Escolar Documentos
Profissional Documentos
Cultura Documentos
In The
United States Court of Appeals
For The Federal Circuit
v.
BRIEF OF APPELLANT
Alexander Chen
INHOUSE CO LAW FIRM
7700 Irvine Center Drive, Suite 800
Irvine, California 92618
(949) 250-1555
alexc@inhouseco.com
CERTIFICATE OF INTEREST
4. The names of all law firms and the partners or associates that appeared for the party or amicus now
represented by me in the trial court or agency or are expected to appear in this court (and who have not
or will not enter an appearance in this case) are:
InHouse Co.
William Walz
Katja M. Grosch
Case: 19-2420 Document: 19 Page: 2 Filed: 10/24/2019
FORM 9. Certificate of Interest Form 9
Rev. 10/17
5. The title and number of any case known to counsel to be pending in this or any other court or agency
that will directly affect or be directly affected by this court’s decision in the pending appeal. See Fed. Cir.
R. 47. 4(a)(5) and 47.5(b). (The parties should attach continuation pages as necessary).
cc:
Reset Fields
TABLE OF CONTENTS
Page
ARGUMENT ........................................................................................................... 11
i
2. Testimony by Mr. Tsang and Dr. Jiao Regarding the
Attributes of an Ordinary Observer Was Relevant
and Admissible ............................................................... 16
CONCLUSION ........................................................................................................ 28
ADDENDUM
CERTIFICATE OF COMPLIANCE
ii
TABLE OF AUTHORITIES
Pages
CASES
Obrey v. Johnson,
400 F.3d 691 (9th Cir. 2005) ......................................................................... 20
iii
OddzOn Prods. v. Just Toys, Inc.
122 F.3d 1396 (Fed.Cir.1997) .................................................................22, 24
STATUTES
RULES
iv
STATEMENT OF RELATED CASES
None.
v
PRELIMINARY STATEMENT
In this case, the U.S. District Court for the Central District of California
Motor, Inc. (“DNA”) for design-patent infringement after a two-day bench trial. The
patent-in-suit was United States Design Patent No. D791,987, entitled “Vehicle
During the trial, the district court excluded evidence from several of KHT’s
witnesses, which testimony was necessary to meet the elements for design patent
witnesses regarding the attributes and shopping habits of the ordinary purchaser,
compounded by the district court’s error of law in failing to address, much less
Further, the district court abused its discretion in excluding testimony from
KHT’s expert witness regarding the functionality of the “eyelid” feature of the
subject headlight design, which ultimately was the primary basis for the district
1
The District Court also found that the ’987 Patent was valid, denying DNA relief
on its cross-complaint. KHT does not seek vacatur or reversal of this finding.
1
court’s finding of noninfringement. Both of these errors were highly prejudicial to
A new trial is required in light of these evidentiary and legal errors that unduly
prejudiced KHT’s ability to prove its case against DNA. This Court should
JURISDICTIONAL STATEMENT
The district court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1338.
This Court has jurisdiction over this appeal of the district court’s August 20, 2019,
products and KHT’s ’987 Patent should be vacated and remanded for a new trial due
products and the ’987 Patent should be vacated and remanded for a new trial due to
the district court’s abuse of discretion in excluding evidence from KHT’s witnesses
regarding the functionality of the “eyelid” feature of the embodiment of the ’987
Patent.
