Columbia Opening Brief (Fed. Cir. Round 2)

Case: 21-2299 Document: 16 Page: 1 Filed: 01/13/2022
Case Nos. 2021-2299, -2338

________________________________
UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT
________________________________
COLUMBIA SPORTSWEAR NORTH AMERICA, INC.,

Plaintiff-Appellant,
v.
SEIRUS INNOVATIVE ACCESSORIES, INC.,

Defendant-Cross-Appellant.
______________________________
Appeals from the United States District Court

for the Southern District of California
Case No. 3:17-cv-01781-HZ, Judge Marco A. Hernandez
___________________________
CORRECTED OPENING BRIEF OF PLAINTIFF-APPELLANT

COLUMBIA SPORTSWEAR NORTH AMERICA, INC.
______________________________
Nika Aldrich
Scott D. Eads
Sara Kobak
SCHWABE, WILLIAMSON &
WYATT P.C.
1211 S.W. 5th Avenue, Suite 1900
Portland, Oregon 97204
Telephone: 503-222-9981
Facsimile: 503-796-2900
Attorneys for Columbia Sportswear
North America, Inc.
CERTIFICATE OF INTEREST
Pursuant to Federal Circuit Rule 47.4, counsel for Plaintiff-
Appellant Columbia Sportswear North America, Inc. certifies:
1. The full name of every party or amicus curiae represented by
me is: Columbia Sportswear North America, Inc.
2. The name of the real party in interest (if the party named in
the caption is not the real party in interest) represented by me is: Not
Applicable.
3. All parent corporations and any publicly held companies that
own 10 percent of more of the stock of the party or amicus curiae
represented by me are: Columbia Sportswear Company
4. The names of all law firms and the partners or associates that
appeared for the party now represented by me in the trial court or agency
or amicus curiae, or are expected to appear in this Court, are:
SCHWABE, WILLIAMSON & WYATT P.C.: Jason A. Wrubleski,
David R. Boyajian, David W. Axelrod, Devon Z. Newman, Brenna
K. Legaard, and Angela E. Addae.
STOEL RIVES LLP: Brian Nese.
i
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 is:
Columbia Sportswear North America, Inc. and Columbia
Sportswear Company v. Ventex Co., Ltd., U.S.D.C. D. OR. No. 3:17-
cv-00623-MO.
6. Organizational victims in criminal cases and debtors and
trustees in bankruptcy cases: Not Applicable.
Dated this 13th day of January, 2022.
/s/ Nika Aldrich

Nika Aldrich
TABLE OF CONTENTS
CERTIFICATE OF INTEREST .................................................................. i
STATEMENT OF RELATED CASES ....................................................... 1
STATEMENT OF JURISDICTION ........................................................... 1
STATEMENT OF THE ISSUES ................................................................ 2
STATEMENT OF THE CASE ................................................................... 4
I. Background............................................................................... 4
II. The Field of Art and Asserted Design Patent ......................... 5
III. Seirus’s Infringement ............................................................ 11
IV. Because of Seirus’s Infringement, Columbia has Never
Used the D’093 Patented Design ........................................... 17
V. The Lawsuit and its Procedural History............................... 18
A. District Court Proceedings ........................................... 18
B. The Prior Appeal ........................................................... 20
C. The Reexamination ....................................................... 22
D. Proceedings on Remand ................................................ 23
E. The Jury Verdict ........................................................... 41
SUMMARY OF ARGUMENT .................................................................. 41
A. Errors Concerning Alleged Comparison Prior Art ...... 42
B. Errors Concerning Relevance of Source Confusion ..... 44
ARGUMENT ............................................................................................. 46
I. Standards of Review .............................................................. 46
ii
II. The District Court Erred in Its Jury Instructions by

Failing to Limit the Scope of Comparison Prior Art for
the Design Patent Infringement Test. ................................. 48
A. The scope of prior art relevant to design patent
infringement is limited to designs for the particular
article of manufacture identified in the asserted
design patent. ................................................................ 50
B. At minimum, the Court should hold the scope of

prior art is limited to the design corpus relevant to
an obviousness analysis. ............................................... 54
C. The scope of the D’093 Patent is limited to “heat

reflective materials” ...................................................... 54
D. The court’s jury instructions misstated the law and

erroneously instructed the jury that all prior
patents are prior art that could be considered. ........... 56
E. The district court’s jury instructions were erroneous

even adopting the broader design corpus applicable
to obviousness ............................................................... 59
F. The district court’s failure to properly instruct the

jury about the relevant comparison prior art for the
design patent infringement test was prejudicial......... 60
G. If the Court remands for consideration of any of

Seirus’s prior art, it should order the district court
to instruct the jury about the meaning of “heat
reflective material.” ...................................................... 62
III. The District Court Erred in Prohibiting Columbia’s

Counsel From Distinguishing Prior Art Based on
Whether it Was “Heat Reflective.” ....................................... 64
IV. The District Court Erred by Failing to Instruct the
Jury That Confusion as to Source is Not an
Appropriate Consideration For Design Patent
Infringement........................................................................... 67
iii
H. This Court’s precedents confirm that “likelihood of

confusion” is not an appropriate consideration for
design patent infringement .......................................... 67
I. The district court erred in failing to instruct the

jury on the law as elucidated in Unette, Braun, and
L.A. Gear ....................................................................... 74
J. The district court’s failure to provide a

Unette/Braun/L.A. Gear clarifying instruction was
prejudicial ...................................................................... 76
K. This Court’s prior decision in this case does not

disturb the Court’s earlier precedent ........................... 78
CONCLUSION ......................................................................................... 82
ADDENDUM
Judgment (Dkt. 609) .......................................................................... Appx1
Jury Verdict Form (Dkt.606)............................................................. Appx3
U.S. Patent D657,093 (D’093 Patent) ............................................... Appx4
iv
TABLE OF AUTHORITIES
Page(s)
Cases
Arminak & Assocs., Inc. v. Saint-Gobain Calmar, Inc.,

501 F.3d 1314 (Fed. Cir. 2007) ............................................................ 53
Bateman v. Mnemonics, Inc.,

