Appeal No. 3” argues that the “trial court incorrectly decided
and made a mistake to give consent to the trial Clerks to sign, file and mailed [sic]
‘minute order’, doc. #24[,] which would force a third complaint.” (Appeal No. 3.)
To the extent Appellant argues that the district court erred in granting Appellant’s
own motion, this argument is meritless. Appellant filed an unopposed motion for
leave to file a second amended complaint and attached thereto the proposed second
amended complaint. (A56-A59.) The district court’s decision to grant Appellant’s
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own motion for leave to amend does not provide any basis for disturbing the
district court’s judgment of noninfringement.
In sum, Appellant has not identified any error in the district court’s analysis,
and the district court’s judgment should be affirmed.
D. The District Court’s Judgment Of Noninfringement Should Be Affirmed
Relying on the evidence properly before it, the district court conducted a
detailed infringement analysis and concluded that Appellant’s complaint does not
state a plausible claim for design patent infringement. Nowhere in Appellant’s
appeal briefs does Appellant argue that the district court erred in its substantive
infringement analysis. Nor could Appellant do so.
1. The District Court Correctly Concluded That The Five Accused Kimberly-Clark Products Do Not Infringe The ’328 Patent
A design patent is infringed only if the two designs are “substantially the
same,” i.e., an ordinary observer, familiar with the prior art, would be deceived
into thinking that the accused design was the same as the patented design.
Egyptian Goddess, 543 F.3d at 678. As this Court has recognized, in some
instances, “the claimed design and the accused design will be sufficiently distinct
that it will be [clear] without more that the patentee has not met its burden of
proving the two designs would appear ‘substantially the same’ to the ordinary
observer.” Id. at 678.
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The district court undertook the comparative analysis required by Egyptian
Goddess and found “striking” differences between the patented design and the
appearance of the accused products. (A6.) The district court properly recognized
that the ’328 patent claims a bloomers-style undergarment that “extends to cover
each leg substantially below the crotch, with a hem or gather at the leg and waist
openings that are designed to fit the leg and waist closely.” (A5.) The district
court further stated that the “leg and waist openings [of the patented design] are
parallel to each other, and would also be parallel to the ground if the person
wearing the undergarment was standing upright.” (Id.) The claimed design also
requires “an inverted U-shaped section of the undergarment . . . made of different
material (or at least a different piece of the same material) than the rest of the
garment.” (A6.) These prominent features are readily apparent from even a
cursory review of the patented design:
Front-Angle View Front View Rear View
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(A52-A53.)
a. Kimberly-Clark’s Depend® Products Do Not Infringe The ’328 Patent
As shown below, the four accused Depend® products bear no resemblance to
the design claimed in the ’328 patent:
Accused Depend® Products Manufactured by Kimberly-Clark
Depend® For Women Moderate Absorbency
Depend® Silhouette For Women
Depend® Real Fit For Men Briefs Maximum
Absorbency
Depend® Underwear for Men Maximum
Absorbency
(A194-A201.)
The district court properly found that, in contrast to the bloomers-style
design claimed in the ’328 patent, each of Kimberly-Clark’s Depend® products “is
a ‘briefs’-style undergarment, which is to say an undergarment with no leg
covering at all.” (A5.) Unlike the patented design, “[t]he leg opening of
[Kimberly-Clark’s Depend®] undergarments are at or above the crotch, and they
run at approximately 45-degree angles to the waist opening.” (Id.) The district
court further found that these products did not incorporate the inverted U-shaped
section required by the patented design. (A6.)
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Importantly, the district court recognized that it “could recount other
differences, but the ones it has mentioned are the most striking” and that those
differences “suffice to demonstrate that the accused products do not infringe the
’328 patent.” (Id.) The district court’s detailed analysis and finding of
noninfringement should be affirmed.
b. Kimberly-Clark’s GoodNites® Product Does Not Infringe The ’328 Patent
The district court found that the appearance of the accused Kimberly-Clark
GoodNites® product is “different still” because it consists of “a briefs-style
undergarment not unlike the ‘Depend’ products, but with a separate (or loosely
attached) boxer-short-style layer over it. GoodNites appear, on an external view,
to resemble boxer shorts, but their interior is a briefs-style undergarment.” (A5.)
Thus, the district court further distinguished the appearance of the GoodNites®
product from the “unitary undergarment” claimed in the ’328 patent. (Id.) The
district court also recognized that the GoodNites® product does not have an
“inverted-U-shaped section” claimed in the ’328 patent. (A6.)
