Design Patent Developments At The Federal Circuit – 2014 Term

In addition to its heavy docket of utility patent cases, the Federal Circuit also rendered several design patent decisions of interest thus far in the 2014 term.  Among them is in a recent non-precedential opinion in Anderson v. Kimberly-Clark Corp., the Federal Circuit affirmed the application of the "ordinary observer" test at the pleading stage to find that five undergarment products did not infringe a design patent.

This case originated in the Western District of Washington, where a pro se plaintiff alleged that nine Kimberly-Clark products infringed its U.S. Patent No. D401,328 (the "D '328 patent") directed to "an ornamental design for an absorbent disposable undergarment." Kimberly-Clark moved for judgment on the pleadings under Fed. R. Civ. P. 12(c), asserting that it only manufactured five of the nine accused products, all under the Depend® and GoodNites® brands, and that none of those products infringed the D '328 patent.  The district court took  judicial