[00:00:25] Speaker 04:
Our last argument of the day is appeal number 18-2214, Kerber Luxembourg, versus Home Expressions, Incorporated.

[00:00:38] Speaker 01:
Good morning, Your Honors.

[00:00:39] Speaker 01:
Please report.

[00:00:40] Speaker 01:
When the district court concluded that the 946 patent was limited to the ornamental design shown in the drawings embodied in the chair,

[00:00:50] Speaker 01:
The court violated the most fundamental principle of design patent law, that the scope of a design patent is what's shown in the drawings.

[00:00:59] Speaker 01:
Because a design patent contains no written description of the invention, the drawings are the invention.

[00:01:06] Speaker 04:
So if you're saying that if the claim language says what your claim language says, which is something about an ornamental design of a pattern for a chair as illustrated in the figures, you're saying we can just ignore that phrase for a chair.

[00:01:28] Speaker 04:
And so therefore, your figures, which show a pattern disembodied from any article,

[00:01:35] Speaker 04:
thereby encompasses every article, any possible article, to which that design is applied?

[00:01:43] Speaker 01:
Well, Your Honor, I disagree with the fundamental premise of your question that the design shown in the drawings is disembodied from any article.

[00:01:52] Speaker 01:
Because if you look at the figures, for example, Figure 4, which is a side-view three-dimensional figure, not all of that is the ornamental design pattern.

[00:02:03] Speaker 01:
It's a panel.

[00:02:03] Speaker 01:
It's a structure that has

[00:02:05] Speaker 01:
the ornamental design pattern a part of it.

[00:02:08] Speaker 01:
The patent would not have issued if the design was disembodied from something structural.

[00:02:15] Speaker 00:
What in figure four is structural, and how is it different from the other figures?

[00:02:25] Speaker 00:
I don't see how figure four provides any more structure than figures one, two, or three.

[00:02:30] Speaker 01:
Well, if you look at it from the side, Your Honor, you see the

[00:02:35] Speaker 01:
that look like they are projecting, that are the why, they are on something.

[00:02:41] Speaker 01:
The something has dimensions, it has width, it's structure.

[00:02:45] Speaker 01:
If you compare that to Figure 3, which is a side view, it has dimensions.

[00:02:50] Speaker 01:
It's a three-dimensional figure.

[00:02:54] Speaker 01:
Also in Figure 2, it's a three-dimensional figure.

[00:02:58] Speaker 04:
This is a three-dimensional figure right here?

[00:03:00] Speaker 01:
No, no.

[00:03:01] Speaker 01:
That is a side view.

[00:03:03] Speaker 01:
This is the three-dimensional figure.

[00:03:05] Speaker 01:
No, no.

[00:03:05] Speaker 01:
Figure four is a three-dimensional figure.

[00:03:08] Speaker 01:
That's appendix page 27.

[00:03:09] Speaker 01:
This is the three-dimensional figure.

[00:03:11] Speaker 01:
That's correct.

[00:03:14] Speaker 01:
That's correct.

[00:03:15] Speaker 01:
It has width.

[00:03:16] Speaker 01:
It has height.

[00:03:17] Speaker 01:
It has depth.

[00:03:18] Speaker 01:
And the other figures... What article of manufacture is this?

[00:03:22] Speaker 01:
It is, to me, it is a panel.

[00:03:25] Speaker 01:
It is a structural piece that has this Y-shaped ornamental design embodied in it, attached to it.

[00:03:33] Speaker 01:
That's what the district court didn't decide, actually.

[00:03:37] Speaker 01:
The district court just said the title of your patent was checked.

[00:03:42] Speaker 04:
Let me start from the beginning.

[00:03:43] Speaker 04:
Yes, sir.

[00:03:44] Speaker 04:
What is the scope of your design patent in your view?

[00:03:48] Speaker 04:
Is it any article to which this design is applied?

[00:03:54] Speaker 01:
No, it's an article that has this design

[00:04:01] Speaker 01:
as part of its structural embodiment.

[00:04:03] Speaker 04:
For example, if you had a design patent and the drawing showed... I mean, if this water jug had this design on it, this particular pattern on it, would it infringe your design patent?

[00:04:16] Speaker 01:
If that water jug had that?