2
STATEMENT OF THE CASE
This appeal arises from a final judgment after bench trial finding that DNA
did not infringe KHT’s ’987 Patent. KHT’s complaint accused DNA of copying its
(“Accused Products”). Appx25-44 The district court judge found that neither
generation 1 nor 2 of DNA’s Accused Products infringed the ’987 Patent. Appx1-9
On April 20, 2016, the United States Patent and Trademark Office duly and
legally issued United States Design Patent No. D791,987, entitled “Vehicle
Headlight” (“the ’987 Patent”). Appx59 The ’987 Patent is for an Toyota Tacoma,
and owner of the entire right, title, and interest in and to the ’987 Patent. Appx60
The ’987 Patent has one single claim directed to the ornamental design for an
KHT alleged that DNA copied the design of its 2012-2015 Toyota Tacoma projector
style headlight featuring an LED halo ring from the headlight design of the ’987
3
DNA Gen1 Accused Product KHT Product emboding the Patent
4
Actual samples of KHT’s product embodying the ’987 Patent and DNA’s
Accused Products, generations one and two, were admitted into evidence at trial as
C. The Trial
In August 2019, the district court held a two-day bench trial. Appx1-9
Although KHT’s key theme at trial was that DNA copied the ’987 Patent, the district
court made numerous rulings hampering KHT’s ability to prove that charge: the
court precluded KHT from introducing testimony regarding the attributes of the
regarding the functional rather than ornamental nature of the “eyelid” or “hood”
Mr. Hao-Lin Huang, the general manager and chairman of the board of KHT
Appx58, testified regarding the development of the ’987 Patent. Mr. Huang has been
manufacturing, and sales and marketing. Appx57 Mr. Huang testified that KHT is a
5
manufacturer of aftermarket vehicle lighting, which lighting products replace the
by the ’987 Patent, the primary ornamental elements were the v-shaped bezel and
Next, Mr. Randy Tsang, the general manager of KHT’s exclusive distributor
Akkon, testified regarding the market for the headlight design protected by the ’987
aftermarket vehicle lighting. Appx89 Mr. Tsang testified that the Accused Products
and the ’987 Patented design mimicked the semi-circular light beam partially
surrounding the lamp. Appx93, Appx93-94, Appx117-118 While Mr. Tsang noted
some minor differences, he testified that the overall impression is that the Accused
Mr. James Yeu, the operations manager of DNA Appx124, testified as well.
Mr. Yeu oversees sales and marketing for DNA. Appx124-125 Mr. Yeu testified that
when he first received a cease and desist letter from KHT, he reviewed the ’987
Patent and decided that DNA was not infringing upon the patented design. Appx130
Mr.Yeu also testified that he spoke to his patent lawyer, Mr. Michael Chen, who
reviewed the designs for 1-2 minutes before agreeing that there was no infringement.
Appx130-131
6
Finally, Dr. Jianzhoug Jiao testified as KHT’s qualified expert on automotive
lighting. Dr. Jiao testified that the focal points of the ’987 Patent are the projector
headlamps, horizontally oriented U-shaped light bar partially surrounding the lamp,
and the horizontally oriented v-shaped bezel. Appx158-159 Dr. Jiao further testified
that the relevant ordinary observer and purchaser of the product would be one who
finds the design distinctively appealing but does not wish to pay too much for the
purchasing decision, the purchaser would be drawn to the overall appearance of the
lamp, and the combination and arrangement of features rather than focusing on one
specific feature. Ibid.; Appx177-178 After comparing the ’987 Patent, its
embodiment, and generations 1 and 2 of the Accused Products, Dr. Jiao opined that
With regard to the eyelid feature on KHT’s design but missing from DNA’s
products, which appears as a small hood at the top of the lamp, Dr. Jiao testified that
he believed it was not ornamental, but had the functional purpose to reduce glare
from the light as well as protect against the magnifying effect of the headlight lens.
Appx165-166
7
D. The Final Judgment
On August 20, 2019, the district court entered final judgment for DNA on
KHT’s Complaint, finding in pertinent part that DNA’s Accused Products did not
infringe the ’987 Patent. Appx1-9 In making this finding, the district court made two
primary errors after its exclusion of evidence. First, the district court failed to
consider the second prong of the Gorham test requiring that the court take into
account the nature of the article of manufacture, its cost, value, and other intangibles,
and the degree of attention an ordinary purchaser and user usually would give to the
design. Braun, Inc. v. Dynamics Corp. of America, 975 F.2d 815 (Fed. Cir. 1992).
ornamental feature of the design, rather than a functional feature of the headlight. In
error, the district court would not consider excluded KHT’s expert testimony
regarding the function it served for the headlight’s performance. Nevertheless, the
district court relied on this “eyelid” or “hood” feature as the primary distinguishing
feature between KHT’s and DNA’s designs, confusing ornamental with functional
purpose, and relied on this as the primary basis for its finding of non-infringement:
“Most notably, the patent in suit has an ‘eyelid’ that covers the top of
the lens projector. No such cover is found on the accused products. The
Court is not persuaded by Plaintiff or Plaintiff’s expert that the eyelid
on the patent in suit is simply a minor difference. Nor did Plaintiff
establish that the eyelid is merely functional, as opposed to ornamental.
