Kimber Cakeware V Bradshaw - Motion For Sanctions

6243892.
1
IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
____________________________________________
)
KIMBER CAKEWARE, LLC., )
) Case No. 2:13-cv-0185
)
Plaintiff, )
) Judge Marbley
v. )
)
BRADSHAW INTERNATIONAL, INC., ) Magistrate Judge King
)
Defendant. )
____________________________________________ )

DEFENDANT BRADSHAW INTERNATIONAL, INC.S MEMORANDUM IN
SUPPORT OF ITS MOTION FOR RULE 11 SANCTIONS

Pursuant to Federal Rule of Civil Procedure 11, Defendant Bradshaw International, Inc.
(Bradshaw) brings the present motion against Kimber Cakeware, LLC (Kimber) for
Kimbers failure to withdraw its Complaint against Bradshaw. Kimbers Complaint lacks
legitimate legal and factual foundation. Kimber has asserted that Bradshaw infringes its design
patent, but has produced no evidence that supports its assertion of infringement. Moreover,
Kimber has asserted, and still maintains, a claim construction that ignores clear Federal Circuit
precedent. Kimber has wrongly asserted protection for a functional, utilitarian article through its
design patent, which is the epitome of what cannot be claimed in a design patent.
Bradshaw brings the instant motion as a last resort, having made repeated attempts to
resolve this matter without resorting to filing a Rule 11 motion. Bradshaw has repeatedly sought
an explanation from Kimber as to why Kimber believes its patent is being infringed. The only
explanation that Kimber has every provided in response has been by its ipse dixit paraphrase of
the test for infringement under Egyptian Goddess, that the ordinary observer would be confused.
Case: 2:13-cv-00185-ALM-NMK Doc #: 24 Filed: 02/05/14 Page: 1 of 21 PAGEID #: 179

2
6243892.1
The only evidence Kimber has ever offered to support its conclusory assertion is that a single
retailer, upon inquiry by Kimber, stated that it was already selling Bradshaws product.
However, this fact actually demonstrates that the retailer lacked any confusion between the two
products, easily identifying the source. Consequently, the only evidence Kimber has in support
of its claim in fact rebuts Kimbers allegation of confusion.
Lacking any basis in fact or law, Kimbers true motives for bringing the instant suit can
be discerned: to shake down Bradshaw for a quick buck, regardless of the merits of its claims
or the law of design patents. Kimber has demanded a settlement amount far less than the costs
Bradshaw would need to defend the current litigation. The Federal Rules are designed to protect
defendants from this type of spurious allegation. The Court, upon full review of the facts and law
of this case, should reach the same conclusion Bradshaw hasthat Kimbers Complaint lacks
legitimate basis, Kimbers Complaint must be dismissed with prejudice, and Kimber and its
attorneys be appropriately sanctioned under Rule 11.
I. Background
Kimber filed the instant action on March 1, 2013, alleging that Bradshaw infringed a
single design patent, U.S. Patent No. D671,376 (the 376 Patent). The 376 Patent claims the
ornamental design for a batter separator, as depicted in four drawings of the 376 Patent. The
underlying utilitarian article of the claimed ornamental design, a batter separator, is designed to
fit inside a standard-sized muffin tin cup, to permit two different types of batters to be used in
creating a single muffin or cupcake (e.g., a half-vanilla, half-chocolate cupcake). The claimed
ornamental design for a batter separator is shown in Figure 1 of the 376 Patent, the front view,
while Figure 2 depicts a nearly identical rear view. Figures 3 and 4 depict the side view and
top view of the batter separator. Both Figures 3 and 4 are essentially drawings of rectangles.

3
6243892.1

Figure 1 Figure 3

As shown above, the claimed design is two-dimensional and minimalist. The distinctive
features of the claimed design include a lower trapezoidal cup-shaped portion, protrusions
extending over the edge of the cup area, a semi-circular bell at the top of the product, a
simple curved slope of the top edge of the product extending from the protrusions to the bell, and
seven small circles located under the bell portion.
The accused infringing Bradshaw product, the Sweet Creations by Good Cook cupcake
divider, takes a completely different aesthetic approach in its ornamental design for a cupcake-
shaped cupcake divider. The Bradshaw product has a distinctive circular swirl pattern
throughout the top half of the divider, with a two-tier top that, combined with the swirl, provides
the illusion of three-dimensional depth of the topping of the cupcake. The Bradshaw accused
product also provides the utilitarian function of fitting into standard-sized muffin cup tin.

4
6243892.1

Bradshaw Accused Product
Kimbers Complaint sought relief inter alia a preliminary injunction for the irreparable
harm Kimber was facing due to Bradshaws alleged infringement. [D.I. 1.] However, Kimber
has made no motion for a preliminary injunction, and does not appear to be making any attempt
to seek one. Instead, Kimber has demanded payment from Bradshaw for an amount of money
that falls way below the amount that Bradshaw would be required to expend to defend the
present litigation. In fact, after Kimber had been provided financial data from Bradshaw as part
of the settlement negotiations, which demonstrated that the possible value of the alleged
infringement was even less than Kimbers settlement demand, Kimber served broad, unfocused,
and burdensome discovery on Bradshaw in an apparent attempt to force Bradshaw to settle.
II. Legal Standard
A. The Law of Design Patents
Although design patents share features of the much more common utility patentsuch as
patentability requirements under Title 35, examination before the U.S. Patent and Trademark
Officedesign patents are permitted to protect only the ornamental or non-functional aspects of
an article of manufacture. See Intl Seaway Trading Corp. v. Walgreens Corp., 589 F.3d 1233,
1238 (Fed. Cir. 2009).

5
6243892.1
A design patent protects the "non-functional aspects of an
ornamental design as shown in a patent." Keystone Retaining Wall
Systems v. Westrock, Inc., 997 F.2d 1444, 1450 (Fed. Cir. 1993)
(citing Lee v. Dayton-Hudson Corp., 838 F.2d 1186, 1188-89 (Fed.
Cir. 1988). A design may consist of "surface ornamentation,
configuration, or a combination of both." 1 Donald S. Chisum,
Patents, 1.04 (1995). Because a design patent is by its nature
limited to ornamentation, design patents "cannot include claims to
the structural or functional aspects of the article[.]" Lee, 838 F.2d
at 1188. Indeed, if a design patented article is primarily functional,
the design patent is invalid. Avia Group International, Inc. v. L.A.
Gear California, 853 F.2d 1557, 1563 (Fed. Cir. 1988).

Arner v. Sharper Image Corp., No. 94-1713, 1995 U.S. Dist. LEXIS 21156, at *31 (C.D. Cal.

Oct. 5, 1995).

The drawings of the design patent define the scope of the claim. The first step in an
analysis of design patent infringement is to determine the scope of the claim. Determining
whether a design patent claim has been infringed requires, first, as with utility patents, that the
claim be properly construed to determine its meaning and scope. Elmer v. ICC Fabricating,
Inc., 57 F.3d 1571, 1577 (Fed. Cir. 1995). When construing the claim of a design patent, it is
important to consider that [a] patented design is defined by the drawings in the patent, not just
by one feature of the claimed design. Keystone Retaining Wall Sys., Inc. v. Westrock, Inc., 997
F.2d 1444, 1450 (Fed. Cir. 1993). Design patents have almost no scope. The claim . . . in all
design cases, is limited to what is shown in the application drawing. In re Mann, 861 F.2d 1581,
1582 (Fed. Cir. 1988).
[W]e have made clear that a design patent, unlike a utility patent, limits protection to the
ornamental design of the article. If the patented design is primarily functional rather than
ornamental, the patent is invalid. However, when the design also contains ornamental aspects, it
is entitled to a design patent whose scope is limited to those aspects alone and does not extend to
any functional elements of the claimed article. David A. Richardson v. Stanley Works, Inc., 597

6
6243892.1
F.3d 1288, 1293-94 (Fed. Cir. 2010) (internal citations omitted). The design of a useful article is
deemed functional where the appearance of the claimed design is dictated by' the use or
purpose of the article. Rosco, Inc. v. Mirror Lite Company, 304 F.3d 1373, 1378 (Fed. Cir.
2002). (internal citation omitted). In other words, where the design of the article (or portion
thereof) is dictated by the function of the article, the design (or portion thereof) is functional. See
Avia Group International, Inc. v. L.A. Gear California, Inc., 853 F.2d 1557, 1563 (Fed. Cir.
1988).
When functional elements are present in a claimed design, these functional elements must
be verbally identified. Where a design contains both functional and non-functional elements, the
scope of the claim must be construed in order to identify the non-functional aspects of the
design as shown in the patent. OddzOn Prods., Inc. v. Just Toys, Inc., 122 F.3d 1396, 1405
(Fed. Cir. 1997) (quoted in Egyptian Goddess, 543 F.3d at 680) (emphasis added). The Court is
required to construe the 376 Patent to ensure the ornamental features of the design are sorted
from the functional features.
After the claim of the design patent is construed, the accused design is compared against
the patent in application of the ordinary observer test. The test originates from the Supreme
Court finding that
if, in the eye of an ordinary observer, giving such attention as a
purchaser usually gives, two designs are substantially the same, if
the resemblance is such as to deceive such an observer, inducing
him to purchase one supposing it to be the other, the first one
patented is infringed by the other.

Gorham Co. v. White, 81 U.S. 511, 528 (1871). The ordinary observer is generally the principal
purchaser of the article. The Goodyear Tire & Rubber Co. v. The Hercules Tire & Rubber Co.,

7
6243892.1
Inc., 162 F.3d 1113, 1117 (Fed. Cir. 1998). However, this ordinary observer is imputed with the
knowledge of prior art designs.
When the differences between the claimed and accused designs are
viewed in light of the prior art, the attention of the hypothetical
ordinary observer may be drawn to those aspects of the claimed
design that differ from the prior art. If the claimed design is close
to the prior art designs, small differences between the accused
design and the claimed design assume more importance to the eye
of the hypothetical ordinary observer. The ordinary observer,
however, will likely attach importance to those differences
depending on the overall effect of those differences on the design.