Although the district court identified several differences between the
GoodNites® product and the claimed design, many more would be readily apparent
to any ordinary observer. Among other things, the GoodNites® product lacks: (1)
extended tubular leg portions; (2) a dual-material appearance; (3) two vertical
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borders on the back; (4) a ruffled band around the leg openings that is similar to
the waist band; and (5) an arched crotch area, as shown below.
(A53, A203-A204.)
In sum, the district court thoroughly compared the claimed design to the
accused Kimberly-Clark products and properly concluded that “plain differences”
exist between the accused products and the claimed design. (A6.) Appellant has
never identified any purported similarities between the patented design and the
Kimberly-Clark products (id. at n. 2) and has never attempted to explain how or
why an ordinary observer would be deceived into thinking that the accused designs
are the same as the patented design. Accordingly, the district court’s judgment of
noninfringement should be affirmed. See, e.g., Colida v. Nokia, Inc., 347 Fed.
GoodNites® Boxers (Front)
GoodNites® Boxers (Rear)
’328 Patent (Front View)
’328 Patent (Rear View
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Appx. 568, 570 (Fed. Cir. 2009) (nonprecedential, see A18-A24) (affirming
dismissal of design patent infringement claim based on comparison between
patented design and depictions of the accused product’s design).
c. The Court Correctly Found That, If Appellant’s Allegations Are Accepted As True, The ’328 Patent Is Invalid
In addition to finding that the GoodNites® product does not infringe the ’328
patent because the appearance is plainly dissimilar from the claimed design, the
district court also provided an alternative ground for its decision. As evidenced by
the side-by-side comparison below, the district court properly found that the
appearance of the GoodNites® product is “indistinguishable” from the design
shown in Kimberly-Clark’s prior art WO ’950 publication. (A5-A6.)
(A165, A203.)
Given the similarity between the accused GoodNites® product and the prior
art design, the district court properly concluded that, if the GoodNites® product
Int’l Publ. No. WO 96/03950 GoodNites® Boxers
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infringes the ’328 patent as Appellant contends, the ’328 patent would be invalid in
light of the prior art WO ’950 publication. Int’l Seaway Trading Corp. v.
Walgreens Corp., 589 F.3d 1233, 1239 (Fed. Cir. 2009) (a design that infringes if
later, anticipates if earlier). Appellant does not dispute this finding, which
provides an independent ground for affirming the district court’s judgment.
2. The Court Properly Concluded That Kimberly-Clark Could Not Be Liable For Allegedly Infringing Products Made and Sold By Its Competitors
The district court also properly entered judgment of noninfringement on
Appellant’s infringement claim directed to the four products marketed by
Kimberly-Clark’s competitors. The district court took judicial notice of the
“uncontested fact that Kimberly-Clark is not responsible for” those accused
products. (A3 at n. 1.) The Assurance® and Certainty® products are available
online and at retail stores throughout the country, and courts in the Ninth Circuit
regularly take judicial notice of product packaging. See, e.g., Miller v. Ghirardelli
Chocolate Co., 912 F. Supp. 2d 861, 865 n. 2 (N.D. Cal. 2012) (taking judicial
notice of products and labels on motion to dismiss); Datel Holdings, Ltd. v.
Microsoft Corp., 712 F. Supp. 2d 974, 983-85 (N.D. Cal. 2010) (taking judicial
notice of game console packaging in granting defendant’s motion to dismiss);
Dvora v. Gen. Mills, Inc., No. CV 11-1074-GW (PLAx), 2011 U.S. Dist. LEXIS
55513, *3 (C.D. Cal. May 16, 2011) (taking judicial notice of complete color copy
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of cereal package in granting defendant’s motion to dismiss); Mayfield v. Sara Lee
Corp., No. C 04-1588 CW, 2005 U.S. Dist. LEXIS 42458, *9 (N.D. Cal. Jan. 13,
2005) (taking judicial notice of photocopies of bread product packages).
The packaging of the Assurance® and Certainty® products clearly
establish—and Appellant does not dispute—that Kimberly-Clark does not make,
use, sell, offer to sell, or import those products. (A205-A216.) Accordingly, the
district court properly took judicial notice of those products and concluded that
Appellant could not state a plausible claim for infringement against Kimberly-
Clark.