79 F.3d 1532 (11th Cir. 1996) .............................................................. 47
Braun Inc. v. Dynamics Corp. of Am.,

975 F.2d 815 (Fed. Cir. 1992) ...................................................... passim
Columbia Sportswear North Am., Inc. v. Seirus Innovative

Accessories, Inc.,
202 F. Supp. 3d 1186 (D. Or. 2016) ..................................................... 19
Columbia Sportswear North Am., Inc. v. Seirus Innovative

Accessories, Inc.,
942 F.3d 1119 (Fed. Cir. 2019) .................................................... passim
Contessa Food Prods., Inc. v. Conagra, Inc.,

282 F.3d 1370 (Fed. Cir. 2002) ............................................................ 74
Curver Luxembourg, SARL v. Home Expressions Inc.,

938 F.3d 1334 (Fed. Cir. 2019) .................................................... passim
Deckers Corp. v. United States,

752 F.3d 949 (Fed. Cir. 2014) .............................................................. 80
Egyptian Goddess, Inc. v. Swisa, Inc.,

543 F.3d 665 (Fed. Cir. 2008) ...................................................... passim
Engel Indus. v. Lockformer Co.,

166 F.3d 1379 (Fed. Cir. 1999) ................................................ 22, 56, 59
Eon Corp. IP Holdings v. Silver Spring Networks,

815 F.3d 1314 (Fed. Cir. 2016) ................................................ 30, 63, 64
v
Gilbrook v. City of Westminster,

177 F.3d 839 (9th Cir. 1999) .......................................................... 47, 76
Gorham Co. v. White,

81 U.S. 511, 20 L. Ed. 731 (1871) ................................................ passim
Hupp v. Siroflex of Am., Inc.,

122 F.3d 1456 (Fed. Cir. 1997) .................................................... passim
Int’l Seaway Trading Corp. v. Walgreens Corp.,

589 F.3d 1233 (Fed. Cir. 2009) .................................................... passim
L.A. Gear, Inc. v. Thom McAn Shoe Co.,

988 F.2d 1117 (Fed. Cir. 1993) .................................................... passim
Lululemon Athletica Canada Inc. v. Peloton Interactive, Inc.,

Case No. 2:21-CV-9252 (C.D. Cal. Nov. 29, 2021) .............................. 81
Minka Lighting, Inc. v. Craftmade Int’l, Inc.,

93 Fed. Appx. 214 (Fed. Cir. 2004) ...................................................... 73
Montgomery Ward & Co. v. Duncan,

311 U.S. 243 (1940) ........................................................................ 47, 76
Newell Cos., v. Kenney Mfg. Co.,

864 F.2d 757 (Fed. Cir. 1988) .............................................................. 80
Peloton Interactive, Inc. v. Lululemon Athletica Canada Inc.,

Case No. 1:21-cv-10071-ALC (S.D.N.Y. Nov. 24, 2021)...................... 81
Robert Bosch, LLC v. Pylon Mfg. Corp.,

719 F.3d 1305 (Fed. Cir. 2013) ............................................................ 73
Star Sci., Inc. v. R.J. Reynolds Tobacco Co.,

655 F.3d 1364 (Fed. Cir. 2011) ............................................................ 48
In re Surgisil, L.L.P.,
14 F.4th 1380 (Oct. 4, 2021) ........................................................ passim
Unette Corp. v. Unit Pack Co. Inc.,

785 F.2d 1026 (Fed. Cir. 1986) .................................................... passim
vi
Unidynamics Corp. v. Automatic Prods. Int’l, Ltd.,

157 F.3d 1311 (Fed. Cir. 1998) ............................................................ 53
Voda v. Cordis Corp.,

536 F.3d 1311 (Fed. Cir. 2008) ............................................................ 46
Wagner v. Cnty. of Maricopa,

747 F.3d 1048 (9th Cir. 2013) .............................................................. 48
Wilkerson v. Wheeler,
772 F.3d 834 (9th Cir. 2014) ........................................................ passim
Statutes
28 U.S.C. § 1291.......................................................................................... 2
28 U.S.C. § 1295(a)(1) ................................................................................. 2
28 U.S.C. § 1331.......................................................................................... 1
28 U.S.C. § 1338(a) ..................................................................................... 1
Other Authorities
1 McCarthy on Trademarks and Unfair Competition § 6:11 ................. 80
Adding a Logo to a Copycat Product Qualif[ies] as a

