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Crocs, Inc. v. International Trade Commission

February 24, 2010; as amended February 26, 2010

CROCS, INC., APPELLANT,
v.
INTERNATIONAL TRADE COMMISSION, APPELLEE, AND DOUBLE DIAMOND DISTRIBUTION, LTD., INTERVENOR, AND HOLEY SOLES HOLDINGS, LTD., AND EFFERVESCENT, INC., INTERVENORS.



Appeal from the United States International Trade Commission in Investigation No. 337-TA-567.

The opinion of the court was delivered by: Rader, Circuit Judge.

Published opinion

Before LOURIE, RADER, and PROST, Circuit Judges.

The United States International Trade Commission ("ITC" or "Commission") found no violation of 19 U.S.C. § 337. Specifically the Commission determined that U.S. Patent No. 6,993,858 (the "'858 patent") would have been obvious at the time of invention and that none of the intervenors infringed U.S. Patent No. D517,789 (the "'789 patent"). The Commission also determined that Crocs, Inc. ("Crocs") had not satisfied the technical prong of the industry requirement under section 337 for the '789 patent. Because the Commission erred in finding that the prior art taught all of the claimed elements of the '858 patent and incorrectly weighed the secondary considerations, this court reverses the Commission's finding that the '858 patent would have been obvious. Because the Commission also erred in claim construction for the '789 patent, in applying the ordinary observer test for infringement, and in applying the technical prong of the section 337 domestic industry requirement, this court reverses the Commission's determination on the '789 patent.

I.

Crocs is the assignee of the '858 and '789 patents. Crocs's '858 patent, entitled "Breathable Footwear Pieces," issued on February 7, 2006, based on a filing in 2003. The asserted claims of the '858 patent, independent claims 1 and 2, cover foam footwear having a foam base section-an upper portion ("upper") and a sole-and a foam strap. A pair of connectors ties the foam strap to the base section. This connection creates frictional forces that keep the strap in an ideal position at the rear of the base section.

Claim 1 of the '858 patent reads as follows (emphasis added): A footwear piece comprising:

[a] a base section including an upper and a sole formed as a single part manufactured from a moldable foam material; and

[b] a strap section formed of a moldable material that is attached at opposite ends thereof to the upper of the base section with plastic connectors such that the moldable foam material of the strap section is in direct contact with the moldable material of the base section and pivots relative to the base section at the connectors;

[c] wherein the upper includes an open rear region defined by an upper opening perimeter, and wherein frictional forces developed by the contact between the strap section and the base section at the plastic connectors are sufficient to maintain the strap section in place in an intermediary position after pivoting, whereby the strap section lends support to the Achilles portion of the human foot inserted in the open rear region; and

[d] wherein the upper includes a substantially horizontal portion and a substantially vertical portion forming a toe region that generally follows the contour of a human foot, wherein the toe region tapers from an inner area of the base section where the larger toes exist to an outer area of the base section where the smaller toes exist; and

[e] wherein the sole includes a bottom surface having front and rear tread patterns longitudinally connected by a flat section.

Claim 2 of the '858 patent reads as follows (emphasis added): A footwear piece comprising:

[a] a base section including an upper and a sole formed as a single part manufactured from a moldable foam material; and

[b] a strap section formed of a molded foam material attached at opposite ends thereof to the base section such that the strap section is in direct contact with the base section and pivots relative to the base section; and

[c] wherein the upper includes an open rear region defined by an upper opening perimeter; and wherein the sole includes a rear perimeter; and wherein the strap section pivots between a first contact point on the upper opening perimeter and a second contact point on the rear perimeter, and wherein frictional forces developed by the contact between the strap section and the base section at the points of attachment are sufficient to maintain the strap section in place in an intermediary position after pivoting whereby the strap section lends support to the Achilles portion of a human foot inserted in the open rear region; and

[d] wherein the upper includes a substantially horizontal portion and a substantially vertical portion forming a toe region that generally follows the contour of a human foot, wherein the toe region tapers from the inner area of the base section where the larger toes exist to the outer area of the base section where the smaller toes exist; and

[e] wherein a decorative pattern of raised bumps is molded or otherwise created in the upper near to and extending the length of the upper opening perimeter; and

[f] wherein a plurality of ventilators are formed in both the substantially vertical portion and the substantially horizontal portion, and wherein the ventilators extend up a majority of the height of the vertical portion;

[g] wherein the vertical portion of the upper includes an upper strip, wherein the ventilators are formed in the upper strip, and wherein the upper strip extends from the toe region to the points of attachment for the strap section, and wherein the sole includes a lower strip that parallels the upper strip and is separated by a line that extends from the toe region to a heel of the footwear piece, and wherein the lower strip vertically rises in a direction toward the heel; and

[h] wherein the sole includes a bottom surface having front and rear tread patterns longitudinally connected by a flat section without tread patterns bounded by raised side portions; and

[i] wherein the sole further includes a top surface having a support base including a raised pattern where a foot contacts the support base.

The '789 patent, entitled "Footwear," issued on March 28, 2006, based on a filing in 2004. The '789 patent has one claim and seven figures. It claims an ornamental footwear design as depicted in the figures:

Figure 1

Figure 2 Figure 3

Figure 4 ...


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