The district court alternatively considered Appellant’s proposed second
amended complaint—which deleted any reference to the Assurance® and
Certainty® products—to be an admission that Kimberly-Clark was not responsible
for those products. (A3 at n. 1.) Appellant does not dispute that she conceded this
fact during the parties’ meet and confer (see A86 at ¶¶ 2-3), and nowhere argues
that Kimberly-Clark manufactures those products. Accordingly, the district court’s
judgment of noninfringement with respect to the four products made by Kimberly-
Clark’s competitors should also be affirmed.
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VIII. CONCLUSION AND STATEMENT OF RELIEF
For the reasons set forth above and in the district court’s Order, Kimberly-
Clark respectfully requests that this Court affirm the district court’s judgment.
KNOBBE, MARTENS, OLSON & BEAR, LLP
Dated: February 24, 2014 By: /s/ Colin B. Heideman Steven J. Nataupsky Boris Zelkind Colin B. Heideman Attorneys for Defendant-Appellee, KIMBERLY-CLARK CORPORATION
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CERTIFICATE OF COMPLIANCE
1. This brief complies with the type-volume limitation of Federal Rule of
Appellate Procedure 32(a)(7)(B)(iii). This brief contains 5,100 words,
excluding the parts of the brief exempt by Federal Rule of Appellate
Procedure 32(a)(7)(B)(iii).
2. This brief complies with the typeface requirements of Federal Rule of
Appellate Procedure 32(a)(5) and the type style requirements of Federal
Rule of Appellate Procedure 32(a)(6). This Brief has been prepared in a
proportionally spaced typeface using Microsoft Word 2010 in 14 point font
Times New Roman.
KNOBBE, MARTENS, OLSON & BEAR, LLP
Dated: February 24, 2014 By: /s/ Colin B. Heideman Steven J. Nataupsky Boris Zelkind Colin B. Heideman Attorneys for Defendant-Appellee, KIMBERLY-CLARK CORPORATION
Case: 14-1117 CASE PARTICIPANTS ONLY Document: 16 Page: 35 Filed: 02/24/2014
ADDENDUM
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AO 450 (Rev. 5/85) Judgment in a Civil Case �
United States District CourtWESTERN DISTRICT OF WASHINGTON
AT SEATTLE
MUFFIN FAYE ANDERSON,
Plaintiff,
v.
KIMBERLY-CLARK CORPORATION,
Defendant.
JUDGMENT IN A CIVIL CASE
CASE NUMBER: C12-1979RAJ
Jury Verdict. This action came before the Court for a trial by jury. The issues have been tried and the jury has rendered its verdict.
X Decision by Court. This action came to consideration before the Court. The issues have been considered and a decision has been rendered.
THE COURT HAS ORDERED THAT:
Defendant’s accused products do not infringe Plaintiff’s design patent, as stated in the court’s September 25, 2013 order.
Dated this 25th day of September, 2013.
WILLIAM M. MCCOOL Clerk
/s Consuelo LedesmaDeputy Clerk
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HONORABLE RICHARD A. JONES
UNITED STATES DISTRICT COURTWESTERN DISTRICT OF WASHINGTON
AT SEATTLE
MUFFIN FAYE ANDERSON,
Plaintiff,
v.
KIMBERLY-CLARK CORPORATION,
Defendant.
CASE NO. C12-1979RAJ
ORDER
I. INTRODUCTION
This matter comes before the court on Defendant’s motion for judgment on the
pleadings. Although the parties requested oral argument, the court finds oral argument
unnecessary. For the reasons stated herein, the court GRANTS the motion (Dkt. # 28)
and DISMISSES this action with prejudice. The clerk shall enter judgment for Defendant
that its accused products do not infringe the patent-in-suit.
II. BACKGROUND
Muffin Anderson is the named inventor of United States Design Patent No.
401,328 (the “‘328 Patent”). The ‘328 Patent contains a single claim to an “ornamental
design for an absorbent disposable undergarment” as described in seven drawings. Ms.
Anderson applied for the ‘328 Patent in September 1997.
