Case 4:14-cv-00349-BRW Document 17 Filed 11/03/14 Page 1 of 26

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
PAMBRAS, L.L.C.
v.

PLAINTIFF
Case No. 4:14-cv-00349 BRW

DR. LEONARDS HEALTHCARE

CORPORATION

DEFENDANT

DEFENDANTS MEMORANDUM IN SUPPORT OF ITS

MOTION FOR SUMMARY JUDGMENT
OF DESIGN PATENT NON-INFRINGEMENT
I.

SUMMARY OF THE ARGUMENT

Design patents by definition protect the ornamental (as opposed to functional) features of

an article of manufacture. While the patented and accused products in this case are both
intended to serve as liners, a design patent is directed solely to the patented designs decorative
appearance. As detailed below, the accused and patented designs are plainly dissimilar, as a
matter of law. Further, there can be no infringement as a matter of law given the closeness of the
prior art to both the claimed design and the accused product.

II.

STATEMENT OF FACTS
The following statements of fact reference the Statement of Undisputed Facts (SUF), as

well as the Declaration of Anu Sharma with attached Exhibits A U-1 (Sharma Declaration) and
the Declaration of Joe Albanese (Albanese Declaration).

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A)

Plaintiff Pambras, L.L.C.

On information and belief, plaintiff sells a tummy liner product that is disclosed on the
Pambras website (www.pambras.com) as being a soft cotton liner worn under the lower
abdominal fold of plus-sized people. Pambras sells the tummy liner product through direct mail
catalogs that are operated by third parties and through its website http://www.pambras.com.
(SUF, 2, and Complaint, Dkt. No. 1, 7).

B)

Defendant Dr. Leonards Healthcare Corporation

Defendant Dr. Leonards Healthcare Corporation sells healthcare products to consumers

via

direct

mail

catalogs

and

via

its

websites

http://www.drleonards.com

and

http://www.carolwrightgifts.com. (SUF, 4, and Albanese Declaration at 3, Ex. 1 to Def.s

Mot.).
On December 9, 2013, Dr. Leonards Healthcare Corporation received a letter from
counsel for plaintiff alleging that the Dr. Leonards tummy liner product infringed Pambras U.S.
Design Patent No. D694,880. (SUF, 5; Albanese Declaration at 4, Ex. 1 to Def.s Mot.; and
Sharma Declaration at Ex. C, Ex. 2 to Def.s Mot.).
Dr. Leonards Healthcare immediately contacted the supplier of the product, Bandwagon,
Inc. of Wilmington, Massachusetts, and was advised that Bandwagon would negotiate a
settlement with Pambras in connection with the accused product. (SUF, 6, and Albanese
Declaration at 5, Ex. 1 to Def.s Mot.).
By December 19, 2013, counsel for Pambras advised counsel for Bandwagon that
Bandwagons proposed terms for a license had been sent to Pambras earlier that week. (SUF,
7, and Sharma Declaration at Ex. D, Ex. 2 to Def.s Mot.).

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Following negotiations that went through December 2013 and well into January 2014,
Bandwagon, Inc. and Pambras reached settlement and executed a License Agreement dated
January 29, 2014. The License Agreement provided a license for Bandwagon (and therefore
Bandwagons customers) to sell off the remaining inventory of the tummy liner product. (SUF,
8, and Sharma Declaration at 6 and Ex. E, Ex. 2 to Def.s Mot.).
The second and final payment under the terms of the License Agreement was due (and
was timely paid) by June 1, 2014. Within two weeks of the final payment, Pambras brought the
present action alleging that product sold by Dr. Leonards between December 3, 2013, and
January 29, 2014, was not covered by the license and therefore constitutes patent infringement.
(SUF, 9, and Sharma Declaration at Ex. F, Ex. 2 to Def.s Mot.). Pambras filed this action
against Dr. Leonards on June 11, 2014, alleging that the Dr. Leonards tummy liner product sold
between December 3, 2013, and January 29, 2014, infringed Pambras design patent, U.S. Patent
No. D694,880. (SUF, 11, and Complaint, Dkt. No. 1, Ex. A).
Between December 3, 2013, and January 29, 2014, Dr. Leonards Healthcare Corporation
sold 941 tummy liner products (Item No. 51904) for an average retail price of under twelve
dollars each. (SUF, 10, and Albanese Declaration at 6, Ex. 1 to Def.s Mot.).

