[00:00:00] Speaker 03:
First is number 24, 1538, Jackie Eslick versus C.J.

[00:00:06] Speaker 03:
Emerald, Mr. Ferentz.

[00:00:11] Speaker 03:
Will it please the court?

[00:00:13] Speaker 01:
Statement first for the appellants.

[00:00:16] Speaker 01:
For misappearance of the district court's denial of our motion for preliminary injunction in joining the appellee, we present two primary arguments.

[00:00:26] Speaker 01:
First, the District Court abused its discretion when it applied the wrong legal standard for evaluating whether ESLIP was likely to succeed in proving design patent infringement.

[00:00:39] Speaker 01:
This court's case law instructs that to evaluate infringement, the district court must consider the overall design of the accused product and the patented design.

[00:00:51] Speaker 01:
The district court based its decision that Eastlick was unlikely to succeed in proving infringement on three minor details where the designs differed.

[00:01:02] Speaker 01:
And the district court never actually issued any finding regarding the similarity or difference in the overall design.

[00:01:11] Speaker 00:
Can we?

[00:01:12] Speaker 00:
Go ahead.

[00:01:13] Speaker 00:
Just to interrupt your thought, I just, have these patents expired?

[00:01:17] Speaker 00:
Or are they about to expire, just the patent?

[00:01:20] Speaker 00:
No.

[00:01:23] Speaker 00:
When does it expire, do you know?

[00:01:25] Speaker 00:
Next year, I thought.

[00:01:29] Speaker 01:
The patent was issued in...

[00:01:32] Speaker 00:
I thought some who were in the briefs, they said it was given us a term so that it would be explained.

[00:01:40] Speaker 00:
Anyway, leaving that aside, the PI issue two years ago, what's going on with the case since then?

[00:01:46] Speaker 01:
This is originally brought against 67 defendants.

[00:01:51] Speaker 01:
The case has been resolved against all of the other defendants.

[00:01:55] Speaker 01:
The case is sort of stalled with respect to this defendant because the question of infringement and... So it hasn't gone to trial?

[00:02:06] Speaker 00:
No.

[00:02:06] Speaker 00:
Are you still working towards trial?

[00:02:08] Speaker 00:
Has there been discovery and so forth?

[00:02:11] Speaker 01:
It's essentially stalled.

[00:02:14] Speaker 01:
has started hindering the decision on appeal.

[00:02:18] Speaker 01:
Okay.

[00:02:18] Speaker 01:
Because of the impact that the infringement analysis that's the subject of this appeal will have on the rest of the case on remand.

[00:02:28] Speaker 03:
Okay, so functionality is part of claim construction, and why isn't the 90-degree offset functional?

[00:02:37] Speaker 01:
Well, the district court found that it was ornamental, Your Honor.

[00:02:40] Speaker 03:
Well, it's the noble review of its claim construction, right?

[00:02:44] Speaker 01:
Right.

[00:02:45] Speaker 01:
Yes, it is.

[00:02:46] Speaker 01:
And if you look, the way the district court did the functionality analysis is you need the two hooks, and the bottom hook has to support the top hook on the closet rod.

[00:03:06] Speaker 01:
And there are any variety of hook positions that will support, in the lever hook, that will support the purse or the tote.

[00:03:19] Speaker 03:
Well, it's functional in the sense that you can accommodate many more bags on the rack if it's at a 90 degree angle than if it's not.

[00:03:32] Speaker ?:
Yes?

[00:03:32] Speaker 01:
Or you could make an argument that anything is functional.

[00:03:37] Speaker 03:
Answer my question.

[00:03:39] Speaker 03:
Is that not the case?

[00:03:44] Speaker 01:
Nobody is contesting that.

[00:03:46] Speaker 03:
No, you're not answering my question.

[00:03:48] Speaker 03:
Answer my question.

[00:03:50] Speaker 03:
Is it not the case that you can accommodate many more bags on the rack if you turn it at a 90 degree angle?

[00:04:03] Speaker 01:
The number of bags that you can accommodate is going to be dictated by the size of the hook.