[00:04:18] Speaker 01:
It might.

[00:04:21] Speaker 01:
It might because... Even though this is not a chair?

[00:04:26] Speaker 01:
That's correct.

[00:04:27] Speaker 04:
OK, so what are we supposed to do?

[00:04:29] Speaker 04:
I mean, patents are supposed to have an important public notice function.

[00:04:33] Speaker 04:
Your title says for a chair.

[00:04:35] Speaker 04:
Your claim says for a chair.

[00:04:37] Speaker 04:
Each description of the individual figure says for a chair, for a chair, for a chair.

[00:04:45] Speaker 04:
What are we supposed to make of that in terms of notice to the public?

[00:04:50] Speaker 01:
Part of the public notice function, Your Honor, is practitioners understanding what the law is.

[00:04:55] Speaker 01:
If it was a utility patent,

[00:04:57] Speaker 01:
The practitioner would know the law of claim construction.

[00:04:59] Speaker 01:
If it's a design patent, the same is true.

[00:05:02] Speaker 01:
They would also know that the ordinary observer test for infringement of a design patent is the same exact test used for anticipation.

[00:05:13] Speaker 01:
Now, under Inrei Glavis, which is a presidential decision of this court, anticipation is determined not by the article in which the prior art design is embodied.

[00:05:24] Speaker 01:
It could be any article.

[00:05:25] Speaker 01:
And it's the same test as infringement.

[00:05:29] Speaker 04:
What about Egyptian goddess, which is the ordinary observer test?

[00:05:33] Speaker 04:
We are controlled by our end bank Egyptian goddess opinion that came out a year ago, which says, is it so similar that an ordinary customer would be induced in buying a product thinking it is the patent owner's product?

[00:05:52] Speaker 04:
You know, I really don't, and I think we all concede that nobody would be purchasing the defendant's basket believing that it was a chair.

[00:06:02] Speaker 01:
But the design shown in the drawings is the claim, and it's not a chair.

[00:06:07] Speaker 01:
It's a structural component.

[00:06:10] Speaker 04:
If it's limited to a chair, I mean, there's no dispute here that 12b6 was correctly granted.

[00:06:16] Speaker 01:
Well, if part of the ornamental design shown in the drawings were portions of a chair, I'd agree with you.

[00:06:25] Speaker 04:
I know, but I'm saying when we read the entire patent, which includes the actual claim language associated with the figures, and the claim language refers to a chair, if we read the design patent scope the same way the district court did, that is, this particular ornamental design

[00:06:45] Speaker 04:
in the context of just chairs, then there's no dispute that the 12b6 was correctly granted.

[00:06:52] Speaker 01:
Is that right?

[00:06:53] Speaker 01:
Yes, Your Honor.

[00:06:54] Speaker 01:
If you limit this patent to the ornamental design shown in a chair.

[00:06:59] Speaker 04:
And you have now a second design patent for this very pattern where the claim says for a basket.

[00:07:06] Speaker 04:
Is that right?

[00:07:07] Speaker 04:
I think they do.

[00:07:09] Speaker 04:
OK.

[00:07:09] Speaker 04:
But how come you're not using that one, then, against the defendant's baskets?

[00:07:14] Speaker 04:
That I can't say, Your Honor.

[00:07:16] Speaker 04:
Instead, we're using one for a chair against the defendant's baskets.

[00:07:19] Speaker 01:
Well, we have to go back to the drawings.

[00:07:23] Speaker 01:
How does the law make sense?

[00:07:25] Speaker 00:
Can I ask you why can't you say?

[00:07:28] Speaker 00:
I'm just curious.

[00:07:29] Speaker 00:
You say you can't say why the basket patent was not asserted here.

[00:07:34] Speaker 00:
Why not?

[00:07:35] Speaker 01:
I don't have that answer, Your Honor.

[00:07:37] Speaker 01:
I was not really involved in the underlying litigation.

[00:07:42] Speaker 01:
I don't have that answer.

[00:07:43] Speaker 01:
I wish I did, but I don't.

[00:07:45] Speaker 00:
How do you what about the there are a number of district court cases that support that have analyzed the legal issue of how to interpret design patent claims and the import of the language.

