In Giving Crocs its Patent Bite Back, Has the Federal Circuit Increased the Value of all Design Patents?


On February 24, 2010, a three-judge panel of the U.S. Court of Appeals for the Federal Circuit resurrected Croc’s ability to sue its imitators for patent infringement by reversing a 2008 ruling by the International Trade Commission in what is arguably one of the Federal Circuit’s most pro-design patent decisions. Crocs, Inc. v. International Trade Comm’n, No. 2008-1596 (Fed. Cir. Feb. 24, 2010). The ITC had previously ruled that one of Croc’s primary utility patents on footwear (Pat. No. 6,993,858) was invalid for being obvious and one of its primary design patents on footwear (Pat. No. D517,789) was not infringed by a host of imported foam footwear competitors. The Federal Circuit reversed both rulings and, in finding the design patent infringed by all of the competitors, provided a guide for determining design patent infringement under the ordinary observer test.

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