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John Karl Buche (SBN 239477) Lindsay D. Molnar (SBN 275156) BUCHE & ASSOCIATES, P.C. 875 Prospect, Suite 305 La Jolla, California 92037 (858) 459-9111 (858) 459-9120 Fax jbuche@buchelaw.com lmolnar@buchelaw.com Attorneys for Defendants Hire Order, LTD and Global One Sales and Distribution Sportsman Eyewear, LLC. UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA OAKLEY, INC., a Washington corporation, Plaintiff, v. HIRE ORDER, LTD., d/b/a HANDSFREEVIDEO.COM, a Virginia corporation, and GLOBAL ONE SALES AND DISTRIBUTION SPORTSMAN EYEWEAR, LLC, a Pennsylvania company, Defendants. NOTICE OF MOTION FOR PARTIAL SUMMARY JUDGMENT FOR NONINFRINGEMENT Judge: Hon. Dana M. Sabraw Hearing Date: March 29, 2013 Time: 1:30 p.m. Courtroom: 13A – 13th Floor Case No. 12-cv-2346-DMS (WMC)

TO THE CLERK OF THE COURT AND COUNSEL OF RECORD: PLEASE TAKE NOTICE THAT Defendants Hire Order, Ltd., d/b/a HandsFreeVideo.com and Global One Sales and Distribution Sportsman Eyewear, LLC (collectively, “Defendants”) hereby move for Partial Summary Judgment of Non-Infringement and that said motion will be heard by the Honorable Dana M. Sabraw, United States District Court for the Southern District of California, Edward J. Schwartz U.S. Courthouse, 221 West Broadway, Courtroom 13A-13th Floor, San Diego, California 92101, on March 29, 2013, at 1:30 p.m.
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Plaintiff Oakley, Inc. (“Oakley”) accuses Defendants of infringement with respect to U.S. Patent No. D523,461 (the “„461 Patent”). Pursuant to Fed. R. Civ. P. 56, Defendants seek partial summary judgment of non-infringement as to the „461 Patent. Defendants do not make, use, offer to sell, or sell any products accused of infringing the „461 Patent. Accordingly, there is no genuine issue of material fact and Defendants are entitled to judgment of non-infringement as a matter of law. Defendants rely on this Notice of Motion and Motion, the Memorandum of Points and Authorities, the supporting Declaration of John K. Buche exhibits attached thereto, the records before the Court in this matter; and any additional evidence or argument that may be presented to or at the hearing.

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Respectfully Submitted, Dated: December 27, 2012

/s/ John K. Buche John K. Buche BUCHE & ASSOCIATES, P.C. Attorneys for Defendants Hire Order, LTD., d/b/a HandsFreeVideo.com and Global One Sales and Distribution Sportsman Eyewear, LLC

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John Karl Buche (SBN 239477) Lindsay D. Molnar (SBN 275156) BUCHE & ASSOCIATES, P.C. 875 Prospect, Suite 305 La Jolla, California 92037 (858) 459-9111 (858) 459-9120 Fax jbuche@buchelaw.com lmolnar@buchelaw.com Attorneys for Defendants Hire Order, Ltd. and Global One Sales and Distribution UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA OAKLEY, INC., a Washington corporation, Plaintiff, v. HIRE ORDER, LTD., d/b/a HANDSFREEVIDEO.COM, a Virginia corporation, and GLOBAL ONE SALES AND DISTRIBUTION SPORTSMAN EYEWEAR, LLC, a Pennsylvania company, Defendants. DEFENDANTS HIRE ORDER, LTD AND GLOBAL ONE SALES AND DISTRI-BUTION SPORTSMAN EYEWEAR, LLC’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT ON THE ISSUE OF NONINFRINGEMENT Judge: Hon. Dana M. Sabraw Hearing Date: March 29, 2013 Time: 1:30 p.m. Courtroom: 13A – 13th Floor ORAL ARGUMENT SCHEDULED Case No. 12-cv-2346-DMS (WMC)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 i. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ii. I. II.

TABLE OF CONTENTS INTRODUCTION ......................................................................................................................... 5 UNDISPUTED FACTS ................................................................................................................. 6

A. PLAINTIFF’S INFRINGEMENT CONTENTIONS .................................................................... 6 B. THE ‘461 PATENT & THE BLACK DRAWING LINES OF FIGURES 1-6 DEFINE WHAT IS COVERED BY THE PATENT CLAIM................................................................................... 6 C. THE ACCUSED PRODUCTS .................................................................................................... 10 III. LEGAL ARGUMENT ................................................................................................................. 14 A. SUMMARY JUDGMENT SHOULD BE GRANTED WHERE, AS HERE, THERE ARE NO GENUINE ISSUES OF MATERIAL FACT AND THE MOVING PARTY IS ENTITLED TO JUDGMENT AS A MATTER OF LAW .................................................................................... 14 i. The Standard for Summary Judgment of Non-Infringement in Design Patent Cases. ....... 14

B. THE ‘461 PATENT IS EXTREMELY LIMITED IN SCOPE AS A RESULT OF EXTENSIVE PRIOR ART AND THE OBVIOUSLY FUNCTIONAL ELEMENTS OF THE DESIGN. ...... 16 The Functional Elements of the ‘461 Patent Are Not Protectable. ..................................... 16 Prior Art Limits the Scope of the ‘461 Patent Greatly and Must be Considered in Terms of Infringement and Claim Construction. ............................................................................... 17

C. ANY PURPORTED PROTECTABLE ELEMENTS OF THE ‘461 PATENT AND THE ACCUSED PRODUCT ARE VASTLY DIFFERENT. .............................................................. 21 IV. CONCLUSION ............................................................................................................................ 28

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1 TABLE OF AUTHORITIES 2 3 4 5 6 7 8 9 10 11 12 Egyptian Goddess, Inc. v. Swisa, Inc., 543 F. 3d 665 (Fed. Cir. 2008) ......................................... passim 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Oddzon Prods., Inc. v. Just Toys, Inc., 122 F.3d 1396 (Fed.Cir.1997)..................................... 14, 15, 20 Paragon Podiatry Lab., Inc. v. KLM Labs., Inc., 984 F.2d 1182 (Fed. Cir. 1993) .............................. 13 Seirus Innovative Accessories, Inc. v. Cabela's Inc., 827 F. Supp. 2d 1150 (S.D. Cal. 2011) ............. 16
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CASES  Abbott Labs. v. Mead Johnson & Co., 1996 WL 332449 (N.D.Ill. June 13, 1996).............................. 22 Amini Innovation Corp. v. Anthony California, Inc., 439 F.3d 1365 (Fed. Cir. 2006)......................... 15 Antonious v. Spalding & Evenflo Cos., Inc., 217 F.3d 849 (Fed.Cir.1999).......................................... 22 Apple, Inc. v. Samsung Electronics Co., Ltd., 2012 WL 3071477 (N.D. Cal. 2012) ............................. 7 Competitive Edge, Inc. v. Staples, Inc., 763 F. Supp. 2d 997 (N.D. Ill. 2010) ............................... 21, 26 Contessa Food Products, Inc. v. Conagra, Inc., 282 F.3d 1370 (Fed. Cir. 2002) .................................. 6 Door–Master Corp. v. Yorktowne, Inc., 256 F.3d 1308 (Fed.Cir.2001)................................................. 6

Elmer v. ICC Fabricating, Inc., 67 F. 3d 1571 (Fed. Cir. 1995). ......................................................... 14 Gen. Elec. Co. v. Nintendo Co., Ltd., 179 F.3d 1350 ........................................................................... 13 HR U.S. LLC v. Mizco Int'l, Inc., 2009 WL 890550 (E.D.N.Y. 2009) ........................................... 14, 22 In re Blum, 374 F.2d 904, 153 USPQ 177 (CCPA 1967) ....................................................................... 6 In re Mann, 861 F.2d 1581, 1582 (Fed. Cir. 1988)............................................................................... 15 In re Zahn, 617 F.2d 261, 204 USPQ 988 (CCPA 1980). ...................................................................... 6 Int'l Gamco, Inc. v. Multimedia Games Inc., 732 F. Supp. 2d 1082 (S.D. Cal. 2010) ......................... 13 Inwood Labs., Inc. v. Ives Labs., Inc., 456 U.S. 844 (1982). ................................................................ 15 Minka Lighting, Inc. v. Maxim Lighting Int'l, Inc., 2009 WL 691594 (N.D. Tex. 2009) ..... 7, 15, 20, 22 Motionless Keyboard Co. v. Microsoft Corp., 486 F.3d 1376 (Fed. Cir. 2007) ................................... 13

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T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626 (9th Cir.1987)....................... 13 Tropicana Prods., Inc. v. Land O'Lakes, Inc., 286 F.Supp.2d 343 (D.Del.2003) ................................ 14 Unidynamics Corp. v. Automatic Products Intern., 157 F. 3d 1311 (Fed. Cir. 1998) .................... 14, 15

STATUTES  Fed. R. Civ. P. 56(a). ............................................................................................................................ 13

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MEMORANDUM OF POINTS AND AUTHORITIES Defendants Hire Order, Ltd. and Global One Sales and Distribution Sportsman Eyewear, LLC (collectively, “Defendants”) hereby submit this memorandum in support of their motion for partial summary judgment on the issue of noninfringement of U.S. Patent No. D523,461 (the “‘461 Patent”). I. INTRODUCTION To establish liability under any theory of infringement, a patentee must first demonstrate infringement; however, Plaintiff Oakley, Inc. (“Oakley”) has failed to do this and cannot do so as a matter of law because the accused product simply does not possess any protectable elements that are required by the ‘461 Patent. Defendants argue simply in this motion that no ordinary observer famili-

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ar with the prior art could ever confuse the accused products with what is depicted in the ‘461 Patent. The details provided in the drawings of the ‘461 Patent really matter. The figures of a patent are provided for a reason, namely, they provide the world notice of what is, or is not, the property of a patent holder. If this were not the case, there would not be a series of figures in every design patent that defines the specific ornamental appearance claimed from different angles. The design specifics of the figures are even more important with a product line such as sunglasses, which have been around for decades—and the small differences should be given great weight in a field so occupied with similar prior art. An inescapable truth for this case is that all sunglasses look somewhat similar if you get far enough away—they all generally have some lenses, ear rests, sit on the wearer’s nose, and they might even wrap around the wearer’s face. So, the Court has to look at the individual drawings of the patent in view of the prior art and the details that the drawings specify to (a) first construe the claims and assess what is within the realm of protectable subject matter, and (b) to assess whether the accused product reads on protectable elements, if any to the Plaintiff’s patent. Those general items that are either (1) merely functional; or (2) in the prior art cannot be covered by the Plaintiff’s patent. Thus,

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the Court has a very important responsibility to assess the proper breadth of the single claim and to avoid allowing the Plaintiff to use a narrow design patent to cover every pair of sunglasses simply because sunglasses generally look and function like other sunglasses. The Defendants in this case are small companies, and they do not have the resources of Oakley, but they are confident that the Plaintiff is overreaching with generalities to unfairly monopolize subject matter that should not be protected under the patent laws. Oakley obviously wants to control all sunglasses that have a wrap around appearance, but they cannot claim those items that are not clearly set forth in their patent, or which are commonplace to sunglasses in the prior art. Given that a design patent only offers protection confined to the ornamental appearance of an object actually shown, and the significant differenc-

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es between the accused sunglasses and the ‘461 Patent Figures, the Court should enter judgment in favor of Defendants on the issue of non-infringement. The scope of this partial motion for summary judgment is specifically limited to the issue of infringement; however, Defendants reserve all rights to challenge the ‘461 Patent by reason of validity inasmuch as further discovery is highly likely to result in evidence that will have a bearing on validity. On the same note, Defendants reserve all rights to challenge damages arguments on the issue of infringement inasmuch as discovery is likely to reveal that Plaintiff’s damages are barred by reason of failure to mark under 35 U.S.C.§ 287. II. UNDISPUTED FACTS A. Plaintiff’s Infringement Contentions Plaintiff alleges that “Defendants manufacture, use, sell, offer for sale and/or import into the United States eyewear the infringe Oakley’s intellectual property rights.” See Docket No. 1 at ¶ 10. Plaintiff’s infringement contentions are further set forth in the Complaint in ¶11-21. Docket No. 1. B. The ‘461 Patent & the Black Drawing Lines of Figures 1-6 Define What is Covered by the Patent Claim.

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The ‘461 Patent contains six detailed figures which form the basis for the design patent, and they are incorporated into the terms of the single claim which states: “The ornamental design for an eyeglass component as shown and described.” See the Declaration of John K. Buche (“Buche Decl.”), Ex. A at p. 1 (the “‘461 patent”). A review of the patent shows that each of the six figures feature solid lines, which delineate the claimed design of the sunglasses—such solid lines indicate the design in which Plaintiff claims protections. See Buche Decl., Ex., F at §15.49-15.50 (Manual of Patent Examination Procedure (“MPEP”) excerpts for line drawing interpretation). There are no broken lines used in the figures of the patent. See Buche Decl., Ex., A, Figs. 1-6 (patent), so each of the broken lines are crucial to identifying the Plaintiff’s claimed design.

