Sarah FackrellDec 22, 2023

An all-too-common #Schedule A story:

1. Defendants file a motion to dismiss, pointing out issues that apply to all the defendants--e.g., joinder, patent validity:

https://www.scribd.com/document/694239916/XYZ-pickle-jar-v-Schedule-A-Motion-to-Dismiss-Good-Includes-Pics

2. Plaintiff dismisses those defendants, judge denies the motion to dismiss as moot without considering the issues:

https://www.scribd.com/document/694240026/XYZ-pickle-jar-v-Schedule-A-Order-Denying-MTD-as-Moot

#DesignPatents #Joinder

Show threadSarah FackrellDec 22, 2023

On the merits, I didn't pull up the references cited by these defendants in support of their § 103 arguments.

As readers of this feed already know, it's REALLY difficult to invalidate a design patent under § 103. See, e.g., https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3329899

But it still would have been nice to see the court consider the issue.

Show threadSarah FackrellDec 22, 2023
As to infringement, the defendants here seem a bit confused about how #EgyptianGoddess works. You don't compare the plaintiff's product to your product. You compare your product to the design patent drawings.
Show threadSarah Fackrell
One thing that's interesting from these pictures, though, is that they clearly show that the plaintiff's product (at least the one shown here) is NOT a commercial embodiment of the patented design.
Dec 22, 2023 at 1:56pmWeb
Show threadSarah FackrellDec 22, 2023
As to actual infringement, the accused product (at least the one at issue in this motion to dismiss), looks more like the patented design than the plaintiff's product. Maybe close enough to get through #EgyptianGoddess step one. But there are visual differences that are not immaterial (e.g., the side fluting), so this infringement claim probably should not succeed on the merits.
Show threadAlyson DeckerDec 22, 2023
@design_law This is wild.