Successful Design Around? Stern Kessler, IP Hot Topic:
Does Adding a Logo to a Copycat Product Qualify as a
Successful Design Around? (available at
https://www.sternekessler.com/news-insights/client-
alerts/ip-hot-topic-does-adding-logo-copycat-product-
qualify-successful-design) .................................................................... 80
MPEP 1502 ............................................................................................... 51
vii
STATEMENT OF RELATED CASES
This is the second appeal to this Court in this patent dispute. The
decision following the first appeal is reported at Columbia Sportswear
North Am., Inc. v. Seirus Innovative Accessories, Inc., 942 F.3d 1119 (Fed.
Cir. 2019) (“Columbia I”). No other appeal from this case has been before
this Court or any other appellate court in the United States.
In April 2017, plaintiff-appellant Columbia Sportswear North
America, Inc. (“Columbia”) and its affiliates filed suit against Ventex Co.,
Ltd. (“Ventex”) in the United States District Court for the District of
Oregon, accusing Ventex and its agent of infringing the patent at issue
in this appeal. That case, which is captioned Columbia Sportswear North
America, Inc., et al. v. Ventex Co., Ltd, et al., Case No. 3:17-cv-00623 (D.
Or.), is stayed pending the outcome of this appeal.
Counsel is unaware of any other case that will directly affect, or will
be directly affected by, this Court’s decision in this appeal.
STATEMENT OF JURISDICTION
The district court had jurisdiction under 28 U.S.C. § 1331 and
§ 1338(a). The district court entered final judgment on August 20, 2021.
Columbia timely filed a notice of appeal on September 7, 2021. This
1
Court has jurisdiction under 28 U.S.C. § 1291 and § 1295(a)(1).
STATEMENT OF THE ISSUES
(1) As a matter of first impression for the Court, and in view of this
Court’s recent decision in In re Surgisil, L.L.P., 14 F.4th 1380, 1382
(Oct. 4, 2021), what is the relevant scope of “comparison prior art”
that is to be considered in a design patent infringement analysis
under Egyptian Goddess, Inc. v. Swisa, Inc., 543 F.3d 665, 678-79
(Fed. Cir. 2008) (en banc)?
(2) Whether the district court erred in instructing the jury that all
prior patents are comparison prior art to a design patent, and in
failing to instruct the jury to limit the scope of comparison prior art
for the design infringement analysis to “heat reflective materials,”
which is the article of manufacture identified in the claim of the
asserted U.S. Patent D657,093 (D’093 Patent)?
(3) Whether, in the alternative, the district court erred in failing to
instruct that “the scope of prior art” to a design patent is limited to
“designs of the same article of manufacture or of articles so similar
that a person of ordinary skill would look to such articles for their
designs,” as this Court held in Hupp v. Siroflex of Am., Inc., 122
2
F.3d 1456, 1462 (Fed. Cir. 1997).
(4) Whether the district court erred in prohibiting Columbia from
distinguishing prior art on grounds that it failed to disclose a “heat
reflective material,” which is the article of manufacture identified
in the claim of D’093 Patent?
(5) Where the Gorham standard applicable to design patent
infringement concerns “deceiving” a consumer concerning products
available for “purchase,” and where (a) Columbia did not sell a
patented product for purchase, and where (b) Seirus applied its
brand name to its products, whether the district court erred in
failing to instruct the jury that:
a. “Likelihood of confusion,” or “confusion as to the source or
provider of the goods accused of infringing is irrelevant to
determining whether a patent is infringed,” as this Court held
in Braun Inc. v. Dynamics Corp. of Am., 975 F.2d 815, 820 (Fed.
Cir. 1992), and Unette Corp. v. Unit Pack Co. Inc., 785 F.2d
1026, 1029 (Fed. Cir. 1986); and
b. “Labelling a product with source identification or branding does
not avoid infringement,” as this Court held in L.A. Gear, Inc. v.
3
Thom McAn Shoe Co., 988 F.2d 1117, 1126 (Fed. Cir. 1993).
STATEMENT OF THE CASE
I. Background
This case concerns Columbia’s groundbreaking “heat reflective
material,” which is sold under the trademark Omni-Heat®. The Omni-
Heat® product line has earned Columbia wide acclaim in the market and
over $1 billion in sales since it was launched in 2010. (Appx131.)
Heat reflective materials derive from NASA’s invention of the space
blanket, a thin sheet of highly reflective metal foil that reflects the
wearer’s heat back to them. The clothing industry has long since used
heat reflective materials in apparel. (Appx617-618.) But, although the
metal foil is highly heat reflective, it disadvantageously blocks the
transfer of moisture vapor away from the wearer. This lack of
“breathability” can cause the inside of the garment to become wet,
accelerating heat loss due to the increased heat conductivity of wet
materials. (Appx779-780.)
In 2008, Columbia invented a new approach. Columbia used two
layers: a layer of heat reflective foil glued to a layer of breathable, base
material. Pieces of the heat reflective foil were arranged in an array on
4
the base material, leaving portions of the base material uncovered.
(Appx779-781.) This way, the foil would reflect heat to keep the wearer
warm while the exposed sections of base material would ensure
breathability, keeping the inside of the garment dry. While Columbia’s
engineering team had developed the material that could achieve these
characteristics, Columbia still had to develop appealing designs that
could be applied to such a heat reflective material—a particular and
peculiar article of manufacture.
II. The Field of Art and Asserted Design Patent
Columbia tasked its Design Director, Zach Snyder, to create
appealing designs that could be applied to heat reflective materials.
Mr. Snyder considered many factors in the process of inventing
designs for this unique application, including aesthetically pleasing
arrays of metallic foil to be affixed to the base material. (Appx781.) As
he testified at trial, designing with heat reflective materials is different
from designing with conventional fabrics. For example, with
conventional fabrics, designs can be implemented with ink, which has
well-understood properties and is readily available in many different
colors. (Appx782.) When designing for a two-layer heat reflective
5
material, however, the design is implemented through shapes of foil
glued onto the base material. The combination of, and contrast between,
the shapes and colors of the reflective top layer and the solid base
material underneath creates the ornamental design seen by ordinary
observers. (Appx780-781.) The foil is inherently shiny, which caused
Mr. Snyder “to think a little differently about how that will interact with
the material below it.” (Appx782.)
While working on potential designs, Mr. Snyder considered the
inherent properties of the composite materials (base substrate, metallic
foil, and glue), and the manufacturing process by which the new material
would be assembled. (Appx783-784.) He was also concerned about how
the design, implemented with metallic foil, would be viewed by
consumers. Mr. Snyder explained “people are not used to shiny metallics
on their clothes … so I was trying to consider how … you work with that
in something that would be very unexpected for the people wearing it.”
(Appx784-785.)
Mr. Snyder not only sought to create a design that would look
appealing on a variety of different garments: for example, a “ski jacket,”
a “coat that you wear in the city,” “gloves,” and “socks,” but he also
6
wanted a design that would be appropriate for men, women, and children.
Mr. Snyder was “very cognizant of this idea that it needs to appeal to …
a wide audience.” (Appx785.)
He also considered the goal of creating a “connection” in the mind
of the user between “the thing that you’re designing” and “what you’re
designing for.” (Appx778.) For example, Mr. Snyder wanted to convey
intuitively to the purchaser of a garment that this unique, heat reflective
material on the inside of the garment would make the user warmer.
When working with ink, conveying the concept of “heat” is relatively
straightforward; a designer can use the color red, which is often
associated with heat. But Mr. Snyder was attempting to convey the
concept of heat on a heat reflective material, which has only a shiny layer
of foil adhered onto a bottom layer—a difficult design problem.
(Appx783.)
For inspiration, Mr. Snyder drew upon his experience growing up
in Arizona in inventing his designs:
[O]ne of the things that happens on a hot summer day