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 sion of the features in the claimed design.” [citing Door–Master Corp. v. Yorktowne, Inc., 256 F.3d 27 28 1308, 1313 (Fed.Cir.2001)]; Apple, Inc. v. Samsung Electronics Co., Ltd., 2012 WL 3071477 (N.D. The ornamental design which is being claimed must be shown in solid lines in the drawing. Dotted lines for the purpose of indicating unimportant or immaterial features of the design are not permitted. There are no portions of a claimed design which are immaterial or unimportant. See In re Blum, 374 F.2d 904, 153 USPQ 177 (CCPA 1967) and In re Zahn, 617 F.2d 261, 204 USPQ 988 (CCPA 1980). See Buche Decl., Ex., F at p. 4, § 15.50 (III) (Emphasis added); see also Contessa Food Products, Inc. v. Conagra, Inc., 282 F.3d 1370, 1378 (Fed. Cir. 2002)(abrogated on other grounds)(“If features appearing in the figures are not desired to be claimed, the patentee is permitted to show the features in broken lines to exclude those features from the claimed design, and the failure to do so signals incluThe black lines of the patent drawings are important to defining the scope of the patent. See Buche Decl., Ex., F at p. 2, §15.48 (MPEP). If lines are solid and in black, then they form a portion of the design that is allowed, whereas only broken lines in drawings are not part of the claims. See Buche Decl., Ex., F at pp. 3-5, § 1503.02 (III) (MPEP). Specifically, the Manual of Patent Examining Procedure states that:

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Cal. 2012); Minka Lighting, Inc. v. Maxim Lighting Int'l, Inc., 2009 WL 691594, *2 (N.D. Tex. 2009) (“A design patent is defined by the content of its drawing…”). While sunglasses have obvious functional features, such as the arms of the glasses, the two holes for the eyes and the nose bridge, Plaintiff’s ‘461 patent only depicts certain very specific details of the sunglasses—presumably those aspect which differentiate it from the prior art (and which are not found on the accused product of Defendant). First, when looking at the Accused Product and the ‘461 patent from the perspective of someone wearing the sunglasses, the ‘461 Patent has a distinct design of the nose bridge, which is depicted in Figures 1-3 of the patent: Front of Sunglasses Angled View Front of Sunglasses No Angle Back of Sunglasses No Angle

Excerpt from Figure 1 of the ‘461 Patent See Buche Decl., Ex. A, Figs. 1-3.

Excerpt from Figure 2 of the ‘461 Patent

Excerpt from Figure 3 of the ‘461 Patent

As shown above, very distinctive elements of the nose bridge include the exaggerated Ushaped scoop on the top of the nose bridge which creates a horn-like design (hereinafter referred to as the “horns”). This feature is also leveled into highly specific planes. This can be seen from all angles of the sunglasses and is clearly an important part of the ‘461 Patent since Plaintiff has three separate figures delineating the horns. In addition to the scoop/horns, Plaintiff has claimed the shape of the nose bridge, such that it creates a protruding X-shape in the front of the sunglasses. See Buche Decl., Ex. A, Figs. 1-3, and 6. Second, the ‘461 Patent has highly distinct button elements on the tops of the arms of the sun8

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glasses which were mandatory aspects of the ‘461 Patent, as depicted in Figures 1, and 3-5 of the ‘461 Patent. See Buche Decl., Ex. A, Figs.1, 3-5. Most obvious is the placement of and shape of the buttons on each arm, which were specifically claimed. Looking at the sunglasses from the perspective of someone wearing the sunglasses, and as shown in Figure 1 of the ‘461 Patent, the right arm has three buttons and the left arm has two buttons. See Buche Decl., Ex. A, Figs. 1, 4, and 5. Moreover, each of the buttons is situated on a specifically designed button podium (hereinafter “button podium”) that elevates the buttons, and which feature stylized claw marks on their sides. See Buche Decl., Ex. A, Figs. 1, 4. In Figures 1 and 4, the ‘461 Patent goes to great lengths to use black solid lines to claim a de-

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Excerpt from Figure 3 of the ‘461 Patent Excerpt from Figure 5 of the ‘461 Patent Excerpt from Figure 4 of the ‘461 Patent Excerpt from Figure 1 of the ‘461 Patent the rib-like textured pattern claimed in the ‘461 Patent are depicted below and referenced from the prospective of someone wearing the sunglasses: Back of Sunglasses Left Arm Top of Sunglasses Left Arm Side of Sunglasses Angled View, Left Arm Top of Sunglasses Angled View Right Arm – 3 buttons sign that forms an aggressive “M” like pattern on the side of the arms of the glasses, which rather looks like claw marks (hereinafter referred to as “claw marks”) heading from top down, but which stop short of the base of the arm. See Buche Decl., Ex. A, Figs. 1 and 4. Additionally, the arms and buttons have a distinct rib-like textured pattern which is prominently depicted throughout the drawings for the patent. See Buche Decl., Ex. A, Figs. 1 and 4. The style and number of buttons as well as

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See Buche Decl., Ex. A, Figs. 1, 3, 4 and 5. Plaintiff has also claimed the placement of its USB input on the left arm of the sunglasses, as depicted below in an excerpt from Figure 6 of the ‘461 Patent, which is the design of the bottom of the sunglasses. See Buche Decl., Ex. A, Fig.6. The Plaintiff was very specific in claiming the USB port, on one particular side of the glasses, as a feature of the ‘461 Patent. Had Plaintiff’s patent counsel not wanted to include that feature in the design, the feature would have been depicted with broken lines as required by the MPEP.
USB Input

See Buche Decl., Ex. A, Fig.6. Finally, the ‘461 Patent does not claim a contour from the thicker part of the arms, which contain the electrical equipment for the video recording system, to the end of the arms. See Buche Decl., Ex. A, Fig.6. This means that when the sunglasses are laid on a table, they lay flat and the end of the arms touch the table as well (this would be opposed to the thicker part of the arm touching the table and the end not). See Id. Such claim is depicted in Figure 6 above. C. The Accused Products For purposes of providing background for the Court, Defendants’ Sportsman Eyewear® (the “Accused Products”) comes in two models, the Mossy Oak® (see Buche Decl., Ex. B, Figs 10-16) and Matte Black (see Buche Decl., Ex. B, Figs 1-9)(photo images of accused products). Both models have identical structures physically, although one features an attractive camouflage pattern.

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First, the Accused Product has a different nose bridge from the ‘461 Patent and the horns and X-pattern are entirely absent. See Buche Decl., Ex. A, Figs. 1, 2, 3, and 6 Cf. Buche Decl., Ex. B, Figs. 1, 3, 8-10 and 13. Instead of having an exaggerated U-shaped scoop on top with the horns, it has a principally flat surface typical of prior art and other popular sunglasses. See Id. The front also features holes for cameras not present in the ‘461 patent. The Accused Product features the same basic nose bridge that nearly any pair of sunglasses is required to have to accommodate a wearer’s nose. There is also no X-shaped protrusion in the front of the nose bridge. Instead, the nose bridge is smooth. The nose bridge of the Accused Products, when viewed from above also does not feature the distinct planes of the ‘461 patent (see Buche Decl., Ex. A, Fig.1, 5)(patent figures); compare to Ex.B,

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Figs. 2, 11 (Accused Product to views). Front of the Accused Product Angled View Front of the Accused Product Back of the Accused Product

The Accused Product has arms which are recognizably different from the drawings of the ‘461 Patent. There is no rib-like pattern texture along the arms—instead they are smooth. See Buche Decl., Ex. A, Figs. 1, 4 and 5 (patent); Cf. Buche Decl., Ex. B, Figs. 1, 3, 5, 6, 13 and 14 (accused images). The Accused Products do not feature any claw marks on their sides but are instead smooth. See Buche Decl., Ex. A, Figs. 1, 4 and 5 Cf. Buche Decl., Ex. B, Figs.5, 6, 13 and 14. The Accused Products do not feature buttons on ornate button podiums, but instead has plain

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buttons. See Buche Decl., Ex. A, Figs. 1, 3, 4 and 5 Cf. Buche Decl., Ex. B, Figs. 1, 6, 7, 9, and 13. As for placement of, style and number of buttons on the arms of the Accused Product (when viewed from the perspective of the wearer), there are no buttons on the right side and two buttons on the left side. See Buche Decl., Ex. B, Figs. 1-2, 5-7, 9, 11-14. Moreover, the sides of the arms facing outward have a textured grip consisting of a series of indented circles in the shape of a rectangle, which the ‘461 Patent does not have. See Buche Decl., Ex. A, Figs. 1 and 4; Cf. Buche Decl., Ex. B, Figs. 5, 6, 13 and 14. The foregoing differences are illustrated below and referenced from the prospective of someone wearing the sunglasses: Back of Accused Top of Accused Product - Left Arm Product - Left Arm Bottom Accused Product -Left Arm Side View of Accused Product Left Arm

Top of Accused Product Right Arm – No Buttons

Top of Accused Product Left Arm – 2 Buttons

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See Buche Decl., Ex. B. Figs 1, 6-8. Further, the Accused Product has a specified placement for the USB input as well as an additional input slot for a memory/Micro SD card. Both inputs are on the right arm of the Accused Product.
USB input

Micro-SD input

See Buche Decl., Ex. B. Fig 8. Finally, the Accused Product has a contour from the thicker part of the arms, which contain the electrical equipment for the video recording system, to the end of the arms. See Buche Decl., Ex. B, Figs. 5, 6, 13 and 14. This means that when the sunglasses are laid on a table, the thicker part of the arm would touch the table but the ends would not. This is dissimilar to the ‘461 patent which has a flat bottom surface according to the patent Fig.6. See Buche Decl., Ex. A, Figs. 6.

Contour

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III. LEGAL ARGUMENT A. Summary Judgment Should Be Granted Where, As Here, There Are No Genuine Issues Of Material Fact And The Moving Party Is Entitled To Judgment As A Matter Of Law Summary judgment should be granted when the record evidence “shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A fact issue is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Guidroz-Brault v. Mo. Pac. R.R. Co., 254 F.3d 825, 829 (9th Cir. 2001) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Material facts are genuinely in dispute only “if a jury could decide the issue either way, and its verdict would survive a motion for judgment as a matter of law.” Motionless Keyboard Co. v. Microsoft Corp., 486 F.3d 1376, 1380 (Fed. Cir. 2007) (quoting Gen. Elec. Co. v. Nintendo Co., Ltd., 179 F.3d 1350, 1353 (Fed. Cir. 1999)) (affirming summary judgment of noninfringement). Thus, the inquiry at summary judgment is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Paragon Podiatry Lab., Inc. v. KLM Labs., Inc., 984 F.2d 1182, 1184-85 (Fed. Cir. 1993) (quoting Anderson, 477 U.S. at 252). In patent

18 19 20 21 22 23 24 25 26 27 28 i. The Standard for Summary Judgment of Non-Infringement in Design Patent Cases. A determination of design patent infringement involves a two step analysis: first, the claim must be properly construed to determine its meaning and scope and, second, the claim as properly
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cases, the burden of proof falls on the party asserting infringement. Applied Med. Resources Corp. v. U.S. Surgical Corp., 448 F.3d 1324, 1333 (Fed. Cir. 2006). “Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment.” Int'l Gamco, Inc. v. Multimedia Games Inc., 732 F. Supp. 2d 1082, 1086 (S.D. Cal. 2010) quoting T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.1987).

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construed must be compared to the accused design to determine whether there has been infringement. Elmer v. ICC Fabricating, Inc., 67 F. 3d 1571, 1577 (Fed. Cir. 1995). In the first step, “the scope of the claim must be construed in order to identify the non-functional [i.e., ornamental] aspects of the design as shown in the patent” when the design contains both functional and non-functional elements. Egyptian Goddess, Inc. v. Swisa, Inc., 543 F. 3d 665, 608 (Fed. Cir. 2008)(quoting Oddzon Prods., Inc. v. Just Toys, Inc., 122 F.3d 1396, 1405 (Fed.Cir.1997)). In the second step, the pertinent question is whether an ordinary observer would be deceived into believing the accused product is the same as the patented product. Egyptian Goddess, 543 F. 3d at 672. The ordinary observer “must be deceived by the features common to the claimed and accused

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15 Although infringement is a question of fact, where appropriate, courts, in applying the ordinary observer test, both before and after Egyptian Goddess, have not hesitated to grant summary judgment for defendants based on a “mere visual comparison of the patented design and the accused product.” HR U.S. LLC v. Mizco Int'l, Inc., 2009 WL 890550, *12 (E.D.N.Y. 2009); see also Tropicana Prods., Inc. v. Land O'Lakes, Inc., 286 F.Supp.2d 343, 345 (D.Del.2003) (granting summary judgment where designs did not share “an overall visual similarity”).
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designs that are ornamental, not functional.” Unidynamics Corp. v. Automatic Products Intern., 157 F. 3d 1311, 1323 (Fed. Cir. 1998); Egyptian Goddess, Inc., 543 F.3d at 680. In addition, the ordinary observer must “view the differences between the patented design and the accused product in the context of the prior art” such that “the attention of the hypothetical ordinary observer will be drawn to those aspects of the claimed design that differ from the prior art.” Egyptian Goddess, Inc., 543 F.3d at 676 (emphasis added). Simply put, practicing the prior art is a defense to design patent infringement. Id. at 683. Moreover, “[i]n 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.”1 Egyptian Goddess, Inc., 543 F.3d at 678; see also Minka Lighting, Inc. v. Maxim Lighting Int'l, Inc., 2009 WL

