Case 2:23-cv-00640-RGK-MAR Document 56 Filed 12/15/23 Page 1 of 7 Page ID #:1598

1 Stephen McArthur (SBN 277712)

stephen@smcarthurlaw.com
2 Thomas Dietrich (SBN 254282)
tom@smcarthurlaw.com
3 THE MCARTHUR LAW FIRM, P.C.
8383 Wilshire Blvd., Ste. 800
4 Beverly Hills, CA 90211
Telephone: (323) 639-4455
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Attorneys for Plaintiff
6 Covves LLC
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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COVVES, LLC, Case No. 2:23-cv-00640-RGK-MAR
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Plaintiff, PLAINTIFF COVVES, LLC’S
12 NOTICE OF MOTION AND
v. MOTION IN LIMINE NO. 1 TO
13 EXCLUDE PRIOR ART FROM
TARGET CORPORATION and DIFFERENT ARTICLES OF
14 TARGET BRANDS, INC., MANUFACTURE
15 Defendants. Hon. R. Gary Klausner
16 Trial Date: Jan. 30, 2023
FPTC Date: Jan. 8, 2023
17 Time: 9:00 a.m.
Courtroom: 850, 255 E. Temple St., Los
18 Angeles, CA 90012
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COVVES’ MIL NO. 1 RE: PRIOR ART FROM OTHER ARTICLES OF MANUFACTURE
Case 2:23-cv-00640-RGK-MAR Document 56 Filed 12/15/23 Page 2 of 7 Page ID #:1599

1 PLEASE TAKE NOTICE THAT Plaintiff Covves, LLC (“Covves”) moves in

2 limine to prevent Target from arguing or introducing evidence concerning prior art
3 relating to articles of manufacture that are not pool floats.
4 Subject to the Court’s availability, the motions will be heard on January 8,
5 2024, at 9:00 am, before the Honorable Judge R. Gary Klausner. Covves bases its
6 motion on the memorandum of points and authorities set forth below, any
7 subsequently filed supplemental briefing and accompanying papers, the pleadings and
8 papers filed in this action, and any other arguments, evidence, and matters submitted
9 to the Court, at the hearing or otherwise.
10 This motion is made following a conference of counsel pursuant to L.R. 7-3,
11 which took place telephonically on December 8, 2023. The parties did not reach a
12 resolution.
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Dated: December 15, 2023 Respectfully submitted,
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15 THE MCARTHUR LAW FIRM, PC
16 By: /s/ Thomas Dietrich
Stephen McArthur
17 Thomas Dietrich
Attorneys for Plaintiff Covves, LLC
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1 I. Introduction
2 Covves requests that the Court exclude Target from introducing evidence or
3 argument relating to any prior art that relates to an article of manufacture that is not an
4 inflatable pool float. The primarily factual issue at trial will be infringement; Target is
5 barred already from presenting argument or evidence on invalidity. See DN 35.
6 Infringement must be analyzed through the eyes of the ordinary observer comparing
7 the patented design to the accused product in light of the prior art. In a recent
8 precedential ruling, the Federal Circuit held that, “to qualify as comparison prior art
9 [used in the infringement analysis], the prior-art design must be applied to the article
10 of manufacture identified in the claim.” Columbia Sportswear N. Am., Inc. v. Seirus
11 Innovative Accessories, Inc., 80 F.4th 1363, 1378 (Fed. Cir. 2023).
12 Target has listed dozens of exhibits of alleged prior art depicting things such as
13 statutory at the Boston Statehouse, screenshots from the 1940 Disney film Fantasia,
14 15th and 16th century tapestries, a “how-to-draw-a-unicorn” video,” and various
15 patents for statues and non-inflatable toys. But the article of manufacture in question
16 for both patents-at-issue is an inflatable pool float. Target’s attempt to rely on non-
17 pool-float prior art in the infringement analysis directly contradicts Columbia. The
18 Court should therefore exclude all non-pool-float prior art as irrelevant under Federal
19 Rule of Evidence 402 and misleading to the jury and a waste of time under Rule 403.
20 II. Background
21 Covves’ ’617 patent describes the design of a full-size unicorn-shaped
22 inflatable toy. Covves’ ’370 patent describes the design of a mini-unicorn-shaped
23 inflatable cupholder.
24 In its exhibit list, Target has identified dozens of alleged prior art references
25 that are not for inflatable floats. These include references such as:
26 • A tapestry titled “A Unicorn Chasing Lizards from a Pond” created in
27 around 1573.
28 • Another tapestry titled “The Unicorn in Captivity” created in around