[00:07:58] Speaker 00:
that says, for example, if it's for a chair or for a basket, identifying the article of manufacture on which the design is located.

[00:08:07] Speaker 00:
Those cases have said that that language does have some impact when you're interpreting claim it should be included.

[00:08:16] Speaker 00:
What do you think of those cases?

[00:08:19] Speaker 01:
I don't think they apply, Your Honor.

[00:08:21] Speaker 01:
There were three cases.

[00:08:22] Speaker 00:
Yeah?

[00:08:22] Speaker 00:
Why don't they apply?

[00:08:23] Speaker 01:
And one of them was the Disney case.

[00:08:25] Speaker 01:
In each one of those cases,

[00:08:28] Speaker 01:
The article of manufacture, to use the district court's words that's listed in the patent, was part of the claim design in the drawing.

[00:08:36] Speaker 01:
So for example, in Disney, there was a duck call shown in the drawings, and the duck call was part of the claim design.

[00:08:46] Speaker 01:
They found that the duck call made by the defendant was not similar enough.

[00:08:51] Speaker 00:
Why don't you depict a chair in your figures?

[00:08:54] Speaker 00:
Why do you not depict?

[00:08:57] Speaker 00:
the context in which the design is located.

[00:09:01] Speaker 00:
I mean, as you said earlier, it could cover a water jug.

[00:09:03] Speaker 00:
Why don't you have a context provided in your figures?

[00:09:07] Speaker 01:
I can guess from the prosecution history, Your Honor.

[00:09:09] Speaker 01:
What happened was this application was allowed on the merits.

[00:09:14] Speaker 01:
Prosecution was closed.

[00:09:15] Speaker 01:
And the title of it was funky, if I can use that word.

[00:09:21] Speaker 01:
It said, furniture and then in parentheses, part of.

[00:09:25] Speaker 01:
And the examiner said, that kind of doesn't make sense.

[00:09:27] Speaker 01:
How about chair?

[00:09:30] Speaker 01:
And then the patentee accepted that.

[00:09:32] Speaker 01:
And then the other parts of the patent were formalized to coincide with that.

[00:09:37] Speaker 01:
But the application was allowed already.

[00:09:40] Speaker 01:
So I would think that if the patent office thought the name, the title of this application was relevant to claim scope, they would have said so.

[00:09:52] Speaker 01:
And they would have said, well, wait a minute.

[00:09:53] Speaker 01:
You don't show a chair.

[00:09:55] Speaker 04:
I don't... Well, the ex parte coil action said, the claim in a design patent must be directed to the design for an article.

[00:10:04] Speaker 04:
And then it said, you know, and then it said, what you've got in your application right now is too vague.

[00:10:13] Speaker 04:
And that's why the examiner tried to helpfully suggest, let's move this thing to a pattern for a chair.

[00:10:20] Speaker 04:
And that's what the applicant agreed to.

[00:10:24] Speaker 04:
So now, and the applicant amended everything, the claim, the title, the figure description.

[00:10:32] Speaker 01:
Yes, but you have to square that, Your Honor, with the law of anticipation.

[00:10:35] Speaker 01:
When this patent was examined.

[00:10:38] Speaker 04:
Well, is there any law out there that says in design patent land, you can get a design patent

[00:10:46] Speaker 04:
for a surface ornamentation in the abstract, such that it encompasses every possible article that might have that very surface ornamentation.

[00:11:00] Speaker 01:
No, but this is not in the abstract.

[00:11:02] Speaker 01:
And may I give an analogy?

[00:11:05] Speaker 01:
If there were a design patent and the drawing showed a piece of fabric, and the accused products were

[00:11:13] Speaker 01:
boot, shoes, socks, pants, jackets, shirts that included that fabric.

[00:11:19] Speaker 01:
They infringe even though none of those things are shown in the patent drawings.

[00:11:25] Speaker 04:
Now, that's your interpretation of the law.

[00:11:27] Speaker 04:
There's a counterinterpretation of the law, which is that designs must be, when you're claiming them and patenting them, the design has to be within the context of an article of manufacture.

[00:11:40] Speaker 04:
You don't just get

[00:11:41] Speaker 04:
a design of a fabric per se and then any particular kind of clothing that has that fabric then is covered by such a design patent.