[00:04:12] Speaker 01:
I don't believe it is, Your Honor, because it's the size of the hook that dictates the number of bags that can be placed on the hook.

[00:04:23] Speaker 03:
If you're talking about

[00:04:28] Speaker 03:
a single bag on each hook.

[00:04:31] Speaker 03:
The way pictures that you implement in the joint appendix show the bags narrowly occupying space next to each other, but if you turn the hook so that it's not 90 degree angled, the bags would face out and occupy a lot more space.

[00:04:50] Speaker 01:
No?

[00:04:58] Speaker 01:
The bags would occupy more space.

[00:05:00] Speaker 01:
Some people would say that that is beneficial, because you can more easily see what the bag is.

[00:05:08] Speaker 00:
Isn't that functional as well, if it allows you to see what the bag is?

[00:05:14] Speaker 00:
That's not ornamental.

[00:05:15] Speaker 00:
That's functional as well, is it not?

[00:05:21] Speaker 01:
That's a hypothetical that is not in this lawsuit.

[00:05:26] Speaker 03:
No, but if you turn the hook one way, you can see the bags.

[00:05:32] Speaker 03:
If you turn it the other way, you can store more bags.

[00:05:34] Speaker 03:
So either orientation is functional.

[00:05:39] Speaker 01:
We believe either the orientation that Jackie Eastlick chose here is ornamental, Your Honor, which is representative.

[00:05:48] Speaker 03:
No, I understand that, but it has a functional consequence, which I thought you just admitted, that you can store more bags.

[00:06:00] Speaker 01:
I believe your question was, if the hook was not rotated 90 degrees, you could still move back.

[00:06:10] Speaker 03:
Correct.

[00:06:11] Speaker 01:
Yes, and you agree, right?

[00:06:17] Speaker 01:
No, I said that it would take up more space.

[00:06:23] Speaker 01:
Okay?

[00:06:24] Speaker 01:
Because it's the diameter or the radius of the hole.

[00:06:30] Speaker 03:
If you didn't turn the hook 90 degrees, each bag would take up more space, correct?

[00:06:38] Speaker 01:
You would be seeing... Yes, no.

[00:06:43] Speaker 01:
The bag would take up the same space, but you would be seeing it face-on.

[00:06:48] Speaker 03:
In terms of accommodating number of bags on the rack,

[00:06:53] Speaker 03:
If they're turned 90 degrees, you can, within a certain space on the rack, you can include more bags if it's turned at 90 degrees than if it's not, right?

[00:07:04] Speaker 01:
I think that's a question of math, Your Honor.

[00:07:10] Speaker 00:
Can I just press it further?

[00:07:12] Speaker 00:
There was a little discussion of this in the briefs, because your friends obviously raised this as an issue.

[00:07:16] Speaker 00:
But the district court, was this question raised?

[00:07:20] Speaker 00:
Were these arguments made before the district court?

[00:07:24] Speaker 00:
Did the district court opine on this issue?

[00:07:29] Speaker 01:
The functionality of this.

[00:07:34] Speaker 01:
was not raised by the appellee at the district court, and the district court specifically held, and this is in the appendix, page 10, the design patent, however, still protects the ornamental features of the tow-hammer's top and bottom hooks.

[00:07:52] Speaker 01:
which include, among other non-functional features, the shape of the hooks, the flare-out of the hook's tip, the 90-degree offset of the top and bottom hooks, and the spears on each end of the hook.

[00:08:08] Speaker 01:
So the district court identified these non-functional features and the ornamental features, and yet, in its discussion, only addressed three of them.

[00:08:21] Speaker 01:
It said there are these three differences, the shape of the hook, the floor out of the top hook's tip, and the spheres on the ends of each tip, and therefore they are not substantially similar.

[00:08:40] Speaker 01:
The district court never evaluated

[00:08:43] Speaker 01:
the overall similarity saying you have these differences, you have these similarities.

[00:08:50] Speaker 01:
It's like two people are arguing over whether a car is similar.