C)

U.S. Design Patent No. D694,880

The asserted Pambras design patent, titled Tummy Liner, was filed on August 4, 2011,
and issued on December 3, 2013. (SUF, 12; Complaint, Dkt. No. 1, Ex. A; and Sharma
Declaration at Ex. B, Ex. 2 to Def.s Mot.).
The Pambras design patent is generally directed to the design for a tummy liner as
shown in the drawings thereof, and the Pambras design patent includes a single claimed

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embodiment shown in four figures (Figures 1 4). (SUF, 13; Complaint, Dkt. No. 1, Ex. A;
and Sharma Declaration at Ex. B, Ex. 2 to Def.s Mot.).
Figures 1 4 of the Pambras design patent show front, left, top, and bottom views,
respectively, and are reproduced below:

(SUF, 14; Complaint, Dkt. No. 1, Ex. A; and Sharma Declaration at Ex. B, Ex. 2 to Def.s
Mot.). The design appears to have an elongated shape, curved long outer edges, and vertically
truncated ends.

D)

The Prior Art

The prior art includes many items that have an elongated shape, slightly curved elongated
outer edges, and rounded or truncated ends.
i)

Cited Prior Art

During prosecution of the patent application that was granted as the patent in suit, certain

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prior art was identified by the patent examiner at the U.S. Patent and Trademark Office,
including the following prior art patents.
U.S. Patent No. 3,068,486, which was granted on December 18, 1962, includes the
following design of a clerical collar:

(SUF, 19, and Sharma Declaration at Ex. G, Figure 2, Ex. 2 to Def.s Mot.). The collar appears
to have an elongated shape as shown at 18, slightly curved long outer edges, and rounded ends as
shown at 19.
U.S. Design Patent No. D327,771, which was granted on July 14, 1992, includes the
following design of a collar shield:

(SUF, 20, and Sharma Declaration at Ex. H, Figure 2 (inverted), Ex. 2 to Def.s Mot.). The
collar shield appears to have an elongated shape, curved long outer edges, and vertically
truncated ends.
U.S. Design Patent No. D601,706, which was granted on October 6, 2009, includes the
following design of a curved bottom bandage:

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(SUF, 24, and Sharma Declaration at Ex. I, Figure 1, Ex. 2 to Def.s Mot.). The bandage
appears to have an elongated shape, curved long outer edges, and angled truncated ends.
In addition to the above prior art cited by the patent examiner to a bandage, a collar
shield, and a clerical collar, the prior art cited by the examiner also included a cervical collar, a
breast supporting article, and sticking plaster for medical purposes.
ii)

Prior Art That Was Not Cited

The following additional prior art is prior art to the patent in suit under 35 U.S.C.
102(b), which provides, in part, that prior art to the patent in suit includes patents that were
granted more than one year prior to the filing date of the patent in suit.
U.S. Patent No. 713,565, which was granted on November 11, 1902, includes the
following design of a neckwear holder:

(SUF, 15, and Sharma Declaration at Ex. J, Figure 7, Ex. 2 to Def.s Mot.). The holder shown
at D appears to have an elongated shape, slightly curved long outer edges, and angled truncated
ends.

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U.S. Patent No. 1,477,402, which was granted on December 11, 1923, includes the
following design of a military stock:

(SUF, 16, and Sharma Declaration at Ex. K, Figure 4, Ex. 2 to Def.s Mot.). The stock shown
at 10 appears to have an elongated shape, slightly curved long outer edges, and rounded ends.
U.S. Patent No. 2,299,453, which was granted on October 20, 1942, includes the
following design of a collar:

(SUF, 17, and Sharma Declaration at Ex. L, Figure 6, Ex. 2 to Def.s Mot.). The collar shown
at 2 appears to have an elongated shape, slightly curved long outer edges, and angled truncated
ends.
U.S. Patent No. 2,574,678, which was granted on November 13, 1951, includes the
following designs of body encircling articles:

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(SUF, 18, and Sharma Declaration at Ex. M, Figure 5, Ex. 2 to Def.s Mot.). The article
appears to have an elongated shape, slightly curved long outer edges, and pointed ends.