This difference alone distinguishes the overall appearance of the ’987
Patent from the overall appearances of the accused products.”
Appx1-9 (Emphasis added).
8
The district court’s improper exclusion of expert testimony concerning the
functional purpose of the “eyelid” over the lens projector prejudiced KHT.
SUMMARY OF ARGUMENT
remanded, for any of several independent reasons and their cumulative effect:
determining whether or not a design patent has been infringed under Gorham
KHT’s representative, Mr. Randy Tsang, and KHT’s expert, Dr. Jianzhong Jiao,
regarding the description of what the ordinary observer perceives, what drives the
purchase and use of the type of article design at issue, whether the patented and
accused designs are typically viewed side-by-side during the purchasing decision,
and how much time and attention is spent observing the design when purchasing a
headlight such as those embodying the ’987 Patent. Contrarily, and to KHT’s
prejudice, the district court permitted DNA’s representative, Mr. James Yeu, to
9
Given also the district court’s reliance on the “eyelid” feature of the ’987
Patent as being sufficient on its own to distinguish the overall appearance of KHT’s
and DNA’s products, testimony by Mr. Tsang and Dr. Jiao regarding the ordinary
observer was unquestionably not only relevant but necessary, and admissible on the
same basis that the district court permitted Mr. Yeu to testify on behalf of DNA.
Exclusion of this testimony on behalf of KHT was an abuse of discretion, and the
district court’s failure to analyze the second prong of Gorham supports vacating of
court’s exclusion of testimony by Dr. Jiao regarding the functionality of the “eyelid”
feature of the embodiment of the ’987 Patent, where the eyelid was functional and
thus could not be considered as part of the ornamental design infringement analysis.
After striking Dr. Jiao’s testimony about functionality and refusing to permit further
questioning on that topic, the district court stated in its judgment that the eyelid was
the primary feature differentiating the two products, and that KHT failed to establish
that the eyelid was functional rather than ornamental. The functionality of the eyelid
was in issue, and KHT’s expert Dr. Jiao was prepared to and attempted to opine
about the functional purpose it served. The district court’s exclusion of such
10
should be vacated and the case remanded for a new trial based on improper exclusion
of evidence.
STANDARD OF REVIEW
Applying regional circuit law (here that of the Ninth Circuit), this Court
reviews orders excluding evidence for abuse of discretion, granting a new trial
absent a showing that the error was harmless. Pozen Inc. v. Par Pharm., Inc., 696
F.3d 1151, 1161 n. 6 (Fed. Cir. 2012) (regional circuit law applies); Estate of
Barabin v AstenJohnson, Inc., 740 F.3d 457, 462, 464-465 (9th Cir. 2014).
Issues concerning the law are reviewed de novo. Landes Constr. Co. v. Royal
ARGUMENT
Vacatur of the judgment and remand for a new trial are warranted because the
district court abused its discretion under Fed. R. Evid. 403 in excluding certain
evidence from KHT’s witnesses concerning the attributes of the ordinary observer
under the second prong of the test articulated by Gorham, supra, 81 U.S. 511.
Specifically, the district court struck and then forestalled further questioning of
KHT’s representative Mr. Tsang and its expert witness, Dr. Jiao, regarding the
description of what the ordinary observer perceives, how and why they purchase and
11
use the type of article at issue, whether the patented and accused designs are typically
viewed side-by-side during the purchasing decision, and how much time and
attention is spent observing the design when purchasing a headlight such as those
Contradictorily, the district court permitted DNA’s own representative Mr. Yeu to
That ruling was an abuse of the district court’s discretion. First, the testimony
Gorham test, putting the features of the patented design and the allegedly infringing
products in context to determine how the ordinary person, as opposed to, say, a
designer or scrutinizing expert, purchasing these products makes his or her decision.
