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Crocs, Inc. v. Effervescent, Inc.

United States District Court, D. Colorado

June 27, 2017

CROCS, INC., Plaintiff,
v.
EFFERVESCENT, INC., HOLEY SOLES HOLDINGS, LTD., DOUBLE DIAMOND DISTRIBUTION, LTD., and U.S.A. DAWGS, INC., Defendants. U.S.A. DAWGS, INC. and DOUBLE DIAMOND DISTRIBUTION, LTD., Plaintiffs,
v.
RONALD SNYDER, DANIEL HART, THOMAS J. SMACH, ANDREW REES, GREGG RIBATT, ANDREW REDDYHOFF, GEORGE B. BOEDECKER, JR., LYNDON HANSON, DONALD LOCOCO, RAYMOND CROGHAN, RONALD FRASCH, MICHAEL MARGOLIS, JEFFREY LASHER, MICHAEL E. MARKS, PRAKASH MELWANI, JOHN P. MCCARVEL, ERIK REBICH, SARA HOVERSTOCK, and JOHN AND JANE DOE DEFENDANTS 1-30, Defendants.

          ORDER

          PHILIP A. BRIMMER United States District Judge

         This matter is before the Court for the construction of U.S. Patent No. 6, 993, 858 (the “'858 Patent”) [Docket No. 312-1] and U.S. Patent No. D517, 789 (the “'789 Patent”) [Docket No. 312-2] (collectively, the “patents”). Crocs, Inc. (“Crocs”) alleges that defendants Double Diamond Distribution, Ltd. and U.S.A. Dawgs, Inc. (collectively “Dawgs”) have infringed the patents. The parties ask the Court to construe certain disputed terms in the patents. Docket No. 402. On June 6, 2017, the Court held a hearing pursuant to Markman v. Westview Instruments, Inc., 517 U.S. 370 (1996), on these terms.

         I. THE '858 PATENT

         A. Background

         The '858 Patent is related to footwear with ventilation. Docket No. 312-1, '858 Patent col. 1 ll. 20-21. The footwear is molded from a lofted material. Id. col. 1 l. 43. The footwear includes a strap section that is attached to the base “such that the strap pivots relative to the base section.” Id. col. 2 ll. 1-2. The strap “serves the utilitarian purpose of lending support to the Achilles portion of the human foot.” Id. col. 6 ll. 19-21. The “frictional force developed between strap [] and upper [] . . . is sufficient to maintain [the] strap in place. . . . Without such friction, strap [] would succumb to gravity and fall to a position where the foot would not be supported.” Id. col. 6 ll. 23-29.

         The '858 Patent has two claims. Claim one of the '858 Patent describes:

A footwear piece comprising:
a base section including an upper and a sole formed as a single part manufactured from a moldable foam material; and
a strap section formed of a moldable material that is attached at opposite ends thereof to the upper of the base section with plastic connectors such that the moldable foam material of the strap section is in direct contact with the moldable material of the base section and pivots relative to the base section at the connectors;
wherein the upper includes an open rear region defined by an upper opening perimeter, and wherein frictional forces developed by the contact between the strap section and the base section at the plastic connectors are sufficient to maintain the strap section in place in an intermediary position after pivoting, whereby the strap section lends support to the Achilles portion of the human foot inserted in the open rear region; and
wherein the upper includes a substantially horizontal portion and a substantially vertical portion forming a toe region that generally follows the contour of a human foot, wherein the toe region tapers from an inner area of the base section where the larger toes exist to an outer area of the base section where the smaller toes exist; and
wherein the sole includes a bottom surface having front and rear tread patters longitudinally connected by a flat section.

Id. col. 9 ll. 36-60; col. 10 ll. 1-3.