Crocs, Inc. v. International Trade Commission, 598 F.3d 1294, 1303 (Fed. Cir. 2010).
Accordingly, the test has more recently been formulated by the Federal Circuit to inquire
whether an ordinary observer, familiar with the prior art designs, would be deceived into
believing that the accused product is the same as the patented design. Richardson, 597 F.3d at
1295 (citing Egyptian Goddess, Inc. v. Swisa, Inc., 543 F.3d 665, 681 (Fed. Cir. 2008) (en banc))
(emphasis added). In other words, infringement of a design patent can only be found where, in a
side-by-side comparison of the construed design patent claim (accounting for functional features)
with the accused product, the overall designs are confusingly similar, but with particular
emphasis on smaller differences when the claimed design is similar to the prior art.
B. Rule 11 Sanctions
The Federal Circuit recently summarized the purpose and intent of Federal Rule of Civil
Procedure 11:
Rule 11 expressly requires that an attorney presenting a pleading,
motion, or other paper before the court certify that he has
performed "an inquiry reasonable under the circumstances" such
that he can verify that (1) "it is not being presented for any
improper purpose, such as to harass, cause unnecessary delay, or
needlessly increase the cost of litigation," (2) "the claims . . . are
warranted by existing law or by a nonfrivolous argument for
extending, modifying, or reversing existing law;" (3) "the factual

8
6243892.1
contentions have evidentiary support or, . . . will likely have
evidentiary support after a reasonable opportunity for further
investigation or discovery." Fed. R. Civ. P. 11(b)(1)-(3). As the
1993 advisory committee note explains, this rule "requires litigants
to 'stop-and-think' before initially making legal or factual
contentions." Fed. R. Civ. P. 11 advisory committee note to 1993
amendments. The notes explain that the changes to the rule
"emphasize[] the duty of candor by subjecting litigants to potential
sanctions for insisting upon a position after it is no longer tenable."

Raylon v. Complus Data Innovations, Inc., 700 F.3d 1361, 1366-1367 (Fed. Cir. 2012). In other
words, Rule 11 requires litigants to not only have a legitimate basis, in both fact and law, for
asserting a claim, but are required to withdraw its claim should their position shown to be no
longer tenable.
The Federal Circuit applies the law of the regional circuit in reviewing Rule 11 sanctions.
Eon-Net LP v. Flagstar Bancorp, 653 F.3d 1314, 1328 (Fed. Cir. 2011). Under Sixth Circuit
precedent, attorneys are required to follow an objective standard for asserting claims: The test
for the imposition of Rule 11 sanctions is whether the individual attorney's conduct was
reasonable under the circumstances. Mann v. G & G Mfg., Inc., 900 F.2d 953, 958 (6th Cir.
1990). The court elaborated that Plaintiffs counsel cannot insulate itself from Rule 11 sanctions
merely by showing that they acted in good faith, but instead must maintain a level of conduct
that meet[s] an objective standard of reasonableness under the circumstances. Id. Where a
litigants case is untenable, making conclusory allegations without factual support, and cannot be
sustained as a matter of law, Rule 11 is violated and sanctions against the litigant are warranted.
See Trans Rail Am., Inc. v. Hubbard Twp., No. 4:08-02790, 2012 U.S. Dist. LEXIS 139113, at
*10-11 (N.D. Ohio Sept. 27, 2012) (citing Mann v. G & G Mfg.); Meier v. Green, 2007 U.S.
Dist. LEXIS 65766, No. 07-11410, at *7 (E.D. Mich. Sept. 6, 2007) (citing Mann v. G & G
Mfg.).

9
6243892.1
As demonstrated below, Kimber lacked any legitimate basis to assert infringement
against Bradshaw. Kimber has continued to assert its infringement claim against Bradshaw
despite lack of evidence, clear guidance from the Federal Circuit that refutes its contentions, and
an unambiguous demonstration by Bradshaw of these deficiencies.
III. Kimbers Allegations
In Kimbers Complaint, Kimber accused Bradshaws batter separator as infringing
Kimbers 376 Patent. Kimber alleged, without any factual support or analysis that [t]he design
of Bradshaws batter separator as marked and sold would cause an ordinary observer, familiar
with the prior art designs, to be deceived into believing that the design of Bradshaws batter
separator is the same as Kimbers patented design. [D.I. 1 31.] In essence, this is an
incomplete paraphrase from the holding in Egyptian Goddess. Kimber ignores the functionality
of its patented design, ignores any consideration of the prior art, and provides no explanation as
to why the ordinary observer would conclude that the accused Bradshaw product infringes the
376 Patent.
Accordingly, Bradshaw served an interrogatory on Kimber to provide all facts in support
of its assertion of infringement. In response, Kimber again provides an incomplete and wholly
deficient analysis on design patent claim construction and its infringement contentions, then
concludes: Applying the Egyptian Goddess standard to the Kimber matter and observing the
designs below, it is Kimbers position that an ordinary observer would conclude that the accused
products are similar enough to create market confusion. Ex. 1, Kimbers Answers to
Bradshaws First Set of Interrogatories, No. 16. The drawings below are reproduced here:

10
6243892.1

The only evidence that Kimber cites in support of its conclusory market confusion theory is
merely repeating the same allegation made in the Complaintthat a customer of Bradshaws
refused to carry Kimbers product because it was already carrying Bradshaws product. [D.I. 1
27.] In fact, as evidenced by the email chain annexed to Kimbers Complaint, the customer was
able to precisely identify the proper source of the batter separator from Bradshaw, including a
link to Bradshaws Good Cook website. [Id. Ex. D.] Moreover, this single uncorroborated
hearsay statement fails to support the requirement that it must be the ornamental features that
create the confusion and makes no such distinction over the functional features. See OddzOn
Prods, 122 F.3d at 1406-07 (finding that where both functional and ornamental features are in a
patent design, survey evidence must demonstrate a link between the accused products and the
patented ornamental aspects of the design). Neither at the time of filing, nor more than nine
months into the litigation, has Kimber produced any scrap of evidence to support its assertion of
infringement.
At no point has Kimber acknowledged that its patented design is primarily functional,
which is not afforded design patent protection. Moreover, Kimber has also failed to acknowledge
that the established prior art of record completely abrogates any attempt by Kimber to stretch its
patent to accuse Bradshaw. These continued failures by Kimber to establish a basis in fact or law
to sustain this action are sanctionable under Rule 11.

11
6243892.1
IV. Kimbers Assertion of Bradshaws Infringement is Unsupported by the Law
and Bradshaw Does Not Infringe the 376 Patent as a Matter of Law

A. Kimbers Proposed Claim Construction Ignores Functional Elements, Which
Are Not Afforded Protection Under A Design Patent

Kimbers only attempt to provide any analysis on the scope of the 376 Patent was
provided through its Settlement Demand Letter of November 27, 2013.
1
(Ex. 2 at 4.) Kimbers
analysis on the construction of the 376 Patent is improper and contrary to the precedent
established in in Egyptian Goddess, 543 F.3d 665. Kimber makes the conclusory assertion that
the Court will construe Kimbers claim as an unambiguous and clearly illustrated design for a
cupcake batter separator. (Id.) But at no point does Kimber address that the bulk of the 376
Patent claims functional elements that are not protectable under design patent law.
Functional elements have never been protectable under design patent law. In order to
prevent a design patentee from asserting utility patent protection through a design patent,
functional elements must be identified in the claim construction of the design patent. Where a
design contains both functional and non-functional elements, the scope of the claim must be
construed in order to identify the non-functional aspects of the design as shown in the patent.
OddzOn Prods., 122 F.3d at 1405 (quoted in Egyptian Goddess, 543 F.3d at 680).
Kimbers letter and analysis completely ignores that the claimed batter separator has a
primarily utilitarian function of bisecting a cupcake/muffin cup. The claimed batter separator

1
Although Kimbers settlement demand letter (and subsequently Bradshaws responsive letter)
are inadmissible for the purpose of establishing liability, the settlement letters demonstrate
Kimbers bad faith in asserting a position contrary to clear law, and thus admissible under Fed.
R. Evid. 408(b). See, e.g., Seafarers Int'l Union of N. Am. v. Thomas, 42 F. Supp. 2d 547 (3d Cir.
1999) (holding bad faith conduct during negotiations admissible); Ausherman v. Bank of Am.
Corp., 212 F. Supp. 2d 435 (D. Md. 2002) (Fed. R. Evid. 408 does not shelter [attorneys] who
attempt to shield from the Courts scrutiny deliberately untruthful statements.) However, any
statement concerning Bradshaws settlement offers remain inadmissible to prove liability under
Fed. R. Evid. 408(a).

12
6243892.1
shows in Figure 1 the front view while Figure 2 depicts a nearly identical rear view. These
two views together generally depict an upper top part of the separator, while the bottom
trapezoid conforms to the diameter of a standard size cupcake pan. (See 376 Patent, Ex. 3.) The
bottom cup-shaped part is depicted in the red box below:

The bottom part of the claimed design is unquestionably functional. The bottom part must
conform to the inverted, truncated cone shape of a muffin/cupcake cup. Any other shape would
not permit the batter poured into one half of the muffin cup to be separated from the other half of
the muffin cup. The bottom half must be trapezoid-shaped in the depicted proportion to properly
bisect the inverted, truncated cone shape of a muffin cup.
Figures 3 and 4 depict the side view and top view of the batter separator. Both figures are
essentially drawings of rectangles.

13
6243892.1

Unsurprisingly, Kimber has never provided an analysis on the construction of its 376 patent
utilizing Figures 3 and 4 as part of its analysis. This is a tacit admission that Kimber has no
protectable interest in their design being essentially flat. This is supported by the similar analysis
from above on the functionality of the claimed batter separator. A batter separator must be flat
and thin (as claimed) in order to bisect the inverted, truncated cone shape of a muffin cup. Any
other pattern or shape other than flat would interfere with the ability to create two halves of
a single cupcake. Any other arbitrary shape would fail to create a cupcake with two halves, and
thus is a functional element of the claimed batter separator.
There are other clear indicia of the functionality of the claimed batter separator. Berry
Sterling Corp. v. Prescor Plastics, Inc., 122 F.3d 1452, 1456 (Fed. Cir. 1997) outlines additional
considerations, which are also present here:
Whether the protected design represents the best design. The trapezoid shape of the
bottom part and the flatness of the claimed batter separate are the best design choices.
Any other shape of these features would be poor choices in creating a batter divider that
evenly divided a muffin cup.

Whether alternative designs would adversely affect the utility of the specified
article. A shape other than the trapezoid shape of the bottom part in the claimed
dimensions would not prevent batter being poured into one half of the muffin cup from
leaking into the other side of the muffin cup. A batter divider that was not flat and thin
would not permit the creation of muffins/cupcakes with two halves.