Testimony by Mr. Tsang and Dr. Jiao would have been directly probative
evidence for KHT on the attributes and shopping behaviors of the ordinary observer
testify for KHT that the ordinary purchaser would notice the distinctive U-shaped
bar surrounding the projector lamp, and was asked about how such a purchaser
behaves, but was not permitted to answer on the basis that the subject was the
KHT’s expert Dr. Jiao attempted to testify regarding this exact same issue, he was
12
not permitted to do so. Appx161-162, Appx243 Had such evidence been permitted,
it would have informed the district court on the attributes of the ordinary purchaser
of vehicle headlights such as those at issue in this case as necessary for the district
court to complete its analysis under the second prong of Gorham, supra, 81 U.S.
511. Compounding this error, the district court then misapplied the law by failing to
Thus, the district court’s failure to permit such evidence was an abuse of
discretion, which was then compounded by the court’s failure to consider the second
prong of the ordinary observer test. As fully discussed below, the judgment of
A. Gorham v. White
The fundamental statement of the ordinary observer test was set forth in
Gorham Company v. White, supra, 81 U.S. 511. In Gorham, the U.S. Supreme Court
held that a patent has been infringed, “if in the eye of an ordinary observer, giving
such attention as a purchaser usually gives, two designs are substantially the same,
one supposing it to be the other, the first one patented is infringed by the other.” Id.
at 528.
the ordinary observer, but not whether or not an ordinary observer would be
13
deceived. Gorham v. White, supra, 81 U.S. 511, 527-528 (1871); Avia Grp. Int’l,
Inc. v. L.A. Gear Corp., 853 F.2d 1557 (Fed. Cir. 1988).
observer, the district court forestalled his testimony on the basis that expert opinion
was required:
Q Could you help us one more time what that means. Why is it
that they appear the same to you?
Appx95-96
14
MR. KNEAFSEY: Objection. Calls for expert opinion. Lacks
foundation.
However, when KHT attempted to elicit testimony on the same subject from
its expert, Dr. Jiao, the district court would not permit him to answer and did not
Next question.
MR. CHEN: I understand that. I'm going to really try not to test
the Court’s patience. Just one line of argument on that.
15
THE COURT: Counsel, ask your next question.
The district court abused its discretion in excluding testimony by Mr. Tsang
and Dr. Jiao regarding the attributes of the ordinary observer, stating that this was
the exclusive province of the trier of fact, the court itself, to determine. Appx161-
The second prong of the ordinary observer test, “giving such attention as a
purchaser usually gives”, indicates that the ordinary observer test is not conducted
as a sterile academic exercise where two designs are placed side by side and
scrutinized closely for differences and similarities, which is ultimately what the
district court did in this case. Appx1-9 Instead, the test must take into account the
16
nature of the article of manufacture and the degree of attention an ordinary purchaser
would usually give to it, inter alia. Braun, Inc. v. Dynamics Corp. of America, 975
F.2d 815, 820-821 (Fed. Cir. 1992) (Court held a verdict of infringement was
supported because the patented and accused designs whereof an inexpensive product
that customers typically purchased on impulse and a result, customers may not have
other specialized testimony on these issues may include a description of what the
ordinary observer knows, how they purchase and use the type of product at issue,
and how much time and attention is spent observing the design before making a
purchasing decision. Amerock Corp. v. Unican Sec. Sys. Corp., 1981 U.S. Dist.