         Claim two of the '858 Patent describes:

         A footwear piece comprising:

a base section including an upper and a sole formed as a single part manufactured from a moldable foam material; and a strap section formed of a molded foam material attached at opposite ends thereof to the base section such that the strap section is in direct contact with the base section and pivots relative to the base section; and
wherein the upper includes an open rear region defined by an upper opening perimeter; and wherein the sole includes a rear perimeter; and wherein the strap section pivots between a first contact point on the upper opening perimeter and a second contact point on the rear perimeter, and wherein frictional forces developed by the contact between the strap section and the base section at the points of attachment are sufficient to maintain the strap section in place in an intermediary position after pivoting whereby the strap section lends support to the Achilles portion of a human foot inserted in the open rear region; and
wherein the upper includes a substantially horizontal portion and a substantially vertical portion forming a toe region that generally follows the contour of a human foot, wherein the toe region tapers from the inner area of the base section where the larger toes exist to the outer area of the base section where the smaller toes exist; and
wherein a decorative pattern of raised bumps is molded or otherwise created in the upper near to and extending the length of the upper opening perimeter; and
wherein a plurality of ventilators are formed in both the substantially vertical portion and the substantially horizontal portion, and wherein the ventilators extend up a majority of the height of the vertical portion;
wherein the vertical portion of the upper includes an upper strip, wherein the ventilators are formed in the upper strip, and wherein the upper strip extends from the toe region to the points of attachment for the strap section, and wherein the sole includes a lower strip that parallels the upper strip and is separated by a line that extends from the toe region to a heel of the footwear piece, and wherein the lower strip vertically rises in a direction toward the heel; and
wherein the sole includes a bottom surface having front and rear tread patters longitudinally connected by a flat section without tread patterns bounded by raised side portions; and
wherein the sole further includes a top surface having a support base including a raised pattern where a foot contacts the support base.

Id. col. 10 ll. 4-58.

         B. Legal Standards for Claim Construction of Utility Patents

         Claim construction is a question of law for the court, see Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1454 (Fed. Cir. 1998) (en banc), guided by Federal Circuit precedent. See SunTiger, Inc. v. Scientific Research Funding Group, 189 F.3d 1327, 1333 (Fed. Cir. 1999). The Federal Circuit has made clear that “there is no magic formula or catechism for conducting claim construction.” Phillips v. AWH Corp., 415 F.3d 1303, 1324 (Fed. Cir. 2005) (en banc). Nevertheless, there are several key sources and doctrines that should be consulted and applied, but “[t]he seq uence of steps used by the judge in consulting various sources is not important; what matters is for the court to attach the appropriate weight to be assigned to those sources in light of the statutes and policies that inform patent law.” Id.

         The starting point is the “bedrock principle” that “‘the claims of the patent define the invention to which the patentee is entitled the right to exclude.'” Id. at 1312 (quoting Innova/Pure Water, Inc. v. Safari Water Filtration Systems, Inc., 381 F.3d 1111, 1115 (Fed. Cir. 2004)). The words of the claims “‘are generally given their ordinary and customary meaning, '” id. (quoting Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996)), which is “the meaning that the term would have to a person of ordinary skill in the art in question at the time of the invention, ” id. at 1313; see CCS Fitness, Inc. v. Brunswick Corp., 288 F.3d 1359, 1366 (Fed. Cir. 2002) (“Generally speaking, [courts] indulge a ‘heavy presumption' that a claim term carries its ordinary and customary meaning.”). In those instances when the claim language “involves little more than the application of the widely accepted meaning of commonly understood words, ” construction is relatively straightforward and “the ordinary meaning . . . may be readily apparent even to lay judges.” Phillips, 415 F.3d at 1314. When the claim terms have a particular meaning in the field, however, courts “look[ ] to ‘those sources available to the public that show what a person of skill in the art would have understood disputed claim language to mean.'” Id. (quoting Innova, 381 F.3d at 1116). These sources include “‘the words of the claims themselves, the remainder of the specification, the prosecution history, and extrinsic evidence concerning relevant scientific principles, the meaning of technical terms, and the state of the art.'” Id.

         The context in which a term is used, both in the asserted claim as well as in other claims of the patent, can be valuable and instructive. Id. at 1314. In addition, the patent specification - the text and figures of the patent that precede the claims - “‘is always highly relevant to the claim construction analysis. Usually, it is dispositive; it is the single best guide to the meaning of a disputed term.'” Id. at 1315 (quoting Vitronics, 90 F.3d at 1582). With that said, “the claim requirement presupposes that a patent applicant defines his invention in the claims, not in the specification.” Johnson & Johnston Associates Inc. v. R.E. Service Co., Inc., 285 F.3d 1046, 1052 (Fed. Cir. 2002); see PSC Computer Products, Inc. v. Foxconn Intern., Inc., 355 F.3d 1353, 1359 (Fed. Cir. 2004) (“‘[T]he claims of a patent limit the invention, and specifications cannot be utilized to expand the patent monopoly[.]'”) (quoting United States v. Adams, 383 U.S. 39, 48-49 (1966)).