is, in the distance, you can see heat ripples, right?
Like so this mirage of—of distortion that comes from
the heat rising off the ground. And I thought that
could be … a great reference point for this idea of
communicating heat.
7
And one of the things that I liked about the heat

ripples is both that it—it was a naturally occurring
heat reference. And I also liked that it was something
that could translate into a simple shape, which for me
fit that idea of being very universal.
(Appx786.)
With this vision in mind, Mr. Snyder invented the following design
for a heat reflective material, showing the contrast between the top
reflective layer (white) and the solid base material (black):
(Appx4 (original, undistorted drawings are at Appx1704-1706).) On April
3, 2012, the Patent Office issued the D’093 patent for this inventive
design for a “heat reflective material.” (Id.)
8
The D’093 patent is not directed to just any material, but rather is
specifically directed to a particular ornamental design for a particular
article of manufacture. It is entitled “Heat Reflective Material” and
claims “[t]he ornamental design of a heat reflective material, as shown
and described.” (Id.) It includes Figure 1, shown above, which is
described as “an elevational view of a heat reflective material.” (Appx5.)
Figures 2 and 3 reinforce that the design is for a heat reflective material
implemented through two composite layers. For example, Figure 2 shows
the three-dimensional nature of the heat reflective material, with the top
(white) layer cut out in the ornamental shape glued onto the solid (black)
bottom layer:
9
(Appx5, Appx1704.)
Figures 4-10 show various “perspective view[s] of the heat reflective
material as used” in different garments, including hats, socks, and
gloves. For example, Figures 7 and 8 below show the patented design for
a heat reflective material being used in socks and gloves:
10
(Appx4-7, Appx1704-1706.)
III. Seirus’s Infringement
In 2012, snow sports accessory manufacturer Seirus set out to copy
Columbia’s Omni-Heat® heat reflective material technology by obtaining
samples from Columbia’s Chinese and Korean manufacturers in violation
of their contractual commitments to Columbia. (Appx132-157.) For its
competing product, Seirus started with the following:
11
(Appx1436.)
Seirus then decided to add its brand name. Seirus’s CEO, Mike
Carey, explained that there was only one purpose for adding Seirus’s
brand name; it was “to make sure everybody knew that it was our brand
12
that was associated with this product.” (Appx1098-1099; Appx1528-
1529, Appx1671-1672.)
(Appx1435.) Where Columbia marketed its products using its heat
reflective material under the mark Omni-Heat®, Seirus adopted the
name HeatWaveTM.
13
(Appx887-888; Appx1293.)
Like the D’093 Patent, Seirus’s HeatWaveTM heat reflective
material is made by gluing a top layer of foil onto a solid base material.
(Appx973.) As seen below, the Seirus design is virtually identical to
Columbia’s D’093 patented design, including the identical frequency and
amplitude of the claimed D’093 design:
14
Case: 21-2299
Document: 16
15
Page: 24
Filed: 01/13/2022
Columbia’s patented design Seirus’s design
(Appx1616.)
15
Indeed, and as shown in the demonstrative below, Figure 2 from
Columbia’s D’093 Patent fits seamlessly into Seirus’s fabric design.
(Appx1617.) While the Seirus HeatWave™ heat reflective material
includes the Seirus trademark “SEIRUS” in a stylized font, the addition
of its trademark does not change the fact that the Seirus heat reflective
material uses the claimed design from Columbia’s D’093 design patent.
Like the examples in the D’093 Patent, Seirus uses its HeatWave™
heat reflective material on the inside of its gloves, socks, and hats.
16
(Appx1338.) Thus, not only did Seirus take Columbia’s idea for a heat
reflective material, but it also took the ornamental design of the D’093
patent for its own use.
IV. Because of Seirus’s Infringement, Columbia has Never

Used the D’093 Patented Design
In addition to the patented D’093 design, Mr. Snyder also invented
several other designs for heat reflective materials. Columbia initially
launched its Omni-Heat® Reflective product line with a pixilated design
rather than the D’093 patented design. (Appx127.)
17
Years after the initial launch, Columbia prepared to launch an
additional set of products using a heat reflective material within its
Omni-Heat® Reflective product line. It considered using the D’093
patented design for this subsequent launch but by then Seirus was
already using it. Concerned about potential consumer confusion,
Columbia opted for a different design. (Appx127-129, Appx12.) Thus,
Columbia has never sold a product embodying its D’093 patented design.
V. The Lawsuit and its Procedural History
A. District Court Proceedings
Columbia filed this action in January 2015 in the District of Oregon,
accusing Seirus’s HeatWave™ line of products of infringing the D’093
patent and two utility patents.1
In March 2016, Seirus stipulated to judgment of no invalidity as to
the D’093 patent. (Appx104-105.)
Columbia thereafter asked the Court to construe the D’093 Patent
and moved for summary judgment of infringement. Seirus responded by
arguing that its design did not infringe because Seirus’s HeatWave™
heat reflective material had its source-identifying brand name on it. As
1 The two utility patents are not at issue in this appeal.
18
part of its non-infringement argument, Seirus also introduced a number
of alleged prior art references that Seirus argued were so visually close
that they required a finding of non-infringement. However, none of those
prior art references disclosed a heat reflective material, which is the
article of manufacture identified in the D’093 patent’s claim.
In August 2016, the district court issued an order addressing the
scope of the D’093 Patent and ruling in favor of Columbia on its summary
judgment motion of infringement. Columbia Sportswear North Am., Inc.
v. Seirus Innovative Accessories, Inc., 202 F. Supp. 3d 1186 (D. Or. 2016)
(Appx106-122.) Concerning the scope of the claim, the district court held
that “Columbia’s D’093 patent protects the ‘ornamental design of a heat
reflective material, as shown and described’ in the claim.” (Appx119.)
Regarding infringement, the district court relied on L.A. Gear for the rule
that an infringer cannot “avoid[] infringement by labelling” a product
with a source identifier and thus ruled that Seirus’s brand name on the
heat reflective material did not avoid infringement. (Appx115, Appx121
(citing L.A. Gear, 988 F.2d at 1126).)
The district court also held that, because the patent was limited to
“heat reflective material,” much of the alleged prior art was from
19
“products far afield” and thus “not relevant to a comparison between
Columbia’s and Seirus’s designs for heat reflective material.” (Appx119-
120.) The district court held that “[t]he only prior art that even
approaches relevance to Columbia’s design patent” was a pair of patents
issued to Blauer concerning “breathable shell[s] for outerwear.” But the
district court further held that, even considering Blauer’s design, “the
contrasting waves of Seirus’s design are still substantially closer to the
contrasting wave design disclosed in the D’093 patent than either
Seirus’s or Columbia’s design is to” Blauer’s design. (Appx120-121.)
Thus, the district court found that Seirus infringed. (Appx122.)
That left only the question of damages for a jury trial, which was
held in September 2017. The jury awarded Columbia Seirus’s total
profits from its sales of the infringing HeatWave™ products. (Appx158-
159.)
B. The Prior Appeal
Seirus appealed both the summary judgment decision and the
damages award. A panel of this Court reversed, criticizing the district
court’s decision to exclude the added Seirus brand name from the
infringement analysis. Columbia Sportswear North Am. Inc. v. Seirus
20
Innovative Accessories, Inc., 942 F.3d 1119 (Fed. Cir. 2019)
(“Columbia I”). While Columbia maintained that the district court
followed the holding in L.A. Gear, a panel of this Court disagreed, stating:
In that case, the parties did not dispute that the