[00:08:55] Speaker 01:
Somebody says they're dissimilar because the rear view mirror is different, the one takes two gallons more gas than the other, and the colors are different.

[00:09:08] Speaker 01:
Somebody, you would immediately recognize that there are

[00:09:13] Speaker 01:
lots of potential differences and without any context or evaluation to the similarities, you can't make the decision on whether they're substantially similar.

[00:09:25] Speaker 01:
Conversely, somebody could argue a car is similar.

[00:09:29] Speaker 01:
Two cars are similar because each car has four wheels in engine and doors.

[00:09:36] Speaker 01:
You have to discuss both the dissimilarities and the similarities in order to decide whether they are substantially similar.

[00:09:46] Speaker 01:
What the district court did here, picking up

[00:09:49] Speaker 01:
on the discussion in the Appellee's brief before the district court was focus on the dissimilarities.

[00:09:57] Speaker 01:
A court can address the dissimilarities, but they also have to do that in the context of discussing the overall similarity.

[00:10:09] Speaker 03:
And that was the idea.

[00:10:11] Speaker 03:
If we were to hypothetically say that the 90-degree angle is functional,

[00:10:17] Speaker 03:
You have an argument as to why there's infringement.

[00:10:22] Speaker 03:
Your brief focuses particularly on the 90-degree angle being an ornamental feature.

[00:10:28] Speaker 03:
But let's hypothetically take that out of the case.

[00:10:32] Speaker 01:
Well, if you look at the prior error, which the district court also did not do,

[00:10:39] Speaker 01:
Nothing in the prior art shows the 90 degree offset.

[00:10:44] Speaker 03:
No, no, no.

[00:10:44] Speaker 03:
I'm taking the 90 degrees out of the case.

[00:10:47] Speaker 03:
And I know you don't want to, you know, like the hypothetical.

[00:10:50] Speaker 03:
But I'm hypothetically saying we were to conclude it's false.

[00:10:58] Speaker 03:
From the point of view of an ordinary observer, the district court makes a mistake if you take the 90 degree angle out of it.

[00:11:08] Speaker 01:
There is evidence before the district court showing that there is... Just answer the question, then you can explain.

[00:11:17] Speaker 01:
I'm trying to answer the question, your honor.

[00:11:21] Speaker 01:
To some extent, you're trying not to answer.

[00:11:26] Speaker 01:
There is evidence that there is actual confusion in the marketplace.

[00:11:32] Speaker 01:
And that's the evidence of that.

[00:11:35] Speaker 01:
The evidence was in a letter of declaration from Jackie Eastlick, which is based upon her discussions with potential customers.

[00:11:47] Speaker 01:
She's gotten complaints about other product that was not hers when folks thought it was hers.

[00:11:57] Speaker 01:
So there is unrebedded evidence that there's actual confusion.

[00:12:04] Speaker 01:
And that also goes to the second clue, the irreparable horn.

[00:12:10] Speaker 03:
Okay, but you're still not answering my question.

[00:12:13] Speaker 03:
Take out the 90-degree angle.

[00:12:17] Speaker 03:
Would the district court's conclusion be correct or not correct?

[00:12:27] Speaker 01:
We think the district court's conclusion was correct that the 90-degree offset is an ornamental feature.

[00:12:35] Speaker 03:
You are simply not answering my question.

[00:12:38] Speaker 03:
You come here, we ask you to answer the question.

[00:12:41] Speaker 03:
You have to answer the question.

[00:12:43] Speaker 03:
You have to accept my hypothetical.

[00:12:45] Speaker 03:
You don't like it, but you've got to accept it.

[00:12:47] Speaker 03:
We take out the 90-degree angle.

[00:12:50] Speaker 03:
Is there anything wrong with the district court's conclusion

[00:12:54] Speaker 03:
that an ordinary observer would not see these as being different?

[00:13:07] Speaker 01:
I could see it both ways, Your Honor.

[00:13:10] Speaker 01:
You know, the detector did not discuss the 90-degree angle in the context of the substantial similarity.

[00:13:21] Speaker 03:
OK.