(SUF, 18, and Sharma Declaration at Ex. M, Figure 6, Ex. 2 to Def.s Mot.). The article
appears to have an elongated shape, slightly curved long outer edges, and rounded ends.
U.S. Design Patent No. D353,890, which was granted on December 27, 1994, includes
the following design of a support work belt:

(SUF, 21, and Sharma Declaration at Ex. N, Figure 3, Ex. 2 to Def.s Mot.). The support work
belt appears to have an elongated shape, slightly curved long outer edges, and rounded ends.
U.S. Design Patent No. D394,707, which was granted on May 26, 1998, includes the
following design of a lumbago preventive belt:

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(SUF, 22, and Sharma Declaration at Ex. O, Figure 1, Ex. 2 to Def.s Mot.). The belt appears
to have an elongated shape, slightly curved long outer edges, and angled truncated ends.
U.S. Design Patent No. D525,364, which was granted on July 18, 2006, includes the
following design of a therapeutic belt:

(SUF, 23, and Sharma Declaration at Ex. P, Figure 2, Ex. 2 to Def.s Mot.). The belt appears
to have an elongated shape, slightly curved long outer edges, and angled truncated ends.
E)

Dr. Leonards Accused Product

The accused Dr. Leonards product included five sizes (S, M, L, XL, and XXL) as shown
below. (SUF, 25; Sharma Declaration at Ex. A, Ex. 2 to Def.s Mot.; and Albanese Declaration
at 7, Ex. 1 to Def.s Mot.).

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Between December 3, 2013, and January 29, 2014, Dr. Leonards Healthcare Corporation
sold 941 tummy liner products, for an average retail price of under twelve dollars each. (SUF,
26, and Albanese Declaration at 6, Ex. 1 to Def.s Mot.).
Attached to the Sharma Declaration as Exhibits Q U are the actual physical tummy
liner products depicted above (S, M, L, XL, and XXL). They are filed in the Clerks office.
Photographs of the physical tummy liner products depicted above are attached to the Sharma
Declaration as Exhibits Q-1 U-1. (Sharma Declaration at 18 - 27 and Ex. Q Ex. U-1, Ex.
2 to Def.s Mot.).

III.

ARGUMENT
The present action is ripe for summary judgment because there is no genuine dispute of

material fact with regard to the defense that the Pambras design patent is not infringed by the
Dr. Leonards product.

A)

Legal Standard
i)

Summary Judgment Standard

Summary judgment of design patent non-infringement is appropriate where, as here,

there is no genuine issue of material fact regarding the alleged infringement and where it is clear
that the accused product does not infringe the patent in suit. The Court shall grant summary
judgment if the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). A fact is material when, under the governing substantive law,
it could affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

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(1986). A dispute is genuine if a reasonable jury could return a verdict for the non-moving party.
Id.
In considering a motion for summary judgment, the Court views the evidence and draws
all reasonable inferences in the light most favorable to the nonmoving party. Withers v.
Johnson, 763 F.3d 998, 1003 (8th Cir. 2014). To survive a motion for summary judgment, the
non-moving party must do more than simply show that there is some metaphysical doubt as to
the material facts, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986),
but must show that 1) there is a dispute of fact; 2) the disputed fact is material to the outcome of
the case; and 3) the dispute is genuine, that is, a reasonable jury could return a verdict for either
party. RSBI Aerospace, Inc. v. Affiliated FM Ins. Co., 49 F.3d 399, 401 (8th Cir. 1995). The
Court should limit its analysis of the facts on summary judgment to evidence that is properly
identified and supported in the parties statements of material facts, as it is not district courts
responsibility to sift through record to see if, perhaps, there was issue of fact. Johnson v.
Williams, 373 Fed.Appx. 663, 664 (8th Cir. 2010) (citing Fed. R. Civ. P. 56(e)(2); Satcher v.
Univ. of Ark. at Pine Bluff Bd. Of Trustees, 558 F.3d 731, 734-35 (8th Cir. 2009)).

