Wurst Case Scenario: Sausage Tray Design Patent Found Obvious

Last October, the Federal Circuit reversed the PTAB's decision that a challenged design patent was not obvious. Campbell Soup Co. v. Gamon Plus, Inc., 939 F.3d 1335 (Fed. Cir. 2019). We wrote about how the court applied a more flexible design patent obviousness analysis than the PTAB. Here, we report on another interesting decision that seems to take another step towards flexibility in the design patent obviousness analysis and borrowing principles from utility patents never before applied to design patents.

In Johnsonville Sausage LLC v. Klement Sausage Co. Inc., the district court granted a rare summary judgment of design patent obviousness and, in doing so, invoked an apparently novel "common sense" theory, a utility patent doctrine. 2020 WL 1492983 (E.D. Wis. Mar. 27, 2020). The case involves alleged infringement of a patented "ornamental design for a sausage tray," U.S. Patent No. D633,754 ("'754 patent").