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691594, *8 (N.D.Tex. 2009)(granting summary under Egyptian Goddess where designs were “plainly dissimilar” and finding it unnecessary to reference the prior art). B. The ‘461 Patent Is Extremely Limited In Scope As A Result of Extensive Prior Art and the Obviously Functional Elements of the Design. i. The Functional Elements of the ‘461 Patent Are Not Protectable. As stated above, and for the first step of the analysis, “the scope of the claim must be construed in order to identify the non-functional [i.e., ornamental] aspects of the design as shown in the patent” when the design contains both functional and non-functional elements. Egyptian Goddess, Inc., 543 F.3d at 680 (quoting OddzOn Prods., Inc., 122 F.3d at 1405). For infringement to be feasible, the ordinary observer “must be deceived by the features common to the claimed and accused designs that are ornamental, not functional.” Unidynamics Corp., 157 F.3d at 1323 (emphasis added); Egyptian Goddess, Inc., 543 F.3d at 680. An aspect is functional “if it is essential to the use or purpose of the article or if it affects the cost or quality of the article.” Inwood Labs., Inc. v. Ives Labs., Inc., 456 U.S. 844, 851 (1982). It is important to keep in mind that “[d]esign patents have almost no scope.” In re Mann, 861 F.2d 1581,

18 19 20 21 22 23 24 25 26 27 28 there are numerous glasses that serve the purpose of blocking sun. Sunglasses have to block sun; they have to have a place to sit on the bridge of the nose; many sunglasses generally wrap around the head for a comfortable, sporty fit; and sunglasses will generally have arms that secure the glasses above the ears. Buttons generally are functional. Buttons are functional because they are pushed to
16

1582 (Fed. Cir. 1988). “It is the drawings in the patent, not just one feature of the claimed design, that define the patented design.” Amini Innovation Corp. v. Anthony California, Inc., 439 F.3d 1365, 1371 (Fed. Cir. 2006). Here, obvious functional elements of the ‘461 Patent include the arms of the glasses, the nose bridge and the two frames for the eyes. Eliminating the functional aspects is critical inasmuch as

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cause a response. Plaintiff cannot claim a patent right to a button. These are not elements that Plaintiff can monopolize, because Plaintiff simply does not have a patent that covers sunglasses generally—or buttons. The fact that some sunglasses have cameras means that the sunglasses will have to functionally have a recording device and thus must also allocate a place to put the video recording equipment and buttons on the glasses (i.e., on the arms of the glasses). So, that leaves the design elements—which is the core of what a design patent covers. For the sake of argument only, and if the design elements were not already in the prior art, there might have been four potentially distinctive elements of the ‘461 Patent, none of which bare any similarity to the Accused Products: (1) the “horn”/U-shape design of the nose bridge, (2) the style, placement and number of buttons on the arms

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
17

of the glasses, (3) the “claw mark” designs of the arms of the glasses, and (4) maybe placement of the USB input. Defendants have offered demonstrative Exhibit E to try and assist the court with a graphic illustration of possible points where anything unique may be found on the Plaintiff’s patent. See Buche Decl., Ex. E. The foregoing elements appear to be what Plaintiff claims as part of its design patent and, as described below, each element is limited even further in light of prior art. Unfortunately for Plaintiff, the Defendants Accused Products do not include these features, even if they were protectable and not already in the prior art. ii. Prior Art Limits the Scope of the ‘461 Patent Greatly and Must be Considered in Terms of Infringement and Claim Construction. The Federal Circuit noted that, “[w]hen the differences between the claimed and accused design are viewed in light of the prior art, the attention of the hypothetical ordinary observer will be drawn to those aspects of the claimed design that differ from the prior art.” Seirus Innovative Accessories, Inc. v. Cabela's Inc., 827 F. Supp. 2d 1150, 1156-57 (S.D. Cal. 2011) (emphasis added) quoting Egyptian Goddess, 543 F.3d at 676. Specifically, the Federal Circuit in Egyptian Goddess noted:

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“[W]hen the claimed and accused designs are not plainly dissimilar, resolution of the question whether the ordinary observer would consider the two designs to be substantially the same will benefit from a comparison of the claimed and accused designs with the prior art . . . . Where there are many examples of prior art designs . . . differences between the claimed and accused designs that might not be noticeable in the abstract can become significant to the hypothetical ordinary observer who is conversant with the prior art. Some examples of prior art are below, which show designs that have already been taken including (a) the wrap around shape2; (b) a nose bridge contoured to a nose3; (c) buttons arranged on the top of ear rests; (d) arms, including rectangular/square-shaped arms4; (e) lenses of any particular shape; (f) a flat brow member5. None of these items can be covered by the Plaintiff’s claim because they are concepts that are in the public domain and the prior art. So what is left? Not much. The design patent in question is restricted to only the most ornate concepts. For example, the most relevant prior art is set forth below:6

See, for example, Buche Decl, Ex. C, Patent Nos. 3,229,303 (issued Jan. 1966)(p.16), 4,856,086 (issued Aug. 1989) (p.17), 6,517,202 (issued Feb. 2003) (p.20) and 3,944,344 (issued March 1976) (p.17). 3 See, for example, Buche Decl, Ex. C, Patent Nos. 2,856,466 (issued Oct. 1958) (p. 15), 2,765,373 (issued Oct. 1956) (p.15), 6,517,202 (issued in February of 2003)(p.20), 7,278, 734 (issued Oct. 2007 and subsequently assigned to Oakley, Plaintiff herein) and D103, 297 (issued Feb. 1937). 4 See, for example, Buche Decl, Ex. C, Patent Nos. 5,029,216 (issued July 1991) (p.18), 5,159,639 (issued Oct. 1992) (p.18), 5,606,743 (issued Feb. 1997) (p.19), 7,147,324 (issued Dec. 2006) (p. 21), 7,150,526 (issued Dec. 2006) (p. 21), 7,216,973 (issued May 2007) (p. 21). Patent Nos. 7,278, 734 (issued Oct. 2007) (p. 22), D207,919 (issued Jun. 1967) (p. 22). 5 See, for example, Buche Decl, Ex. C, Patent Nos.5,606,743 (issued Feb. 1997) (p. 19), 6,857,739 (issued Feb. 2005)(p. 21). 6 Additional prior art is attached and summarized as Ex.C to the Buche Decl. and full printouts of the summarized patents are attached as Ex. D to the Buche Decl. 18

2

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Plaintiff may claim ownership to each of the patents, but they are still facially prior art under 35 U.S.C.§102(e) because the cited prior art patents: (1) are the result of U.S. patent applications that were filed prior to the filing date of the ‘461 patent (without more, the filing date of the application underlying the issued patent can be used as the date of invention (see Hazeltine Research v. Brenner, 382 U.S. 252, 147 USPQ 429 (1965)) and that ultimately issued as patents; (2) and list at least one inventor that is not common with the inventors listed in the ‘461 patent. 8 Id. 19
7

U.S. Patent Nos. 7,147,324, 7,150, 526 and 7, 216, 973 7

U.S. Patent No. 7,278,7348

U.S. Design Patent No. 207, 919

U.S. Patent No. 5,606,743 

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Pat. No. D103,297 (issued Feb. 23, 1937)

U.S. Patent No. 5,781,272

U.S. Patent No. 5,717,479

U.S. Patent No. 4,882,769

U.S. Patent No. 5,029,216

18 19 20 21 22 23 24
Pat. No. D453,024 (issued Jan. 22, 2002) Pat. No. D285,697 (issued Sep. 16, 1986)

25 26 27 28 The ordinary observer must “view the differences between the patented design and the accused product in the context of the prior art” such that “the attention of the hypothetical ordinary observer will be drawn to those aspects of the claimed design that differ from the prior art.” Egyptian
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Goddess, Inc., 543 F.3d at 676 (emphasis added). An analysis of the above prior art, as well as the art referenced in Exhibits C and D to the Buche Decl., demonstrates that an ordinary observer would be drawn only those aspects of the ‘461 Patent that are ornamental and different from everything that is out in the marketplace, which is, as Plaintiff’s best argument, the nose bridge (which includes the horns and contoured dip), the specific style of the buttons (including the podiums) and arrangement thereof, and the claw marks on the arm. Moreover, it is important to keep in mind that “general design concepts alone are insufficient to show infringement, particularly when the prior art is replete with similar designs.” See Minka Lighting, Inc., 2009 WL 691594 citing OddzOn Prods., 122 F.3d at 1405 (rejecting the notion that “the overall similarity of ... appearance is sufficient to show infringe-

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 When comparing the Accused Product and the drawings in the ‘461 Patent, they are incredibly 27 28 different. Overall differences in the appearance of the products, such as the claw marks on the arms ready in the prior art); basic nose bridge (already in the prior art); horns (already in the prior art). C. Any Purported Protectable Elements of the ‘461 Patent and the Accused Product Are Vastly Different. clear that the patent claim cannot be construed to encompass the prior art and general elements of design that are clearly in the public domain. Defendants argue that Plaintiff cannot, therefore, claim general designs that are already in any of the prior art—a general claim to functional buttons on top of arms (already in the prior art); arms of sunglasses generally (already in the prior art); squared/rectangular arms of sunglasses (already in the prior art); wrap around shape of frames (alment”). Accordingly, not only would an ordinary observer be able to distinguish the ‘461 Patent from prior art, and the Accused Product, based on these differences alone, but this prior art significantly narrows (a) the scope of the ‘461 Patent claim construction by the Court; and (b) the scope of infringement inasmuch as the “ordinary observer” is one who is familiar with the prior art. The law is

21

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of the sunglasses, lack or ornate button podiums, and features like U-shaped horns on the top of the frame of the glasses, have been held to be key distinguishing features when examining overall appearance. See Competitive Edge, Inc. v. Staples, Inc., 763 F. Supp. 2d 997, 1011 (N.D. Ill. 2010) aff'd, 412 F. App'x 304 (Fed. Cir. 2011)(“. . .scalloped edges in the patented design when compared with the smooth edges of the accused design, and the hour-glass shape of the accused design when compared with the block-rectangle shape of the patented design are important aspects that dominate the overall visual appearance of the respective designs.”). In contrast, and similar to the product in the Competitive Edge case, the Accused Product here has smooth arms, no horns, and no ornate button podiums.

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
22

‘461 Patent with Purported Ornamental Aspect Highlighted (see Buche Decl., Ex. E)

Accused Product (see Buche Decl., Ex. B, Figs. 1 and 3) While a comparison of the overall designs is required, “[s]ummary judgment, however, is appropriate where specific ornamental features substantially impact the overall design of the accused product and distinguish the overall design of the accused product from the patented design.” See HR

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U.S. LLC v. Mizco Int'l, Inc., 2009 WL 890550, *12 (E.D.N.Y. 2009); see also Minka Lighting, 2009 WL 691594, at *7 (granting summary under Egyptian Goddess where “distinct ornamental ‘hook’ “ in lamp support arm, which was “obvious at first glance,” made the accused product “readily distinguishable from” the patented design); Antonious v. Spalding & Evenflo Cos., Inc., 217 F.3d 849, (Fed.Cir.1999)(unpublished table case) (affirming district court's grant of summary judgment, which noted that a specific feature “unmistakably distinguished” the accused products, because “no reasonable jury would conclude that the overall designs of the accused products and the patents are so substantially similar that an ordinary observer would be deceived ...”); Abbott Labs. v. Mead Johnson & Co., 1996 WL 332449, at *10 (N.D.Ill. 1996) (granting summary judgment for non-infringement

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Front Angled View Comparison (Buche Decl., Ex. A, Fig. 1; Buche Decl., Ex. B, Fig. 3) Back View Comparison (Buche Decl., Ex. A, Fig. 3; Buche Decl., Ex. B, Fig. 2) where the “overall appearance” of the two devices made it clear that they “serve the same purpose,” but two differences, which were substantial in the context of the “whole design,” ensured “that the accused device will not be confused with, or mistaken for, the patented device”). Examining the critical differences in detail, the ‘461 Patent has an exaggerated U-shape scoop on top of the nose bridge with the horns, while the Accused Product has no such scoop/horns:

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Moreover, the ‘461 Patent has a prominent X-shaped protrusion or horns on the nose bridge while the Accused Product is smooth with no protrusions. The accused product actually has holes in the front for a camera lens.

Front View Comparison (Buche Decl., Ex. A, Fig. 2; Buche Decl., Ex.B, Fig. 4)

Bottom Angled View Comparison (Buche Decl., Ex. A, Fig. 6; Buche Decl., Ex. B, Fig. 8) Additionally, the arms of the glasses of the Accused Products are not a claw/rib-like pattern or

17 18 19 20 21 22 23 24 25 26 27 28 Side view of Left Arm Comparison (Buche Decl., Ex. A, Fig. 4; Buche Decl., Ex. B, Fig. 6)
24

texture like the ‘461 Patent drawings claim, but are instead textured with hole/indentures (square/rectangular shapes of arms are already in the prior art and public domain):

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 cending into claw mark designs as required by the ‘461 Patent. The Accused Product simply has (a) 16 17 18 19 20 21 22 23 24 25 26 27 28
25

Back View Comparison (Buche Decl., Ex. A, Fig. 3; Buche Decl., Ex. B, Fig. 2) Further, the Accused Product has no buttons on the right arm and two buttons on the left arm while the ‘461 Patent has three buttons on the right arm and two on the left arm (as viewed from the perspective of someone wearing the frames). More important, the buttons that the accused product features are merely functional plain buttons. They are not situated on ornate button podiums des-

either no buttons; or (b) plain old buttons serving the functional purpose of a button to activate/deactivate an electronic feature.