ii)

Design Patent Infringement Standard

A design patent, by definition, protects the cosmetic ornamental (not functional)

appearance of features of the claimed design. As the Federal Circuit held in Richardson v.
Stanley Works, Inc., we have made clear that a design patent, unlike a utility patent, limits
protection to the ornamental design of the article. 597 F.3d 1288, 1293 (Fed. Cir. 2010). A
design patent only protects the novel, ornamental features of the patented design. OddzOn
Products, Inc. v. Just Toys, Inc., 122 F.3d 1396, 1405 (Fed. Cir. 1997) (affirming a summary

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judgment of no design-patent infringement); see In re Mann, 861 F.2d 1581, 1582 (Fed. Cir.
1988) (Design patents have almost no scope [and the] claim at bar, as in all design cases, is
limited to what is shown in the [patent] application drawings).
The test for whether a design patent is infringed is whether an ordinary observer
comparing solely the ornamental (non-functional) appearance of the patented design and solely
the ornamental (non-functional) appearance of the accused product side by side would be unable
to tell the difference between the two and would instead be confused into believing that they are
ornamentally the same. In Egyptian Goddess, Inc. v. Swisa, Inc., the Federal Circuit held that
this ordinary observer test is the sole test of design patent infringement (and affirmed a finding
of summary judgment of design patent non-infringement). 543 F.3d 665, 678 (Fed. Cir. 2008)
(en banc), cert. denied, 556 U.S. 1167 (2009).
Where the ornamental features of the design patent and the accused product are as a
whole plainly dissimilar, federal courts grant summary judgment dismissing an infringement
1

claim.

See Pride Family Brands, Inc. v. Carls Patio, Inc., 992 F.Supp.2d 1214 (S.D. Fla. 2014) (granting summary
judgment of no design patent infringement regarding an ornamental leg to a chair); Voltstar Technologies, Inc. v.
Amazon.com, Inc., No. 13 C 5570, 2014 WL 3725860 (N.D. Ill. July 28, 2014) (granting summary judgment of no
design patent infringement regarding a wall plug accessory); McIntire v. Sunrise Specialty Co., 944 F.Supp.2d 933
(E.D. Cal. 2013) (granting summary judgment of no design patent infringement regarding an ornamental leg to a
toilet bowl design); Seirus Innovation Accessories, Inc. v. Cabelas, Inc., 827 F.Supp.2d 1150 (S.D. Cal. 2011)
(granting summary judgment of no design patent infringement regarding a neck gaiter); Great Neck Saw
Manufactures, Inc. v. Star Asia U.S.A., LLC, 727 F.Supp.2d 1038 (W.D. Wash. 2010) (granting summary judgment
of no design patent infringement regarding a utility knife), affd, 432 Fed.Appx. 963 (Fed. Cir. 2011); Rainworks
Ltd. v. The Mill-Rose Co., 622 F.Supp.2d 650 (N.D. Ohio 2009) (granting summary judgment of no design patent
infringement regarding a gutter filter); Wing Shing Products (BVI) Co. Ltd., v. Sunbeam Products, Inc., 665
F.Supp.2d 357 (S.D.N.Y. 2009) (granting summary judgment of no design patent infringement regarding a coffee
maker), affd, 374 Fed. Appx. 956 (Fed. Cir. 2010); Chefn Corp. v. Trudeau Corp., No. C08-01135, 2009 WL
1564229 (W.D. Wash. June 4, 2009) (granting summary judgment of no design patent infringement regarding a
vegetable steamer).

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B)

The Prior Art

As detailed above, the prior art includes many designs that have an elongated shape,
slightly curved elongated outer edges, and rounded ends. The following prior art references
disclose designs with an elongated shape, slightly curved outer edges, and rounded ends:

U.S. Patent No. 3,068,486. (SUF, 19, and Sharma Declaration at Ex. G, Figure 2, Ex. 2 to
Def.s Mot.).