14
6243892.1
Whether the advertising touts particular features of the design as having specific
utility. Kimbers advertising touts its functional features. Right beneath the product name
on Kimbers packaging is the utilitarian feature of the claimed batter separatorthat it
fits standard size cupcake pans and cups:

(See Ex. 2 at 1, Kimber Settlement Demand Letter of November 27, 2013.)
Kimber cannot ignore the functionality of its claimed batter separator during claim
construction. The Federal Circuit has already ruled it is improper to rely on just the
unambiguous and clearly illustrated design shown in the drawings where functional elements
must be considered. See Richardson, 597 F.3d at 1294. ([Patentee] fails to explain how a court
could effectively construe design claims, where necessary, in a way other than by describing the
features shown in the drawings. [Patentees] proposition that the claim construction should
comprise nothing more than the drawings is simply another way of arguing that the court erred
by identifying the functional elements of the patented article, and is therefore unavailing. We
find no error in the courts claim construction.). Moreover, if a design contains both functional
and ornamental features, the patentee must show that the perceived similarity is based on the
ornamental features of the design. OddzOn Prods., 122 F.3d at 1405. As such, there is an
additional level of proof required from the patentee, and it cannot merely rely on the drawings
alone to construe the patent.
2

2
Bradshaw maintains there are additional functional features of the claimed batter separator,
including at least the overhang on the top of the cupcake design that allow the product to rest
on the cupcake/muffin cup or paper cup, and the raised bumps for gripping the separator.
However, Bradshaw does not believe it is necessary to proceed with further analysis on these
points at this time.

15
6243892.1
Kimbers proposed claim construction of the 376 patent is not merely a difference of
litigation positions, but an untenable position contrary to well-established law on design patents.
B. Kimbers Infringement Analysis Ignores Consideration Of The Prior Art As
Required Under Egyptian Goddess

In addition to Kimbers omission of clear precedent that prevents Kimber from claiming
design patent protection for the functionality of the claimed design, Kimbers cursory
infringement analysis relies on an improper selective reading of the operative case law. Kimber
omits key precedent from Egyptian Goddess that requires Kimber to consider the prior art in its
infringement analysis:
When the differences between the claimed and accused design
are viewed in light of the prior art, the attention of the
hypothetical ordinary observer will be drawn to those aspects of
the claimed design that differ from the prior art. And when the
claimed design is close to the prior art designs, small differences
between the accused design and the claimed design are likely to be
important to the eye of the hypothetical ordinary observer.

Egyptian Goddess, 543 F.3d at 675 (emphasis added). In other words, it must be the differences
between the claimed design and the prior art that cause the deception by the ordinary observer of
the similarities between the claimed design and the accused product. Comparison of the claimed
design against the prior art demonstrates exactly what feature the ordinary observer would be
drawn to in comparison with the accused product:

Fig. 1, 376 Patent Cupcake Cookie Cutter
Dated Oct. 25, 2009 (Ex. 4)

16
6243892.1
The only articulable difference between the claimed design and the prior art cookie cutter
is the addition of the seven circles under the bell portion of top of the claimed design. Every
other feature of the claimed design is present in this single prior art reference. Comparing the
differences between the claimed and accused design viewed in light of the prior art (and
accounting for the functional elements of the claimed design) indisputably demonstrate how
distinct the Accused Product is from the claimed design:

Fig. 1, 376 Patent Cupcake Cookie Cutter Accused Product

Again, the ordinary observer would be drawn towards the distinctive seven circles under
the bell portion of top of the claimed design, which are not present in the Accused Product. Any
attempt to construe the 376 Patent more broadly to encompass the Accused Product will render
the patent invalid as anticipated, as all of the ornamental features would be encompassed by the
Cupcake Cooke Cutter prior art reference. See Upsher-Smith Labs., Inc. v. Pamlab, LLC, 412
F.3d 1319, 1322 (Fed. Cir. 2005) (A century-old axiom of patent law holds that a product
which would literally infringe if later in time anticipates if earlier.)


17
6243892.1
This same analysis can be performed with any number of prior art references that the
ordinary observer would be familiar with:

D671,376 D359,153 (Ex. 5.) D601,379 (Ex. 6.)

D633,654 (Ex. 7.) D616,260 (Ex. 8.) D649,905 (Ex. 9.)

D610,944 (Ex. 10.) D590,524 (Ex. 11.) Accused Product

Bradshaw can find no plausible argument whereby Kimber can assert infringement of the
376 Patent without simultaneously distinguishing over the prior art.
3

Even without the above analysis, the lack of any good faith claim of infringement can be
found in Kimbers Complaint. Kimbers repeated use of a three-way comparison between the
patent design, the accused product, and Kimbers product demonstrate how different Bradshaws
product is:

3
Alternatively and additionally, the 376 Patent is invalid as anticipated by the Cupcake Cookie
Cutter prior art reference. All of the ornamental features of the two designs are the same, and the
addition of the functional gripping circles under the bell portion of the top of the design fails to
make a patentable distinction over the prior art. However, a full analysis is not necessary at this
time and Bradshaw reserves the right to revisit the invalidity of the 376 Patent later, if
warranted.

18
6243892.1

The ordinary observer can easily distinguish which one of these three images is not like the
others. Nobody would confuse the Bradshaw product in the middle as the same as the other two
pictures, let alone an ordinary observer. Not only does Bradshaw not infringe the 376 Patent,
there is no plausible argument for Kimber to assert that Bradshaw is infringing the 376 Patent.
V. Kimbers Filing and Maintaining of the Present Lawsuit Without a Basis in Fact or
Law Warrant Rule 11 Sanctions

As Kimber continues insisting on advancing its baseless claim of infringement against
Bradshaw, Kimber is subject to liability for violating Federal Rule of Civil Procedure 11. Under
Sixth Circuit precedent, the test for the imposition of Rule 11 sanctions is the objective standard
of whether the individual's conduct was reasonable under the circumstances. Union Planters
Bank v. L & J Dev. Co., 115 F.3d 378, 384 (6th Cir. 1997) (citation omitted). This objective
standard is violated when the patentee takes unsustainable positions during litigation. For
example, the Federal Circuit held that there is a threshold below which a claim construction is
so unreasonable that no reasonable litigant could believe it would succeed, and thus warrants
Rule 11 sanctions. Raylon v. Complus Data Innovations, Inc., 700 F.3d 1361, 1368 (Fed. Cir.
2012)(quoting iLor, LLC v. Google, Inc., 631 F.3d 1372, 1378 (Fed. Cir. 2011)).
As demonstrated above, Kimbers positions on claim construction and infringement are
so unreasonable that no reasonable litigant would believe it could maintain these contentions.
Kimber cannot ignore established precedent on the functionality of its claimed design or the prior

19
6243892.1
art that limits the scope of its design. Kimber cannot profess ignorance of the law, which also
provides no support for Kimbers assertion of infringement. As the Sixth Circuit measures
conduct against an objective standard, Kimber cannot insulate itself from failing to comply with
Rule 11 merely because it may have had a good faith belief in pursuing the present lawsuit.
Thus, Rule 11 sanctions are warranted against Kimber as it has maintained its accusation of
infringement against Bradshaw.
Even more egregious is that Kimber has had full knowledge of the facts and legal
statements contained herein since December 9, 2013, as Kimber was provided with Bradshaws
response to its settlement demand letter. (Ex. 12.) The Sixth Circuit has admonished parties that
Rule 11s requirement of reasonableness is not a one-time obligation and parties are
impressed with a continuing responsibility to review and reevaluate his pleadings and where
appropriate modify them to conform to Rule 11." Runfola & Associates, Inc. v. Spectrum
Reporting II, Inc., 88 F.3d 368, 374 (6th Cir. 1996).
In this case, Kimbers allegations and legal positions were not reasonable at Kimbers
initiation of the present lawsuit, and the continued discovery and correspondence exchanged
further demonstrate the lack of reasonableness. Where much of the factual record is publicly
available at the time of the complaint, Plaintiff must make a sound appraisal of the viability of
[its] claims. Bates v. Colony Park Ass'n, 393 F. Supp. 2d 578, 598 (E.D. Mich. 2005). Any
doubt Kimber had that it was attempting to protect non-ornamental features already present in
the prior art through its asserted design patent should have long been erased.

20
6243892.1
Instead, Kimbers malice in advancing the present action against Bradshaw can be seen
through its conduct.
4
Kimbers settlement demands were far below the costs required by
Bradshaw to defend the current suit. (See Ex. 2 at 7, Kimber Settlement Demand Letter of
November 27, 2013.) Kimber apparently attempted to extract a nuisance value from Bradshaw,
in hopes that it would impose a high cost against Bradshaw to combat Kimbers meritless claim.
This type of conduct is one recent example of bad faith litigation. Eon-Net LP v. Flagstar
Bancorp, 653 F.3d 1314, 1324 (Fed. Cir. 2011).
VI. Conclusion
As explained above, at the outset of the present litigation, Kimbers complaint lacked
basis in fact or law to sustain its allegations of design patent infringement against Bradshaw.
Ultimately, there is no prospect that further discovery may make Kimbers infringement
allegations sustainable. The Court must find that Kimber has violated Rule 11, dismiss Kimbers
Complaint with prejudice, and award an appropriate sanction amount against Kimber and/or its
counsel at a minimum to make Bradshaw whole again and sufficient to deter repetition of the
conduct or comparable conduct by others pursuant to Fed. R. Civ. P. 11(c)(4).
Dated: February 5, 2014 Respectfully submitted,

/s/ Phillip G. Eckenrode
Phillip G. Eckenrode (# 0084187)
HANH LOESER & PARKS, LLP
65 East State Street, Suite 1400
Columbus, Ohio 43215
Phone: (614) 233-5147
Fax: (614) 233-5194
peckenrode@hahnlaw.com

4
Proof of malicious intent is not required to sustain sanctions under the objective Rule 11
standard, but should be considered as part of the Courts analysis.

21
6243892.1
/s/ Michael B. Marion
Michael B. Marion (admitted pro hac vice)
Robert J. Kenney (admitted pro hac vice)
BIRCH, STEWART, KOLASCH & BIRCH, LLP
8110 Gatehouse Road, Suite 100 East
Falls Church, Virginia 22042
Phone: (703) 205-8000
Fax: (703) 205-8050
rjk@bskb.com;
mbm@bskb.com

ATTORNEYS FOR DEFENDANT
BRADSHAW INTERNATIONAL, INC.