Right Arm View Comparison (Buche Decl., Ex. A, Fig. 1; Buche Decl., Ex. B, Fig. 3) // //

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Contour No contour claimed meaning bottom is flat

Left Arm Side View Comparison (Buche Decl., Ex. A, Fig. 4; Buche Decl., Ex. B, Fig. 6) The contour of the arms are also different, as the ‘461 Patent claims no contour of the arms (with a flat bottom) while the Accused Product clearly has a contoured bottom:

‘461 Patent (Buche Decl., Ex. A, Fig. 6)

23 24 25 26 27 28 has added an input for Micro-SD. Accused Product (Buche Decl., Ex. B, Fig. 5) Finally, the Accused Product and the ‘461 Patent have undeniably different placement for the USB input – indeed, the Accused Product not only has it on an opposite arm of the sunglasses, but

26

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Bottom of Right Arm of Accused Product and ‘461 Patent

Bottom and Left Arm of Accused Product and ‘461 Patent

See Buche Decl., Ex. A, Fig. 6; Buche Decl., Ex. B, Fig. 8. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
27

Considering all of these asserted distinctions together in the context of the overall ornamental design—and assuming a properly construed claim that avoids the prior art and functional features— no reasonable trier of fact could find that an ordinary observer familiar with the prior art could believe the accused design to be the same as the patented design, or even a colorable imitation of the patented design. The allegation borders on absurd and is not a subject on which two reasonably informed minds could have a legitimate dispute. See Egyptian Goddess, 543 F.3d at 679 (“[T]he patentee bears the ultimate burden of proof to demonstrate infringement by a preponderance of the evidence.”); Competitive Edge, Inc., 763 F. Supp. 2d at 1011-12. As such, the Accused Product does not infringe the ‘461 Patent and summary judgment should be granted in favor of Defendants on this issue of noninfringement.

// // //

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IV. CONCLUSION For the foregoing reasons, Defendants respectfully request that the Court grant Defendants’ motion for summary judgment and declare that the Accused Products do not infringe the ‘461 Patent.

Respectfully submitted, Dated: December 27, 2012

s/ John K. Buche John Karl Buche BUCHE & ASSOCIATES, P.C. Attorneys for Defendants Email : jbuche@buchelaw.com

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John Karl Buche (SBN 239477) Lindsay D. Molnar (SBN 275156) BUCHE & ASSOCIATES, P.C. 875 Prospect, Suite 305 La Jolla, California 92037 (858) 459-9111 (858) 459-9120 Fax jbuche@buchelaw.com lmolnar@buchelaw.com Attorneys for Defendants Hire Order, LTD and Global One Sales and Distribution Sportsman Eyewear, LLC. UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA OAKLEY, INC., a Washington corporation, Plaintiff, v. HIRE ORDER, LTD., d/b/a HANDSFREEVIDEO.COM, a Virginia corporation, and GLOBAL ONE SALES AND DISTRIBUTION SPORTSMAN EYEWEAR, LLC, a Pennsylvania company, Defendants. DECLARATION OF JOHN K. BUCHE IN SUPPORT OF DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT FOR NON-INFRINGEMENT Judge: Hon. Dana M. Sabraw Hearing Date: March 29, 2013 Time: 1:30 p.m. Courtroom: 13A – 13th Floor Case No. 12-cv-2346-DMS (WMC)

I, John K. Buche, do hereby declare under penalty of perjury under 18 U.S.C. §1001 that: 1. I am an attorney licensed to practice in the State of California and in the United States

District Court for the Southern District of California, and the principal of the firm Buche & Associates, P.C., counsel of record for Defendants Hire Order, Ltd., d/b/a HandsFreeVideo.com and Global One Sales and Distribution Sportsman Eyewear, LLC (collectively, “Defendants”). This Declaration is made of facts and matters within my own personal knowledge and if called as a witness, I could,

27 28 and would, competently testify thereto. I make this Declaration in support Defendants‟ Motion for
1

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Partial Summary Judgment for Non-Infringement of U.S. Patent No. D523,461 (the “„461 Patent”). 2. Attached hereto as Exhibit A is a true and correct copy of the „461 Patent retrieved

from the United States Patent & Trademark office‟s public records database, www.uspto.gov. 3. Attached hereto as Exhibit B is a true and correct copy of photographs taken by my

office that are of Defendants‟ Sportsman Eyewear®, the products that Plaintiff Oakley, Inc. (“Plaintiff”) has alleged infringe the „461 Patent (hereinafter the “Accused Products”). 4. Attached hereto as Exhibit C is a true and correct copy of a summary of patents in the

public record. Each excerpt is a true and correct rendition of the patented design. Such summary is included pursuant to Fed. R. Evid. 1006 and is for the convenience for the court. True and correct full

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
2

copies of the patents referenced in the summary are attached hereto as Exhibit D. 5. Attached hereto as Exhibit E is a true and correct excerpt of Figure 1 from the „461

Patent wherein my office has color-coded the elements of the design that Defendants purport even remotely, are arguably protectable (although Defendants contend that even some of these elements are either functional are previously disclosed in the prior art). This exhibit is for demonstrative purposes only. 6. Attached hereto as Exhibit F is a true and correct excerpt from the Manual of Patent

Examining Procedure (“MPEP”) §15.49-15.50, which the court may find useful because it discusses the importance of solid lines in design patent drawings. 7. Attached hereto as Exhibit G is a true and correct copy of Antonious v. Spalding &

Evenflo Companies., Inc., 217 F.3d 849 (1999), an unpublished case cited in the Memorandum of Points and Authorities. /// ///

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I declare under penalty of perjury under the laws of the United States of America and the State of California that the foregoing is true and correct and that this declaration was executed on December 27, 2012, in La Jolla, California.

Dated: December 27, 2012 /s/ John K. Buche John K. Buche

3

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EXHIBITS TO THE DECLARATION OF JOHN K. BUCHE IN SUPPORT OF DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT Exh. A B C Description A true and correct copy of U.S. Patent No. D523,461, issued June 20, 2006. True and correct copy of photographs of Defendants‟ Sportsman Eyewear®. A true and correct copy of a summary of patents cited as prior art in U.S. Patent No. D523,461. True and correct full copies of the patents referenced in the Exhibit C summary. Demonstrative exhibit of Figure 1 of the „461 Patent. A true and correct copy of an excerpt from the Manual of Patent Examining Procedure (“MPEP”) §15.49-15.50. A true and correct copy of Antonious v. Spalding & Evenflo Companies., Inc., 217 F.3d 849 (1999), an unpublished case. Page(s) 1-6 7-14 15-24

D E F

25-595 596 597-604

G

605-611

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EXHIBIT A

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EXHIBIT A

Page 1

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EXHIBIT A

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EXHIBIT A

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EXHIBIT A

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EXHIBIT A

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EXHIBIT A

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EXHIBIT B

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Matte Black Sportman® Eyewear

Figure 1

Figure 2

EXHIBIT B

Page 7

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Figure 3

Figure 4

EXHIBIT B

Page 8

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Figure 5

Figure 6

EXHIBIT B

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Figure 7

Figure 8

EXHIBIT B

Page 10

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Figure 9

Mossy Oak Sportman® Eyewear

Figure 10

EXHIBIT B

Page 11

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Figure 11

Figure 12

EXHIBIT B

Page 12

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Figure 13

Figure 14

EXHIBIT B

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Figure 15

Figure 16
 

EXHIBIT B

Page 14

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EXHIBIT C

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PRIOR ART - U.S. PATENT DOCUMENTS

HEARING AID DEVICE by J.W. Cox Pat. No. 2,207,705 (issued July 16, 1940)

DEAF AID APPARATUS by M.G. Thomas Pat. No. 2,720,559 (issued Oct. 11, 1955)

HEARING AID, CONSTRUCTION AND SUPPORT HTEREFORE by A. L. Smith Pat. No. 2, 765,373 (issued Oct. 2, 1956)

HEARING AIDS by G.E. Gustofson et al

Pat. No. 2,856,466 (issued Oct. 14, 1958)

EXHIBIT C Page 15

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PRIOR ART CONT’D - U.S. PATENT DOCUMENTS

ANTI_FOGGING EYEGLASSES by G. Aufricht Pat. No. 3,160,735 (issued Dec. 8, 1964)

SPORTSMAN’S GOGGLE by S. Jonassen Pat. No. 3,229,303 (issued Jan. 18, 1966)

EYESHIELD FITTED WITH EYELASHES OR THE LIKE by P. Sacco

Pat. No. 3,626,514 (issued Dec. 14, 1971)

HEARING AID CONSTRUCTION UTILIZING A VENTED TRANSDUCER COMPARETMENT FOR REDUCING FEEDBACK by E.M. Weiss Pat. No. 3,665,122* (issued May 23, 1972)

SPECTACLES HAVING BANDS THAT REDUCE SPECTACLE POSITIONING AND SECURING DEVICES by FACIAL WRINKLES by G.A. Brenn S. Wortman Pat. No. 3,675,991 (issued Jul. 11, 1972) Pat. No. 3,741,635* (issued Jun. 26, 1973) PRIOR ART CONT’D - U.S. PATENT DOCUMENTS

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SPECTACLE FRAME WITH TEMPLES ANGULARLY ADJUSTABLE WHILE SPECTACLE FRAME IS WORN ON HEAD by H. J. Lazarus Pat. No. 3,874,775 (issued Apr. 1, 1975)

EYEGLASS FRAME WITH HEARING AID by A. Delorenzo

Pat. No. 3,883,701* (issued May 13, 1975)

SPECTACLE STRUCTURE by M. F. Wichers

Pat. No. 3,944,344 (issued Mar. 16, 1976)

SEQUENTIAL FLASHING DEVICE FOR PERSONAL ORNAMENTATION by J. A. Cochran, Jr. Pat. No. 4,254,451 (issued Mar. 3, 1981)

HEARING AID WITH LOCATING MICROPHONES RADIO GLASSES by G. McCullough by E.Zwiker et al Pat. No. 4,773,095* (issued Sep. 20, 1988) Pat. No. 4,856,086* (issued Aug. 8, 1989) PRIOR ART CONT’D - U.S. PATENT DOCUMENTS

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AM/FM RADIO WITH SUNGLASS HOUSING by B. A. Gallimore Pat. No. 4,882769* (issued Nov. 21, 1989)

STEREO HEAD HEADPHONES BRACKET SYSTEM by L. A. Karppala, Jr. Pat. No. 4,888,805 (issued Dec. 19, 1989)

EYEGLASS FRAME WITH ELECTROACOUSTIC DEVICE FOR THE ENHANCEMENT OF SOUND INTELLIGIBILITY by R. Gorike Pat. No. 4,904,078* (issued Feb. 27, 1990)

COMBINATION RADIO AND EYEGLASSES by Shannon

Pat. No. 5,020,150* (issued May 28, 1991)

VISUAL AID FOR THE HEARING IMPAIRED by M. ASSISTIVE LISTENING DEVICE by C. W. Shannon et al D. Jhabvala et al Pat. No. 5,029,216* (issued Jul. 2, 1991) Pat. No. 5,159,639* (issued Oct. 27, 1992) PRIOR ART CONT’D - U.S. PATENT DOCUMENTS

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PORTABLE COMPUTER AND HEAD MOUNTED DISPLAY by A. Schoolman Pat. No. 5,281,957* (issued Jan. 25, 1994)

EARPHONE TYPE SPEAKER ASSEMBLY by J. Gluz

Pat. No. 5,336,285* (issued Aug. 2, 1994)

AUDIO-ADAPTER EYEGLASS RETAINER by J. P. de Silva Pat. No. 5,367,345* (issued Nov. 22, 1994); Pat. No. 5,608,808* (issued Mar. 4, 1997)

HEADPHONES by B. Ballein

Pat. No. 5,579,400* (issued Nov. 26, 1996)

RADIO EYEWEAR by P. A. Vogt et al

Pat. No. 5,606,743* (issued Feb. 25, 1997)

ACOUSTICALLY TRANSPARENT EARPHONES by J. H. Boyden Pat. No. 5,694,475* (issued Dec. 2, 1997); see also Pat. No. 5,737,436* (issued Apr. 7, 1998)

PRIOR ART CONT’D - U.S. PATENT DOCUMENTS

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RADIO ATTACHABLE TO SPECTACLES by J. D. Walker

Pat. NO. 5,715,323* (issued Feb. 3, 1998)

INDUSTRIAL SAFETY ASSEMBLY INCLUDING DISPOABLE EAR PROTECTION AND EARPHONE by T. Rickards Pat. No. 5,717,479* (issued Feb. 10, 1998)

EYESIGHT PROTECTION APPARATUS WITH ATTACHED EARPLUGS by A. L. Bright et al Pat. No. 5,781,272* (issued Jul. 14, 1998)