[00:13:22] Speaker 03:
So the rest of your time for a bottle?

[00:13:25] Speaker 03:
Yes.

[00:13:26] Speaker 03:
Okay.

[00:13:28] Speaker 03:
Mr. Duffy?

[00:13:36] Speaker 02:
We would please declare Timothy Duffy for Appellee Accents U.S.

[00:13:46] Speaker 02:
Our position is, obviously, that the plaintiff's failed to demonstrate a likelihood of success on the merits.

[00:13:51] Speaker 02:
And therefore, the district court did not abuse its discretion in denying a preliminary injunction.

[00:13:57] Speaker 02:
And it hasn't come up yet, but obviously, this was a denial of a preliminary injunction.

[00:14:02] Speaker 02:
No one's entitled to that as a matter of right.

[00:14:04] Speaker 00:
But I thought you were arguing, one of your arguments in your brief, with respect to irreparable harm, I guess, was that you made $500 off of the ease, and now you're not marketing the user.

[00:14:16] Speaker 00:
So what does it matter?

[00:14:17] Speaker 00:
Why are you here on a preliminary injunction if you're not planning to market, if you're not marketing these products, you know, plan on marketing these products?

[00:14:27] Speaker 02:
Oh, it is true that the temporary restraining order that was in effect for about two months or so effectively took my client out of the business.

[00:14:35] Speaker 02:
But now we're here because they appealed.

[00:14:38] Speaker 00:
I may have this confused with another case, but I thought there was a representation here that you no longer

[00:14:46] Speaker 00:
engaged in marketing these products?

[00:14:49] Speaker 02:
We don't, but affirming the district court's decision is very helpful to us in the case, and obviously reversing it would be bad as well.

[00:14:59] Speaker 03:
What is the only plan to market them in the future?

[00:15:03] Speaker 02:
Obviously, they might.

[00:15:04] Speaker 02:
I don't know, one way or the other.

[00:15:07] Speaker 02:
But the point is that if the case goes back, affirmed, then it continues with the district court's finding, at least on the preliminary injunction stage, that's quite favorable to us.

[00:15:19] Speaker 02:
That could totally get reversed if this court engages in the claim analysis.

[00:15:22] Speaker 00:
Do you foresee litigating the merits of this past the preliminary injunction stage?

[00:15:27] Speaker 02:
No, because I think we're going to win, but if we didn't, if there's no reverse... No, but what about the preliminary injunction?

[00:15:32] Speaker 00:
Does that... that doesn't... technically it doesn't end the case.

[00:15:34] Speaker 02:
Yeah, right, right.

[00:15:35] Speaker 02:
No, there's still the issue of whether there was... even assuming there was infringement, was there damages?

[00:15:41] Speaker 02:
And that's something we'd have to fight about, yeah.

[00:15:44] Speaker 00:
And when does the patent expire?

[00:15:47] Speaker 02:
You know, to be honest with you, I do not know the length of the time on the patent.

[00:15:52] Speaker 02:
Sorry.

[00:15:53] Speaker 00:
On the functionality question that Judge Steinpreck was pressing your friend on, did you preserve that before the district court?

[00:16:02] Speaker 00:
Because I think you cite some pages in red, and I think Gray comes back and says, and I confirm that that doesn't say anything about it.

[00:16:13] Speaker 00:
in my reading.

[00:16:13] Speaker 02:
So we told the district court that the plaintiff could not have a design patent that protects every kind of offset hook or even 90-degree hook.

[00:16:24] Speaker 02:
Did we phrase that argument in terms of the functionality analysis?

[00:16:29] Speaker 02:
It might not have said that, that argument, or in the briefs.

[00:16:32] Speaker 02:
This was all done on a very quick record.

[00:16:36] Speaker 02:
But the district court did

[00:16:38] Speaker 02:
take the time to write the opinion and went through the law very carefully and did the proper analysis, we think, although we also maintain that he missed one of the functional elements, namely the 90-degree offset.

[00:16:49] Speaker 00:
Well, the question is if he missed it because you didn't raise it clearly enough, do you have a appendix site to where you said you raised it in passing and you discussed it?

