Allyson Wallace v. Ideavillage Products Corporation

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ALLYSON WALLACE,
Plaintiff-Appellant
v.
IDEAVILLAGE PRODUCTS CORPORATION,
Defendant-Appellee
______________________
2015-1077
______________________
Appeal from the United States District Court for the
District of New Jersey in No. 2:06-cv-05673-JAD, Magis-
trate Judge Joseph A. Dickson.
______________________
Decided: March 3, 2016
______________________
ALLYSON WALLACE , Newark, NJ, pro se.
K EVIN J OSEPH O’C ONNOR, Lum, Drasco & Positan
LLC, Roseland, NJ, for defendant-appellee.
______________________
Before N EWMAN, D YK, and WALLACH , Circuit Judges.
N EWMAN, Circuit Judge.

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WALLACE v. IDEAVILLAGE PRODUCTS CORP. 2
Ms. Allyson Wallace owns U.S. Design Patent No.
D485,990 (the D’990 patent), for an “ornamental design
for a body washing brush, as shown and described” in six
drawings. Ms. Wallace, proceeding pro se, sued Ideavil-
lage Products Corporation for patent infringement in the
United States District Court for the District of New
Jersey, based on the Ideavillage product called the “Spin
Spa.” Ideavillage moved for summary judgment of non-
infringement. Ms. Wallace, acting through appointed
counsel, submitted a brief and expert report in opposition.
The district court, reviewing the record and receiving
argument, granted summary judgment to Ideavillage.
For the reasons set forth below, we affirm the district
court’s judgment.
D ISCUSSION
We review issues not unique to patent law under the
law of the regional circuit, here the Third Circuit. Clas-
sen Immunotherapies, Inc. v. Elan Pharm., Inc., 786 F.3d
892, 896 (Fed. Cir. 2015). Summary judgment may be
granted “only if ‘drawing all reasonable inferences in
favor of the nonmoving party, there is no genuine issue as
to any material fact and the moving party is entitled to
judgment as a matter of law’” Young v. Martin, 801 F.3d
172, 177 (3d Cir. 2015) (internal citations and modifica-
tions omitted). In the Third Circuit, the court reviews the
grant of summary judgment de novo. See Al–Sharif v.
U.S. Citizenship & Immigration Servs., 734 F.3d 207, 210
n. 2 (3d Cir. 2013) (en banc).
We review issues unique to patent law under the law
of our circuit. The standard for design patent infringe-
ment is summarized in Egyptian Goddess, Inc. v. Swisa,
Inc., 543 F.3d 665 (Fed. Cir. 2008) (en banc), applying the
“ordinary observer” test of Gorham Manufacturing Co. v.
White, 81 U.S. 511 (1871):
[T]he “ordinary observer” test should be the sole
test for determining whether a design patent has

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WALLACE v. IDEAVILLAGE PRODUCTS CORP. 3
been infringed. Under that test, as this court has
sometimes described it, infringement will not be
found unless the accused article “embod[ies] the
patented design or any colorable imitation there-
of.”
Egyptian Goddess, 543 F.3d at 678. The ordinary observ-
er test proceeds in two stages. “In some instances, the
claimed design and the accused design will be sufficiently
distinct that it will be clear without more that the patent-
ee has not met its burden of proving the two designs
would appear ‘substantially the same’ to the ordinary
observer . . . .” Id. “In other instances, when the claimed
and accused designs are not plainly dissimilar, resolution
of the question whether the ordinary observer would
consider the two designs to be substantially the same will
benefit from a comparison of the claimed and accused
designs with the prior art . . . .” Id.
The district court applied both stages and determined
under both tests that an ordinary observer would not
consider Ms. Wallace’s patented design and the Ideavil-
lage design to be substantially the same.
A
With respect to the first stage, the district court high-
lighted six differences between the Ideavillage design and
the claimed design:
(1) ’990 patent has a straight handle, while the
Ideavillage product has a bent or curved handle;
(2) ’990 patent has a finger grip with a hill and
valley design, while the Ideavillage product has no
such finger grip;
(3) ’990 patent has a flat threaded opening at the
base of the handle, while the Ideavillage product
has a closed pointed end with an aperture where a
rope can be attached;