patented and accused designs were substantially
similar. L.A. Gear, 988 F.2d at 1125. In fact, “copying
[was] admitted.” Id. In evaluating infringement
there, we explained that design infringement is not
avoided “by labelling.” Id. at 1126. A would-be
infringer should not escape liability for design patent
infringement if a design is copied but labeled with its
name. But L.A. Gear does not prohibit the fact finder
from considering an ornamental logo, its placement,
and its appearance as one among other potential
differences between a patented design and an accused
one.
Id., 942 F.3d at 1131 (emphasis in original).
This Court also held that the district court improperly resolved fact
issues in the infringement analysis, including the visual similarity of the
patented design, the accused design, and the alleged prior art “Blauer”
reference. Id.
Although Seirus challenged a number of the district court’s factual
determinations in its appeal, Seirus did not challenge the district court’s
legal conclusion that the scope of the D’093 Patent is limited to a “heat
reflective material” (see Appx119), nor did this Court find any error in
21
that determination. Similarly, Seirus did not challenge the district
court’s conclusion that most of the asserted comparison prior art was “not
relevant” to an infringement analysis. (Appx120.) Thus, when the
mandate issued, those determinations (e.g. the scope of the D’093 patent
and the exclusion of irrelevant “prior art”) became the law of the case,
subject to the mandate rule. See Engel Indus. v. Lockformer Co., 166 F.3d
1379, 1382-83 (Fed. Cir. 1999). This Court remanded the case to district
court for a second trial limited to the issue of infringement.
C. The Reexamination
While the case was pending on appeal, Seirus filed a petition for ex
parte reexamination of the D’093 Patent. Seirus asserted a number of
the same alleged prior art references that it had submitted for
consideration in opposition to Columbia’s motion for non-infringement,
in addition to more than 10 other references. These references included
“Blauer,” a purported prior art reference at issue here. (Appx481-484.)
The Examiner initially considered Blauer; however, he dropped his
reliance on Blauer after Columbia explained that Blauer lacked the
contrasting colors required by the D’093 patent. (Appx586, Appx593-596,
Appx602-610.) Ultimately, the Patent Office granted a reexamination
22
certificate confirming patentability of the D’093 Patent claim.
(Appx1443.)
D. Proceedings on Remand
On remand, two key issues permeated pretrial briefing: (i) the
relevant scope of the admissible “comparison prior art” to the
infringement analysis; and (ii) the role that actual or likely consumer
confusion should play in any design patent infringement analysis,
particularly given Seirus’s addition of its brand name on the HeatWave™
heat reflective material. Those issues are addressed in turn below.
1. Seirus’s alleged “comparison prior art.”
Seirus disclosed that it intended to rely on alleged prior art patents
that the district court had already ruled were “not relevant” because they
were “far afield” from “heat reflective materials.” (Appx119-120.) Three
of those patents are pertinent to this appeal.
U.S. Patent No. 1,515,792 (“Respess”) is a utility patent from 1913
disclosing a complex machine for making fabric used “in making a rubber
tire”—i.e. the interior structure of early radial tires. (Appx1467-1468,
1:25-28.) Seirus relies on Figure 5, below:
23
(Id.) Respess neither discloses nor teaches anything about “heat
reflective materials.” Indeed, the district court had previously ruled that
Respess “is not relevant to a comparison between Columbia’s and Seirus’s
designs for heat reflective material” (Appx120), a finding that was not
challenged on appeal.
U.S. Patent No. 2,539,690 (“Boorn”) is a utility patent from 1947
that discloses a method of inlaying plastic threads into plastic sheets. In
Figure 6, below, “a plastic sheet 26 is shown as provided with the inlaid
wavy stripes 27.” (Appx1464-1465, 3:26-28.) It is formed by pressing the
threads into the plastic sheets using rollers until they are flush, as shown
in Figure 5.
24
(Appx1464.) Like Respess, Boorn neither discloses nor teaches anything
about “heat reflective materials.” Also like Respess, the district court
previously ruled that Boorn “is not relevant to a comparison between
Columbia’s and Seirus’s designs for heat reflective material.” (Appx120.)
That finding was not challenged on appeal.
U.S. Patent 5,626,949 to Blauer is a patent relating to waterproof
shells—i.e., rain jackets. (Appx1457-1461.) Like Boorn and Respess,
Blauer discloses nothing about “heat reflective materials,” let alone a
design for any. Instead, Blauer discloses a “printed stratum” of acrylic
urethane—a clear elastomer coating that “maintain[s] shell fabric
appearance” while providing “dimensional stability.” (Id. 3:56-59.)
Consistent with the specification, Blauer’s figure 5 shows his idea as
white-on-white, representing a clear layer of urethane spread onto fabric.
25
(Appx1459.) The district court had previously held that Blauer was “[t]he
only prior art that even approaches relevance to Columbia’s design
patent.” But the district court noted that, unlike the D’093 Patent, “[t]he
waves in [Blauer] are not contrasting colors” and the wavelength and
amplitude of the waves was very different from the Columbia design,
which was the same as Seirus’s. (Appx121.)
2. Arguments to the district court regarding alleged