“HEARSPEAK” TWO-WAY VOICE RADIO COMMUNICATIONS EYEGLASSES by D. S. Jesiek Pat. No. 6,010,216* (issued Jan. 4, 2000)

EYEWEAR HEART RATE MONITOR by H. Linden

EYEGLASSES WITH LENSES RAPIDLY CHANGEABLE by J. H. Huang Pat. No. 6,431,705 (issued Aug. 13, 2002) Pat. No. 6,517,202 (issued Feb. 11, 2003) PRIOR ART CONT’D - U.S. PATENT DOCUMENTS

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EYEGLASS FRAME by Dairymple et al

Pat. No. 6,648,471 (issued Nov. 18, 2003)

ILLUMINATED EYEWEAR AND A METHOD FOR ILLUMINATING EYEWEAR by P. Watson Pat. No. 6,857,739 (issued Feb. 22, 2005)

HALF-JACKET EYEWEAR WITH REMOVABLE DUST SHIELD by K. Yi et al Pat. No.6,926,403 (issued Aug. 9, 2005)

SPEAKER MOUNTS FOR EYEGLASS WITH MP3 PLAYER by J. Jannard et al Pat. No. 7,147,324 (issued Dec. 12, 2006); see also Pat. No. 7,150,526 (issued Dec. 19, 2006), Pat. No. 7,216,973 (issued May 15, 2007)

EXHIBIT C Page 21

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PRIOR ART CONT’D - U.S. PATENT DOCUMENTS

WIRELESS INTERACTIVE HEADSET by J. Jannard et al Pat. No. 7,278,734 (issued Oct. 9, 2007)

SPECTACLE FRAME OR SIMILAR ARTICLE by K. S. Barrett Pat. No. D103,297 (issued Feb. 23, 1937)

SPECTACLE FRAME OR THE LIKE by L.L. Gagnon Pat. No. D146,538*(isssued Apr. 1, 1947)

PAIR OF SPECTACLES FOR EYE MAKE-UP by C. Baratelli Pat. No. D193252 (issued Jul. 17, 1962)

COMBINATION CAMERA AND PAIR OF SPECTACLES OR SIMILAR ARTICLE by H. Gleseking et al Pat. No. D201,050 (issued May 4, 1965)

PAIR OF SUNGLASSES AND RADIO COMBINATION by L. Fai

Pat. No. D207,919* (issued Jun. 13, 1967)

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PRIOR ART CONT’D - U.S. PATENT DOCUMENTS

EYEGLASSES by S. B. Fraser Et al.

Pat. No. D285,697 (issued Sep. 16, 1986)

COMBINED CAMERA AND EYEGLASSES by C. J. Johnson Pat. No. D287,021 (issued Dec. 2, 1986)

EYEGLASSES by J. H. Jannard Pat. No. D.343,182 (issued Jan. 11, 1994)

EYEGLASS RADIO by P. S. Haney Pat. No. D418,153* (issued Dec. 28, 1999)

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PRIOR ART CONT’D - U.S. PATENT DOCUMENTS

EYEWEAR by R.W. Green et al Pat. No. D426,845* (issued Jun. 20, 2000); see also Pat. No. D435,058;

SUNGLASSES by P. Bonnemere Pat. No. D453,024 (issued Jan. 22, 2002)

EXHIBIT C Page 24

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EXHIBIT D PART 1 OF 2

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TABLE OF CONTENTS FOR EXHIBIT D - FULL COPIES OF PATENTS REFERENCED AS PRIOR ART Patent No. 2,207,705 2,720,559 2,765,373 2,856,466 3,160,735 3,229,303 3,626,514 3,665,122 3,675,991 3,741,635 3,874,775 3,883,701 3,944,344 4,254,451 4,773,095 4,856,086 4,882,769 4,888,805 4,904,078 5,020,150 5,029,216 5,159,639 5,281,957 5,335,285 5,367,345 5,579,400 5,606,743 5,608,808 5,694,475 5,715,323 5,717,479 5,737,436 5,781,272 6,010,216 6,431,705 B1 6,517,202 B2 6,648,471 B1 6,857,739 B1 6,926,403 B2 **7,147,324 B2 **7,150,526 B2 Page No. 25 28 30 36 41 48 51 54 58 63 68 80 85 94 106 112 116 121 125 133 139 152 161 172 178 186 192 218 228 238 246 254 263 272 282 293 299 304 309 325 374

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**7,216,973 B2 **7,278,734 B2 D103,297 D146,538 D193,252 D210,050 D207,919 D285,697 D287,021 D343,182 D418,153 D426,845 D453,024

423 471 548 550 552 554 556 558 561 565 569 576 592

**Delineates patents that have been assigned to Plaintiff herein.

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EXHIBIT D PART 2 OF 2

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TABLE OF CONTENTS FOR EXHIBIT D - FULL COPIES OF PATENTS REFERENCED AS PRIOR ART Patent No. 2,207,705 2,720,559 2,765,373 2,856,466 3,160,735 3,229,303 3,626,514 3,665,122 3,675,991 3,741,635 3,874,775 3,883,701 3,944,344 4,254,451 4,773,095 4,856,086 4,882,769 4,888,805 4,904,078 5,020,150 5,029,216 5,159,639 5,281,957 5,335,285 5,367,345 5,579,400 5,606,743 5,608,808 5,694,475 5,715,323 5,717,479 5,737,436 5,781,272 6,010,216 6,431,705 B1 6,517,202 B2 6,648,471 B1 6,857,739 B1 6,926,403 B2 **7,147,324 B2 **7,150,526 B2 Page No. 25 28 30 36 41 48 51 54 58 63 68 80 85 94 106 112 116 121 125 133 139 152 161 172 178 186 192 218 228 238 246 254 263 272 282 293 299 304 309 325 374

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**7,216,973 B2 **7,278,734 B2 D103,297 D146,538 D193,252 D210,050 D207,919 D285,697 D287,021 D343,182 D418,153 D426,845 D453,024

423 471 548 550 552 554 556 558 561 565 569 576 592

**Delineates patents that have been assigned to Plaintiff herein.

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EXHIBIT E

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EXHIBIT F

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1503.02   Drawing [R-5]
37 C.F.R. 1.152   Design drawings.
The design must be represented by a drawing that complies with the requirements of § 1.84 and must contain a sufficient number of views to constitute a complete disclosure of the appearance of the design. Appropriate and adequate surface shading should be used to show the character or contour of the surfaces represented. Solid black surface shading is not permitted except when used to represent the color black as well as color contrast. Broken lines may be used to show visible environmental structure, but may not be used to show hidden planes and surfaces that cannot be seen through opaque materials. Alternate positions of a design component, illustrated by full and broken lines in the same view are not permitted in a design drawing. Photographs and ink drawings are not permitted to be combined as formal drawings in one application. Photographs submitted in lieu of ink drawings in design patent applications must not disclose environmental structure but must be limited to the design claimed for the article. Every design patent application must include either a drawing or a photograph of the claimed design. As the drawing or photograph constitutes the entire visual disclosure of the claim, it is of utmost importance that the drawing or photograph be clear and complete, and that nothing regarding the design sought to be patented is left to conjecture. When inconsistencies are found among the views, the examiner should object to the drawings and request that the views be made consistent. Ex parte Asano, 201 USPQ 315, 317 (Bd. Pat. App. & Inter. 1978); Hadco Products, Inc. v. Lighting Corp. of America Inc. , 312 F. Supp. 1173, 1182, 165 USPQ 496, 503 (E.D. Pa. 1970), vacated on other grounds,462 F.2d 1265, 174 USPQ 358 (3d Cir. 1972). When the inconsistencies are of such magnitude that the overall appearance of the design is unclear, the claim should be rejected under 35 U.S.C. 112, first and second paragraphs, as nonenabling and indefinite. See MPEP § 1504.04 , subsection I.A.

¶ 15.05.03    Drawing/Photograph Disclosure Objected To
The drawing/photograph disclosure is objected to [1].

Examiner Note:
In bracket 1, insert statutory or regulatory basis for objection and an explanation. ** >

¶ 15.05.04    Replacement Drawing Sheets Required
Corrected drawing sheets in compliance with 37 CFR 1.121( d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as amended. If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be

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necessary to show the renumbering of the remaining figures. If all the figures on a drawing sheet are canceled, a replacement sheet is not required. A marked-up copy of the drawing sheet (labeled as “Annotated Sheet”) including an annotation showing that all the figures on that drawing sheet have been canceled must be presented in the amendment or remarks section that explains the change to the drawings. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either "Replacement Sheet" or "New Sheet" pursuant to 37 CFR 1.121(d) . If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. <

¶ 15.05.05    Drawing Correction Required Prior to Appeal
Any appeal of the design claim must include the correction of the drawings approved by the examiner in accordance with Ex parte Bevan, 142 USPQ 284 (Bd. App. 1964).

Examiner Note:
This form paragraph can be used in a FINAL rejection where an outstanding requirement for a drawing correction has not been satisfied.

¶ 15.07    Avoidance of New Matter
When preparing new drawings in compliance with the requirement therefor, care must be exercised to avoid introduction of anything which could be construed to be new matter prohibited by 35 U.S.C. 132 and 37 CFR 1.121. Form paragraph 15.48 may be used to notify applicant of the necessity for good drawings.

¶ 15.48    Necessity for Good Drawings
The necessity for good drawings in a design patent application cannot be overemphasized. As the drawing constitutes the whole disclosure of the design, it is of utmost importance that it be so well executed both as to clarity of showing and completeness, that nothing regarding the design sought to be patented is left to conjecture. An insufficient drawing may be fatal to validity ( 35 U.S.C. 112, first paragraph). Moreover, an insufficient drawing may have a negative effect with respect to the effective filing date of a continuing application. In addition to the criteria set forth in 37 CFR 1.81-1.88, design drawings must also comply with 37 CFR 1.152 as follows:

I.   VIEWS
The drawings or photographs should contain a sufficient number of views to disclose the complete appearance of the design claimed, which may include the front, rear, top, bottom and sides. Perspective views are suggested and may be submitted to clearly show the appearance of three dimensional designs. If a perspective view is submitted, the surfaces shown would normally not be required to be illustrated in other views if these surfaces are clearly understood and fully disclosed in the perspective.

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Page 598

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Views that are merely duplicative of other views of the design or that are flat and include no surface ornamentation may be omitted from the drawing if the specification makes this explicitly clear. See MPEP § 1503.01 , subsection II. For example, if the left and right sides of a design are identical or a mirror image, a view should be provided of one side and a statement made in the drawing description that the other side is identical or a mirror image. If the design has a flat bottom, a view of the bottom may be omitted if the specification includes a statement that the bottom is flat and devoid of surface ornamentation. The term “unornamented” should not be used to describe visible surfaces which include structure that is clearly not flat. Philco Corp. v. Admiral Corp., 199 F. Supp. 797, 131 USPQ 413 (D. Del. 1961). Sectional views presented solely for the purpose of showing the internal construction or functional/ mechanical features are unnecessary and may lead to confusion as to the scope of the claimed design. Ex parte Tucker, 1901 C.D. 140, 97 O.G. 187 (Comm’r Pat. 1901); Ex parte Kohler, 1905 C.D. 192, 116 O.G. 1185 (Comm’r Pat. 1905). Such views should be objected to under 35 U.S.C. 112, second paragraph, and their cancellation should be required. However, where the exact contour or configuration of the exterior surface of a claimed design is not apparent from the views of the drawing, and no attempt is made to illustrate features of internal construction, a sectional view may be included to clarify the shape of said design. Ex parte Lohman , 1912 C.D. 336, 184 O.G. 287 (Comm’r Pat. 1912). When a sectional view is added during prosecution, the examiner must determine whether there is antecedent basis in the original disclosure for the material shown in hatching in the sectional view ( 37 CFR 1.84(h) (3) and MPEP § 608.02).

II.   SURFACE SHADING
While surface shading is not required under 37 CFR 1.152, it may be necessary in particular cases to shade the figures to show clearly the character and contour of all surfaces of any 3-dimensional aspects of the design. Surface shading is also necessary to distinguish between any open and solid areas of the article. However, surface shading should not be used on unclaimed subject matter, shown in broken lines, to avoid confusion as to the scope of the claim. Lack of appropriate surface shading in the drawing as filed may render the design nonenabling and indefinite under 35 U.S.C. 112, first and second paragraphs. Additionally, if the surface shape is not evident from the disclosure as filed, the addition of surface shading after filing may comprise new matter. Solid black surface shading is not permitted except when used to represent the color black as well as color contrast. Oblique line shading must be used to show transparent, translucent and highly polished or reflective surfaces, such as a mirror. ** > Contrast in materials may be shown by using line shading in one area and stippling in another. By using this technique, the claim will broadly cover contrasting surfaces unlimited by colors. The claim would not be limited to specific material either, as long as the appearance of the material does not patentably depart from the visual appearance illustrated in the drawing. < Form paragraph 15.49 may be used to notify applicant that surface shading is necessary.

¶ 15.49    Surface Shading Necessary
The drawing figures should be appropriately and adequately shaded to show clearly the character and/or contour of all surfaces represented. See 37 CFR 1.152. This is of particular importance in the showing of three (3) dimensional articles where it is necessary to delineate plane, concave, convex, raised, and/or depressed surfaces of the subject matter, and to distinguish between open and closed areas. Solid black surface shading is not permitted except when used to represent the color black as well as color contrast.