[00:11:54] Speaker 01:
And actually Apple versus Samsung says that the article of manufacture need not be a complete product.

[00:12:00] Speaker 01:
The district court cited Apple versus Samsung in a footnote, really didn't apply it

[00:12:04] Speaker 01:
And I believe this is this type of case, because it's a component.

[00:12:09] Speaker 01:
It's a structure that can be incorporated into a tabletop, a chair, or a bench, or a basket.

[00:12:16] Speaker 00:
The problem is that how do I not interpret that very prosecution history that you're talking about as instead saying, I'm going to limit your invention to a chair?

[00:12:27] Speaker 00:
Use of this panel, as you refer to it, on a chair.

[00:12:32] Speaker 00:
And that's how your claim is going to be interpreted.

[00:12:34] Speaker 00:
The case law that you're relying on, that the design patent can cover just a part of an overall device, doesn't detract from the fact that that fabric, for example, is itself an article manufacturer.

[00:12:50] Speaker 00:
And probably the design patent would have referred to a fabric as being the article manufacturer.

[00:12:55] Speaker 00:
Here, your patent refers to a chair.

[00:13:00] Speaker 01:
When they examine this patent, Your Honor,

[00:13:02] Speaker 01:
they examined it for anticipation and obviousness.

[00:13:04] Speaker 01:
When they examined it for anticipation, they applied the same ordinary observer test you apply for infringement.

[00:13:12] Speaker 01:
However, when they looked for prior art designs, in Ray Glavis is very clear.

[00:13:20] Speaker 01:
It's not limited to the particular article stated in the patent.

[00:13:24] Speaker 01:
You can look at any article.

[00:13:26] Speaker 01:
So under the century-old maxim, that which anticipates it before,

[00:13:32] Speaker 01:
in a fringe as if later, how could it be limited to a chair?

[00:13:37] Speaker 01:
Because that's not what's shown in the drawings.

[00:13:39] Speaker 01:
And that was not the scope of the examination for anticipation.

[00:13:44] Speaker 04:
You're into your rebuttal.

[00:13:45] Speaker 04:
Would you like to save it?

[00:13:46] Speaker 04:
I will save it, Your Honor.

[00:13:47] Speaker 04:
Thank you.

[00:13:59] Speaker 02:
May I please report, Your Honors, I'm Steve Avile on behalf of Home Expressions.

[00:14:07] Speaker 04:
Do you think GLAVUS is still good law?

[00:14:10] Speaker 04:
The so-called GLAVUS rule is expressed in GLAVUS about how non-analogous art can be anticipatory if the non-analogous art has the very design that's described and claimed in the design patent application?

[00:14:27] Speaker 02:
I don't know that it is or it's not.

[00:14:30] Speaker 04:
It's in the MPEP though, right?

[00:14:32] Speaker 04:
It is in the MPEP.

[00:14:34] Speaker 02:
So are you saying then that there's an MPEP provision that's invalid?

[00:14:39] Speaker 02:
I don't know the answer to that.

[00:14:40] Speaker 02:
I don't know how the PTO is actually applying Glavis in practice.

[00:14:47] Speaker 04:
Which anticipates if before, infringes if after, right?

[00:14:51] Speaker 02:
Well, it's an often repeated principle.

[00:14:57] Speaker 02:
Is it that true?

[00:14:59] Speaker 02:
Well, it can't be.

[00:15:01] Speaker 02:
It can't be true.

[00:15:02] Speaker 02:
It can't be true because in this case, if in fact, Lavis is being applied because- I've never heard of an exception to that age-old principle.

[00:15:20] Speaker 02:
Well, I think the predominant principle here is what the court said in Markman, which is the claim defines the scope of the invention.

[00:15:34] Speaker 02:
That's the predominant principle I think you start with.

[00:15:37] Speaker 02:
And that's what the district court did here.

[00:15:39] Speaker 02:
It started with what the claim covers, the claim

[00:15:42] Speaker 02:
as amended.

[00:15:43] Speaker 04:
I'm trying to understand GLAVUS right now.

[00:15:45] Speaker 02:
Yeah, I understand.

[00:15:46] Speaker 02:
I need your help on GLAVUS.

