Crocs Bite ITC

Another round in the endless litigation on those love-'em-or-hate-'em fluorescent plastic clogs made famous by Crocs Inc. Both a utility patent, number US6993858, and a design patent, number D517789, were asserted. For Hal Wegner's comment, follow this link to IPFrontline.

The CAFC reversed the ITC's finding of non-infringement on the design patent, applying the Egyptian Goddess "ordinary observer" test of similarity. In so doing, they criticised the trial judge's reliance on a detailed verbal description of the design - rightly, we think, as putting the essential "look and feel" of a visual design into words is often very difficult as witness the difficulties of the European courts in the Procter and Gamble v Reckitt Benckiser cases, where snakes and lizards slithered their way into a dispute over air freshener spraycans.

A more interesting issue, perhaps, is the reversal of the obviousness finding on the utility patent; essentially the issue was that Scott Seaman, the Crocs inventor and founder, added a foam heel strap to the prior-marketed foam "Acqua Clog" (which he did not design). Heel-straps on clogs were known from, for example, US6237249. However, the ITC held the combination non-obvious - partly because of evidence of the massive commercial success of the Crocs Inc. products corresponding to the patent.

It might have been still more interesting to see whether the design patent would have withstood an obviousness attack under the Egyptian Goddess "ordinary observer" approach. Broader scope entails a lower likelihood of validity, so does a "plain vanilla" heelstrap at the back of a distinctive clog, often pivoted out of view onto the clog itself, make much difference over the prior art to the wearer (who can't see it in use) or those around her? Perhaps this issue will be resolved in the pending OHIM European appeal.