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WALLACE v. IDEAVILLAGE PRODUCTS CORP. 4
(4) ’990 patent has a round head with a two tiered
brush, while the Ideavillage product has an oblong
head without a two tier brush;
(5) ’990 patent has a protrusion at the back of the
head, while Ideavillage product has a smooth back
without any protrusion; and finally,
(6) ’990 patent has no decoration on the back of
the handle, while Ideavillage product has an oval
at the neck of the handle and an oval group in the
back of the handle.
Wallace v. Ideavillage Products Corp., No. 06-CV-5673-
JAD, 2014 WL 4637216, at *3 (D.N.J. Sept. 15, 2014)
(“Dist. Ct. Op.”). In granting summary judgment, the
district court
acknowledge[d] manifest differences in the overall
appearance of the ’990 patent and the [Ideavil-
lage] product. Indeed, a comparison supports a
finding that these two designs are sufficiently dis-
tinct and Ms. Wallace cannot, as a matter of law,
prove that the designs appear substantially the
same. To the ordinary observer, in other words,
the two designs do not look substantially the
same.
Id. at *4.
We have compared the D’990 patent’s drawings to the
photographs of the accused product in Ms. Wallace’s
expert report and agree with the district court that no
reasonable fact-finder would find them to be substantially
the same under the first stage of the ordinary observer
test. The district court compared the following designs:

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WALLACE v. IDEAVILLAGE PRODUCTS CORP. 5
D’990 Patent,
Fig. 1
Ideavillage’s
Accused
Product
D’990 Patent,
Fig. 2
Ideavillage’s
Accused
Product

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WALLACE v. IDEAVILLAGE PRODUCTS CORP. 6
D’990 Patent,
Fig. 3
Ideavillage’s
Accused
Product
D’990 Patent,
Fig. 5
Ideavillage’s
Accused
Product

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WALLACE v. IDEAVILLAGE PRODUCTS CORP. 7
The district court properly found that the D’990 patent’s
design and the accused product are plainly dissimilar.
Bath brushes with a generally rounded head and roughly
cylindrical handle were shown in the prior art, and the
curved shape of the handle, the angled connection be-
tween the handle and brush, the ovoid design of the head,
and the surface details are such that an ordinary observer
viewing both designs would not confuse one product for
the other.
B
“In an effort to assure a fair and complete decision on
this record,” the district court proceeded to the second
stage of the ordinary observer test. Dist. Ct. Op. at *4.
Comparing the claimed design with figures from the prior
art, U.S. Patent No. 4,417,826 (the ‘826 Patent), reinforc-
es the district court’s findings under the first stage of the
test:
D’990 Patent,
Fig. 6
Ideavillage’s
Accused
Product

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WALLACE v. IDEAVILLAGE PRODUCTS CORP. 8
D’990
Fig. 1
Prior Art
’826 Patent,
Fig. 1
Ideavillage’s
Accused
Product

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WALLACE v. IDEAVILLAGE PRODUCTS CORP. 9
Other prior art views also show the known character-
istics of the design.
D’990 Patent,
Fig. 5
Prior Art
’826 Patent,
Fig. 3
Ideavillage’s
Accused
Product

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WALLACE v. IDEAVILLAGE PRODUCTS CORP. 11
’990 patent, . . . no reasonable ordinary observer, familiar
with the prior art, would be deceived into believing the
[Ideavillage] [p]roduct is the same as the design depicted
in the ’990 patent.” Id. at 10.
The district court correctly applied the law, that “dif-
ferences between the claimed and accused designs that
might not be noticeable in the abstract can become signif-
icant to the hypothetical ordinary observer who is conver-
sant with the prior art.” Egyptian Goddess, 543 F.3d at
678.
The judgment of non-infringement is affirmed. Each
party shall bear its costs.
AFFIRMED

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