[00:15:48] Speaker 02:
Well, there's language of GLAVUS and there's the holding of GLAVUS.

[00:15:53] Speaker 02:
We're talking about the language, not the holding.

[00:15:55] Speaker 04:
The language of GLAVUS that is reflected in the MPEP, that according to that manual, all design patent examiners are supposed to follow.

[00:16:07] Speaker 02:
What Galavis was talking about was looking, it didn't specifically address, as I view it, non-analogous art in anticipation.

[00:16:17] Speaker 02:
It looked at what use was being put to a particular design that it didn't matter.

[00:16:26] Speaker 02:
And I took it as,

[00:16:28] Speaker 02:
whether you're using something as a broom or a mop, it could be used for different purposes.

[00:16:42] Speaker 02:
That's the way I understood the case.

[00:16:44] Speaker 04:
I didn't understand it to say anticipation can be... My understanding of what the CCPA was trying to say in GLAVUS is

[00:16:54] Speaker 04:
If this very pattern that's being claimed in this design patent was, I don't know, displayed in a painting or was known in the jacket art for a pattern on a jacket, then it could be used, that jacket could be used as anticipatory prior art against this claimed design patent ornamentation, even if

[00:17:22] Speaker 04:
this design patent was restricted to this pattern for a chair.

[00:17:28] Speaker 04:
Because in Galavis' view, even though the jacket is non-analogous art, this is surface ornamentation, and you can carry surface ornamentation from one non-analogous object to another non-analogous object and still anticipate.

[00:17:46] Speaker 04:
Am I misreading what Glavis was saying in that portion of the Glavis opinion?

[00:17:50] Speaker 02:
I think you're right.

[00:17:50] Speaker 02:
I think that's right.

[00:17:51] Speaker 02:
OK, so then what do we do with that?

[00:17:55] Speaker 02:
Well, I think you have, I think in practice, if you look at the laws that's been applied for 100 plus years, you have no cases supporting the appellant's argument here.

[00:18:12] Speaker 02:
Not one case can they cite in which

[00:18:16] Speaker 02:
a design patent that's for a particular article of manufacture that includes surface ornamentation or some panel or whatever it is that could be embodied in another article of manufacture of a different kind.

[00:18:35] Speaker 02:
Not one case can they cite that holds that that's an infringement.

[00:18:41] Speaker 02:
That's certainly not in the doctrine of this court.

[00:18:47] Speaker 02:
Egyptian goddess doesn't hold that.

[00:18:51] Speaker 02:
The Supreme Court case, the Apple Samsung.

[00:18:54] Speaker 04:
So then what do we do with our mutually agreed upon understanding of Galavis now that we live in an Egyptian goddess world?

[00:19:02] Speaker 04:
Are those two

[00:19:05] Speaker 04:
cases reconcilable.

[00:19:07] Speaker 04:
That's what I'm trying to figure out for you.

[00:19:09] Speaker 02:
I think, yeah, the language of GLAAVUS is in conflict with the law as applied by this court and the Supreme Court and at least the three district courts that have confronted the exact same issue.

[00:19:27] Speaker 02:
I would concede that.

[00:19:28] Speaker 02:
They're in conflict.

[00:19:31] Speaker 00:
Can I ask you, do you think this problem that we have here where there's, if you will, a disconnect between the written part of the claims and the drawings and the disconnect between the title and all of that, do you think that happens often?

[00:19:46] Speaker 00:
I mean, because I don't necessarily, I don't know whether it happens often.

[00:19:51] Speaker 00:
It seems to me it might not because lots of times the drawings will depict, even if in dot, dot, dot lines, they'll depict the context.

[00:20:00] Speaker 00:
in which the design is located.

[00:20:03] Speaker 02:
Yeah, I think that's right.

[00:20:05] Speaker 02:
I think it doesn't come up that often.

[00:20:10] Speaker 02:
From my perspective as an advocate, I think it's an extreme position to argue that what's shown in a figure, if it's just a panel, some portion of the article of manufacture, it's an extreme position to say, well, that defines the claim.

[00:20:34] Speaker 02:
what defines the invention, that defines the scope of the claim.

[00:20:39] Speaker 02:
Forget about the article of manufacture.

[00:20:42] Speaker 02:
Forget about what I said in the description that the different views of the patent show.

