July 30, 2019 Nika Aldrich

Admitted to practice in Oregon,

Washington and New York
T: 503-796-2494
C: 206-778-9678
naldrich@schwabe.com

Peter R. Marksteiner
Clerk of the Court
United States Court of Appeals for
the Federal Circuit
717 Madison Place NW
Washington, DC 20439

Re: Columbia Sportswear North America, Inc. v.

Seirus Innovative Accessories, Inc.
USCA Fed. Cir. Nos. 18-1329, -1331, -1728
Our File No.: 106477-239332

Dear Mr. Marksteiner:

Pursuant to Federal Rule of Appellate Procedure 28(j) and Federal Circuit Rule
28(i), plaintiff-appellant Columbia Sportswear North America, Inc. (“Columbia
Sportswear”) submits this memorandum of supplemental authority.

In its cross-appeal, cross-appellant Seirus Innovative Accessories, Inc.

(“Seirus”) challenges the jury’s award of more than $3 million to Columbia
Sportswear under 35 U.S.C. § 289 for the disgorgement and accounting of
Seirus’s total profits from its unlawful infringement of Columbia’s design
patent. (Dkt. 29 at 30-40.) In response, Columbia Sportswear explained that
this Court should affirm because no legal errors affected the jury’s award, and
the jury’s award was supported by substantial evidence. (Dkt. 37 at 39-69.) If
this Court reversed the jury’s award for any reason, however, Columbia
Sportswear conditionally argued that all issues concerning disgorgement of
profits—including what constitutes the relevant article of manufacture—
should be decided by the court, rather than a jury, in any remand proceeding
because disgorgement of profits under § 289 is an equitable remedy. (Dkt. 37
at 70-73.)

Pacwest Center | 1211 SW 5th | Suite 1900 | Portland, OR | 97204 | M 503.222.9981 | F 503.796.2900 | schwabe.com
Peter R. Marksteiner
July 30, 2019
Page 2

Columbia Sportswear now alerts this Court to the recent decision of the United
States Court of Appeals for the Eleventh Circuit in Hard Candy, LLC v.
Anastasia Beverly Hills, Inc., 921 F.3d 1343 (11th Cir. 2019). In Hard Candy,
the Eleventh Circuit considered whether there is a jury-trial right in a
trademark-infringement action under § 32(a) of the Lanham Act, 15 U.S.C. §
1114(1), seeking only an accounting and disgorgement of profits. Id. at 1351.
After considering the nature of the action and the remedy sought, the Eleventh
Circuit concluded “an accounting and disgorgement of a defendant’s profits in
a trademark infringement case is equitable in nature and does not carry with
it a right to a jury trial.” Id. at 1359.

The reasoning in Hard Candy applies equally here, confirming that a claim for
an accounting and disgorgement of profits in a design patent-infringement
action is not subject to a jury-trial right. If this Court were to find any error
necessitating a remand on Columbia Sportswear’s design patent-infringement
claim, this Court should follow Hard Candy and instruct the claim to be tried
to the court.

Respectfully,

Nika Aldrich

NFA:sjb

cc: All Counsel of Record

schwabe.com
PDX\106477\239332\SK\25676770.1
FORM 30. Certificate of Service Form 30
Rev. 03/16

UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT

CERTIFICATE OF SERVICE

I certify that I served a copy on counsel of record on July 30, 2019

by:

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Nika Aldrich /s/ Nika Aldrich

Name of Counsel Signature of Counsel

Law Firm Schwabe, Williamson & Wyatt, PC

Address 1211 SW Fifth Avenue, Suite 1900

City, State, Zip Portland, OR 97204

Telephone Number 503-796-2494

Fax Number 503-796-2900

E-Mail Address naldrich@schwabe.com

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