[00:16:58] Speaker 00:
Is that in the record?

[00:16:59] Speaker 02:
I could only point you to the transcript of the argument and I can get that page.

[00:17:02] Speaker 02:
I don't have it at the top of my head.

[00:17:04] Speaker 02:
But if Your Honor's already looked for that reference, no.

[00:17:08] Speaker 00:
Well, I looked at the pages you cited and read, and I didn't see it.

[00:17:12] Speaker 02:
Okay.

[00:17:13] Speaker 02:
Then our argument was what it was.

[00:17:15] Speaker 02:
The question before this court is whether this court conducted the proper inquiry, and then whether it abused its discretion, and I think it's very clear.

[00:17:24] Speaker 02:
The district court went through the case file, followed it to a T, and then actually concluded, and this is on page 14 of the appendix, which is his ruling, that overall these are not similar.

[00:17:35] Speaker 02:
And so that takes the rug out, I think, from Mr. France's argument that the district court applied the wrong legal standard.

[00:17:43] Speaker 02:
He's only arguing that he came out wrong in the analysis, which

[00:17:48] Speaker 02:
I don't think there's any basis one could say the district court abused its discretion in that regard and therefore improperly denied the injunction and that's sort of the end of the question.

[00:18:01] Speaker 03:
the 90-degree angle in assessing how an ordinary observer would look at it.

[00:18:06] Speaker 02:
Well, it's a little bit of a head-you-in, tail-you-lose argument.

[00:18:10] Speaker 02:
First, they complained in the brief about him going through the particulars.

[00:18:15] Speaker 02:
All he was supposed to do was look at the whole.

[00:18:17] Speaker 02:
And the argument, at least as I read it, was sort of penalizing the district court for going through the differences.

[00:18:24] Speaker 02:
The district court did make the overall decision, just as the case – Wait, wait, wait.

[00:18:29] Speaker 03:
They are complaining the district court didn't consider the 90-degree offset as an ornamental feature that distinguished this from the prior art.

[00:18:41] Speaker 02:
When the district court got to its particular explanation of its overall conclusion, it emphasized the dissimilarities because those are the ones that led it to, that supported its conclusion.

[00:18:52] Speaker 02:
It did not list, relist the similarities, which I

[00:18:55] Speaker 02:
things that were quite obvious, given his description of the facts and the pictures, that, look, you have the vertical hooks, you have the two hooks, you have the 90-degree offset.

[00:19:06] Speaker 02:
It's clear that both our product and the plaintiff's product had that 90-degree offset.

[00:19:11] Speaker 02:
I don't think he needed to go through and – and I don't think the inquiry anyway is you have to list all the positives and all the negatives.

[00:19:19] Speaker 02:
That's the counting that they actually argue against.

[00:19:22] Speaker 02:
You're not supposed to count specifics.

[00:19:24] Speaker 02:
You're supposed to –

[00:19:25] Speaker 02:
looked at the overall impression based on a reasonable observer, and here it was only the judge because of the posture, and make that assessment.

[00:19:33] Speaker 02:
And then, obviously, the judge was entitled to explain his reasoning.

[00:19:36] Speaker 02:
His conclusion was they were not similar, and so he obviously went and explained how they were not similar.

[00:19:42] Speaker 02:
He did not spend pages going through, well, I guess I could say they're similar and let me list the ways, but I don't think he was required to do that.

[00:19:51] Speaker 02:
In terms of the irreparable harm, Mr. Ferenc mentioned that there's some evidence of confusion in the record, and his statement as to what his client said is in the record.

[00:20:05] Speaker 02:
But there's no link whatsoever between that statement, even assuming it's true and specific enough, which I don't think it is, and my client.

[00:20:13] Speaker 02:
The only thing that makes my client to this case is a printout of their Amazon page.

[00:20:19] Speaker 02:
We have no – nothing in the record that – what Ms.

[00:20:24] Speaker 02:
Isik was saying was that all these defendants somehow have hurt me, or at least some of them have, or at least maybe many of them have, or at least I think they have.