Defendant Kimberly-Clark Corporation sells a host of absorbent disposable
undergarments, including several products that Ms. Anderson accuses of infringing her
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patent. Kimberly-Clark reviewed the list of accused products in Ms. Anderson’s first
amended complaint (Dkt. # 4) and identified five products that it sells or sold within the
past several years.1 Those products are four varieties of adult disposable undergarments
sold under Kimberly-Clark’s “Depend” brand in addition to a no-longer-on-the-market
disposable undergarment for children known as “GoodNites,” which Kimberly-Clark sold
under its “Pull-Ups” brand. In July 1994, Kimberly-Clark submitted a patent application
to the World Intellectual Property Organization (“WIPO”) for the design embodied in its
GoodNites product. WIPO issued Kimberly-Clark a patent in February 1996, with
international publication number WO 96/03950 (the “‘950 WIPO Patent”).
Ms. Anderson asserts that each of the accused products infringes the ‘328 Patent.
Kimberly-Clark denies infringement, and has also filed counterclaims for a declaratory
judgment that it does not infringe as well as a declaratory judgment that the ‘328 Patent is
invalid.
III. ANALYSIS
This dispute comes before the court on Kimberly-Clark’s motion for judgment on
the pleadings. That motion, which Federal Rule of Civil Procedure 12(c) authorizes, is
“functionally equivalent” to a Rule 12(b)(6) motion to dismiss for failure to state a claim.
Harris v. County of Orange, 682 F.3d 1126, 1131 (9th Cir. 2012). Rule 12(b)(6) requires
the court to assume the truth of the complaint’s factual allegations and credit all
reasonable inferences arising from its allegations. Sanders v. Brown, 504 F.3d 903, 910
(9th Cir. 2007). The plaintiff must point to factual allegations that “state a claim to relief
1 After reviewing Ms. Anderson’s first amended complaint, counsel for Kimberly-Clark notified her that its competitors manufactured four of the products she accused of infringement. Ms. Anderson then proposed a second amended complaint (Dkt. # 18-1) that deleted references to those products. The court granted her leave to file that amended complaint no later than February 5. Ms. Anderson declined to do so. It would make no difference to the outcome of this motion if the court relied on the proposed second amended complaint. The court can likely take judicial notice of the uncontested fact that Kimberly-Clark is not responsible for several of the accused products in the first amended complaint. Even if the court cannot take judicial notice, the court takes Ms. Anderson’s proposed second amended complaint as an admission that Kimberly-Clark does not manufacture the products that she deleted from that document.
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that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 568 (2007). If
the plaintiff succeeds, the complaint avoids dismissal if there is “any set of facts
consistent with the allegations in the complaint” that would entitle the plaintiff to relief.
Id. at 563; Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (“When there are well-pleaded
factual allegations, a court should assume their veracity and then determine whether they
plausibly give rise to an entitlement to relief.”). The court typically cannot consider
evidence beyond the four corners of the complaint, although it may rely on a document to
which the complaint refers if the document is central to the party’s claims and its
authenticity is not in question. Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006). The
court may also consider evidence subject to judicial notice. United States v. Ritchie, 342
F.3d 903, 908 (9th Cir. 2003).
Kimberly-Clark’s motion requires the court to consider photographs of its accused
products along with the ‘950 WIPO Patent. The court takes judicial notice of the ‘950
WIPO Patent. As to the photographs of the accused products, the court finds that they are
central to the allegations of Ms. Anderson’s complaint. As the court will soon discuss, a
determination of design patent infringement is a visual exercise, one that requires
comparison of the drawings embodying the patented design to the appearance of the
accused product. Although Ms. Anderson insists that the court should permit her to take
discovery, she does not contend that Kimberly-Clark’s photographs are anything other
than true depictions of its accused products. For that reason, the court will consider the
photographs.
A product infringes a design patent if the design embodied in the patent and the
design of the product would appear to the ordinary observer to be substantially similar.
Egyptian Goddess, Inc. v. Swisa, Inc., 543 F.3d 665, 678 (Fed. Cir. 2008). In contrast to
the court’s task in resolving claims of utility patent infringement, design patent
infringement does not require claim construction. Id. at 679. It suffices to provide a
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description of the claimed design that illuminates its comparison to the accused product.
Id. at 680. Although the court’s analysis may become detailed, involving comparisons of
prior art and discussions of design patent conventions, id. at 678, 681, a detailed analysis
is not always necessary:
In some instances, the claimed design and the accused design will be sufficiently distinct that it will be clear without more that the patentee has not met its burden of proving the two designs would appear “substantially the same” to the ordinary observer . . . .
Id. at 678 (quoting Gorham Co. v. White, 81 U.S. 511, 528 (1871)). In any event, a court
considers only the ornamental aspects of a design patent, because design patents cannot
cover purely functional aspects of a product. Id. at 681.