III.   BROKEN LINES
The two most common uses of broken lines are to disclose the environment related to the claimed design and to define the bounds of the claim. Structure that is not part of the claimed design, but is considered

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Page 599

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necessary to show the environment in which the design is associated, may be represented in the drawing by broken lines. This includes any portion of an article in which the design is embodied or applied to that is not considered part of the claimed design. In re Zahn , 617 F.2d 261, 204 USPQ 988 (CCPA 1980). ** > Unclaimed subject matter may be shown in broken lines for the purpose of illustrating the environment in which the article embodying the design is used. Unclaimed subject matter must be described as forming no part of the claimed design or of a specified embodiment thereof. < A boundary line may be shown in broken lines if it is not intended to form part of the claimed design. Applicant may choose to define the bounds of a claimed design with broken lines when the boundary does not exist in reality in the article embodying the design. It would be understood that the claimed design extends to the boundary but does not include the boundary. Where no boundary line is shown in a design application as originally filed, but it is clear from the design specification that the boundary of the claimed design is a straight broken line connecting the ends of existing full lines defining the claimed design, applicant may amend the drawing(s) to add a straight broken line connecting the ends of existing full lines defining the claimed subject matter. Any broken line boundary other than a straight broken line may constitute new matter prohibited by 35 U.S.C. 132 and 37 CFR 1.121(f) . However, broken lines are not permitted for the purpose of indicating that a portion of an article is of less importance in the design. In re Blum , 374 F.2d 904, 153 USPQ 177 (CCPA 1967). Broken lines may not be used to show hidden planes and surfaces which cannot be seen through opaque materials. The use of broken lines indicates that the environmental structure or the portion of the article depicted in broken lines forms no part of the design, and is not to indicate the relative importance of parts of a design. In general, when broken lines are used, they should not intrude upon or cross the showing of the claimed design and should not be of heavier weight than the lines used in depicting the claimed design. When broken lines cross over the full line showing of the claimed design and are defined as showing environment, it is understood that the surface which lies beneath the broken lines is part of the claimed design. When the broken lines crossing over the design are defined as boundaries, it is understood that the area within the broken lines is not part of the claimed design. Therefore, when broken lines are used which cross over the full line showing of the design, it is critical that the description of the broken lines in the specification explicitly identifies their purpose so that the scope of the claim is clear. As it is possible that broken lines with different purposes may be included in a single application, the description must make a visual distinction between the two purposes; such as --The broken lines immediately adjacent the shaded areas represent the bounds of the claimed design while all other broken lines are directed to environment and are for illustrative purposes only; the broken lines form no part of the claimed design.-- Where a broken line showing of environmental structure must necessarily cross or intrude upon the representation of the claimed design and obscures a clear understanding of the design, such an illustration should be included as a separate figure in addition to the other figures which fully disclose the subject matter of the design. Further, surface shading should not be used on unclaimed subject matter shown in broken lines to avoid confusion as to the scope of the claim. The following form paragraphs may be used, where appropriate, to notify applicant regarding the use of broken lines in the drawings.

¶ 15.50    Design Claimed Shown in Full Lines
The ornamental design which is being claimed must be shown in solid lines in the drawing. Dotted lines for the purpose of indicating unimportant or immaterial features of the design are not permitted. There are no portions of a claimed design which are immaterial or unimportant. See In re Blum , 374 F.2d 904, 153 USPQ 177 (CCPA 1967) and In re Zahn , 617 F.2d 261, 204 USPQ 988 (CCPA 1980).

¶ 15.50.01    Use of Broken Lines in Drawing
Environmental structure may be illustrated by broken lines in the drawing if clearly designated as environment in the specification. See 37 CFR 1.152 and MPEP § 1503.02 , subsection III.

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Page 600

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** >

¶ 15.50.02    Description of Broken Lines
The following statement must be used to describe the broken lines on the drawing ( MPEP § 1503.02 , subsection III): -- The broken line showing of [1] is for the purpose of illustrating [2] and forms no part of the claimed design. -The above statement [3] inserted in the specification preceding the claim.

Examiner Note:
1. In bracket 1, insert name of structure. 2. In bracket 2, insert --portions of the “article”-- or --environmental structure--. 3. In bracket 3, insert --must be-- or --has been--. <

¶ 15.50.03    Objectionable Use of Broken Lines In Drawings
Dotted lines or broken lines used for environmental structure should not cross or intrude upon the representation of the claimed design for which design protection is sought. Such dotted lines may obscure the claimed design and render the disclosure indefinite ( 35 U.S.C. 112).

¶ 15.50.04    Proper Drawing Disclosure With Use of Broken Lines
Where broken lines showing environmental structure obscure the full line disclosure of the claimed design, a separate figure showing the broken lines must be included in the drawing in addition to the figures showing only claimed subject matter, 35 U.S.C. 112, first paragraph.

¶ 15.50.05    Description of Broken Lines as Boundary of Design
The following statement must be used to describe the broken line boundary of a design ( MPEP § 1503.02 , subsection III): -- The broken line(s) which define the bounds of the claimed design form no part thereof.--

IV.   SURFACE TREATMENT

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Page 601

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The ornamental appearance of a design for an article includes its shape and configuration as well as any indicia, contrasting color or materials, graphic representations, or other ornamentation applied to the article (“surface treatment”). Surface treatment must be applied to or embodied in an article of manufacture. Surface treatment, per se (i.e., not applied to or embodied in a specific article of manufacture), is not proper subject matter for a design patent under 35 U.S.C. 171. Surface treatment may either be disclosed with the article to which it is applied or in which it is embodied and must be shown in full lines or in broken lines (if unclaimed) to meet the statutory requirement. See MPEP § 1504.01 . The guidelines that apply for disclosing computer-generated icons apply equally to all types of surface treatment. See MPEP § 1504.01 (a). A disclosure of surface treatment in a design drawing or photograph will normally be considered as prima facie evidence that the inventor considered the surface treatment shown as an integral part of the claimed design. An amendment canceling two-dimensional surface treatment or reducing it to broken lines will be permitted if it is clear from the application that applicant had possession of the underlying configuration of the basic design without the surface treatment at the time of filing of the application. See In re Daniels, 144 F.3d 1452, 1456-57, 46 USPQ2d 1788, 1790 (Fed. Cir. 1998). Applicant may remove surface treatment shown in a drawing or photograph of a design without such removal being treated as new matter, provided that the surface treatment does not obscure or override the underlying design. The removal of threedimensional surface treatment that is an integral part of the configuration of the claimed design, for example, removal of beading, grooves, and ribs, will introduce prohibited new matter as the underlying configuration revealed by this amendment would not be apparent in the application as originally filed. See MPEP § 1504.04, subsection II.

V.   PHOTOGRAPHS AND COLOR DRAWINGS
Drawings are normally required to be submitted in black ink on white paper. See 37 CFR 1.84(a)(1). Photographs are acceptable only in applications in which the invention is not capable of being illustrated in an ink drawing or where the invention is shown more clearly in a photograph (e.g., photographs of ornamental effects are acceptable). See also 37 CFR 1.81(c) and 1.83(c), and MPEP § 608.02. Photographs submitted in lieu of ink drawings must comply with 37 CFR 1.84(b). Only one set of black and white photographs is required. Color photographs and color drawings may be submitted in design applications if filed with a petition under 37 CFR 1.84(a)(2). Petitions to accept color photographs or color drawings will be considered by the Primary Examiners as delegated by the TC Director. A grantable petition under 37 CFR 1.84(a)(2) must explain that color drawings or color photographs are necessary because color is an integral part of the claimed design. Any other explanation as to why color drawings or color photographs are necessary will normally not be acceptable. A grantable petition must also be accompanied by: (1) the fee set forth in 37 CFR 1.17(h) ; (2) three sets of the color photographs or color drawings; and (3) an amendment to the specification inserting the following statement --The file of this patent contains at least one drawing/photograph executed in color. Copies of this patent with color drawing(s)/photograph(s) will be provided by the Office upon request and payment of the necessary fee.-- See 37 CFR 1.84(a)(2)( * > iii < ) and MPEP § 608.02. ** If the photographs are not of sufficient quality so that all details in the photographs are reproducible, this will form the basis of subsequent objection to the quality of the photographic disclosure. No application will be issued until objections directed to the quality of the photographic disclosure have been resolved and acceptable photographs have been submitted and approved by the examiner. If the details, appearance and shape of all the features and portions of the design are not clearly disclosed in the photographs, this would form the basis of a rejection of the claim under 35 U.S.C. 112, first and second paragraphs, as nonenabling and indefinite. Photographs and ink drawings must not be combined in a formal submission of the visual disclosure of the claimed design in one application. The introduction of both photographs and ink drawings in a design application would result in a high probability of inconsistencies between corresponding elements on the ink drawings as compared with the photographs. When filing informal photographs or informal drawings with the original application, a disclaimer included in

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Page 602

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the specification or on the photographs themselves may be used to disclaim any surface ornamentation, logos, written matter, etc. which form no part of the claimed design. See also MPEP § 1504.04 , subsection II. Color photographs and color drawings may be submitted in design applications if filed with a petition under 37 CFR 1.84(a)(2). Color may also be shown in pen and ink drawings by lining the surfaces of the design for color in accordance with the symbols in MPEP § 608.02. If the formal drawing in an application is lined for color, the following statement should be inserted in the specification for clarity and to avoid possible confusion that the lining may be surface treatment --The drawing is lined for color.-- However, lining a surface for color may interfere with a clear showing of the design as required by 35 U.S.C. 112, first paragraph, as surface shading cannot be used to define the contours of the design. If color photographs or color drawings are filed with the original application, color will be considered an integral part of the disclosed and claimed design. The omission of color in later filed formal photographs or drawings will be permitted if it is clear from the application that applicant had possession of the underlying configuration of the basic design without the color at the time of filing of the application. See In re Daniels , 144 F.3d 1452, 1456-57, 46 USPQ2d 1788, 1790 (Fed. Cir. 1998) and MPEP 1504.04 , subsection II. Note also 37 CFR 1.152, which requires that the disclosure in formal photographs be limited to the design for the article claimed. ** >

¶ 15.05.041    Informal Color Drawing(s)/Photograph(s) Submitted
Informal color photographs or drawings have been submitted for the purposes of obtaining a filing date. When formal drawings are submitted, any showing of color in a black and white drawing is limited to the symbols used to line a surface to show color (MPEP § 608.02). Lining entire surfaces of a design to show color(s) may interfere with a clear showing of the design as required by 35 U.S.C. 112 because surface shading cannot be used simultaneously to define the contours of those surfaces. However, a surface may be partially lined for color with a description that the color extends across the entire surface; this technique would allow for the use of shading on the rest of the surface showing the contours of the design (37 CFR 1.152). In the alternative, a separate view, properly shaded to show the contours of the design but omitting the color(s), may be submitted if identified as shown only for clarity of illustration. In any drawing lined for color, the following descriptive statement must be inserted in the specification (the specific colors may be identified for clarity): --The drawing is lined for color.-However, some designs disclosed in informal color photographs/drawings cannot be depicted in black and white drawings lined for color. For example, a design may include multiple shades of a single color which cannot be accurately represented by the single symbol for a specific color. Or, the color may be a shade other than a true primary or secondary color as represented by the drafting symbols and lining the drawing with one of the drafting symbols would not be an exact representation of the design as originally disclosed. In these situations, applicant may file a petition to accept formal color drawings or color photographs under 37 CFR 1.84(a)(2). <

¶ 15.45    Color Photographs/Drawings As Informal Drawings

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For filing date purposes, in those design patent applications containing color photographs/drawings contrary to the requirement for ink drawings or black and white photographs, the Office of Initial Patent Examination has been authorized to construe the color photographs/drawings as informal drawings rather than to hold the applications incomplete as filed. By so doing, the Patent and Trademark Office can accept the applications without requiring applicants to file petitions to obtain the original deposit date as the filing date. However, color photographs or color drawings are not permitted in design applications in the absence of a grantable petition pursuant to 37 CFR 1.84(a)(2). Before the color photographs or color drawings in this application can be treated as formal drawings, applicant must submit [1].

Examiner Note:
In bracket 1, insert --a petition--, --the fee--, --statement in the specification--, --explanation of why color disclosure is necessary--, and -- three full sets of color photographs or color drawings--.