CERTIFICATE OF SERVICE

I hereby certify that on January 8, 2014 and February 5, 2014, I served via electronic
mail, a copy of the foregoing Defendant Bradshaw International, Inc.s Memorandum in Support
of its Rule 11 Motion for Sanctions upon:
Samuel N. Lillard, Esq.
Courtney J. Miller, Esq.
David M. Marcus, Esq.
McNees Wallace & Nurick LLC
Fifth Third Center
Columbus, OH 43215
slillard@mwncmh.com
cmiller@mwncmh.com
dmarcus@mwncmh.com

/s/ Michael B. Marion
Michael B. Marion

EXHIBIT 1
to Defendant Bradshaw's
Rule 11Motion
Case: 2:13-cv-00185-ALM-NMK Doc #: 24-1 Filed: 02/05/14 Page: 1 of 23 PAGEID #: 200
TN THE UNITED STATES DISTRJCT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Kimber Cakeware, LLC
Case No. 2: 13-cv-0 185
Plainti IT.
Judge Marbley
vs.
Magistrate Judge King
8radshnw Intermttional, Inc.
Defendm1t
PLAINTIFF KJMBER CAKEW ARE, LLC'S ANSWERS TO DEFENDANT
BRADSHAW INTERNATIONAL, lNC. 'S FIRST SET OF JNTERROGA TORIES
Now comes the Plaintiff, Kimber Cakewarc, LLC (hereinafter "Plainti ff' or 'Kimber"),
through the undersigned counsel, pursuant to Rule 33 of the Federal Rul es of Civil Procedure,
and hereby submits its responses to Defendant Bradshaw International, lnc. 's (hereinafler
'Defendant'' or "Bradshaw") First Sel of Interrogatories under oath and in writing.
PRELIMINARY STATEMENT
The responses set forth below are made solely for the pw-pose of this action. By
responding to Defendant's First Set of Interrogatol'ics, Plaintiff hereby states that it does not
waive its right to make all appropriate objections, including without limitation, objections
concerning relevancy, competency, material ity. propriety and admissibility, that would require
the exclusion of any statement contained herei n or in any document referenced if any such
response or document were sought to be introduced into evidence at any hearing or trial in this
action. Plaintiff expressly reserves all such objections.
Plaintiff has not yet completed its investigation of all the facts relating to this act ion and
has not yet completed its preparation for trial. The following responses are based upon
information and documents presently known to responding pa11y and are therefore made without
prejudice to responding pru1y's r ight to produce subsequently discovered evidence relating to the
proof of presently known material facts and to produce all evidence, whenever discovered, in any
form, relating to the proof of subsequently discovered material facts.
Except for explicit facts admitted herein, or in any documents referenced in connection
herewi th, no admission or any natme is intended, and none should be implied or inferred.
Plaintiff generally objects to each discovery request to the extent that it seeks information
protected by U1e attorney-client and/or attorney work product privileges, including without
limitation, protected communications between responding pany and its counsel and counsel's
legal reasoning, theori es, opinions, research, impressions and/or conclusions. Without waiving
any objections, qualifications and limitations, Pl aintiff responds as follows:
INTRRROGATORY NO. 1:
Identify each Accused Product in thi s action, set forth each element of the patent-in-suit
that Kimber alleges has been infringed as a result of the sale of the product; whether such
infringement is direct or under t he doctrine of equivalents; set forth, on an element-by-element
basis, the corresponding structure in each product which Kimber alleges satisfies each respective
claim element or f e t u r e ~ and identify each document refen ing or relating to any analysis or
evaluation performed on any sample of an Accused Product.
ANS\VER:
With respect to Interrogatory No. I, Kimber states that the Accused Product in this action
is Defendant's "Sweet Creations by Good Cook cupcake divider' ' batter separator . Kimber
further states that taking its non-obvious ornamental design for a batter separator marketed as
''Batter Babies'' (''patented design") and comparing it to the Accused Product, an ordinary
2
observer would believe that the patented design and Accused Product are substantially the same
in appearance as illustraLed below:
Kimber's Patented Design Bradshaw Batter Separator
Further, pursuant to Egyptian Goddess v. Swisa, 543 F.3d 665 (Fed. Cir. 2008), in
construing design patents, courts are to generall y forego verbal or narrative descriptions of
design patents: ' '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., ld. at 679.
"[D]esign patents 'typically are claimed as shown in drawings,' and claim construction 'is adapted
accordingly."' Id. "'[A]s a mle the illustration in the drawing views is its own best description."'
Id. Accordingly, courts have generally relied on patent drawings to construe design claims.
Wing Shing Products Co. Ltd. v. Sw1beam Products, Inc. , 665 F.Supp.2d 357, 360 (S.D.N.Y.
2009). Thus, Defendant's request for an element-by-clement comparison oftbe Accused Product
and patented design is a futile exercise that does not comport with the present state of the
relevant law.
3
FinaUy, with respect to Defendant's request H1at Kimber identify each document referring
or relating to any analysis or evaluation performed on any sample of an Accused Product,
Kimber specilically identifies U.S. Design Patent No. 0 671,376.
INTERROGATORY NO.2:
Identify all prior art to the patent-in-suit, including the identification of all patentability.
validity, prior art, enforceability, or infringement evaluations, searches, or opinions conducted by
or lor ((jmber (or any of the named inventors of the patent-in-suit) relating to the alleged
inventions described and claimed in the patent-in-suit, including for each such evaluation, search
or opinion, the identification of the date and scope of each such evaluation, search or opinion; the
identification of each person involved in authorizing, conducting, evaluating or reviewing the
results of each such evaluation, search or opiruon; and an identification of al l documents,
including in patents and other publications, which wcrc revealed by each such evaluation, search
or opinion; and all other documents relating to each such evaluat ion, search, or opinion,
including but not limited to any such rcpotts.
ANSWER:
With respect to Interrogatory No. 2, Kimber states that it is not aware of any prior an
related to the patent-in-suit.
JNTERROGATORY NO. 3:
Identify each disclosure related to the subject matter 1or Lhe patent-in-suit made prior io
the filing of a patent application, by any individual, including the inventors of the patent-in-suit,
to any third party, and identify each person(s) involved in and who received such disclosure.
4
ANSWER:
With respect to Interrogatory No. 3, Kimber states that it made no disclosures related to
the subject matter for the patent-i n-suit to any third-party prior to the filing of the relevant patent
application.
INTERROGATORY NO. 4:
Identify each communication between Kimber and any other person or company
concerning the initi al avajlability. offer of sale. or proposal or request to provide products
embodying any alleged invention of the patent-in-suit prior to fi ling the corresponding patent
application directed to the claimed product.
ANSWER:
Kimber engaged in conversations with the following companies concerning the
manufacture, distribution, and/or marketing of its patented design prior to filing the
corresponding patent application:
Midwest Molding Inc. (Plain City, OH)
PP A Graphjcs (Canal Winchester, 0 1 I)
TCG Continuum (Columbus, 01 I)
Dive Creative (Columbus, OH)
Thomas Tool & Mold Company (Westerville, OH)
Priority Designs (Gahanna, OH)
INTERROGATORY NO. S:
Wi th respect to the patent-in-suit, identify each Kimber Product manufactured and/or
distributed by or on behalf of Ki mber at any time by product name, number or simi lar manner of
state the date the product was first introduced to the market; set forth the total
5
sAles volume in the United States in unjts and associated dollar revenue on an annual basis from
the date of introduction; identify the person or persons most knowledgeable with respect to each
of the relevant features of the product; and identi!'y the person or persons most knowledgeable
concerning the facts and circumstances related to the original introduction or the product to the
market by or on behalf of Kimber (including the original customer to whom the product was lirst
offered).
ANSWER:
With respect to lntenogatory No. 5. Kjmbcr states that it offered its ''Datter Daddy'' and
"Batter Babies'' product lines for sale in the consumer market beginning in December 2010.
Kimber further states that Robert Reiser, original Member and current President of Kimber, is
the person most knowledgeable with respect to the relevant features of the patented design and
the facts and circumstances related to the original introduction of the Batter Babies to tbe market.
Concerning Defendant 's request for sales and revenue information related to the Patented design,
given the sensitivity and proprietary nature of the information requested, Kimber states that it
will produce such information upon the execution of a mutually agreeable protected order, a
draft ofwhjch has 1Jreviously been provided to Bradshaw f'or review and consideration.
INTERROGATORY NO.6:
State the date that Kimber first became aware of each Accused Product in this action, set
forth the circumstances under which Kimber became aware of the product, identify each person
having knowledge or the circumstances surrounding Kimber's injtial awareness of the Accused
Product(s); and identify each document referring or relating to Kimber" s awareness of the
Accused Product and or its features.
ANSWER:
Kimber first became aware of the Accused Product in this action on or about October 22,
2012 when Kimberly Reiser (''Mrs. Reiser''), Vice President and Member of K imher, received an
email tiom Kim Teresi ("Ms. Teresi"), Senior Buyer and Director of Advertising at a company
called Chef CentraL Mrs. Reiser had reached out to Ms. Teresi to explore whether Chef Central
would be interested in carrying Batter Babies for sale. Ms. Teresi, apparently evidencing
confusion as to the source of Bradshaw' s batter separalor, responded that Chef Central was
'already carrying thi s product through Bradshaw/Good Cook." Mrs. Reiser responded to i nquire
how long Bradshaw had been selling its batter separator, to which Ms. Teresi responded that
Bradshaw's batter separator had been introduced at the International Housewares Show in March
of 20 12. On or about October 22, 2012, Ms. Reiser informed Mr. Reiser about the above email
cotTespondence from Ms. Teresi and forwarded him the relevant chain of emails. A true and
accurate copy of the email chain between Mrs. Reiser and Ms. Teresi is attached to Plaintiff's
Complaint as Exhibit D.
In addition> Mr. Reiser attended a housewares show in 20 13 and witnessed a sales
presentation by unknown representatives and/or agl;nls of Bradshaw who explained how
Bradshaw supposedly invented tbe Accused Product.
INTERROGATORY NO.7:
Identify each occurrence on which an Accused Product was evaluated by or on behalf of
Kimber, and identity each document referring or relating to any testing, measurement, analysis
or observations related to the product and identify each person involved in the evaluation.
ANSWER:
7
With respect to Interrogatory No. 7, Kimber states that on or about October 22, 201 2,
Robert Reiser observed the Accused Product on the Bradshaw/Good Cook website and visually
compared the Accused Product to the patented design. Mr. Reiser also viewed the Accused
Product in-person at a housewares show in 2013. In addition, the Accused Product was
evaluated and visually compared to the patented design by Kimber's past legal coLmsel, Ronald
Koch, and present legal counsel, Courtney Miller. To the extent that the foregoing request seeks
information and protected by the attorney-client privi lege and/or work product
doctrine, Kimber exercises its protected right to withhold such information from production.
Identify any agreements relating to or involving the patent-in-suit including ownership
interests, non-disclosure agreements, development agreements, assignment agreements, funding
agreements, license agreements (including portfolio licenses), settlement agreements, and
consent agreements not to enforce the patent-in-suit, and identify the person most knowledgeable
regarding the identified agreements.
ANSWER:
A written assignment of rights was execuled by Robert Re1ser to Kimber involving the
patented design. As a result, Kimber is the owner by assignment of all right, title and interest in
U.S. Design Patent No. 0671.376 . In further response to Defendant's request. Mr. Reiser is the
person most knowledgeable about the relevant written assignment.
INTERROGATORY NO.9:
Jdentily each of Kimber's employees, former employees, consultants or agents (other
than clerical or similar non-technical support staff) who were involved, on behalf of lUmber, in
the prosecution of and application for the patent-in-suit and any foreign counterparts thereof and
the duties and responsibi lities of each in connection with the prosecution of and application for
the patent-in-suit.
ANSWER:.
Robert Reiser, original Member and current President of Kimber, created the initial
design for the patented design, sought the application for the patent-in-suit, obtained the patent-
in-suit, assigned his rights to the patent-in-suit to Kimber and observed the infiingement of the
patent-in-suit by Defendant.
Identify each person that Kimber may call as a witness to testify at any proceeding in this
matter. state the general subj ect matter to which the witness' testimony is expected to relate and,
for any identified expert witness: state the occupation or each expert, identify the field of
expertise of each expert; provide a resume of qualit1cations of each expet1; state each opinion
which the expert may offer on behalf of Kimber; set forth the complete basis underlying each
respective opinion; and identify all documents and things supporting or otherwise referring or
relating to each such opinion.
ANSWER:
Kimber states that it has not yet identified an expert witness it may call to testify at any
proceeding in this matter. Should Kimber identify an expett witness in the future, it will
seasonably supplement the foregoing response in accordance with the Federal Rules of Civil
Procedure. As to lay witnesses, Kimber has not determined who it may call to testify in this
matter; however Kimber has prepared a preliminary list of witnesses below. Kimber reserves 1he
right to seasonably supplement this response.
1. RobertS. Reiser, President and Member
3333 Scioto farms Dr.
9
Hill iard. Ohio 43026
(614) 742-7929
Mr. Reiser has knowledge concerning the creation of the design protected by U.S. Design
Patent No. D671,376, development of Kimber's products, the discovery of Defendant's
infri nging product, commtmications he has had evidenci ng market confusion between
Kimber's design and Defendant's product, damages relating to lost sales, the business
activities of Kimber, and the distribution of the Defendant's infringing products.
2. Ki mberly M. Reiser. Vice President and Member
3333 Scioto Fanns Dr.
I Iilliard, Ohio 43026
(614) 742-7929
Mrs. Reiser has knowledge concerning tl1e creation of the design protected by U.S.
Design Patent No. D67 1.376, development of Kimber's products, the discovery of
Defendant's infringing product, communications she has had evidencing market
confusion between Kimber's design and Defendant's product, damages relating to lost
sales, the business activities of Kimber, and the distribution of the Defendant's infringing
products,
3. Rradley R. Gall, Member
9480 Santa Clara Circle
Pl ain City, Ohio 43064
(614) 395-0167
Mr. Gal l has knowledge concerning the history of Kimber and the effects of Defendant's
infringing act ivities on Kimber's business.
4. Robert D. Giesseman, Member
5640 Barry Trace
Dublin, Ohio 43017
( 614) 419-0825
10
Mr. Giessman has knowledge concerning the history of Kimber and lhe eiTects of
Defendant 's infringing activities on Kimber's business.
5. Merrilee M. Martin, Member
6157 Jol iff Street
Galloway, Ohio 431 19
(6 14) 361-8677
Ms. Martin has knowledge concernjng the history of Kimber and the effects of
Defendant's infringing activities on Kimber"s business.
6. Keri Anderson, employee of Defendant
Rancho Cucamonga, California 91730
(800) 421-6290
Ms. Anderson has knowledge concerning the Defendant's purchase of products from
Kimber based on the design protected by U.S. Design Patent No. 0671,376. the
intentional copying by Defendant of Kimber' s design, and the awareness of Oetendant of
the patent-pending status of the design upon which Kimber's products are based.
7. Kim Teresi, Senior Buyer and Director of Advertising at Chef Central
240 Route 17
North Paramus, NJ 07652
(20 1) 576-0 I 78 ext. 12
Ms. Teresi has knowledge concerning actual confusion between the design set forth in
U.S. Design Patent No. 0671,376 and the Defendants infringing product.
8. Jeff Megorden
Executive Vice President at Bradshaw
9409 Buffalo Avenue
Rancho Cucamonga, Califorrua 91730
(800) 421-6290
It is anticipated that Mr. Megorden wi ll testify about the facts and circumstances related
to Defendant's infringement on U.S. Design Patent No. 0671 ,376.
9. Thomas Barber
ll
9409 Buffalo A venue
Rancho Cucamonga, California 91730
(800) 42 1-6290
Tt is anticipated that Mr. Barber will testify about the tacts and circumstances related to
Defendant's infringement on U.S. Design Patent No. 0671,376.
I 0. Any witness identified by Defendant or called to testify by Defendant in this matter.
INTEllliOGATORV NO. 11:
Identify and describe all documents retention and document destruction policies of
Kimber that has been applicable or in force at any time since 2000, including any such policy
concerning information or documents stored in computer memory.
ANSWER:
Kimber has no formal destruction or retenti on poJjcy for company documents.
Separately for each of Bradshaw's interrogatories and document requests, identi fy each
person who was consulted or who provided information or documents in connection with the
preparation of your answers thereto.
ANSWER:
Kimber states that Robert Reiser provided Ki mber' s responses to the foregoing
interrogatories and requests for documents wi th the assistance of counsel.
State all facts that support your allegations made in paragraphs 12-14 of Kimber's
Complai nt.
12
ANSWER:
Kimber states that prior to the formation of Kimber, Robert Reiser designed and began
marketing a full-sized cake batter separator called the ' Batter Daddy." In 2009, whi le the design
patent was pending on the Batter Daddy, Mr. Reiser sought to partner with approximately two
dozen companies for the manufacture and distribution of the Batter Daddy. The specific
companies that Mr. Reiser can recall communicating with related to partnering on the Batter
Daddy included:

Wilton Corp .

Bradshaw/Good Cook

Rubbermaid

Zak

Calphalon

CHEFS

Farberware

KitchenAid
NordicWare
llutzler
Nopro
Oneida
Anchor Hocking
Fox Run Brands
Progressive Inti.
13
Nearly all the communication occurred via unsolicited cold calls or unsolicited written letters to
the particular company and Mr. Reiser does not remember the specific names of any individuals
he communicated with. Mr. Reiser does specifically recaH that the representative he spoke with
from Bradshaw rejected partnering with him on the Batter Daddy for the stated reason that
difficulties in the economy had caused I3radshaw to stop developing any new products for a
period of time. Thereafter, Mr. Reiser sought professional device and conducted market
research, and determining that there was a market for the Batter Daddy, hegan to prepare and
manufacture and market the Batter Daddy on his own.
State all facts that support your claims of infringement under 35 USC 271 (b), (c). and
(f).
ANSWER:
In 2011, Kimber's President and founder, Robert S. Reiser, applied for a design patent
from the U.S. Patent Office for the Batter Babies design. On November 27, 2012, Kimber's
patent was approved and designated as U.S. Design Patent No. D671,3 76. Mr. Reiser
subsequently assigned the patent to Kimber. Since bringing its Batter Babies line of products to
the market, Kimber has experienced growing success and received praise in the industry.
Defendant Bradshaw International, lnc. ("Bradshaw") is a Delaware corporation with its
principal place of business in Rancho Cucamonga, California. It ttlso sells baking products,
including a line of products under the name "Sweet Creations by Good Cook."
14
On Friday, December 16, 2011, Bradshaw' s Senior Product Manager, Keri Anderson
("Ms. Anderson"), ordered a set of Batter Babies from Kimber. Kimber subsequently completed
the order request and shipped the package of Batter Babies to Ms. Anderson at Bradshaw's
facil ities. The package sent to Ms. Anderson was clearl y labeled with the notification "Patent
Pending." Approximately I 0 months later, Kimber became aware that Bradshaw was selling a
competing product to its Batter Babies with a design that was substantially the same in violation
of its design patent:
Kimber' s Patented Design Bradshaw Batter Separator
Bradshaw's competing product design was so similar that Kimber began to encounter
market confusion when marketing its Batter Babies product. Specifically, when Kimber inquired
as to whether Chef Central, a company that sells cookware, bakeware and other assorted
accessories, would be interested in carrying Batter Babies for sale, a Chef Central representative
responded that Chef was "already carrying Kimber' s product through Bradshaw/Good Cook."
Because Bradshaw has applied a colorable imitation of Kimber' s patented design to its product
for the purpose of sale, it is in clear violation of 35 U.S.C. 289 which prohibits design patent
infringement.
15
State all facts that demonstrate the irreparable harm that Kimber is facing tlu-ough the
alleged inlhngement of the by Bradshaw.
ANSWER:
With respect to T nterrogatory No. 15, Kimber states that as a result of Defendant' s
ongoing infringement of the patent-in-suit, Kimber has been unable to supply its Patented design
to bakeware retailers, suppliers and distributors already carrying the Accused Product, resulting
in significant lost revenues and profits to Kimber. Defendant's sal e of the Accused Product has
market confusion and likely led ordinary purchasers to buy the Accused Product
believing it to be Kimber's patented design. As a result, Kimber's market share for its patented
desig11 has been negatively impacted and it has lost potential revenue and profits.
State all facts that support your allegation that ' [t]he design of Bradshaw's batter
separator as marked and sold would cause an ordinary observer, familiar with the prior art
designs, to be deceived into believing that the design of Bradshaw' s batter separator is the same
as Kimber's patented design."
ANSWER:
Pursuant to the Cowi's decision in the Egyptian Goddess case, in determining whether a
design patent is infringed requires the tact-finder to "compare the patented and accused designs
to determine whether the accused design is substantially similar in appearance to the patented
design. In making this determination, courts util ize the 'ordinary observer' test: [l]f, in the eye
o[ an ordinary observer, giving such attention as a purchaser usually gives, two designs are
substantially the same, if the resemblance is such as to deceive such an observer, inducing him to
16
purchase one supposing it to be the other, the first one patented is infringed by the other.
Egyptian Goddess, 543 F.3d at 670 quoting Gorham Co. v. White, 81 U. S. 51 1, 528 (1871)); see
also L.A. Gear, 988 F.2d at 1124 ("Design patent infringement requires a showing that the
accused design is substantially the same as the claimed design. The criterion is deception of the
ordinary observer, such that one design would be confused with the other."); Crocs, Inc. v.
International Trade Comm'n, 598 F.3d 1294, 1303 (Fed. Cir. 201 0) (infringement is
demonstrated where "an ordinary observer ... would be deceived into believing that the accused
product is the same as the patented design") citing Egyptian Goddess, 543 F.3d at 681.
Applying the Egyptian Goddess standard to the Kimber matter and observing the designs
below, it is Kimber' s position that an ordinary observer would conclude that the accused
products are similar enough to create market confusion. And, in fact, Bradshaw has created such
confusion as evidenced by Chef Central ' s response to Kimber' s inquiry about canying its Batter
Babies line of products.
Kimber' s Patented Design Bradshaw Batter Separator
17
State whether Kimber has ever purchased a product that competes with a Kimber product,
and if so, for each such purchase, identifY which competitor's products was purchased, the date
of purchase, the associated Kimber product, the Kimber employee that purchased the
competitor's product, and the purpose for the purchase of the competitor's product.
ANSWER:
In 2012, Kimber's President, Robert Reiser, purchased the Accused Product in order to
compare it to its patented design and to determine whether Defendant infringed upon the p t e n t ~
in suit. In 20 l3, Kimber's President, Robert Reiser, pmchased a Wi lton Two-Tone Cupcake Pan
Set, to compare the quality of Wilton's product to Kimber's products.
For each Accused Product, identifY, by either narrative or by drawing, the location of the
following features on the Accused Product, labeled A through I below:
ANSWER:
18
With respect to Interrogatory No. 18, as previously stated, under the ;'ordinary observer"
test: [I] f, in the eye of an ordinary observer, giving such attention as a purchaser usually gives,
two designs are substantially the same, if the resemblance is such as to deceive such an observer,
inducing him to purchase one supposing it to be the other, the first one patented is infringed by
the other. Egyptian Goddess, 543 F.3d at 670 quoting Gorham Co. v. White, 81 U.S. 511, 528
(1871)); see also L.A. Gear, 988 F.2d at 11 24 ("Design patent infringement requires a showing
that the accused design is substantially the same as the claimed design. The criterion is deception
of the ordinary observer, such that one design would be confused with the other."); Crocs. Inc. v.
International Trade Comm'n, 598 F.3d 1294, 1303 (Fed. Cir. 2010) (infringement is
demonstrated where "an ordinary observer ... would be deceived into believi ng that the accused
product is the same as the patented design") citing Egyptian Goddess, 543 F.3d at 681. Thus, the
relevant inquiry in this matter is whether the Accused Product is substantially simj Jar in
appearance to Kimber's patented design such that it would deceive an ordinary observer. As
depicted below, an ordinary observer would be confused by Kimber's patented design when
compared to Defendant' s Accused Product:
Kimber's Patented Design Bradshaw Batter Separator
19
The analysis requested by Defendant in the foregoing interrogatory has been rejected by
the Court in Egyptian Goddess and by numerous other Courts, including in Gorham v. White, 8 I
U.S. 14 (1871); Crocs, Inc. v. International Trade Comm'n, 598 F.3d 1294 (Fed. Cir. 2010);
Victor Stanley, lnc. v. Creative Pipe. Inc., 201 1 U.S. Dist. LEXIS 112846 (D. Md. September 30.
201 1); Apple. Inc. v. Samsung Elecs. Co., 20 12 U.S. Dist. LEXIS 105125, 32-33 (N.D. Cal. July
27,2012)
Respectfully Submitted,
1 N. I rd (#0 40571) (Trial Attorney)
ourtney J. Miller (# 070450)
David M. Marcus (#0087144)
McNees Wallace & Nurick LLC
21 Easl State Street, 1 ih Floor
Telephone: (614) 469-8000
Fax: (614) 469-4653
sli llard@mwncmb.com
cmiller@mwncmh.com
dmarcus@mwncmh.com
Attorneys for Kimber Cakeware, LLC
20
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing Plaintiffs Responses to Defendant' s First Set
of blterrogatories was served upon the below-listed counsel via regular U.S. Mail and e-mail on
this ~ y of December, 20 13:
Phillip G. Eckenrode
HAHN LOESER& PARKS, LLP
peckenrode@hahnlaw.com
R. Eric Gaum
HAHN LOESER & PARKS, LLP
200 Public Square, Suite 2800
Cleveland, Ohio 44114
regaum@hahlaw.com
OF COUNSEL:
Robert J. Ke1mey
BIRCH, STEW ART, KOLASCH & BIRCH, LLP
81 10 Gatehouse Road, Suite 100E
rj k@bskb.com
mailroom@bskb.com
Michael B. Marion
BIRCH, STEWART, KOLASCH & BlRCI-1, LLP
8110 Gate house Road, Suite 1 OOE
mbm@bskb.com
mailroom@bskb.com
ATTORNEYS FOR DEFENDANT
BRADSHAW TNTERNATTONAL, TNC.
21
VERIFICATION
Now comes Robert S. Reiser, President and Member of Kimber Cakeware, LLC, and
deposes and states that he is authorized to answer the foregoing Jntenogatories and Requests for
Production of Documenr, that he has read the answers and responses, and further, that the
answers contained herein are complete, true, and con-ect as he verily believes.
-- "2 - . :=:>
.. ;;r- .... ==
ROBERTS. REISER
EXHIBIT 3
Rule 11Motion
111111 1111111111111111111111111111111111111111111111111111111111111
c12) United States Design Patent
Reiser
(54) BATTER SEPARATOR
(76) Inventor: Robert S. Reiser, Hilliard, OH (US)
(**) Term: 14 Years
(21) Appl. No.: 29/388,837
(22) Filed: Apr. 1, 2011
(51) LOC (9) Cl. .................................................. 07-04
(52) U.S. Cl. ........................................................ D7/669
(58) Field of Classification Search ................... D7/669,
D7/368, 409; 126/373.1; 426/523; 425/289;
220/533; 249/117, 171,203, 128-132, DIG. 1;
99/422, 426, DIG. 15
See application file for complete search history.
(56) References Cited
U.S. PATENT DOCUMENTS
2,081,078 A * 5/1937 Watson 126/373.1
2,327,988 A * 8/1943 Bassett ......................... 249/131
4,040,539 A * 8/1977 Patterson ...................... 220/526
5,074,777 A * 12/1991 Garner .......................... 425/289
USOOD6713 76S
(10) Patent No.: US D671,376 S
** Nov. 27, 2012 (45) Date of Patent:
5,446,965 A *
6,287,619 B1 *
D593,363 S *
7,654,195 B2 *
8,197,116 B2 *
* cited by examiner
9/1995 Makridis ......................... 30/315
9/2001 Khan ............................ 426/523
6/2009 Collinson ...................... D7 /409
212010 Morito eta!. ................ 99/450.7
6/2012 Klein ............................ 220/533
Primary Examiner- Terry Wallace
(74) Attorney, Agent, or Firm- Ronald J. Koch
(57) CLAIM
The ornamental design for a batter separator, as shown and
described.
DESCRIPTION
FIG. 1 depicts a front view.
FIG. 2 depicts a rear view.
FIG. 3 depicts a side view with the front facing leftward; and,
FIG. 4 depicts a top view with the front facing downward.
An essentially planar body member having a distinctive out-
line.
1 Claim, 4 Drawing Sheets
U.S. Patent Nov. 27, 2012 Sheet 1 of 4 US D671,376 S
pI: .... a 1
..... 1 .. . . . .
F
.I'G 2
..... . ...... ... .. . . ... ..
FI
.G:, 3
i ,' : ' ... ... . ... .
: .. ..... .. .. ... '... . .
,,.. .......................................................... ~ :::r::=:::=w:r.,.y:i
F
... I,a. ..... 4
. "" ' . .
. . ' ' :
: ! . :
. .
. . .. :
EXHIBIT 4
Rule 11Motion
Chocolate Moulds - Inspired By Chocolate
http://web.archive.org/.../20091025223149/http:/inspiredbychocolate.com.au/?articleID=showProducts&view=detail&categoryID=56&Product_ID=2340&sub_category=97[12/4/2013 12:24:50 PM]
Enquire about this product
Name:
*
Email:
*
Phone:
*
Enquiry:
*

*=Required
New Items
Basketware & Containers
Bombonniere
Books
Bulk Buying
Cake Decorating Accessories
Cake Pans
Cake/ Hamper Boxes
Chocolate Boxes
Chocolate Buttons
Chocolate Foils
Chocolate Kits
Chocolate Moulds
Christmas Lines
Clearance Corner
Colours & Flavours
Cookie Cutters
Embellishments
Florist Supplies
Gift Items
Hard Candy Moulds
Mother's Day Range
Organza Bags
Poly Sheets, Wraps & Foils
Posie Boxes
Ribbons
Soap Moulds
Sugar Images
Ties and Bags
Toys
Tulle Circles
ROLL YOUR MOUSE OVER TO STOP

You are here Cookie Cutters Other
Click Image to Enlarge
Cupcake Cookie Cutte
Cupcake Cookie Cutter
Cupcake Cookie Cutter
Dimensions: 3" x 3"
We have a fantastic assortment of metal cookie cutters. There are many
different shapes and sizes for all occasions.
Take a look at our range of dusts, glitters, candy writers, and books on
ideas to make your cookies look sensational.
Tinplate cookie cutters should not be immersed in water or
put into the dishwasher. Clean by wiping with a damp cloth. If
required to wash, dry immediately.
PLEASE NOTE:
Individual Metal Cookie Cutter sizes listed here are
approximated to the nearest inch. the measurements
are for the largest area and are included as a guideline
only.
AUD $ 2.50 Including GST

New Item: Baby Asst
Cut Edge
Cut Edge Baby
Assortment Ribbon
9m per roll... more
AUD $ 6.60
Click to View
Home | About Us | Shipping & Policy | Links | My Cart | Bulk Buying | Gallery | Contact Us
SEP OCT NOV
25
2008 2009 2010
1 captures
25 Oct 09 - 25 Oct 09
Close
Help
BRADSHAW000007