In this case, a side-by-side comparison of the drawings of the ‘328 Patent to the
accused products suffices to demonstrate that there is no infringement. The drawings
reveal a “bloomers”-style undergarment, which is to say an undergarment that extends to
cover each leg substantially below the crotch, with a hem or gather at the leg and waist
openings that are designed to fit the leg and waist closely. The leg and waist openings
are parallel to each other, and would also be parallel to the ground if the person wearing
the undergarment was standing upright. Each of the four accused “Depend” products, by
contrast, is a “briefs”-style undergarment, which is to say an undergarment with no leg
covering at all. The leg openings of these undergarments are at or above the crotch, and
they run at approximately 45-degree angles to the waist opening.
The GoodNites products are different still. Unlike the drawings in the ‘328 Patent,
which depict an unitary undergarment, the GoodNites products consist of a briefs-style
undergarment not unlike the “Depend” products, but with a separate (or loosely attached)
boxer-short-style layer over it. GoodNites appear, on an external view, to resemble boxer
shorts, but their interior is a briefs-style undergarment.
Kimberly-Clark also correctly observes that its ‘950 WIPO Patent (which issued in
1996) is prior art with respect to the ‘328 Patent. The ‘950 WIPO Patent depicts a
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disposable undergarment that is indistinguishable from the GoodNites products. Thus, if
the court were to accept Ms. Anderson’s view that the GoodNites products infringe the
‘328 Patent, it would also have to declare the ‘328 Patent invalid in light of the ‘950
Patent.
There are other differences between the accused products and the ‘328 Patent. For
example, the ‘328 Patent depicts an inverted-U-shaped section of the undergarment (with
a wearer’s crotch situated at the vertex of the inverted “U”) made of different material (or
at least a different piece of the same material) than the rest of the garment. None of the
accused products incorporate this design. The court could recount other differences, but
the ones it has mentioned are the most striking. They suffice to demonstrate that the
accused products do not infringe the ‘328 Patent. Indeed, the only apparent similarity
between the claimed design and the accused products are that both serve as disposable
barriers to protect the wearer from incontinence. This purely functional consideration is
no basis for a finding of design patent infringement.
IV. CONCLUSION
For the reasons previously stated, the court GRANTS Kimberly-Clark’s motion
for judgment on the pleadings. Dkt. # 28. Ms. Anderson did not expressly request leave
to amend, but the court would not grant it in any event. No amendment of Ms.
Anderson’s complaint could overcome the plain differences between her claimed design
and the accused products.2
2 Ms. Anderson has pursued this action pro se. Her opposition to Kimberly-Clark’s motion for judgment on the pleadings contains no discussion at all of the differences or similarities between her patented design and the products she accuses of infringing. Even construing her opposition and her complaint with the utmost liberality, she has fallen well short of a viable infringement claim. Worse, her choice to accuse Kimberly-Clark of infringement without verifying that Kimberly-Clark actually sells the accused products, coupled with her failure to provide any comparison of the accused products to her design, is suggestive of bad faith. Rule 11 of the Federal Rules of Civil Procedure requires a reasonable investigation before filing a complaint, and permits a court to impose sanctions. Fed. R. Civ. P. 11(b)(3)-(4), (c). No one has requested Rule 11 sanctions in this case, but some of Ms. Anderson’s actions in pursuing this lawsuit arguably merit sanctions. The court urges Ms. Anderson to reconsider her approach if she continues to assert the ‘328 Patent.
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Kimberly-Clark’s motion requests only that the court dismiss Ms. Anderson’s
complaint with prejudice and enter judgment in its favor. It does not request relief on its
declaratory judgment counterclaims. This order constitutes a declaratory judgment that
none of the accused products infringe the ‘328 Patent. Because Kimberly-Clark did not
request a declaratory judgment of invalidity in its motion, but requested that the court
dismiss the case in its entirety, the court deems its counterclaim for a declaratory
judgment to have been abandoned. This ruling is without prejudice to Kimberly-Clark
raising a claim (or defense) that the ‘328 Patent is invalid in another case.
The court DISMISSES Plaintiff’s complaint with prejudice and directs the court to
enter judgment for Defendant.
DATED this 25th day of September, 2013.
A The Honorable Richard A. JonesUnited States District Court Judge
Case 2:12-cv-01979-RAJ Document 34 Filed 09/25/13 Page 6 of 6
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