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Page 604

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EXHIBIT G

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Antonious v. Spalding & Evenflo Companies., Inc., 217 F.3d 849 (1999)

Unpublished Disposition 217 F.3d 849 NOTICE: THIS IS AN UNPUBLISHED OPINION. (The Court’s decision is referenced in a “Table of Decisions Without Reported Opinions” appearing in the Federal Reporter. Use FI CTAF Rule 47.6 for rules regarding the citation of unpublished opinions.) United States Court of Appeals, Federal Circuit. Anthony John ANTONIOUS, Plaintiff-Appellant, v. SPALDING & EVENFLO COMPANIES., INC. and Spalding Sports Worldwide, Defendant-Appellees. No. 98-1478. | Aug. 31, 1999. Before MAYER, Chief Judge, RICH,* and SCHALL, Circuit Judges. Opinion

This case concerns iron type golf club heads. The ‘184 patent is directed to a club head design incorporating a cavity back bar weight mass configuration that is described as increasing golf club performance during a golf swing. The ‘056 and ‘308 patents are directed to ornamental designs of iron type golf club heads. Antonious sued Spalding, claiming that Spalding’s Top-Flite Tour (first through third generations) and Tour Edition irons infringed independent claims 1, 18, and 24, as well as associated dependent claims. See Antonious v. Spalding & Evenflo Cos., Inc., 44 F.Supp.2d at 736.1 Claim 1 of the ‘184 patent, which the parties agree is representative, reads as follows (emphasis of disputed limitation added): 1. An iron type golf club head for hitting a ball along an intended line of flight, said iron type golf club head comprising: a hosel, a heel, a toe, a ball striking face, a rear wall opposite said ball striking face, an upper surface including a top ridge, a lower surface including a sole, a center of gravity centrally located relative to said ball striking face, a peripheral mass located on said rear wall at an outer extremity of said club head, said peripheral mass and said rear wall defining a centrally located cavity formed within said peripheral mass; and a single weight member formed on and attached solely to said rear wall within said cavity, said weight member consisting essentially of a single back bar mass extending between an edge of said peripheral mass located adjacent said lower surface and an edge of said peripheral mass located adjacent said upper surface, said back bar mass being sized to provide a significant mass at its point of location to enhance the energy transfer of a golf ball being struck during the execution of a golf stroke, and said entire back bar mass being offset and completely spaced from the club head’s center of gravity. ’184 patent, col. 6 I. 46-col. 7 I. 2. The district court interpreted this limitation as follows: The phrase “formed on and attached solely to said rear wall within said cavity” is construed to mean that the weight member must be attached solely (i.e., only) to the rear wall (back side of the 1

DECISION SCHALL, Circuit Judge. *1 Anthony John Antonious appeals the decision of the United States District Court for the District of Maryland granting summary judgment of noninfringement in favor of Spalding & Evenflo Companies, Inc. and Spalding Sports Worldwide (Spalding) with respect to Antonious’s U.S. Patent No. 5,328,184 (the ‘184 patent) and U.S. Design Patent Nos. 320,056 (the ‘056 patent) and 327,308 (the ‘308 patent), and holding the ‘056 and ‘308 patents invalid for violating 35 U.S.C. § 112, ¶ 1. See Antonious v. Spalding & Evenflo Cos., Inc., 44 F.Supp.2d 732 (D.Md.1998). We affirm the district court’s noninfringement summary judgment in favor of Spalding, but reverse its summary judgment decision that the design patents are invalid.

DISCUSSION

I

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striking surface) and not attached also to the peripheral mass within the cavity. *2 Antonious, 44 F.Supp.2d at 736. Holding that there was no dispute of material fact that the corresponding weight member in the accused devices was “integral with, and attached to, the peripheral mass of the club,” the court concluded that the devices did not literally infringe the ‘184 patent. Id. at 737. The court also held that there was no infringement under the doctrine of equivalents, stating that a finding of equivalence would impermissibly remove the limitation that the weight member be “formed on and attached solely to” the rear wall of the cavity. See id. at 737-38. Antonious also claimed that Spalding’s Top Flite Tour and Tour Editions infringed his ‘056 and ‘308 design patents. The district court granted summary judgment of noninfringement in favor of Spalding, stating that “no reasonable fact finder could find substantial similarity such that a purchaser would be deceived into thinking that the Spalding product was of the Antonious design.” Antonious v. Spalding & Evenflo Cos., Inc., 1998 U.S. Dist. Lexis 10731, at *7 (D.Md.1998). In addition, the court held both patents invalid for failure to meet the requirements of 35 U.S.C. § 112, ¶ 1, by reason of indefiniteness. See id. at 9-10. Antonious appeals.

properly construed claims to the device accused of infringing.” Markman v. Westview Instruments, Inc., 52 F.3d 967, 976, 34 USPQ2d 1321, 1326 (Fed.Cir.1995) (en banc). We review the first step de novo in a summary judgment case, just as we would after a full trial. See id. at 979, 34 USPQ2d at 1329. In the context of a district court’s grant of summary judgment of noninfringement, our review of the second step consists, first, of a de novo determination as to whether any genuine issue of material fact exists, and second, if there is no genuine issue of material fact, a de novo review as to whether the alleged infringer was entitled to a judgment as a matter of law. See Cole, 102 F.3d at 528, 41 USPQ2d at 1004. In the absence of a genuine issue of material fact, summary judgment in favor of an alleged infringer is properly granted (a) in the context of literal infringement if no reasonable jury could determine that the accused device meets every limitation of the properly construed claims, see, e.g., Gentry Gallery, Inc. v. Berkline Corp., 134 F.3d 1473, 1476, 45 USPQ2d 1498, 1500 (Fed.Cir.1998), and (b) under the doctrine of equivalents if the evidence is such that no reasonable jury could determine that a claim limitation is met in the accused device by an equivalent, see Warner-Jenkinson Co. v. Hilton Davis Chem. Co., 520 U.S. 20, 39 n. 8, 41 USPQ2d 1865, 1875 n. 8 (1997).

II Our review of a grant of summary judgment is plenary. See Cole v. Kimberly-Clark Corp., 102 F.3d 524, 528, 41 USPQ2d 1001, 1004 (Fed.Cir.1996). We must determine whether “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Unidynamics Corp. v. Automatic Prod. Int’l, Ltd., 157 F.3d 1311, 1316, 48 USPQ2d 1099, 1102 (Fed.Cir.1998) (quoting Fed.R.Civ.P. 56(c)). When determining whether a genuine issue of material fact exists, the evidence must be viewed in the light most favorable to the nonmovant and all reasonable inferences must be drawn in favor of that party. See id.

1. Claim Construction *3 Claim construction is a question of law, which we review de novo. See Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1456, 46 USPQ2d 1169, 1174 (Fed.Cir.1998) (en banc ). When construing a claim, a court should first look to the intrinsic evidence, i.e., the patent itself, its claims, written description, and, if in evidence, the prosecution history. See Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582, 39 USPQ2d 1573, 1576 (Fed.Cir.1996). The court may receive extrinsic evidence to educate itself about the invention and the relevant technology, but the court may not use extrinsic evidence to arrive at a claim construction that is clearly at odds with the construction mandated by the intrinsic evidence. See Key Pharms. v. Hercon Lab. Corp., 161 F.3d 709, 716, 48 USPQ2d 1911, 1917 (Fed.Cir.1998). Dictionary definitions are considered to be intrinsic evidence. See Karlin Tech. Inc. v. Surgical Dynamics, Inc., 177 F.3d 968, 971, 50 USPQ2d 1465, 1468 (Fed.Cir.1999). Claim construction begins with the words of the claim. See Bell Communications Research, Inc. v. Vitalink Communications Corp ., 55 F.3d 615, 619-20, 34 USPQ2d 1816, 1819 (Fed.Cir.1995). In this case, the infringement analysis centers on the construction of the “a single weight member formed on and attached solely to said rear wall within said cavity” limitation in claim 1 of 2

A. The ’184 Utility Patent “An infringement analysis entails two steps. The first step is determining the meaning and scope of the patent claims asserted to be infringed. The second step is comparing the

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the ‘184 patent, and in particular, the phrase “attached solely to said rear wall.” The critical terms are the words “attached,” “solely,” and “rear wall.” The relevant definition of “attach” is to “make fast or join,” Philip Babcock Gove et al., Webster’s Third New International Dictionary 140 (1971), while “solely” is defined as “to the exclusion of alternate or competing things,” id. at 2168. Thus, the plain meaning of “attached solely to said rear wall” is that the weight member cannot be fastened to any portion of the golf club head except the rear wall. We must also determine whether, as Antonious argues, the term “rear wall” is properly construed to comprise the peripheral mass. The district court held that the peripheral mass is not properly considered to be part of the rear wall. We agree. Claim 1 plainly defines the rear wall and peripheral mass as separate elements. See ’184 patent, col. 6, ll. 47-54 (“said [iron] comprising ... a rear wall opposite said ball striking face, ... [and] a peripheral mass located on said rear wall at an outer extremity of said club head, said peripheral mass and said rear wall defining a centrally located cavity”) (emphasis added). Therefore, because the peripheral mass is defined by the claim as being separate from, albeit located on, the rear wall, the plain meaning of “a single weight member formed on and attached solely to said rear wall” does not include a weight member fastened to the peripheral mass. Antonious argues that the written description compels us to interpret the rear wall term as including the peripheral mass. He asserts that all of the preferred embodiments shown in the figures indicate that the weight bar is attached both to the rear wall and to the peripheral mass, and that a claim interpretation that does not include those embodiments must be incorrect. It is true that claims are normally construed to cover preferred embodiments. See Vitronics, 90 F.3d at 1583, 39 USPQ2d at 1578 (construing claim language so as to include the only embodiment described in the written description, where the prosecution history was not in evidence). However, Antonious’s argument is unpersuasive in this case, where most of the preferred embodiments are not excluded under the plain meaning of the claim language and the limitation at issue was added during prosecution. *4 We agree with the district court’s statement that “[f]airly and reasonably read, the patent disclosure contains embodiments which can be viewed as ones in which the weight member is other than integral with the peripheral mass.” Spalding I at *7.2 Thus, Antonious is incorrect in asserting that all of the preferred embodiments would be excluded from coverage by claim

1 if the claim language is interpreted to mean that the weight member cannot be fastened to any portion of the golf club head except the rear wall, and that the rear wall does not include the peripheral mass. In addition, the exclusion of some preferred embodiments by the “attached solely to said rear wall” limitation is more easily understood given the fact that Antonious added this claim language during prosecution, i.e., after he had submitted the written description, including the figures showing the preferred embodiments. During prosecution, the examiner rejected claims in a parent application of the ‘184 patent pursuant to 35 U.S.C. § 103, based on U.S. Patent No. 3,814,437 (Winquist) in view of U.S. Patent Nos. 4,602,787 (Sugioka) and 4,511,145 (Schmidt). Winquist discloses an iron-type golf club head with a peripheral mass and a single weight member (in the form of a symbol) attached both to the rear wall and the peripheral mass. Sugioka discloses a hollow metal “wood”-type golf club head with a detachable sole plate. A weight chamber is mounted on the upper surface of the sole plate and several reinforcing ribs are attached to the weight chamber and the sole plate so that the ribs come into contact with the sides of the club head when the sole plate is attached to the upper portion of the club head. In the rejection, the examiner stated that “it would have been obvious to modify the Winquist device ... so long as the bar connects the upper and lower surfaces of the rear cavity as shown by Winquist.” As part of his office action response, Antonious added the “attached solely to said rear wall” language. Antonious referred to this limitation only in distinguishing Sugioka, and argues now that an interpretation of this language to exclude irons where the weight member is attached to the rear wall and peripheral mass is therefore unjustified. This argument is not persuasive. We do not disagree with Antonious’s suggestion that the addition of this claim language may not have been needed in order to distinguish Sugioka. However, an applicant is free to give up more claim scope than is necessary to overcome a reference. See Bai v. L & L Wings, Inc., 160 F.3d 1350, 1356, 48 USPQ2d 1674, 1678-79 (Fed.Cir.1998); see also Lemelson v. General Mills, Inc., 968 F.2d 1202, 1206, 23 USPQ2d 1284, 1288 (Fed.Cir.1992) (“The prosecution history gives insight into what the applicant originally claimed as the invention, and often what the applicant gave up in order the meet the Examiner’s objections.”); Standard Oil Co. v. American Cyanamid Co., 774 F.2d 448, 452, 227 USPQ 293, 296 (Fed.Cir.1985) (the prosecution history “limits the interpretation of claims so as to exclude any 3

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interpretation that may have been disclaimed or disavowed during prosecution in order to obtain claim allowance”). We are satisfied that, whether he needed to or not, Antonious gave up a claim scope that could include a weight bar attached to the peripheral mass and the rear wall when he added the “attached solely to said rear wall” limitation. *5 Antonious finally argues that the examiner’s rejection pursuant to 35 U.S.C. § 102 based on U.S. Patent No. 5,048,835 (Gorman) shows that the examiner must have agreed with Antonious’s proffered interpretation of the disputed claim language, because Gorman discloses a weight member attached to the peripheral mass. We are not persuaded by this argument for two reasons. First, we would not be persuaded to interpret claim 1 as including the peripheral mass as part of the rear wall even if the examiner had expressly indicated that he thought this was so, given the plain meaning of the claim language. Moreover, the examiner did not discuss the “attached solely to said rear wall” limitation with respect to Gorman, which raises the possibility that the examiner may not have considered that claim language when issuing that rejection. Consequently, we construe the phrase “a single weight member formed on and attached solely to said rear wall” to mean that the weight member cannot be fastened to any portion of the golf club except the rear wall; we further conclude that the peripheral mass is not part of the rear wall.

no reasonable jury could determine that the accused device meets every limitation of the properly construed claims. See Gentry Gallery, 134 F.3d at 1476, 45 USPQ2d at 1500. We have construed the “single weight member formed on and attached solely to said rear wall” limitation to mean that the weight member cannot be fastened to any portion of the golf club except the rear wall, and that the peripheral mass is not part of the rear wall. There is no dispute that the weight member in each of the accused clubs is attached to the peripheral mass. We therefore hold that no reasonable jury could determine that the accused devices embody the properly construed “attached solely to said rear wall” limitation, and consequently affirm the district court’s grant of summary judgment in favor of Spalding on the literal infringement issue.