U.S. Design Patent No. D353,890. (SUF, 21, and Sharma Declaration at Ex. N, Figure 3, Ex. 2
to Def.s Mot.).

U.S. Patent No. 2,574,678. (SUF, 18, and Sharma Declaration at Ex. M, Figure 6, Ex. 2 to
Def.s Mot.).

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U.S. Patent No. 1,477,402. (SUF, 16, and Sharma Declaration at Ex. K, Figure 4, Ex. 2 to
Def.s Mot.).
The following prior art reference disclose designs with an elongated shape, slightly
curved outer edges, and vertically truncated ends:

U.S. Design Patent No. D327,771. (SUF, 20, and Sharma Declaration at Ex. H, Figure 2
(inverted), Ex. 2 to Def.s Mot.).
The following prior art references disclose designs with an elongated shape, slightly
curved outer edges, and angled truncated ends:

U.S. Design Patent No. D525,364. (SUF, 23, and Sharma Declaration at Ex. P, Figure 2, Ex. 2
to Def.s Mot.).

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U.S. Design Patent No. D601,706. (SUF, 24, and Sharma Declaration at Ex. I, Figure 1, Ex. 2
to Def.s Mot.).

U.S. Design Patent No. D394,707. (SUF, 22, and Sharma Declaration at Ex. O, Figure 1, Ex. 2
to Def.s Mot.).

U.S. Patent No. 2,299,453. (SUF, 17, and Sharma Declaration at Ex. L, Figure 6, Ex. 2 to
Def.s Mot.).

U.S. Patent No. 713,565. (SUF, 15, and Sharma Declaration at Ex. J, Figure 7, Ex. 2 to Def.s
Mot.).

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C)

Claim Construction

Even in design patent cases, the Court shall conduct claim construction.

Egyptian

Goddess, Inc. v. Swisa, Inc., 543 F.3d 665 (Fed. Cir. 2008) (en banc), cert. denied, 556 U.S.
1167 (2009). However, [a] design is better represented by an illustration than it could be by
any description [and] given the recognized difficulties entailed in trying to describe a design
in words, the preferable course ordinarily will be for a district court not to attempt to construe a
design patent claim by providing a detailed verbal description of the claimed design. Id. at 679
(quoting Dobson v. Dornan, 118 U.S. 10, 14 (1886)). In connection with claim construction of a
design patent, the Federal Circuit also warned of the risk of placing undue emphasis on particular
features of the design and the risk that a finder of fact will focus on each individual described
feature in the verbal description, rather than on the design as a whole. Id.
In some instances, claim construction of a design patent may distinguish ornamental
features from functional features of the claimed design. Richardson, 597 F.3d at 1293. While
Dr. Leonards believes that the elongated, slightly curved shape of the plaintiffs claimed design
is functional, for purposes of this motion (and for purposes of this motion only) and in order to
avoid raising any potential fact issues, Dr. Leonards is not asserting that aspects of the claimed
design are functional. Dr. Leonards does assert that the claimed elongated, slightly curved
shape is clearly present in the prior art and that, as such, any commonalities between the claimed
design and the accused product relating to the elongated, slightly curved shape should be
disregarded.
[A] district courts decision regarding the level of detail to be used in describing the
claimed design is a matter within the courts discretion. Egyptian Goddess, 543 F.3d at 679.

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D)

The Design Patent Is Not Infringed

In Egyptian Goddess, the Federal Circuit stated that, where the ornamental features of a
design patent and the accused product are as a whole plainly dissimilar, district courts are
empowered to grant summary judgment of design patent non-infringement. 543 F.3d at 678 (In
some instances, the claimed design and the accused design will be sufficiently distinct that it will
be clear without more that the patentee has not met its burden of proving the two designs would
appear substantially the same to the ordinary observer).
In other instances, when the claimed and accused devices are not plainly dissimilar,
resolution of the question whether the ordinary observer would consider the two designs to be
substantially the same will benefit from a comparison of the claimed and accused designs with
the prior art. Id. at 678 (Where there are many example of similar prior art designs, as in the
case such as Whitman Saddle [Smith v. Whitman Saddle Co., 148 U.S. 674 (1893)], differences
between the claimed and accused designs that might not be noticeable in the abstract can become
significant to the hypothetical ordinary observer who is conversant with the prior art.).
i)