“prior art”
Through pretrial briefing, Seirus indicated its intent to argue that
Respess, Boorn, and Blauer were relevant as comparison prior art for
infringement, even though none disclosed heat reflective material.
Specifically, Seirus intended to argue an abstruse point from theoretical
physics that everything in the universe reflects at least some
infinitesimal amount of heat and, therefore, all materials in the universe
26
are “heat reflective materials” within the meaning of the D’093 patent
claim.
Columbia moved in limine to preclude this argument, noting that it
had “already [been] rejected by the Court in its summary
judgment/Markman ruling,” which was not challenged on appeal, and
therefore was “now law of the case.” (Appx280-281.) Columbia also
objected to the admissibility of all three prior art references because
Seirus could not establish that they were related to the claimed “heat
reflective material.” (Appx323-327.).
At the same time, Seirus moved in limine to preclude Columbia
from distinguishing any prior art based on whether it was a “heat
reflective material” because, it argued, doing so allegedly would import a
“functional” element into the patent claim. (Appx237-238.) Columbia
opposed the motion on numerous grounds, including that it conflicted
with the district court’s prior rulings—unchallenged and undisturbed on
appeal—concerning the scope of the D’093 Patent and the corresponding
scope of relevant “comparison prior art.” (Appx403-405.)
At the pretrial conference, the district court determined the
references and arguments that would be allowed at trial. First, the
27
district court ruled that Seirus would be permitted to introduce any
comparison prior art so long as it was directed at a “wave pattern[] on
fabric”—i.e., regardless of whether the pattern applied to “heat reflective
material.” (Appx421-430.)
Second, and contrary to its prior ruling, the district court precluded
Columbia from making any arguments distinguishing prior art on the
grounds that it was not a “heat reflectiv[e] material,” apparently
accepting Seirus’s flawed argument that doing so would allow
“infringement [to] turn[] on a functional aspect of [the] claim.” (Appx238,
Appx421.)
3. Seirus’s reliance on the alleged “prior art” at

trial
During trial, Seirus relied heavily on Respess, Boorn, and Blauer to
argue that the accused HeatWave™ heat reflective material did not
infringe the asserted claim of the D’093 patent. Seirus argued that this
alleged comparison prior art was so visually similar to the D’093 patent
that the scope of the D’093 did not encompass the design of the accused
HeatWave™ heat reflective material. A significant part of the testimony
of Seirus CEO Mike Carey concerned this art. (Appx1036-1042,
Appx1139-1142.) On cross, Mr. Carey testified that he did not
28
understand these prior patents because they were “old,” “difficult to
understand,” and for products that are “not an area that we make product
for.” (Appx1064, Appx1072.)
To establish that Blauer was not proper comparison prior art,
Columbia asked Mr. Carey about the purpose of its printed stratum (i.e.,
to improve “dimensional stability”). Seirus objected. The district court
sustained Seirus’s objection holding that Columbia’s question concerned
the “function” of the invention disclosed in Blauer, and thus was counter
to the district court’s in limine order. (Appx1064-1065.)
4. The district court’s jury instructions concerning

the relevant comparison prior art
During pretrial proceedings, Columbia sought two jury instructions
concerning the relevance of alleged “prior art.” Columbia’s proposed
instruction 9E read in relevant part as follows:
The Design Patent is limited to the design of Heat

Reflective Materials, as shown and described in the
patent. The term “Heat Reflective Materials” has its
plain and ordinary meaning. The ordinary meaning
of a claim term is not the meaning of the term in the
abstract. Instead, the “ordinary meaning” of a claim
term is its meaning to the ordinary artisan after
reading the entire patent. In other words, the term
takes its meaning from the context in which it is used
in the patent.
29
The plain and ordinary meaning of “Heat Reflective

materials” in the context of the Design Patent does
not include all materials.
(Appx360.) In support, Columbia cited the language of the patent and
case law concerning claim construction, including Eon Corp. IP Holdings
v. Silver Spring Networks, 815 F.3d 1314, 1320 (Fed. Cir. 2016).
Columbia also argued that the district court had already found that the
D’093 Patent was limited to heat reflective materials, and that “[t]he
Court’s holdings about the scope of the claim was a determination of law,
which was not challenged on appeal by Seirus, and is therefore law of the
case.” (Appx361-363.)
Columbia also requested instruction 9F as follows:
In design patent law, the term “prior art” refers to

prior designs that address the same subject matter or
field of endeavor as the patented design or that
address a field of endeavor so similar that a designer
having ordinary skill would look to articles in that
field for their designs. The subject matter and field
of endeavor of the D’093 patent is ornamental designs
for Heat Reflective Materials.
(Appx369.) This instruction relied on this Court’s ruling in Hupp, 122
F.3d at 1462, that “[t]he scope of prior art” to a design patent “is not the
universe of abstract design … [but is limited to] designs of the same
article of manufacture or of articles sufficiently similar that a person of
30
ordinary skill would look to such articles for their designs.” (Appx369-
371.)
During the trial, the district court provided the parties with a draft
of its proposed jury instructions. The court declined to include any
instruction on the scope of the patent or relevant comparison prior art.
Instead, the court’s instruction stated simply: “Prior art includes things
that were publicly known, or used in a publicly accessible way in this
country, or that were patented or described in a publication in any
country before the creation of the claimed design.”
Columbia objected to this instruction because it erroneously
instructed the jury that for determining design patent infringement all
prior patents, regardless of article of manufacture, were admissible
comparison prior art, so long as they pre-dated the D’093 priority date.
Columbia asserted that the question whether a prior reference is relevant
“prior art” for purposes of design patent infringement is a question for
the jury. (Appx1172-1173.) Columbia explained that, even though
Respess, for example, ostensibly concerned a type of “fabric,” the jury
should be allowed to decide whether fabric for “radial tires would be
considered prior art” to the D’093 Patent, which regards a heat reflective
31
material used in clothing. Columbia further asserted that the jury may
well “draw the conclusion … that it would … not be the type of patent
that would be looked at by an ordinary designer” in Mr. Snyder’s field.
(Appx1172.) As to the other two patents at issue, Columbia similarly
argued:
[t]he same, frankly, with Blauer and with Boorn …