2. Comparing the Construed Claim to the Accused Devices The second step of the infringement analysis consists of comparing the properly construed claims to the accused devices. See Cybor, 138 F.3d at 1467, 46 USPQ2d at 1184. Antonious appeals both the district court’s grant of summary judgment of no literal infringement and no infringement under the doctrine of equivalents. We address the literal infringement issue first.

b. Doctrine of Equivalents In the absence of a genuine issue of material fact, summary judgment of no infringement under the doctrine of equivalents is properly granted if the evidence is such that no reasonable jury could determine that a claim limitation is met in the accused device by an equivalent. See Warner-Jenkinson Co. v. Hilton Davis Chem. Co., 520 U.S. 20, 39 n. 8, 41 USPQ2d 1865, 1875 n. 8 (1997). Two limits on the scope of the doctrine of equivalents apply in this case. The first is prosecution history estoppel, which prevents operation of the doctrine of equivalents to expand the literal coverage of a claim limitation to include subject matter surrendered during prosecution of the patent. See Augustine Medical Inc. v.. Gaymar Ind. Inc., 181 F.3d 1291, 50 USPQ2d 1900, 1905 (Fed.Cir.1999) (noting that the scope of the estoppel is determined from the viewpoint of a competitor, i.e., what a competitor would reasonably conclude that the applicant had surrendered during prosecution). The second relevant limitation on the doctrine of equivalents is that application of the doctrine is not allowed such broad play as to effectively eliminate an element in its entirety. See Warner-Jenkinson at 29, 41 USPQ2d at 1871. We first discuss the application of prosecution history estoppel. *6 Antonious amended the asserted claims with the “attached solely to said rear wall” limitation during prosecution in response to a substantive rejection. Thus, prosecution history estoppel applies to limit the scope of the asserted claims. We hold that a competitor would reasonably conclude that Antonious thereby surrendered coverage of any iron-type golf club head comprising a weight member attached both to the peripheral mass and the rear wall of the club head. Because there is no dispute that each of the accused clubs has a weight member 4

a. Literal Infringement “To prove literal infringement, the patentee must show that the accused device contains every limitation in the asserted claims. If even one limitation is missing or not met as claimed, there is no literal infringement.” Mas-Hamilton Group v. LaGard, Inc., 156 F.3d 1206, 1211, 48 USPQ2d 1010, 1014-15 (Fed.Cir.1998). In the absence of a genuine issue of material fact, summary judgment of no literal infringement is properly granted if

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attached both to the peripheral mass and the rear wall, no reasonable jury could conclude that an equivalent of the “single weight member formed on and attached solely to said rear wall” limitation is embodied in the accused devices. This provides the first basis upon which we affirm the district court’s grant of summary judgment of no infringement under the doctrine of equivalents. Moreover, even if prosecution history estoppel did not apply in this case, we would affirm the district court’s summary judgment of no infringement under the doctrine of equivalents based on the term of exclusion, “solely.” We have interpreted the literal scope of the claim limitation “a single weight member formed on and attached solely to said rear wall” to mean that the weight member cannot be connected to any structure other than the rear wall, and that the rear wall does not comprise the peripheral mass. Thus, application of the doctrine of equivalents to expand the scope of the claim to include an iron-type golf club head with a weight member attached to both the rear wall and the peripheral mass would impermissibly eliminate that limitation. Cf. Athletic Alternatives Inc. v. Prince Manufacturing Inc., 73 F.3d 1573, 1582, 37 USPQ2d 1365, 1373 (Fed.Cir.1996) (holding that the doctrine of equivalents could not expand the scope of a limitation requiring that tennis racket strings be splayed across the racket frame width in a range that “varies between” a minimum and maximum to cover a tennis racket with strings splayed in two distinct offset distances, because a proper construction of the limitation required at least a minimum, maximum, and intermediate offset distance, and there was no equivalent to the intermediate offset distance in the accused device). Therefore, since the weight member in the accused clubs is attached to both the rear wall and the peripheral mass, no reasonable jury could determine that the “attached solely to said rear wall” limitation is met in the accused clubs by an equivalent. This provides an independent ground for affirming the district court’s grant of summary judgment of no infringement under the doctrine of equivalents.

1. Validity *7 A patent is presumed to be valid and must be proven invalid by clear and convincing evidence. See L.A. Gear, Inc. v. Thom McAn Shoe Co., 988 F.2d 1117, 1123, 25 USPQ2d 1913, 1917 (Fed.Cir.1993). Design patents must comply with the requirements of 35 U.S.C. § 112. See Litton Sys., Inc. v. Whirlpool Corp., 728 F.2d 1423, 1440-41, 221 USPQ 97, 108 (Fed.Cir.1984) (citing 35 U.S.C. § 171). Whether a claim is indefinite and therefore invalid for violating section 112, ¶ 1, is a question of law, which we review de novo. See Personalized Media Communications v. International Trade Comm’n, 161 F.3d 696, 702, 48 USPQ2d 1880, 1886 (Fed.Cir.1998). The district court held both patents invalid pursuant to section 112, ¶ 1, on the ground that each showed two materially different designs: In the ‘056 patent, Figures 2 and 3 (assumed to be sufficiently similar to constitute a single design) differ from [the Maruman prior art reference] only by virtue of a triangular top ridge and a bar which is thicker at the bottom than the top. Figure 4, however, discloses a design having neither of the points of novelty presented in the Figure 2 and 3 design....

The Court finds that no one skilled in the art could determine from the ‘056 patent what is the alleged single ornamental design that is being disclosed and claimed. One cannot know whether, in building a club pursuant to the alleged design, the club should or should not have a triangular top ridge, whether it should or should not have a bar which tapers from bottom to top or is uniform, or whether it should or should not have the markedly flat appearance of Figure 4. Accordingly, the Court holds that the ‘056 patent is invalid for failure to meet the standards of 35 U.S.C. § 112. Similarly, in regard to the ‘308 patent, one would not know whether the design called for the tapered bar shown in Figures 2 and 3 or the uniform bar in a club head with a “squashed” appearance shown in Figure 4. Accordingly, on the same rationale as for the ‘056 patent, the Court holds the ‘308 patent to be invalid. Antonious, 1998 U.S. Dist. Lexis 10731, at *9-10. The ‘056 patent figures are shown as follows:

B. The ‘056 and ‘308 Design Patents The district court held on summary judgment that the design patents were invalid and not infringed by the accused products. For the reasons discussed hereinbelow, we reverse the district court’s summary judgment holding the design patents invalid, but affirm the court’s summary judgment holding the patents not infringed by the accused products. We begin with the validity issue.

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TABULAR OR GRAPHIC MATERIAL SET AT THIS POINT IS NOT DISPLAYABLE PHOTO The ‘308 patent figures are shown as follows: TABULAR OR GRAPHIC MATERIAL SET AT THIS POINT IS NOT DISPLAYABLE PHOTO A design patent may disclose more than one embodiment of a design. See In re Rubinfield, 270 F.2d 391, 395, 123 USPQ 210, 214 (CCPA 1959) (“[W]e are of the opinion that it cannot be stated as an invariable rule that a design application cannot disclose more than one embodiment of the design. Whether such disclosure is improper must depend upon the particular circumstances of the individual case involved.”); see also In re Klein, 987 F.2d 1569, 1570 n. 1, 26 USPQ2d 1133, 1334 n. 1 (Fed.Cir.1993) (“[T]he drawings depict three slight variations on a single basic design.... No objection has been made to this not uncommon practice.”). The primary validity issue here, then, is whether the ‘056 and ‘308 patents each disclose one embodiment of one design, more than one embodiment of one design, or more than one design. As we discuss below, we are satisfied that the figures in each patent do not disclose more than one design. Therefore, the patents are not invalid for being indefinite. *8 The district court focused its analysis on apparent differences between Figure 4 and Figures 2 and 3 in each patent. Specifically, the court observed that Figure 4 showed neither of the two points of novelty that the court found in Figures 2 and 3 (i.e., a weight bar that was thicker at the bottom than at the top, and, in Figure 2 of the ‘056 patent, a triangular top ridge), and that Figure 4 showed a flat or “squashed” appearance compared to the corresponding club heads shown in Figures 2 and 3. We are satisfied, however, that the “squashed” appearance of Figure 4 compared to the corresponding Figures 2 and 3 in each patent is due to the perspective used in drawing the figure. That perspective also accounts for the failure of Figure 4 of the ‘056 patent to indicate the triangular top ridge shown in Figure 2 of that patent. We are therefore left with the apparent differences in the thickness profile of the weight bar shown in the figures as a potential source of a substantially different overall appearance which could justify holding the patents invalid for attempting to claim more than one design. See Rubinfield, 270 F.2d at 393, 123 USPQ at 212 (“[T]he total substance of a design rests in its appearance as a whole.”). We agree with the district court that Figure 4 of each

patent appears to show a constant-thickness weight bar.3 We cannot tell, though, whether this is due to a drawing error, the perspective used in drawing the figures, or if Antonious intended to claim an embodiment of the golf club head design with a constant-thickness weight bar. However, Figures 2 and 3 plainly show a tapered weight bar. We conclude that a person of skill in the art would primarily look to Figures 2 and 3 to determine the shape of the weight bar, and any associated discrepancies in Figure 4 would not be sufficient to preclude such a person from gaining an overall understanding of the total substance of the designs. Thus, we conclude that the figures in each of the design patents disclose at most different embodiments of one design per patent. Consequently, we hold that Spalding could not have shown by clear and convincing evidence that the ‘056 and ‘308 patents were invalid for indefiniteness. We therefore reverse the district court’s decision holding the ‘056 and ‘308 design patents invalid.

2. Infringement The Supreme Court established the test for determining infringement of a design patent in Gorham Co. v. White, 81 U.S. (14 Wall.) 511, 528 (1871): [I]f, in the eye of an ordinary observer, giving such attention as a purchaser usually gives, two designs are substantially the same, if the resemblance is such as to deceive such an observer, inducing him to purchase one supposing it to be the other, the first one patented is infringed by the other. “In addition to overall similarity of designs, the accused device must appropriate the novelty in the patented device which distinguishes it from the prior art. Absent the presence of the novel features in the accused products, a patented design has not been appropriated.” Avia Group Int’l Inc. v. L.A. Gear California, 853 F.2d 1557, 1565, 7 USPQ2d 1548, 1554 (Fed.Cir.1988) (citations and quotation omitted). The district court properly stated these tests. See Antonious, 1998 U.S. Dist. Lexis 10731, at *5-6. *9 The accused Spalding club heads are shown below: TABULAR OR GRAPHIC MATERIAL SET AT THIS POINT IS NOT DISPLAYABLE PHOTO The district court relied on the Gorham substantial 6

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similarity test in granting summary judgment of noninfringement in favor of Spalding, stating that [i]t is patently manifest, from a comparison of the accused products with the Design Patents, that no reasonable fact finder could find substantial similarity such that that a purchaser would be deceived into thinking that the Spalding product was of the Antonious design. The bar in the accused products is curved in a fashion which unmistakably distinguishes it from the design of the patents at issue.” Id. at *7. Antonious argues that this statement shows that the district court erred by failing to compare the overall designs of each patent to that of the accused clubs. We disagree. The second sentence in the above quotation merely indicates that the district court noted that the curved shape of the weight bars in the accused products Footnotes
*

unmistakably distinguishes the overall design of Spalding’s accused clubs from the designs claimed in the ‘056 and ‘308 patents. After reviewing the evidence and considering all of Antonious’s arguments, we hold that no reasonable jury would conclude that the overall designs of the accused products and the patents are so substantially similar that an ordinary observer would be deceived into purchasing a Spalding club, thinking that it was a club embodying one of the patented designs. We therefore affirm the district court’s grant of summary judgment in favor of Spalding on the design patent infringement issue. Each party shall bear its own costs.

Parallel Citations 1999 WL 777450 (C.A.Fed.)

Circuit Judge Rich heard oral argument in this case, but died on June 9, 1999. The case was decided by the remaining judges in accordance with Fed. Cir. Rule 47.11. There are two other opinions of the district court that set forth decisions that are relevant to this appeal. Antonious v. Spalding & Evenflo Cos., Inc., 1998 U.S. Dist. Lexis 10740 (D.Md.1998), concerned, inter alia, the construction of claim 1 of the ‘184 patent. Antonious v. Spalding & Evenflo Cos., Inc., 1998 U.S. Dist. Lexis 10731 (D.Md.1998), concerned the design patents. The district court based this conclusion on the differences in the preferred embodiments shown in the figures of the ‘184 patent. The court found that the preferred embodiments shown in figures 2, 3, 9 and 10 show the weight bar attached both to the rear wall and the peripheral mass, as indicated by the absence of a joint line between the weight member and the lower portion of the peripheral mass. The court found that figures 4-8 and 11-20 show the weight bar not attached to the peripheral mass, based on the presence of a line between the weight member and the lower portion of the peripheral mass. We also note that the weight bar in Figure 3 appears to be thinner at the top than the weight bar in Figure 2.

1

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3

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