[00:20:50] Speaker 02:
I think that's an extreme position.

[00:20:53] Speaker 02:
And so that's why I don't think it comes up.

[00:20:55] Speaker 04:
What about Pacific Coast, which seems to talk

[00:20:59] Speaker 04:
in very direct and clear terms that when it comes to understanding the scope of a design patent, you look just at the drawings.

[00:21:08] Speaker 04:
It doesn't say anything, or at least I don't think I saw anything that said you look at the drawings in combination with any claim language.

[00:21:17] Speaker 02:
Yeah, I don't read it that way.

[00:21:20] Speaker 02:
I think what it says is you look at

[00:21:26] Speaker 02:
In that particular case, you had a windshield, right?

[00:21:33] Speaker 02:
A marine windshield was the article of manufacture in a boat that used a windshield that was accused of infringement.

[00:21:45] Speaker 02:
Actually, there were multiple patents.

[00:21:47] Speaker 02:
So we didn't have the issue that we have here.

[00:21:50] Speaker 04:
We didn't have an abstract design disembodied from any article of manufacture.

[00:21:56] Speaker 02:
That's right.

[00:21:57] Speaker 02:
That's right.

[00:21:57] Speaker 02:
Nobody argued that.

[00:21:59] Speaker 02:
There was an issue under 289 of what damages were, what the scope of the remedies were.

[00:22:04] Speaker 02:
But you were comparing an article of manufacture against a patent for that article of manufacture.

[00:22:13] Speaker 02:
What the court said, what this court said, was that you look at the drawings, certainly to determine what the design is.

[00:22:24] Speaker 02:
Of course you do that.

[00:22:26] Speaker 02:
But there wasn't this threshold issue of this being raised here, which is, can you have a patent directed to one article manufacturer being infringed by something that's totally different?

[00:22:41] Speaker 02:
So that's why I think

[00:22:43] Speaker 02:
That case really doesn't help or hurt.

[00:22:49] Speaker 02:
I think it helps in the sense of it was a prosecution history estoppel case involving a design patent.

[00:22:57] Speaker 02:
A case of first impression in this court decided that prosecution history estoppel can't apply.

[00:23:03] Speaker 02:
looked at what happened in prosecution and saw that there was an amendment to the claim.

[00:23:09] Speaker 02:
Initially, there were multiple embodiments of the invention.

[00:23:16] Speaker 02:
There was a restriction.

[00:23:17] Speaker 02:
And the claim had to be amended in light of that restriction.

[00:23:23] Speaker 02:
And the court took that into account in determining that amendment to the claim took that into account in determining

[00:23:31] Speaker 02:
that prosecution history estoppel, in fact, applied.

[00:23:35] Speaker 02:
And that's exactly what happened here.

[00:23:39] Speaker 02:
There weren't amendments to the drawings, but there was an amendment to the claim that instead of saying furniture, it said part of a furniture patent office said, that's not specific enough.

[00:23:55] Speaker 02:
The applicant amended said it's a pattern for a chair.

[00:23:58] Speaker 02:
So there's an amendment.

[00:24:00] Speaker 02:
And it's a public notice issue.

[00:24:03] Speaker 03:
Why isn't that specific enough?

[00:24:05] Speaker 03:
I understand that that's not what happened here, but why couldn't you get a patent on a design used in any kind of furniture or even home accessory?

[00:24:17] Speaker 03:
Well, I'm not sure.

[00:24:23] Speaker 03:
The actions of the Patna's office here requiring them to make it more specific to a specific article manufacturer, maybe that's what it requires.

[00:24:32] Speaker 03:
When it says article manufacturer, it means discrete things.

[00:24:37] Speaker 03:
But I don't know why it couldn't be this design on any category of furniture.

[00:24:44] Speaker 02:
Yeah.

[00:24:45] Speaker 03:
If that was the case, then you'd have a problem, right?

[00:24:49] Speaker 03:
Because, well, I guess we'd be into a question of whether baskets are furniture or not.

[00:24:53] Speaker 03:
That's right.

[00:24:53] Speaker 03:
Putting that aside.

[00:24:54] Speaker 03:
Yeah.