The Designs Are Plainly Dissimilar

The accused and patented designs are plainly dissimilar. Again, a design patent only
protects the novel, ornamental features of the patented design. Accord Lee v. Dayton-Hudson
Corp., 838 F.2d 1186, 1188 (Fed. Cir. 1988). Even if the accused and patented designs are
determined to share some originality, summary judgment is appropriate where the designs are
not the same and are plainly dissimilar. For example, in Minka Lighting, Inc. v. Maxim Lighting
Intl, Inc., No. 3:06-CV-995-K, 2009 WL 691594 (N.D. Tex. March 16, 2009), the district court
granted summary judgment of design patent non-infringement in an action that involved support
arms for a light fixture, both of which shared a similar ornamental scroll shape as shown below.

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Patented Design

Non-Infringing Product

The court also granted summary judgment of design patent non-infringement for a light
globe, when both products shared a similar ornamental feature as shown below.

Patented Design

Non-Infringing Product

And the court granted summary judgment of design patent non-infringement for a lamp
housing, when both products shared a similar ornamental feature as shown below.

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Patented Design

Non-Infringing Product

In HR U.S. LLC v. Mizco International, Inc., No. CV-07-2394, 2009 WL 890550 at *11
(E.D.N.Y. March 31, 2009), the court granted summary judgment of design patent noninfringement, noting that the patented design had generally clean lines and a simple look. The
court held that the differences between the two designs (as shown below) substantially affect the
overall design of the accused palm pilot holder. Id. at *12.

Patented Design

Non-Infringing Product

Similarly, in Competitive Edge, Inc. v. Staples, Inc., 763 F.Supp.2d 997 (N.D.Ill. 2010),
affd, 412 Fed. Appx. 304 (Fed. Cir. 2011), the court granted summary judgment of design patent

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non-infringement after comparing the accused and patented designs where the designs shared
distinctive ornamental bubble-shaped keys as shown below.

Patented Design

Non-Infringing Product

Notwithstanding the commonality of this very distinctive ornamental feature, the court granted
summary judgment of design patent non-infringement in view of a number of other clear
ornamental differences. Id. It is clear that district courts grant summary judgment
notwithstanding the presence of obvious ornamental similarities, where there are sufficient
distinctions in other ornamental features to allow an ordinary observer to tell them apart.
In Harel v. K.K. International Trading Corp., 994 F.Supp.2d 276 (E.D.N.Y. 2014), the
court granted summary judgment of design patent non-infringement after comparing the designs
for two lighters and concluding that the designs did not share an overall visual similarity:

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Patented Design

Non-Infringing Product

In Sofpool LLC v. Kmart Corp., No. S-10-3333, 2013 WL 2384331 (E.D. Cal. May 30,
2013), affd, 550 Fed. Appx. 896 (Fed. Cir. 2014), the court granted summary judgment of
design patent non-infringement after comparing the designs for two pools, finding just a single
difference in ornamental features sufficient to sustain a finding that the designs were plainly
dissimilar.

Patented Design

Non-Infringing Product

The court compared the proportions of the two pool designs and, in finding non-infringement,
simply noted that one design was squat while the other was taller and more elegant. Id. at
*5.

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In the present action, the accused and patent designs bear no ornamental features in
common beyond both being generally elongated with slightly curved outer edges and at the very
least bear sufficiently different ornamental features to be plainly dissimilar because the two
designs have very different distinctive ends, with the patented design having ends that are
vertically truncated and the accused design having ends that are angled truncated. The difference
in overall appearance is plainly dissimilar, and summary judgment of non-infringement should
be granted on this basis alone.
ii)

There Can Be No Infringement In View Of The Prior Art

The closeness of the prior art to both the patent design and the accused design is very
pertinent to an analysis of design patent infringement. Egyptian Goddess, 543 F.3d at 678. For
example, in Fanimation, Inc. v. Dans Fan City, Inc., the court held that, based on the closeness
of the prior art, the patented design for a ceiling fan was not infringed by the accused ceiling fan,
even though both the patented and accused designs (shown below) shared ornamental features,
since the prior art shared many of the same ornamental features. No. 1:08-cv-1071, 2010 WL
5285304 at *4 (S.D. Ind. Dec. 16, 2010) (granting summary judgment of no design patent
infringement), affd, 444 Fed. Appx. 449 (Fed. Cir. 2011).

