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Peter R. Marksteiner
Clerk of the Court
United States Court of Appeals for the
Federal Circuit
717 Madison Place NW
Washington, DC 20439
Columbia Sportswear submits this answer to Seirus’s letter dated August 23, 2019.
(Dkt. 87.) Seirus’s letter is both procedurally improper and substantively incorrect.
The tests for design-patent infringement and invalidity are similar, with both tests
considering the “overall effect” of the patented design in its entirety, rather than
certain features in isolation. In the reexamination, the examiner considered Throx,
a sock design called “zebra stripes,” that never was raised in this case. Notably,
Throx has nothing to do with heat-reflective materials, as claimed, nor does the art
look anything like the patented design. In arguing that the D’093 Patent is not
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Peter R. Marksteiner
August 27, 2019
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schwabe.com
Peter R. Marksteiner
August 27, 2019
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In both this case and the reexamination, Columbia has stated the correct standards
applicable to design patents. The minor differences cited by Seirus to argue
noninfringement are nothing like the substantial differences that, in the aggregate,
render the D’093 Patent valid over Throx.
Respectfully,
Nika Aldrich
NFA:sjb
schwabe.com
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