[00:20:33] Speaker 02:
That's not enough to get – when the question is just does there need to be an injunction against my client,

[00:20:37] Speaker 02:
to establish a weapon behind.

[00:20:40] Speaker 00:
The essence of your friend's argument on irreparable injury seems to be based on the contention that because the district court didn't deal with the details or some of the details of the declarations, that that was the problem, the essence of the problem.

[00:20:56] Speaker 02:
Yes, that is their argument, but I don't think that's true.

[00:21:01] Speaker 02:
I think the district court actually looked at it twice, both in his initial decision and then again on reconsideration when the specific argument was made to him, and he went through his reasoning as to how those declarations and the other material they submitted, which was

[00:21:17] Speaker 02:
Frankly, carbon copy stuff that's submitted in hundreds of cases, it's a very generalized bunch of evidence, did not establish that my client was causing irreparable harm in this case.

[00:21:31] Speaker 02:
And by that time, too, you also had our evidence that was where my client's sales were, in fact, quite minimal.

[00:21:38] Speaker 02:
So that's another problem for them.

[00:21:40] Speaker 02:
And again, we're talking abuse of discretion.

[00:21:44] Speaker 02:
I just want to address for a few minutes, if I can, how this case

[00:21:53] Speaker 02:
is or isn't impacted by the court's recent range of motion decision that came out last month in which Chief Judge Moore dissented.

[00:22:03] Speaker 02:
The decision actually affirms all the positions that we've taken in our brief in the Egyptian goddess and Crocs and Ethicon cases.

[00:22:12] Speaker 02:
And if that decision stands as decided, it fully supports our case.

[00:22:21] Speaker 02:
Judge Moore wrote a dissent, and I'm sure the case is, I'm sure we're going to file a motion to re-hear.

[00:22:26] Speaker 02:
And it is the kind of case, given the nature of her dissent, that might well be re-heard.

[00:22:31] Speaker 02:
I just want to say that even if that case comes out to rate Judge Moore wanted it to come out, it would still not upset the result for us, for the appellee in this case.

[00:22:42] Speaker 00:
And that's where- The district court's analysis here not jive with the complaints and the dissent in that case.

[00:22:49] Speaker 02:
The dissent in that case says you should only look at overall similarity.

[00:22:59] Speaker 02:
a little bit I'm relying on the characterization that the majority gave the dissent so we don't really know because it's not fully fleshed out, but perhaps you don't do the functionality, you don't strip away the functional elements.

[00:23:11] Speaker 02:
You just look and you just let the jury look at the two products and you let them see if they're substantially similar.

[00:23:18] Speaker 03:
I don't think that's right, but that's the most extreme reading of... No recollection is that the case did not involve an issue of functionality.

[00:23:28] Speaker 03:
Am I wrong about that?

[00:23:29] Speaker 02:
It most certainly did, I believe, yes.

[00:23:32] Speaker 02:
So it was a massager, kind of a weird-shaped massaging device.

[00:23:37] Speaker 02:
And the majority went through and said, well, this is functional, this is functional.

[00:23:40] Speaker 02:
And what's left is different, so it's sustained.

[00:23:45] Speaker 02:
Chief Judge Moore said, no, we're getting too particular.

[00:23:48] Speaker 02:
We shouldn't be doing this spot-to-difference.

[00:23:51] Speaker 02:
You had those cartoons, like you saw when you were a kid.

[00:23:54] Speaker 02:
Can you tell the difference between the two pictures?

[00:23:55] Speaker 02:
She said the jurisprudence has gone too far into just identifying differences, which would seem to support the appellant's argument in this case.

[00:24:05] Speaker 02:
But even under her standard, even if that standard were to become more adopted, it wouldn't change the result here in favor of the appellee, because her main point actually was that juries should be deciding, it's not judges on summary judgment.

[00:24:21] Speaker 02:
Of course, here we had a preliminary injunction decision, so the judge had to take his best shot at the evidence.

[00:24:27] Speaker 02:
So that doesn't apply.

