ITC Cases

In re Certain Foam Footwear, ITC Inv. No. 337-TA-567 (2006-2010)

Jim Otteson was lead counsel for complainant Crocs in a case involving the importation of footwear that was accused of infringing Crocs' U.S. Patent Nos. 6,993,858 (the '858 patent) and D517,789 (the '789 patent). Due to the widespread infringement of these patents by multiple importers, Crocs sought a "general exclusion order" or "GEO" – a special form of exclusion order that would bar importation of all infringing products, regardless of source. (The ITC's normal remedy for a violation of Section 337 is a "limited exclusion order," which only bars the importation of goods by entities that are named as respondents in the investigation.)

After the ALJ entered summary determination that the accused shoes did not infringe the '789 patent, Crocs successfully petitioned the Commission to remand the issue to the ALJ for trial. Following trial, the ALJ found that the '858 patent was invalid as obvious, and that the '789 patent was not infringed; thus, the ALJ found no violation of Section 337. The full Commission affirmed the ALJ's finding of no violation.

Jim Otteson argued Crocs' appeal to the Federal Circuit on July 10, 2009. In a complete victory for Crocs, the Federal Circuit reversed the Commission's finding of no violation, in a published opinion dated February 24, 2010. Writing for a unanimous majority, Circuit Judge Randall Rader stated:

[S]ide-by-side comparisons of the '789 patent design and the accused products suggest that an ordinary observer . . . would be deceived into believing the accused products are the same as the ['789 patent] design. . . . If the claimed design and the accused designs were arrayed in matching colors and mixed up randomly, this court is not confident that an ordinary observer could properly restore them to their original order without very careful and prolonged effort.

The Federal Circuit also reversed the ITC's ruling that the '858 patent was obvious. In particular, the Federal Circuit found that the prior art did not disclose Crocs' revolutionary "passive restraint system," as shown in the '858 patent. This system results from the direct riveting of a foam strap to a foam base, and creates a shoe in which the strap stays in the correct position (due to foam-to-foam friction) without constantly pressing on the back of the wearer's Achilles region. This is one reason Crocs™ shoes are so comfortable. Thus, the Federal Circuit found that the accused infringers had violated Section 337 and remanded the case to the ITC for the entry of an appropriate remedy.

• Back to ITC Litigation: Section 337 Investigations

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• Systems for Detecting and Removing Viruses or Worms, Components Thereof, and Products Containing Same
• Semiconductor Chips with Minimized Chip Package Size and Products Containing Same
• CD-ROM Controllers and Products Containing Same II