Patented Design

Non-Infringing Product

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As detailed above, the prior art to the Pambras design patent includes many designs that
have an elongated shape, slightly curved elongated outer edges, and rounded ends.

Any

distinction over the design of the patent in suit may only relate to the shapes of the ends.
The patentees design is much like the following prior art design, having vertically
truncated ends:

U.S. Design Patent No. D327,771, Sharma Declaration at Ex. H, Figure 2 (inverted), Ex. 2 to
Def.s Mot.
The shapes of the ends of the accused tummy liner products, however, are much more
like the ends of the following U.S. design and utility patents, having angled truncated ends:

U.S. Design Patent No. D525,364, Sharma Declaration at Ex. P, Figure 2, Ex. 2 to Def.s Mot.

U.S. Design Patent No. D601,706, Sharma Declaration at Ex. I, Figure 1, Ex. 2 to Def.s Mot.

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U.S. Design Patent No. D394,707, Sharma Declaration at Ex. O, Figure 1, Ex. 2 to Def.s Mot.

U.S. Patent No. 2,299,453, Sharma Declaration at Ex. L, Figure 6, Ex. 2 to Def.s Mot.

U.S. Patent No. 713,565, Sharma Declaration at Ex. J, Figure 7, Ex. 2 to Def.s Mot.
It is clear that the feature of having angled truncated ends was well known in the prior art.
As such, when viewed in light of this prior art, and in particular the design shown in U.S. Design
Patent No. D525,364 (Sharma Declaration at Ex. P, Figure 2, Ex. 2 to Def.s Mot.), there can be
no infringement as a matter of law, as the accused design is much more like the prior art than the
Pambras patented design. Summary judgment of non-infringement should further be granted on
this basis as well.

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Case 4:14-cv-00349-BRW Document 17 Filed 11/03/14 Page 25 of 26

IV.

CONCLUSION
The claim that the Dr. Leonards product infringes the Pambras design patent is without

merit as a matter of law. The two designs are plainly dissimilar. Given the incontrovertible facts
that bear on infringement the figures of the Pambras patent, the appearance of the Dr.
Leonards product, and the closeness of the prior art no reasonable juror could find that the Dr.
Leonards product infringes the patent in suit. Accordingly, Dr. Leonards respectfully requests
that the Court enter summary judgment and dismiss the case.

Dated November 3, 2014.

William E. Hilton
Adrienne J. Drew
GESMER UPDEGROVE LLP
40 Broad Street
Boston, Massachusetts 02109
Telephone: (617) 350-6800
Facsimile: (617) 350-6878
william.hilton@gesmer.com
adrienne.drew@gesmer.com
and
QUATTLEBAUM, GROOMS & TULL PLLC
111 Center Street, Suite 1900
Little Rock, Arkansas 72201
Telephone: (501) 379-1700
Facsimile: (501) 379-1701
cchiles@qgtlaw.com

By: /s/ E. B. Chiles IV

E. B. Chiles IV (96179)
Attorneys
for
Corporation

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Dr.

Leonards

Healthcare

Case 4:14-cv-00349-BRW Document 17 Filed 11/03/14 Page 26 of 26

CERTIFICATE OF SERVICE
I hereby certify that on November 3, 2014, I electronically filed the foregoing with the
Clerk of Court using the CM/ECF system, which shall send notification of such filing to the
following:
Gary D. Marts, Jr., Esq.
gmarts@wlj.com
Richard Blakely Glasgow, Esq.
bglasgow@wlj.com

/s/ E. B. Chiles IV
E. B. Chiles IV

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