[00:24:29] Speaker 02:
And the judge did do this overall analysis.

[00:24:32] Speaker 02:
And because he didn't take out the 90-degree angle, that outcome still is not an abuse of discretion under Judge Moore's reasoning, I would submit.

[00:24:44] Speaker 02:
The other aspect of it is that

[00:24:48] Speaker 02:
I don't think that's a workable test anyway, because you can't just say, are these things similar?

[00:24:52] Speaker 02:
You need some context.

[00:24:55] Speaker 02:
You could say, are Mr. Duffey and Mr. Farrant similar?

[00:24:58] Speaker 02:
Well, we both have the same job.

[00:24:59] Speaker 02:
We're both here on the same day.

[00:25:01] Speaker 02:
We both share a lot of demographic characteristics.

[00:25:04] Speaker 02:
Some would say, yeah, these are two similar people, but obviously there's many ways that you would say not.

[00:25:09] Speaker 02:
You have to say similar what?

[00:25:11] Speaker 02:
And in this case, I think you have to say, are these similar purse hooks, right?

[00:25:18] Speaker 02:
Or offset purse hooks, depending on whether you take that next step.

[00:25:22] Speaker 02:
Once you do that, you have in a way

[00:25:25] Speaker 02:
You need to have some context for the question, and I would submit even under Judge Moore's rationale, you've kind of worked functionality back into the analysis, because you are describing what the thing is, what it does, and now you're looking for differences.

[00:25:40] Speaker 02:
And, you know, this case is not really different from the old design cases, where you had spoons and chairs and lamps, and they were decorated differently, they were styled differently.

[00:25:50] Speaker 02:
That's what a design patent's supposed to protect.

[00:25:52] Speaker 02:
And here, EESOIC's design patent protects the particular shape, the particular style, the flare, the depth.

[00:26:03] Speaker 02:
Do these things look the same, given their function?

[00:26:07] Speaker 02:
And the district court said, no, I think they look different.

[00:26:10] Speaker 02:
You're not going to confuse one for the other.

[00:26:12] Speaker 02:
And that was not an abuse of discretion.

[00:26:16] Speaker 02:
If there are no further questions.

[00:26:17] Speaker 03:
Okay.

[00:26:18] Speaker 02:
Thank you.

[00:26:18] Speaker 02:
Thank you.

[00:26:19] Speaker 03:
Mr. Ferne.

[00:26:30] Speaker 01:
I'd like to address a few points in rebuttal.

[00:26:33] Speaker 01:
Judge Post, to your question, what did they argue before the district court?

[00:26:37] Speaker 01:
If you go back and look at their brief in opposition to the motion for preliminary injunction, their likelihood of success discussion was too paragraphed and focused on the differences.

[00:26:52] Speaker 01:
That's what we think got the district court focused on the differences.

[00:26:56] Speaker 01:
as opposed to the overall substantial similarity.

[00:27:02] Speaker 01:
I also think that the discussion on last month's range of motion decision is a little off target because

[00:27:13] Speaker 01:
It doesn't really matter what test you use, the majority or the dissent, as the court indicated in footnote three in range of motion, the district court properly considered both the similarities and differences in assessing the overall similarity of the claim design.

[00:27:33] Speaker 01:
Where in this case, the district court only addressed the differences.

[00:27:39] Speaker 01:
While the district court did parrot the correct standard, they didn't apply the correct standard, which is what happened in revision military versus Balboa, where this court reversed the denial of a preliminary injunction.

[00:28:00] Speaker 01:
Also, I think there's no dispute that the district court did not consider the prior

[00:28:07] Speaker 01:
And the prior art does not show any of the art having the 90 degree offset.

[00:28:18] Speaker 01:
And in conclusion, we submit that the court should vacate the district court's denial of the Eastlick's motion for preliminary injunction, and Eastlick requests that the court's decision address both infringement and irreparable harm as the proper infringement analysis impacts the case going forward under a mayor.

[00:28:41] Speaker 03:
Thank you, both counsel.

[00:28:42] Speaker 03:
The case is submitted.