LEXIS 17467, 4-7 (E.D.N.C. 1981).2 Along with expert testimony, non-expert
opinion on this topic may be admissible where such opinion is rationally based on
the witness’s perception, helpful to understanding his testimony, and not based on
Mr. Tsang’s testimony should have been permitted under FRE 701. Mr. Tsang
had over a decade of experience in the sale of aftermarket automobile lights, and
2
The designs in Amerock involved kitchen cabinet hardware. Testimony at trial
established that the hardware consumers generally did not have the opportunity to
view different designs of hardware simultaneously. The court stated “[t]herefore,
differences between the patented and the accused design that are apparent in a side-
by-side comparison will not necessarily dictate a finding of non-infringement.” Id.
at 6.
17
testified that he observed market trends on a daily basis by checking out competing
general manager of Akkon, Mr. Tsang testified that he handles the entire operation
of the business, including customer service and marketing. Appx86 When Mr. Tsang
opined regarding the similarities between the embodiment of the ’987 Patent and
Accused Products, including what he believed to be the focal point (specifically, the
semi-circular, U-shaped light bar partially surrounding the lamp), he should have
been permitted to testify regarding how an ordinary observer would have viewed the
products and what features would impact the ordinary purchaser’s ultimate decision.
providing customer service and observing buying trends, which are acquired in the
course of his business and observations over time rather than from specialized or
technical knowledge.
Further, after the district court excluded Mr. Tsang’s testimony on the basis
that specialized expert testimony was required, Dr. Jiao’s expert testimony should
have been permitted under FRE 702. Federal courts at every level allow expert
similar to the products in issue. Appx150 The basis for the district court’s exclusion
18
of Dr. Jiao’s testimony, that it was the court’s province to determine the attributes
In ruling that DNA’s Accused Products did not infringe the ’987 Patent, the
district court acknowledged that the standard was based on an ordinary observer, but
held without analysis that an ordinary observer would not confuse the design of the
“As the Court explained on the record at the conclusion of trial, Plaintiff
failed to show by a preponderance of the evidence that the general
appearance of the accused products and the ’987 Patent are so similar
that the ordinary observer would confuse the accused products with the
patent in suit. That is, the Court concludes that the accused products
and the patent in suit have ornamental differences in their overall
appearance.”
Appx1-9 This finding was expressly based on the district court’s own comparison
of trial exhibits 30 (the embodiment of the ’987 Patent) and 31a and 31b (the
Accused Products). Appx1-9 At no point in its oral ruling or written order did the
district court address how much attention the ordinary observer would give.
Gorham requires that the trier of fact makes its determination of infringement
“giving such attention as a purchaser usually gives”. Gorham, supra, 81 U.S. at 528.
The district court’s failure to address a required element of the relevant test of
19
D. The District Court’s Errors Were Not Harmless
An error by the court is ground for vacatur and remand for new trial where it
has affected any party’s substantial rights. Fed. R. Civ. P. 61, 103; Estate of Barabin
v AstenJohnson, Inc., supra, 740 F.3d at 464-465 (9th Cir. 2014). “We reverse ‘only
if the error affect[ed] a substantial right of the party.’ Fed. R. Evid. 103(a).”).
type of error. Obrey v. Johnson, 400 F.3d 691, 699 (9th Cir. 2005). “[T]he burden
[is] on the beneficiary of the error either to prove that there was no injury or to suffer
a reversal of his erroneously obtained judgment.” Obrey, supra, 400 F.3d at 700
than not that the [court] would have reached the same [result] even if the evidence
had not been admitted.” Jules Jordan Video, Inc. v. 144942 Canada Inc., 617 F.3d
1146, 1159 (9th Cir. 2010) (Citation and internal quotations omitted).
Mr. Tsang and Dr. Jiao cannot be considered harmless. The primary purpose of the
excluded testimony was to establish that an ordinary purchaser would consider the
designs as a whole, not focusing on individual features such as the eyelid or the other
testimony harmed KHT’s presentation of its case is clear based on both DNA’s
20
emphasis on individual elements, particularly the eyelid feature, rather than the
overall impression of the design Appx281-282 This erroneous approach was echoed
Because the trial court abused its discretion in excluding testimony necessary
to inform its application of the relevant infringement test, and then erred in applying
the relevant test by failing to analyze the second prong articulated by Gorham, and
such errors were not harmless, the judgment of noninfringement must be vacated
Vacatur of the judgment and remand for a new trial are warranted because the
district court abused its discretion under Fed. R. Evid. 403 in excluding certain
evidence concerning the functionality of the “eyelid” feature of the ’987 Patent,
which feature was the primary basis for the district court’s finding of
noninfringement. Specifically, the district court struck and then forestalled further
testimony regarding the functionality of the eyelid from KHT’s expert witness, Dr.