Send Enquiry
Search Go
Add to Cart
http://inspiredbychocolate.com.au/?articleID=showProducts&view=detail&categoryID=56&Product_ID=2340&sub_category=97 Go
Chocolate Moulds - Inspired By Chocolate
http://web.archive.org/.../20091025223149/http:/inspiredbychocolate.com.au/?articleID=showProducts&view=detail&categoryID=56&Product_ID=2340&sub_category=97[12/4/2013 12:24:50 PM]
2009 Inspired By Chocolate All Rights Reserved
BRADSHAW000008
http://inspiredbychocolate.com.au/product_images/CCF0005/DSC01527.JPG[12/4/2013 12:25:41 PM]
BRADSHAW000009
EXHIBIT 5
Rule 11Motion
BRADSHAW000025
United States Patent [191
Viggiano
[54] MUFFIN TOP
[76] Inventor: Bernard J. Viggiano, 4494 Deer
Ridge Rd., Danville, Calif. 94541
[**] Term: 14 Years
[21] Appl. No.: 27,611
[22] Filed: Aug. 25, 1994
[52] U.S. Cl ...................................................... D1/102
[58] Field of Search ................ D1/102, 104, 125, 128,
D1!130, 199; 426/91, 104
[56) References Cited
D. 194,577 2/1963 Herman ........................... Dl/104 X
1,593,858 7/1926 Venable ........................... Dl/102 X
4,139,644 2/1979 Stephenson ..................... Dl/102 X
FOREIGN PATENT DOCUMENTS
638064 2/1928 France .................................. Dl/102
.111111111111111111111111111111111111111111111111111111111111111111111111111
USOOD359153S
[11] Patent Number: Des. 359,153
[45] Date of Patent: ** Jun. 13, 1995
OTHER PUBLICATIONS
"Joy of Cooking", 1975. P. 630. Muffins on top left of
page.
Primary Examiner-A. Hugo Word
Assistant Examiner-Pamela Burgess
Attorney, Agent, or Firm-Michael A. Glenn
[57] CLAIM
The ornamental design for a muffin top, as shown and
described.
DESCRIPTION
FIG. 1 is a front elevational view of a muffin top show-
ing my new design;
FIG. 2 is a left side elevational view thereof;
FIG. 3 is a bottom plan view thereof;
FIG. 4 is a rear elevational view thereof;
FIG. 5 is a right side elevational view thereof;
FIG. 6 is a top plan view thereof; and,
FIG. 7 is a front perspective view thereof.
: .. :
BRADSHAW000026
U.S. Patent
-. ...: .. :.-..:;
VJj. I
June 13, 1995
~
{,
I
I
/I
Sheet 1 of 3
:-:-.. .........:)
. , : . / ~ :
Des. 359,153
_: ) ~ .
BRADSHAW000027
U.S. Patent June 13, 1995 Sheet 2 of 3 Des. 359,153
.... :::: ..
tJJj. 6
.......... .
. :. --. - ::'::: : :.:: : :::.: : : :::: ::: . ., ......: .. ;. ... .. .. . ;,:-:::::
=.,,,, .. ,., ..
_.-_:.:::. .
.... :.-...-.:._
BRADSHAW000028
U.S. Patent June 13, 1995
.l
.
....
... .:
.. .
Sheet 3 of 3 Des. 359,153
....... _
....... : .. : ..::
,, "'""" .-.].:
. . . . .. . - . . ;: ,:::\'
.,.,tf .. r" ..
. . .:... .:-:

tJ)i<j. 7
EXHIBIT 6
Rule11Motion
BRADSHAW000059
I IIIII 11111111 11111111111111111111111111111 11111111111
(12) United States Design Patent
DeLeo
(54) CUPCAKE HOLDER
(75) Inventor: Anthony M. De Leo, Comstock Park,
MI (US)
(73) Assignee: Dart Industries Inc., Orlando, FL (US)
(**) Term: 14 Years
(21) Appl. No.: 29/312,606
(22) Filed: Nov. 3, 2008
(51) LOC (9) Cl . .................................................. 07-02
(52) U.S. Cl. ....................................................... D7/354
(58) Field of Classification Search .......... Dl/101-105,
(56)
Dl/116-118, 122; D7/323, 354-361,400,
D7/402, 511,515,523,531,554.1-554.2,
D7/565-566, 628, 667; D9/428-429, 617,
D9/643; D23/367; D25/7; 220/671-673;
4261115
References Cited
2.588.957 A 3/1952 Brown
D174,352 S 3/1955 Schaef
D200,806 s 4/1965 Pava
3,292,840 A 12/1966 Schmidt
D229.924 S
*
111974 Brown .. ........ ...... ...... .. .. D25/7
4,273,249 A 6/1981 Florian
D287,336 S 12/1986 Roehrig
4,795,033 A 111989 Duffy
D322,402 s
*
12/1991 Budzbanowski ............. D9/428
D398,135 s
*
9/1998 BiniaJis ....................... Dl/101
D404,535 S
*
111999 Biniaris ....................... Dl/101
5,858,428 A * 111999 Truscello eta!. ............ 426/115
USOOD601379S
(IO) Patent No.: US D601,379 S
** Oct. 6, 2009
(45) Date of Patent:
D420,440 S *
D442,834 S *
D478,785 S
6,896.140 B1
D506,351 S *
D521.872 S *
D540.663 S
2004/0251162 A1
2!2000 El-Assir .................... D23/367
5!200 1 Perez .......................... D7 /628
8/2003 Rorke et al.
5/2005 Perry
6/2005 Scholze et a!. ............... D7 /360
5/2006 Wu ............................. D9/643
4/2007 Tanner
12/2004 McGinnis et al.
OTHER PUBLICATIONS
Cup-A-Cake LLC; Cup-A-Cake cupcake container; 2008 (two
pages taken from www.cupacake.com website).
* cited by examiner
Primary Joel Sincavage
Assistant Pham
(74) Attorney, Agent, or Doninger
(57) CLAIM
The ornamental design for a cupcake holder, as shown and
described.
DESCRIPTION
FIG. 1 is a top, side and front perspective view of a cupcake
holder showing my new design;
FIG. 2 is a front elevation view thereof;
FIG. 3 is a rear elevation view thereof;
FIG. 4 is a right side elevation view thereof;
FIG. 5 is a left side elevation view thereof;
FIG. 6 is a top plan view thereof;
FIG. 7 is a bottom plan view thereof; and,
FIG. 8 is a bottom, side and rear perspective view thereof.
BRADSHAW000060
U.S. Patent Oct. 6, 2009 Sheet 1 of 5 US D601,379 S
1/(
f!/1
BRADSHAW000061
~
~
FIG. 4
BRADSHAW000062
FIG. 5
BRADSHAW000063
FIG. 6
BRADSHAW000064
U.S. Patent
Oct. 6, 2009 Sheet 5 of 5
US D601,379 S
FIG. 8
EXHIBIT 7
Rule 11Motion
BRADSHAW000088
I IIIII 11111111 11111111111111111111111111111 11111111111
Berkete
(54) CUPCAKE-SHAPED CONTAINER FOR
HOLDING LIP-GLOSS OR THE LIKE
(76) Inventor: Carole Berkete, North Hollywood, CA
(US)
(**) Term: 14 Years
(21) Appl. No.: 29/355,039
(22) Filed: Feb.2,2010
(51) LOC (9) Cl. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. 28-03
(52) U.S. Cl. ........................... D28/79; D28/87; D9/643
(58) Field of Classification Search .................. D28/76,
D28/79, 82, 132/286, D9/643;
Dl/101, 118, 124, 129; D7/354; 206/581,
206/823
D242,297 S
*
1111976 Ortega ......................... Dl/101
D276,087 S
*
10/1984 Kotyuk, Jr. .................. D28/79
D398,135 S
*
9/1998 Biniaris ....................... Dl/101
D404,535 S
*
111999 Biniaris ....................... Dl/101
D440,016 S 4/2001 Thmpe
D472,019 S
*
3/2003 Mmata ........................ D28/91
D480,269 S 10/2003 Currier
D536,137 S
*
1/2007 Gill ............................. D28/79
D586,175 S 212009 Frank
D594,285 S 612009 Merey
D600.496 S 9/2009 Fernandes
D601,379 S 10/2009 DeLeo
D604J17 S
*
1112009 Braidotti ...................... D9/644
2002/0159820 AI * 10/2002 Louis et al .................. 4011129
OTHER PUBLICATIONS
WIPO Intellectual Property Digital Library, Jar for cosmetic prod-
ucts, Registration No. DM/048388, Int'l Registration date Jul. 7,
USOOD633654S
(10) Patent No.:
US D633,654 S
** Mar. 1, 2011
1999, Biotherm Societe Anonyme Monegasque, "Le Neptune",
Avenue Prince Hereditaire Albert, MC-98-000, Monaco, 2 pages.
The Cupcakes Club, Website: www.thecupcakesclub.com/blog/com-
mtmity/cupcakes-for-your-lips giveaway. First found on the internet
Jan. 10, 2010 4:02pm PST, 2 pages.
* cited by examiner
Primary Examiner-Jennifer Rivard
(74) Attorney, Agent, or Firm-George P. White
(57) CLAIM
The ornamental design for a cupcake-shaped container, for
holding lip-gloss or the like, substantially as shown and
described.
DESCRIPTION
FIG. 1 is an exploded, perspective view showing my new
design for a lip-gloss container with a cap portion removed
from a base portion;
FIG. 2 is a perspective view thereof;
FIG. 3 is a specific side elevational view thereof;
FIG. 4 is a side elevational view thereof, with the container
turned 90-degrees clockwise from the position of FIG. 3;
FIG. 5 is a side elevation view of the side opposite to that of
FIG. 4 thereof;
FIG. 6 is a side elevation view of the side opposite to that of
FIG. 3 thereof;
FIG. 7 is a top plan view thereof; and,
FIG. 8 is a bottom view thereof.
The three oblique, parallel diagonal shade lines used on the
base represent the base's translucent appearance and the cir-
cular regions of the cap represent the appearance of rhine-
stones.
BRADSHAW000089
U.S. Patent Mar. 1, 2011 Sheet 1 of 4 US D633,654 S
Fig. 1
BRADSHAW000090
Fig. 3
Fig. 4
BRADSHAW000091
Fig. 5
Fig. 6
BRADSHAW000092
Fig. 8
EXHIBIT 8
Rule 11Motion
BRADSHAW000085
I IIIII 11111111 11111111111111111111111111111 11111111111
Facey et al.
(54) CUPCAKE MOLD
(76) Inventors: Jeanette Facey, 37 Briar Patch Rd.,
Osterville, M.A (US) 02655; Mark
Facey, 37 Briar Patch Rd., Osterville,
MA (US) 02655
(**) Term: 14 Years
(21) Appl. No.: 29/341,233
(22) Filed: Jul. 31, 2009
(51) LOC (9) Cl. .................................................. 07-07
(52) U.S. Cl . ....................................................... D7/675
(58) Field of Classification Search .......... D7/672-677,
(56)
D7/628, 606, 604, 610; D9/643; 249/119,
249/121, 117, 170, 58,141; 425/DIG. 57;
426/306; Dl/101, 102, 105, 106, 122, 199
References Cited
928,162 A * 7/1909 Stewart ...................... 249/170
2,392,561 A * 1/1946 Weber, Jr ..................... 249/58
D215,113 S * 9/1969 Rasmusson .................. D7/675
3,680,828 A * 8/1972 Swett ......................... 249/134
D226,530 S * 3/1973 Caras so ....................... D7 /672
D268,037 S * 2/1983 Wiseltier eta!. ........... D21/472
D325,112 S * 4/1992 Thompson ................... Dl/118
6,896,140 B1 * 5/2005 Perry ......................... 206/551
USOOD616260S
** May 25, 2010
D521,872 S * 5/2006 Wu ............................. D9/643
D527,520 S * 9/2006 Green ...................... D3/271.1
* cited by examiner
Primary Terry A Wallace
(7 4) Attorney, Agent, or Ellis LLP
(57) CLAIM
The ornamental design for a cupcake mold, as shown and
described.
DESCRIPTION
FIG. 1 is a top plan view of a cupcake mold in a closed
position showing my new design;
FIG. 2 is a left side plan view thereof, the right side view being
a mirror image;
FIG. 3 is a side plan view shown rotated ninety degrees about
a central vertical axis as compared to the view of FIG. 2;
FIG. 4 is a bottom plan view thereof;
FIG. 5 is a perspective view showing an interior of the cup-
cake mold in a partially-opened position; and,
FIG. 6 is a perspective view showing an exterior of the cup-
cake mold in a partially-opened position.
The broken lines of FIGS. 2-6 are for illustrative purposes
only to show an exemplary hinge and form no part of the
claimed design.
BRADSHAW000086
U.S. Patent May 25, 2010 Sheet 1 of 2 US D616,260 S
I I 11 I
lj ________ _jLI
Fig. l Fig. 2
I I
Fig. 3
BRADSHAW000087
U.S. Patent May 25,2010 Sheet 2 of2 US D616,260 S
Fig. 5
Fig. 6
EXHIBIT 9
Rule 11Motion
BRADSHAW000093
I IIIII 11111111 11111111111111111111111111111 11111111111
c12) United States Design Patent
Gulbinski
