MEDIA RELEASE: 02.25.10 – Agility IP Law

Former Wilson Sonsini Partner James Otteson Launches Agility IP Law With Major Federal Circuit Victory for Crocs

SAN JOSE, CALIFORNIA – FEB. 25, 2010. Agility IP Law today announced a major patent victory in the Federal Circuit for colorful foam footwear manufacturer Crocs, Inc. Crocs' legal team was led by James C. Otteson while a partner at the Silicon Valley law firm of Wilson Sonsini Goodrich & Rosati (WSGR). Otteson recently left WSGR to launch Agility IP Law for the purpose of delivering high-end IP litigation services in a manner that is more efficient and cost-effective for clients.

In the Federal Circuit's ruling (Crocs v. International Trade Commission, Docket 2008-1596, Feb. 24, 2010), the court reversed a finding of the U.S. International Trade Commission (ITC) that importers of Crocs™ "knock-offs" were not violating Crocs' patents, and thus did not violate Section 337 of the Tariff Act. In particular, the ITC had ruled that the accused shoes did not infringe Crocs' U.S. Patent No. D517,789 (the '789 patent). The ITC also ruled that U.S. Patent No. 6,993,858 (the '858 patent) was invalid as obvious.

In its February 24, 2010 decision, the U.S. Court of Appeals for the Federal Circuit reversed both of the ITC's previous rulings, and found a violation of Section 337. In ruling that all of the accused shoes infringed Crocs' '789 design patent, the court 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 2 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.

"We are gratified by the Federal Circuit's decision in favor of Crocs, which we see as a complete victory," commented Mr. Otteson. "It is the culmination of a lot of hard work by an outstanding team of WSGR lawyers, whom I had the privilege of leading. Not only does WSGR have the best technology client base in the world, it also has exceptional legal talent. I want to extend thanks to my WSGR attorney team of Mike Berta, Ariana Chung-Han, Thomas T. Carmack and T.O. Kong. Kudos also to our outstanding support staff of Vira Minjarez, Linda Smith, Kathy Petit and Maya Kumar." Otteson concluded: "I look forward to collaborating with WSGR in the future."

Before founding Agility IP Law in January 2010, Mr. Otteson was an IP litigation partner and the Head of ITC Litigation at WSGR, where he practiced for over 17 years. He has a particular expertise in the litigation and trial of complex patent cases, especially in the ITC, where he has tried multiple cases for both complainants and respondents. Agility IP Law is affiliated with the law firm of Bergeson, LLP, one of the leading business litigation firms in Silicon Valley. Agility IP Law shares space in Bergeson, LLP's San Jose offices.

"I am excited about the launch of Agility IP Law, and my affiliation with Bergeson," commented Mr. Otteson. "The Bergeson firm shares Agility IP Law's commitment to 3 providing the highest quality legal services efficiently and cost-effectively. I believe that my experience, coupled with Agility IP Law's lower overhead and reduced cost structure, will give me the flexibility to deliver excellent work for a more reasonable price to clients."

About Agility IP Law
Agility IP Law is a new law firm that is dedicated to the delivery of high quality intellectual property litigation and counseling services in an efficient and cost-effective manner. Agility IP Law was founded by James Otteson, who was formerly the Head of ITC Litigation at Wilson Sonsini Goodrich & Rosati, where he focused on patent and IP litigation. Agility IP Law is based in San Jose, California, and is affiliated with Bergeson, LLP, a leading Silicon Valley litigation firm.

About Bergeson, LLP
Bergeson, LLP is one of the Silicon Valley's leading litigation law firms. Consistently hailed as a Go-To Law Firm® in Fortune Magazine's Directory of In-House Law Departments at the Top 500 Companies, and armed with attorneys honored as Best Lawyers in America® and Northern California Super Lawyers®, Bergeson, LLP prides itself on providing outstanding result-oriented service in an efficient and cost-effective manner. The Firm's practice encompasses all aspects of business litigation, with an emphasis in the areas of commercial litigation, securities litigation, intellectual property, and employment law. Bergeson, LLP also has extensive experience conducting internal investigations on behalf of audit committees and special litigation committees for public and privately held companies. In addition, the Firm offers outside general counsel services, and has expertise with shareholder and board of directors matters, venture start-up and domestic and international business transactions.

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