Jiao.
That ruling was an abuse of discretion. First, the testimony was highly
probative. The eyelid was the primary feature relied upon by DNA at trial to support
its contention that the Accused Products did not infringe the ’987 Patent. Appx244-
21
245 Second, the district court then specifically relied on the lack of evidence
showing the functionality of the eyelid feature, after striking and refusing to permit
The district court blocked testimony by Dr. Jiao on behalf of KHT that would
have been directly probative as to why the eyelid feature was functional and not a
part of the design patent infringement analysis. Specifically, Dr. Jiao attempted to
testify that the eyelid served a functional purpose in reducing glare from the lamp,
which testimony was ultimately stricken, and the district court refused to hear KHT’s
further testimony on the issue. Appx244-245 Had such evidence been permitted, it
would have shown that the eyelid could not, as a matter of law, be considered in the
design patent infringement analysis. OddzOn Prods. v. Just Toys, Inc., 122 F.3d
1396, 1405 (Fed. Cir. 1997). Properly disregarding the functional eyelid feature, the
Accused Products are substantially similar to the ’987 Patent such that DNA should
Thus, the district court’s failure to permit such evidence was an abuse of
22
A. The Exclusion of Functionality Testimony Constituted Abuse of
Discretion
23
2. Dr. Jiao’s Testimony Regarding Functionality Was Relevant
and Admissible
The district court abused its discretion when it excluded testimony by Dr. Jiao
regarding the functionality of the eyelid feature of the ’987 Patent. The first step in
claim. OddzOn Prods. v. Just Toys, Inc., supra, 122 F.3d at 1405. “Where a design
contains both functional and non-functional elements, the scope of the claim must
in the patent.” Ibid. The scope of a design patent is limited to ornamental aspects
alone, and said scope does not extend to any functional elements of the design.
Richardson v. Stanley Works, Inc., 597 F.3d 1288, 1294 (Fed. Cir. 2010). It has long
function … would subvert the purposes of the law, which is to promote the
decorative arts rather than to effectuate it.” Applied Arts Corp. v. Grant Rapids
In OddzOn, both the patented design and the accused design were of a football
with a tail and fins. The court determined that the function of the design was to travel
further than a regular football due to the greater stability provided by the tail and
fins. The court held that since a tail and fins were required to perform the identified
function, the general design similarity of a football with tail and fins could not
provide the basis for infringement. OddzOn, supra, 122 F.3d at 1408. Similarly, in
24
Richardson, the court found that the general configuration of a multi-function tool
design was dictated by its function. On that basis, the court factored out the general
1294.
Here, Dr. Jiao attempted to testify that the eyelid feature included in the ’987
Patent was a functional feature serving to reduce glare. Appx244-245 The district
court struck Dr. Jiao’s testimony and did not permit further questioning after DNA’s
counsel objected on the basis of lack of foundation and that the testimony was
knowledge, skill, training, and education, together or apart, each may constitute
proper foundation for expert opinion. Fed. R. Evid. 702; Tassin v. Sears Roebuck,
946 F. Supp. 1241, 1248 (M.D.La. 1996) (Design engineer’s testimony can be
reasonable link between the information and procedures he uses and the conclusions
he reaches”). See also Kumho Tire Co. v. Carmichael, 119 S. Ct. 1167, 1178 (1999)
(stating that “no one denies that an expert might draw a conclusion from a set of
25
An objection based on speculation is essentially an extension of the
Sweetwater Union High Sch. Dist., 768 F.2d 843,861 (9th Cir. 2014). To assess
Merrell Dow Pharms., 509 U.S. 579 (1993), and its progeny must focus on whether
the expert’s conclusions are based on reliable foundation, not on the substance of
expert’s conclusions or whether they are correct. Pugliano v. United States, 315 F.