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1 1495.
2 • A photo of statuary on the Old State House in Boston.
3 • A photo of a unicorn figure on the cover of an old car’s radiator cap.
4 • A design patent for a unicorn figurine.
5 • A design patent for a “My Little Pony” children’s toy.
6 • A utility patent for a pogo stick.
7 See Dietrich Declaration filed herewith, Exhibit (“Ex.”) 1. Indeed, Target has only
8 produced a few pieces of prior art that actually relate to pool floats. It apparently
9 intends to rely primarily on non-pool-float prior art at trial.
10 III. Argument
11 A. Prior Art Must Be for Same Article of Manufacture to Be Used as
12 Comparison Prior Art in Infringement Analysis
13 Under the Egyptian Goddess test for design patent infringement, the jury must
14 compare the patented design to the accused product in light of the prior art, through
15 the eyes of an ordinary observer. Egyptian Goddess, Inc. v. Swisa, Inc., 543 F.3d 665,
16 676 (Fed. Cir. 2008). “When the differences between the claimed and accused design
17 are viewed in light of the prior art, the attention of the hypothetical ordinary observer
18 will be drawn to those aspects of the claimed design that differ from the prior art.” Id.
19 The question thus becomes what prior art should be used in this comparison. The
20 Federal Circuit answered that question in 2023, holding that to qualify as “comparison
21 prior art used in an infringement analysis . . . the prior-art design must be applied to
22 the article of manufacture identified in the claim.” Columbia, 80 F.4th at 1378. This is
23 a bright-line rule that is “easy to articulate and provides clear boundaries.” Id. at 1379.
24 Before Columbia, the Federal Circuit had already held that anticipatory prior art
25 had to be for the same article of manufacture claimed in the patent, and to be
26 infringing the accused product had to be for the same article of manufacture claimed
27 in the patent. Id. at 1376 (citing In re Surgisil, L.L.P., 14 F.4th 1380, 1382 (Fed. Cir.
28 2021) (claim scope limited to a lip implant; designs applied to other articles—there, an

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1 art tool—could not anticipate); Curver Luxembourg, SARL v. Home Expressions Inc.,
2 938 F.3d 1334, 1336, 1340, 1343 (Fed. Cir. 2019) (claim scope limited to a chair;
3 design applied to a basket could not infringe)). The Columbia court found it made
4 “good practical sense” to apply the same rule to prior art used in the infringement
5 comparison. Id. at 1379. Thus, the Columbia court found prior art in that case could
6 only be for a heat reflective material, the article claimed in the patent-at-issue. Id. at
7 1381. Likewise, the court explained that the art tool in Surgisil could not be
8 comparison prior art to a patent for a lip implant, even though they looked similar,
9 because the articles had different functions. Id. at 1380-81 (“one was used for
10 smoothing and blending large areas of pastel or charcoal; the other was for implanting
11 in a lip.”).
12 B. Target’s Non-Pool-Float Prior Art Should Be Excluded
13 As noted, Target has identified many exhibits that depict alleged prior art for
14 articles of manufacture other than inflatable pool floats. None of that prior art is for
15 the same article of manufacture claimed in either patent-in-suit. Such prior art thus
16 cannot be used as comparison prior art in the infringement analysis. See Columbia, 80
17 F.4th at 1378. This is a bright-line rule of the Federal Circuit—there is no wiggle
18 room here for Target. And because Target is barred from arguing invalidity, see DN
19 35, it cannot claim it wants to rely on that prior art for purposes of obviousness.
20 While a 14th century tapestry or a 21st century drawing video may depict a
21 unicorn, that is utterly irrelevant to the infringement comparison analysis under Rule
22 401. Any comparison prior art must be for an inflatable pool float. Further, Target’s
23 introduction of prior art for other articles of manufacture that cannot validly be used as
24 comparison prior art would waste time and potentially mislead the jury, violating Rule
25 403. On those grounds, Covves respectfully requests that the Court exclude evidence
26 and argument concerning all alleged prior art references that depict an article of
27 manufacture that is not an inflatable pool float.
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1 Conclusion
2 For the foregoing reasons, Covves respectfully requests that the Court grant its
3 motion to exclude at trial any evidence and argument concerning prior art for articles
4 of manufacture that are not inflatable pool floats.
5 Dated: December 15, 2023 Respectfully submitted
6 THE MCARTHUR LAW FIRM, PC
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By /s/ Thomas Dietrich
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Stephen C. McArthur
9 Thomas E. Dietrich
10 Attorneys for Plaintiff Covves, LLC
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1 CERTIFICATE OF SERVICE
2 Case Name: Covves, LLC v. Target Corporation et al.
Case No.: 2:23-cv-00640-RGK-MAR
3
IT IS HEREBY CERTIFIED THAT:
4
I, the undersigned, declare under penalty of perjury that I am a citizen of the
5 United States over 18 years of age. My business address is 8383 Wilshire Blvd., Ste.
800, Beverly Hills, CA 90211. I am not a party to the above-entitled action.
6
I have caused service of the foregoing documents, described as:
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PLAINTIFF COVVES, LLC’S NOTICE OF MOTION AND MOTION IN
8 LIMINE NO. 1 TO EXCLUDE PRIOR ART FROM DIFFERENT ARTICLES
OF MANUFACTURE
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on the following parties by electronically filing the foregoing on December 15, 2023,
10 with the Clerk of the District Court using its ECF System, which electronically
notifies them.
11
Christina Goodrich Attorneys for Defendants
12 christina.goodrich@klgates.com
Cassidy Young
13 Cassidy.Young@klgates.com
K&L GATES LLP
14 10100 Santa Monica Boulevard
Eighth Floor
15 Los Angeles, CA 90067
Tel. 310-552-5000
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I declare under penalty of perjury under the laws of the United States of America that
17 the foregoing is true and correct.
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19 Date: 12/15/2023 By: /s/ Thomas Dietrich
20 Thomas Dietrich

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