We just don’t think [a] … graphic designer would
actually look to those in the first place, and we would
like the jury to have the opportunity to draw that
conclusion for themselves, rather than be dictated
what is prior art and what is not.
(Appx1173.)
At this juncture, the district court expressed concern that it may
have made a mistake in its conclusions regarding “prior art,” and that its
proposed instruction may improperly usurp the role of the jury in
deciding what is relevant comparison prior art for purposes of the design
patent infringement test. (Appx1174-1175.) Specifically, the district
court said as follows:
Well, if I’m wrong on the law regarding whether or

not it’s a question of fact or question of law, then I
need to be right on the law to the extent that I can be.
* * *
32
I don’t know what the answer is. I was operating

under the assumption it was a question of law for the
Court.
(Id.) That night, Columbia presented a proposed revision to the court’s
instruction on prior art, quoting directly from Hupp and asking the Court
to include the following in its instruction:
The term ‘prior art’ refers to prior designs of the same

article of manufacture or of articles so similar that a
person of ordinary skill would look to such articles for
their designs.
(Appx1481.) Columbia also reminded the Court that “whether a
reference is analogous art is a question of fact.” (Id.)
The court rejected this request, instead adding a single sentence to
its instruction. The instruction, as given, reads:
You must decide what is prior art. Prior art includes

things that were publicly known, or used in a publicly
accessible way in this country, or that were patented
or described in a publication in any country before the
creation of the claimed design.
(Appx1521.)
Pursuant to this instruction, the jury’s role was limited to
determining whether the art was known, used, patented or published
prior to the invention date of Columbia’s patent. As a practical matter,
that left nothing for the jury to decide given that the dates of the three
33
references were not in dispute. The court then instructed that the jury
“must” familiarize itself with this art “in determining whether there has
been infringement.” (Appx1521.) Despite Columbia’s objections, the
district court declined to instruct the jury on the scope of relevant
comparison prior art for the infringement analysis. The door thus was
wide open to admit any “fabric” as comparison prior art, regardless its
use, or whether it concerned or disclosed a heat reflective material. The
judge decided whether something was “fabric,” and concluded that
Respess, Boorn, and Blauer qualified.
In its closing argument, Seirus leveraged the judge’s overly
permissive jury instruction on the scope of comparison prior art, and
argued extensively about all three references. Seirus invited the jury to
find non-infringement arguing that the scope of Columbia’s patented
D’093 design was narrowed in view of the wave patterns disclosed in the
asserted prior art. (Appx1224, Appx1231-1232, Appx1236-1242,
Appx1624, Appx1634, Appx1644-1650, Appx1663.) Seirus did not
mention, nor did the judge permit Columbia to point out, the fact that the
asserted prior art failed to disclose any heat reflective materials.
34
5. Jury instructions concerning use of Seirus’s logo

and “likelihood of confusion”
In addition to the dispute over the scope of the comparison prior art,
it became clear in the run-up to trial that Seirus intended to litigate the
case based on principles of trademark law rather than those applicable
to design patents. For example, Seirus would argue that the presence of
its brand name defeats Columbia’s patent infringement claim by avoiding
a likelihood of consumer confusion as to the source of Seirus’s product.
The problem with this approach, of course, is that a “likelihood of
confusion” as to source is irrelevant to the question of design patent
infringement. As this Court has noted, “when there is a source-indicating
label, the label” may “make consumer confusion unlikely” enough to avoid
trade dress infringement. L.A. Gear, 988 F.2d 1117. However, confusion
as to source has no relevance to a claim of design patent infringement.
Id. at 1126. That is because “[d]esign patent infringement relates solely
to the patented design, and does not require proof of unfair competition
in the marketplace … or allow of avoidance of infringement by labelling.”
Id.
Thus, a central issue with respect to the jury instructions was the
role of Seirus’s name on its products and the extent to which actual or
35
likely confusion as to source was a relevant consideration for the jury in
a design patent case.
Columbia proposed two separate jury instructions to address these
issues. First, in Requested Jury Instruction 9B, Columbia asked the
court to include the following:
Confusion as to the source or provider of the goods

accused of infringing is irrelevant to determining
whether a patent is infringed.
Thus, consistent with L.A. Gear, the fact that Seirus included its
brand name on its products as a source identifier could not avoid
infringement. Columbia relied on Braun and Unette for this principle.
Columbia also explained that this instruction would help “prevent jury
confusion concerning what is meant by [use of the term] ‘deceive’” in the
standard articulated in Gorham Co. v. White, 81 U.S. 511, 528, 20 L. Ed.
731 (1871). (Appx349.)
Columbia also sought Requested Jury Instruction 9D, titled
“Logo/Confusion”:
Labelling a product with source identification or

branding does not avoid infringement. Consumer
confusion as to the source or provider of the products
is not a consideration in an infringement analysis.
[B]ut you may consider an ornamental logo, its
placement, and its appearance as one among other
36
potential differences between a patented design and

an accused one in deciding whether the overall
appearance of the patented and accused design are
substantially similar.
(Appx356.) Columbia argued that this instruction properly synthesized
the holding in L.A. Gear with the holding in Columbia I. Columbia
argued that the jury
must be instructed as to the law as elucidated in both

