In plaintiff's design patent suit against Walgreens and another defendant involving shoes typically referred to as "clogs", district court's grant of summary judgment in favor of defendants in finding that the claims of the asserted patents were invalid as anticipated by a patent assigned to Crocs, Inc. is affirmed in part, vacated in part and remanded as, although district court correctly held that the ordinary observer test is the sole test of invalidity, it erred, however, in failing to compare the insole patterns in plaintiff's patented designs to the prior art as part of an overall comparison of the designs.
Appeal from: United States District Court for the Southern District of Florida
Decided December 17, 2009
Opinion by Dyk, Circuit Judge
For Appellant: George L. Pinchak, Tarolli Sundhein Covell & Tummino LLP
For Appellee: Mark P. Walters, Darby & Darby PC