Here, Dr. Jiao opined based on his 30 years of experience designing vehicle
lighting that the eyelid feature appeared to be for the purpose of reducing glare
visible to other drivers and to prevent the headlight from being damaged by the
not subjective belief, nor is it unsupported speculation: Dr. Jiao has substantial
training and experience in the design of such headlights, which properly formed the
basis for his opinion. Thus, the district court’s striking of his testimony and refusal
to permit additional questioning to establish the foundation of Dr. Jiao’s opinion was
an abuse of discretion.
26
B. The District Court’s Error Was Not Harmless
Where a district court abuses its discretion in excluding evidence, vacatur and
remand for new trial are required unless the error was harmless. Estate of Barabin v
The district court’s abuse of discretion in excluding the testimony of Dr. Jiao
cannot be considered harmless. Dr. Jiao’s testimony would have shown that the
KHT’s headlight eyelid feature was functional rather than ornamental, and therefore
outside of the scope of the design patent analysis. Yet it is this very feature that the
district court seized upon the primary ornamental design feature distinguishing
KHT’s headlight from the Accused Products and thus its finding of non-
infringement. DNA’s counsel expounded at length in his closing argument that the
lack of an eyelid (or “hood”) feature alone on the Accused Products foreclosed a
finding of infringement:
“There’s multiple differences between the DNA Gen1 and Gen2 and
the claimed design. This detailed hood feature is not present, this nine-
segment hood feature is not present. The hood feature, the eyelid, isn't
present at all in the defendant's Gen1 or Gen2 products. There can't be
infringement. There’s no hood feature at all…. The hypothetical
observer would immediately notice that difference because he or she
would be looking for the specific hood feature.” Appx281-282
While DNA did identify other, smaller differences, it was the eyelid that it
primarily relied upon for its argument of non-infringement. The district court in its
oral ruling similarly relied primarily on the eyelid feature, finding that:
27
“But, more important than that, one of the four elements that is part of
the patent here, a significant part of the patent, is the hood, and that's
part of the claimed patent in the design patent of the plaintiff's patent.
And the Court's going to find that there is no hood in the infringing
patent.” Appx290
The district court repeated this reliance on the hood (eyelid) feature in its
written order. Appx1-9 Given that both defense counsel and the district court
primarily relied on the ’987 Patent’s eyelid feature to find that the Accused Products
did not infringe, exclusion of testimony that the eyelid was functional and therefore
could not be considered within the scope of the ’987 Patent’s design inarguably
harmed KHT’s case for infringement. Without the eyelid, it is very unlikely that the
Because the trial court abused its discretion in excluding testimony necessary
to construe the claim of the ’987 Patent, and such error was not harmless, the
CONCLUSION
28
Dated: December 20, 2019 Respectfully submitted,
29
ADDENDUM
TABLE OF CONTENTS
Pages
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Appx9
CERTIFICATE OF FILING AND SERVICE
I hereby certify that on this 20th day of December, 2019, I caused this Brief
of Appellant to be filed electronically with the Clerk of the Court using the
CM/ECF System, which will send notice of such filing to the following registered
CM/ECF users:
Sean M. Kneafsey
THE KNEAFSEY FIRM, INC.
800 Wilshire Boulevard, Suite 710
Los Angeles, California 90017
(213) 892-1200
skneafsey@kneafseyfirm.com
Elizabeth Yang
199 W Garvey Avenue, Suite 201
Monterey Park, California 91754
(877) 492-6452
lizyang8@gmail.com
1. This brief complies with type-volume limits because, excluding the parts of
the document exempted by Fed. R. App. R. 32(f) (cover page, disclosure
statement, table of contents, table of citations, statement regarding oral
argument, signature block, certificates of counsel, addendum, attachments):
[ ] this brief uses a monospaced type and contains [state the number of]
lines of text.
2. This brief complies with the typeface and type style requirements because: