In a dispute between San Francisco-based shoe companies,
Rothy's sued Birdies for infringing design patents claiming
the ornamental design for a shoe or a portion of a
shoe. Birdies moved for early summary judgment on both
invalidity and noninfringement. Judge Chhabria denied both
motions but expressed skepticism that Rothy's would prove
infringement at trial.
The court held that a reasonable jury could find that
Birdies's prior art—its own Blackbird
shoe—neither anticipated nor rendered obvious the asserted
patents. The asserted patents all claim a loafer with a
knitted appearance. This is true, according to the court, even
though only some of the asserted patents include text expressly
describing “textured portions” that are “designed
to show a stitched fabric” because the patents'
drawings all have a “visual appearance that connotes a knit
material.” In contrast to this knit material, the prior
art Blackbird was made of calf hair. According to the court, a
jury
