MEDIA RELEASE: 02.25.10 – Bergeson, LLP

Bergeson, LLP's Affiliated Counsel Jim Otteson of Agility IP Law Obtains Important Federal Circuit Victory in Crocs Case

On February 24, 2010, the United States Court of Appeals for the Federal Circuit overturned a decision by the International Trade Commission ("ITC") which had found against Otteson's client, Crocs, Inc. Crocs makes foam footwear and is the assignee of two patents-at-issue, Patent Nos. 6,993,858 and D517,789. The ITC ruled that the '858 patent was invalid because it was obvious. The Federal Circuit reversed this decision because the prior art did not disclose Crocs's revolutionary "passive restraint system," which results from the foam-to-foam friction between the strap and the base. This is a key part of the '858 patent because it ensures that the strap stays in the proper position without constantly pressing on the back of the wearer's foot, and is part of what makes Crocs shoes so comfortable.

The ITC also ruled that none of the accused shoes infringed the '789 patent, which is a design patent that covers the ornamental aspects of Croc's unique design. Applying the "ordinary observer" test set forth in its previous Egyptian Goddess decision, the Federal Circuit reversed the ITC's decision and found that all of the accused shoes infringe. The essence of the ordinary observer test is that a normal consumer of the shoes would see the infringing shoes in a store, and be confused into believing that they were Crocs shoes covered by the '789 design patent.

The case will be remanded to the ITC for a determination of the appropriate remedy, which will likely be an exclusion order that bars the importation of the infringing shoes. Agility IP Law and Bergeson, LLP see this order as a complete victory and vindication for Crocs and an important clarification about standards in design patent cases.

If you would like to read the decision, it can be found here. This victory was also highlighted in the February 25, 2010 editions of the Recorder and the San Francisco Daily Journal.

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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