         If necessary, courts may also consider the patent's prosecution history - the official record of the patent application and subsequent process before the U.S. Patent and Trademark Office, which “provides evidence of how the PTO and the inventor understood the patent.” Phillips, 415 F.3d at 1317. Nevertheless, “because the prosecution history represents an ongoing negotiation between the PTO and the applicant, . . . it often lacks the clarity of the specification and thus is less useful for claim construction purposes.” Id. And, although courts may consult extrinsic evidence such as “expert and inventor testimony, dictionaries, and learned treatises, ” such evidence is “‘less significant than the intrinsic record, '” i.e., the specification and prosecution history, and courts must be wary not to use extrinsic evidence to override the meaning of the claim terms demonstrated by the intrinsic evidence. Id. at 1317-19 (quoting C.R. Bard, Inc. v. U.S. Surgical Corp., 388 F.3d 858, 862 (Fed. Cir. 2004)). That is, “extrinsic evidence may be useful to the court, but it is unlikely to result in a reliable interpretation of patent claim scope unless considered in the context of the intrinsic evidence.” Id. at 1319.

         In short, a court must construe the claim terms as they would be viewed by “the ordinary artisan after reading the entire patent.” Id. at 1321. This is crucial in order to respect the public notice function of patents:

The patent system is based on the proposition that claims cover only the invented subject matter. As the Supreme Court has stated, “[i]t seems to us that nothing can be more just and fair, both to the patentee and the public, than that the former should understand, and correctly describe, just what he has invented, and for what he claims a patent.”

Id. at 1321 (quoting Merrill v. Yeomans, 94 U.S. 568, 573-74 (1876)).

         C. Analysis

         On November 8, 2016, the parties submitted a joint disputed claim terms chart in which they identified nine claim terms that were disputed. Docket No. 307. The Court addresses these terms below.

         1. Person of Ordinary Skill in the Art

         Patent claims are to be construed through the eyes of a person of ordinary skill in the art in question at the time of the invention (“POSITA”). Dawgs offers the following definition of a POSITA:

A person of ordinary skill in the art in the 2003-2004 timeframe (when both the '858 patent and the '789 patent were filed) would have had at least several years of hand-on experience with the design and development of footwear and various aspects of shoemaking from conception through product design, development, commercialization, and manufacturing. Such a person would have experienced numerous varied product cycles with projects representing varied constructions, and would have had a basic knowledge of functional requirements of footwear and an adequate understanding of processes and construction techniques needed to assemble and create various shoe parts and components.

Docket No. 312 at 9. In contrast, Crocs states that a POSITA would have “two to five years of hands-on experience in designing and developing products made out of molded foams, especially footwear.” Docket No. 343 at 15.

         The only apparent substantive difference between the two definitions is Crocs' suggestion that a POSITA have experience in working with molded foam products, not just footwear products. Dawgs' reply briefly argues that there is no basis to require expertise in foam products because the '858 Patent “is directed to ventilated footwear, not foam.” Docket No. 401 at 2. However, both of the '858 Patent's claims refer to “moldable foam material, ” '858 Patent col. 9 ll. 37-39; col. 10 ll. 6-8, and the specification describes a process for making molded foam footwear pieces. Id. col. 7 ll. 50-67; col. 8 ll. 1-7. In addition, Crocs' proposed definition was previously accepted by the Federal Circuit. See Crocs, Inc. v. Int'l Trade Comm'n, 598 F.3d 1294, 1308-09 (Fed. Cir. 2010) (discussing testimony regarding the experience of “artisans of ordinary skill in this art” in designing “a strap for a shoe that is [] made of foam”).

         In light of the patent's focus on moldable foam, the Court sees no basis to modify Crocs' proposed definition. A POSITA with respect to the patents at issue is an individual with two to five years of hands-on experience in designing ...


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