[00:24:57] Speaker 03:
But that's not the issue in this case, because the patent office objected, and then they complied by changing it to a specific article of manufacture, namely a chair.

[00:25:10] Speaker 03:
maybe the patent office should have made them put in a picture of his hair, too, to make it clear that that's what they were claiming.

[00:25:17] Speaker 03:
But do you see any legal reason why, if you wanted a broader patent on this design, the structural design for all types of furniture, you couldn't get it?

[00:25:30] Speaker 02:
Yeah.

[00:25:31] Speaker 02:
Again, I think this goes to a

[00:25:35] Speaker 02:
the examination process that I'm not that familiar with.

[00:25:39] Speaker 02:
I know this much.

[00:25:40] Speaker 03:
I'm not asking you about this specific examination process.

[00:25:43] Speaker 03:
I'm just thinking.

[00:25:44] Speaker 03:
In terms of, as a matter of law, is there something in the words articles of manufacture that makes an applicant specify discrete, specific articles like chair, ottoman, basket?

[00:26:01] Speaker 03:
Or could they just say all furniture and home accessories?

[00:26:07] Speaker 02:
Yeah, I don't know the answer to that.

[00:26:11] Speaker 02:
I think it's probably, you probably can't get it.

[00:26:13] Speaker 02:
Do you think?

[00:26:14] Speaker 02:
I'm sorry, Your Honor.

[00:26:15] Speaker 04:
It's because examiners need to somehow confine their prior art search.

[00:26:20] Speaker 04:
And so that's why they look, that's why they want something reduced down to something that's workable, like maybe chairs, or maybe ottomans, or maybe something else.

[00:26:32] Speaker 04:
And it's not, and that,

[00:26:35] Speaker 04:
And so therefore, they don't want to have a prior art search that goes to everything and anything, and they have to look at a million catalogs for a million different things.

[00:26:44] Speaker 02:
I think that's probably a part of it.

[00:26:49] Speaker 02:
I've thought about it in that way, limiting the scope of the search.

[00:26:54] Speaker 02:
I've also thought about it in the way that

[00:26:58] Speaker 02:
You know, just like apparently happened here, the patent office wants money, a fee, for each article of manufacture, how they define articles of manufacture.

[00:27:11] Speaker 02:
And so if you want one for a chair, you've got to pay us a fee for that.

[00:27:15] Speaker 02:
If you want one for a basket, you've got to pay us another fee for that.

[00:27:18] Speaker 02:
You're not going to get both in one application.

[00:27:24] Speaker 02:
Any other questions?

[00:27:27] Speaker 02:
Thank you.

[00:27:33] Speaker 04:
I think just two minutes.

[00:27:38] Speaker 01:
I'll be very, very quick.

[00:27:39] Speaker 01:
It won't even be two minutes, Your Honor.

[00:27:42] Speaker 01:
The answer to your question is GLAAV is still the law.

[00:27:44] Speaker 01:
We cited two Northern District of Illinois cases that applied it to anticipate patents where the articles of manufacture were very different.

[00:27:54] Speaker 01:
You asked whether the concept of that which anticipates it before infringes if later is still the law, the 2009

[00:28:02] Speaker 01:
International Seaway Trading Corp case of this court says it applies in the design patent context.

[00:28:10] Speaker 01:
Cases such as Egyptian Goddess, Pacific Coast, and Ray Daniels all say the claim is the drawing.

[00:28:16] Speaker 01:
And there is no written description of the invention and design patents.

[00:28:20] Speaker 01:
Section 289 of the patent statute, which we cited, says that if the patented design or any colorable imitation thereof is applied to any article,

[00:28:30] Speaker 01:
a manufacturer, not just the one listed in the patent or in the title.

[00:28:34] Speaker 01:
There's an infringement remedy.

[00:28:36] Speaker 01:
The NPEP, which we cited, Section 1504.041A, says that the title of a design patent is not limiting on claim scope.

[00:28:45] Speaker 01:
And finally, Your Honor, just like you can go and buy a lattice structure in Home Depot or something and use it to build other things, this is a structure that's shown in the drawings.

[00:28:55] Speaker 01:
It's not disembodied from the design.

[00:29:00] Speaker 01:
part and parcel and integrated together.

[00:29:06] Speaker 01:
Thank you.