U.S. Court of Appeals, Federal Circuit
August 31, 1999
ANTHONY JOHN ANTONIOUS, PLAINTIFF-APPELLANT,
SPALDING & EVENFLO COMPANIES., INC. AND SPALDING SPORTS WORLDWIDE, DEFENDANT-APPELLEES.
Mayer, Chief Judge, Rich,* and Schall, Circuit Judges.
The opinion of the court was delivered by: Schall, Circuit Judge.
NOTE: Pursuant to Fed. Cir. R. 47.6, this Disposition is not citable as precedent. It is a public record. This Disposition will appear in tables published periodically.
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.
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.*fn1 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 l. 46 - col. 7 l. 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 striking surface) and not attached also to the peripheral mass within the cavity." 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.
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.
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 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).
1. Claim Construction
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 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.
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.*fn2 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 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.
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.
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.
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 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.
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., --- F.3d ---, 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. 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 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.
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.
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.
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.
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.*fn3 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.
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.
The accused Spalding club heads are shown below:
The district court relied on the Gorham substantial 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 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.
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.