## Facts

- International Seaway Trading Corp. owned three design patents (D529,263; D545,032; D545,033) covering casual molded clog footwear designs; two were continuations-in-part with strap-related differences.
- Seaway alleged Walgreens sold infringing clogs imported through Touchsport Footwear USA, Inc.
- Walgreens and Touchsport asserted the patents were invalid as anticipated under 35 U.S.C. § 102 by an earlier design patent owned by Crocs, Inc. (D517,789).
- The accused and prior-art designs shared the overall Crocs-style clog appearance, including perforated upper features and strap arrangements.
- The district court granted summary judgment of anticipation, finding substantial similarity under an ordinary-observer comparison and focusing primarily on the exterior appearance without separately analyzing the insoles.

## Issues

1. In a design-patent anticipation analysis under 35 U.S.C. § 102, must a court apply a separate “point of novelty” test in addition to the ordinary-observer test?
2. Must the anticipation comparison assess all claimed, visible aspects of the design (including insoles), rather than only the exterior configuration?

## Decision

- The Federal Circuit held that anticipation of a design patent is determined solely under the ordinary-observer test; a separate point-of-novelty test is not used.
- The court affirmed that, as to the exterior portions, an ordinary observer would view Seaway’s designs as substantially the same as the Crocs prior-art design.
- The court vacated the anticipation judgment to the extent the district court failed to compare the insole portions of the claimed designs to the prior art from the ordinary observer’s perspective.
- The case was remanded for further proceedings addressing the insole comparison.

## Legal Principles

- Design-patent anticipation and design-patent infringement use the same ordinary-observer framework; the point-of-novelty test is not an additional requirement for anticipation.
- Anticipation requires comparison of the claimed design as a whole against the prior art from the viewpoint of an ordinary observer giving the attention of a typical purchaser.
- A validity comparison must account for all claimed features that are visible in normal use and thus perceptible to an ordinary observer, including interior features such as an insole when visible.

## Conclusion

The Federal Circuit clarified that design-patent anticipation is judged only by the ordinary-observer test and requires a whole-design comparison; it upheld anticipation as to the exterior appearance but required remand because the district court did not analyze whether the insoles were also anticipated.


Int'l Seaway Trading Corp. v. Walgreens Corp., 589 F.3d 1233 (Fed. Cir. 2009)