(54) NOVELTY CONTAINER
(75) Inventor: Eva Gulbinski, Mississauga (CA)
(73) Assignee: Giftcraft Ltd., Brampton (CA)
(**) Term: 14 Years
(21) Appl. No.: 29/350,401
(22) Filed: Nov.16, 2009
(30) Foreign Application Priority Data
Jul. 22, 2009 (CA) ........................................ 131509
(51) LOC (9) Cl . .................................................. 11-02
(52) U.S. Cl . ...................................................... Dll/157
(58) Field of Classification Search ................. Dll/157,
Dll/158, 131, 133, 134; D28/76, 79, 8,
D28/85-90; 132/286, 293-307; D9/643;
Dl/101, 118, 124, 129; D7/354; 206/581,
206/823
D279,280 S * 6/1985 Resnick ....................... Dll/146
D398,135 S * 9/1998 Biniaris ......................... Dl/101
D404,535 S * 111999 Biniaris ....... . . .. Dl/101
D467,362 S * 12/2002 Gue ................................. D26!7
USOOD649905S
(IO) Patent No.:
US D649,905 S
** Dec. 6, 2011
D510,960 s
*
10/2005 Choi .. ............. D211402
D521,872 s
*
5/2006 Wu .... ...... D9/643
D527,520 s
*
9/2006 Green ............ D3/271.1
D590,524 s
*
412009 Gue ... ................. D2617
D594,285 s
*
612009 Merey. ...... D7/610
D601,379 s
*
10/2009 DeLeo .. D7/354
*
D604,117 s 11/2009 Braidotti .. .................. .. D7/628
D610,864 s
*
3/2010 Whitcombe
D616,260 s
*
5/2010 Facey eta!. .................
D633,654 s
*
3/2011 Berkete .... ..................
* cited by examiner
Primary Examiner Holly Baynham
Assistant Examiner Michelle E Wilson
... D7/352
.. D7/675
.. D28/79
(7 4) Attorney, Agent, or Firm -Birch, Stewart, Kolasch &
Birch, LLP
(57) CLAIM
The ornamental design for a novelty container, as shown and
described.
DESCRIPTION
FIG. 1 is a top perspective view of the novelty container;
FIG. 2 is a front view thereof;
FIG. 3 is a back view thereof;
FIG. 4 is a side view thereof;
FIG. 5 is an opposing side view thereof;
FIG. 6 is a top view thereof;
FIG. 7 is a bottom view thereof; and,
FIG. 8 is a front perspective view thereof.
BRADSHAW000094
U.S. Patent Dec. 6, 2011 Sheet 1 of 5 US D649,905 S
FIG. 1
BRADSHAW000095
FIG. 2 FIG. 3
.-.
!. ...
------,.-=--.---1'-
..
'
.-.
. .
''
BRADSHAW000096
.--
t"' ......
' ..
: - - - - - - . . . . . ~ ~ ~ ~ - : : ; ~ ~ ~ ~ :
-- -----
----c:
BRADSHAW000097
FIG. 6 FIG. 7
BRADSHAW000098
U.S. Patent Dec. 6, 2011 Sheet 5 of 5 US D649,905 S
FIG. 8
EXHIBIT 10
Rule 11Motion
BRADSHAW000078
I IIIII 11111111 11111111111111111111111111111 11111111111
Tristram
(54) MA.LE FIGURINE WITH A MUFFIN TORSO
AND HEAD
(76) Inventor: Tris Tristram, 104 Route 521, Newton,
NJ (US) 07860
(**) Term: 14 Years
(21) Appl. No.: 29/309,009
(22) Filed: Jun.11,2008
Related U.S. Application Data
(63) Continuation-in-part of application No. 29/289,687,
filed on Jul. 30, 2007, now abandoned.
(51) LOC (9) Cl . .................................................. 11-02
(52) U.S. Cl. ..................................................... D11/160
(58) Field of Classification Search .... .... .. ........ D20/1 0,
D20112, 29, 30-32, 99; 40/407, 411, 415,
40/416, 418-420, 538, 584; D21/621, 629;
Dll/160, 161; D6/303; 223/66, 120; 446/46,
446/199,268,353,369,372,385
2,105,904 A * 1!1938 Dale ........................... 401407
D144,381 S * 4/1946 Holmes ....................... D20/31
D146J26 S * 12/1946 Bergman ................... Dll/160
D196J24 S * 8/1963 Argiro ....................... D21!629
D250,758 S * 1/1979 Braddock .................. D11/160
4,630,762 A * 12/1986 Stringer ....................... 223/66
5.215,493 A * 6/1993 Zgrodek eta!. ............. 446/372
D337,664 S * 7/1993 Perry .......................... D6!303
5,989,095 A * 1111999 Wotton ....................... 446/385
6,390,879 B1 * 512002 Spector ....................... 446/46
6,390,882 B1 * 5/2002 Chang ........................ 446/268
USOOD610944S
** Mar. 2, 2010
D502,227 S * 2!2005 Dilts eta!. ................. D21!621
2003/0092354 AI* 5!2003 Wexler ....................... 446/369
OTHER PUBLICATIONS
Mr. Peanut-Trademm'k Registration No. 0799958, Dec. 7, 1965,
First used in commercce Jtm. 1916, Standmd Brands Incorporated
Corporation Delawme, Trademmk Electronic Service System
(TESS), available at www.uspto.gov. *
Morning Glory Muffins-My recipes.com, Pulled from the
web-Aug. 27, 2009, http://find.myrecipes.com/recipes/
recipefinder.dyn?action=displayRecipe&recipe_id= 1634 764. *
* cited by examiner
Primary Examiner-Janice E Seeger
Assistant Examiner-Mary Ann Calabrese
(7 4) Attorney, Agent, or Firm-Thomas J. Germinario
(57) CLAIM
The ornamental design for a male figurine with a muffin torso
and head, as shown and described.
DESCRIPTION
FIG. 1 is a front perspective view of a male figurine with a
muffin torso and head embodying my design.
FIG. 2 is a rear perspective view of a male figurine with a
FIG. 3 is a left side perspective view of a male figurine with a
FIG. 4 is a right side perspective view of a male figurine with
a muffin torso and head embodying my design.
FIG. 5 is a top plan view of a male figurine with a muffin torso
and head embodying my design; and,
FIG. 6 is a bottom plan view of a male figurine with a muffin
torso and head embodying my design.
BRADSHAW000079
U.S. Patent Mar. 2, 2010 Sheet 1 of 6
US D610,944 S
FIG. 1
BRADSHAW000080
U.S. Patent
Mar.2,2010
Sheet 2 of 6
US D610,944 S
FIG. 2
BRADSHAW000081
US D610,944 S
FIG. 3
BRADSHAW000082
US D610,944 S
FIG. 4
BRADSHAW000083
U.S. Patent Mar. 2, 2010 Sheet 5 of6 US D610,944 S
FIG. 5
BRADSHAW000084
FIG. 6
EXHIBIT 11
Rule 11Motion
BRADSHAW000052
I IIIII 11111111 11111111111111111111111111111 11111111111
Gue
(54) ICE-CREAM CANDLE
(76) Inventor: Jimmy J Gue, P.O. Box 30536, Seattle,
WA (US) 98113
(**) Term: 14 Years
(21) Appl. No.: 29/271,930
(22) Filed: Jan.30,2007
(51) LOC (9) Cl. . ... ... ... ... .. ... ... ... ... ... .. ... . .. ... ... .. ... . 26-04
(52) U.S. Cl. ......................................................... D26/7
(58) Field of Classification Search .............. D 2 6 6 ~ 2 3 ;
(56)
431/288, 125, 126,292, 289; Dll/131, 131.1,
Dll/157, 81
References Cited
D231,135 S * 4/1974 Marcum ....................... D2617
D246.509 S * 1111977 Hytken ........................ D9/643
D268,059 S * 2/1983 Kracke ......................... D34/4
D279,280 S * 6/1985 Resnick ..................... Dl1!146
D395,230 S * 6/1998 Slater .......................... D9/643
D431,306 S * 9/2000 Tsai ............................. D26/5
D467,362 S * 12/2002 Gue ............................. D2617
D508,217 S * 8/2005 Graves et aL ................ Dll/81
USOOD590524S
(IO) Patent No.:
US D590,524 S
** Apr.14, 2009
D510,960 S * 10/2005 Choi ......................... D21/402
D527,520 S * 9/2006 Green ...................... D3/271.1
* cited by examiner
Primary Examiner-T. Chase Nelson
Assistant Examiner-Ania K Dworzecka
(57) CLAIM
The ornamental design for an ice-cream candle, as shown and
described.
DESCRIPTION
FIG. 1 is a front elevational view of a ice-cream candle show-
ing my new design;
FIG. 2 is a rear elevational view;
FIG. 3 is a top plan view;
FIG. 4 is a bottom plan view;
FIG. 5 is a right side elevational view; and,
FIG. 6 is a left side elevational view.
The drawings are lined on the candle for color and on the wick
for the surface of the wick respectively. The portions of FIG.
4 shown in broken lines form no part of the claimed design.
0
BRADSHAW000053
U.S. Patent Apr. 14, 2009 Sheet 1 of2 US D590,524 S
0
FIG. 1
FIG. 2
FIG. 3 FIG. 4
BRADSHAW000054
U.S. Patent Apr. 14, 2009 Sheet 2 of 2 US D590,524 S
FIG. 5
FIG. 6

Kimber Cakeware V Bradshaw - Motion For Sanctions

Enviado por

Dados do documento

Título original

Direitos autorais

Formatos disponíveis

Compartilhar este documento

Compartilhar ou incorporar documento

Opções de compartilhamento

Você considera este documento útil?

Este conteúdo é inapropriado?

Direitos autorais:

Formatos disponíveis

Kimber Cakeware V Bradshaw - Motion For Sanctions

Enviado por

Direitos autorais:

Formatos disponíveis

6243892.

Você também pode gostar