L.A. Gear and Columbia Sportswear. This is
particularly critical given the factual dispute about
whether Seirus’s logo would be perceived by the
ordinary observer as a design element or is merely a
means of identifying Seirus as the source, as shown
in its advertising materials.
(Appx357 (emphasis added).)
Seirus, too, sought a jury instruction concerning the impact of its
logo on the infringement analysis, quoting solely from Columbia I, and
ignoring this Court’s instructive holding in L.A. Gear. (Appx377.)
Columbia opposed Seirus’s proposed instruction, arguing that it was
“incomplete” and that the Court should instruct the jury pursuant to its
Requested Instruction 9D instead. (Appx380.)
As noted above, after the close of evidence, the district court
provided the parties with its draft jury instructions. The court resolved
the disputes above by deciding to give neither of the parties’ proposed
37
instructions on these issues. The Court in fact decided to give no
instruction on these issues at all. Instead, in its Instruction No. 10, the
district court proposed to instruct the jury pursuant to the basic Gorham
standard as follows:
Two designs are substantially the same if, in the eye

of an ordinary observer, giving such attention as a
purchaser usually gives, the resemblance between
the two designs is such as to deceive an ordinary
observer, inducing him to purchase one supposing it
to be the other.
While it rejected Columbia’s proposed jury instruction regarding
the irrelevance of “confusion” and “logos” to the design patent
infringement test, the district court added the following instruction:
You do not need, however, to find that any purchasers

were actually deceived or confused by the appearance
of the accused products.
And though the instruction correctly notes that actual confusion is not
the test for design patent infringement, the instruction incorrectly
implied that a “likelihood of confusion”—the classic test for trademark
infringement—may be relevant to a determination of design patent
infringement.
To remedy this defect, Columbia asked the Court for a modification
to its instruction concerning “confusion,” explaining:
38
The Court’s current instruction [addresses the issue

of actual confusion], but we think it could go a little
further in view of the case law. And, in particular,
the Federal Circuit has been clear that even a
likelihood of confusion is not a necessary or even
appropriate factor in a design infringement case.
(Appx1159 (emphasis added).) Columbia quoted passages from Unette
for the proposition that “likelihood of confusion” is a trademark law
concept relating to source confusion and is not an appropriate
consideration in determining design patent infringement. (Appx1168-
1169; see also Unette, 786 F.2d at 1029.)
The Court invited the parties to file draft revisions to the Court’s
instructions. (Appx1185.) That night, Columbia filed a proposed
modification to the Court’s Instruction No. 10:
Amend the second sentence of the third paragraph to

read as follows: “You do not need, however, to find
that any purchasers were actually deceived, nor do
you need to find any actual confusion or likelihood
of confusion amongst consumers in the
marketplace.”
(Appx1481 (emphasis added).)
Columbia cited as support:
“Likelihood of confusion is not a necessary or

appropriate factor for determining infringement of a
design patent.” Unette Corp. v. Unit Pack Co., 785
F.2d 1026, 1029 (Fed. Cir. 1986). “Concluding that a
39
purchaser is unlikely to be confused by any similarity

in a competitor’s product only serves to blur the
otherwise clear line that exists between the test of
infringement of a design patent and the ‘likelihood of
confusion test’ for infringement of a trademark.” Id.
(Id.) The following morning, the district court circulated its final
instructions. It declined to modify its instruction, or to include any
instruction on the irrelevance of likelihood of confusion and logos to the
design patent infringement test.
6. Seirus’s closing argument seized on the district

court’s flawed instruction
Shortly after the district court confirmed that it would not
incorporate a “likelihood of confusion” or “logos” instruction, Seirus
exploited that gap in its closing argument. Specifically, Seirus put a slide
on the screen that cited the basic Gorham standard:
Two designs are substantially the same if, in the

eye of an ordinary observer, giving such attention
as a purchaser usually gives, the resemblance
between the two designs is such as to deceive an
ordinary observer, inducing him to purchase
one supposing it to be the other.
(Appx1625 (emphasis in original).)
Seirus then argued to the jury as follows:
Remember when I showed you this instruction? Hard

to imagine with all those logos that an ordinary
observer, the consumer, would be deceived into
40
thinking that’s Columbia’s patent. I don’t see it. I

don’t see how that’s possible because Seirus is
telling the world this is ours. This is ours.
(Appx1225-1226 (emphases added).)
Thus, while Seirus’s counsel mimicked the language of Gorham, the
thrust of the argument unambiguously went to the type of consumer
confusion relevant only in a trademark or trade dress case—confusion as
to source—rather than the design comparison necessary to determining
infringement of a design patent.
E. The Jury Verdict
The jury thereafter returned a verdict that Seirus was not liable for
infringement. Columbia timely appealed.
SUMMARY OF ARGUMENT
The district court’s errors concern two primary issues. The first
issue concerns the district court’s jury instruction that all prior patents
“must” be considered in a design patent infringement analysis regardless
whether they concern the particular article of manufacture identified in
the asserted claim of the D’093 patent, namely, a heat reflective material.
The second issue concerns the lack of a jury instruction concerning
confusion as to source, particularly given Seirus’s brand name on its
products.
41
A. Errors Concerning Alleged Comparison Prior Art
First, the district court erred by failing to instruct the jury that the
scope of the D’093 Patent was limited to heat reflective materials. In
Surgisil, this Court recently confirmed that design patent claim scope is
“limited to the particular article of manufacture identified in the claim.”
14 F.4th at 1382; see also Curver Luxembourg, SARL v. Home
Expressions Inc., 938 F.3d 1334, 1336 (Fed. Cir. 2019) (holding that
where the article of manufacture identified in the design patent was a
chair, the scope of the design patent does not include the design as
applied to baskets). Here, the patent claims an ornamental design for a
“heat reflective material.” Moreover, that limited scope of the D’093
Patent was established as a matter of law in the original proceedings,
and it became law of the case when Seirus failed to challenge it during
the prior appeal. The jury should have been instructed that the scope of
the D’093 Patent was limited to heat reflective materials, which would
have been determinative as to the scope of any comparison prior art.
Second, the district court erred in its jury instructions concerning
the scope of the comparison prior art for purposes of conducting the
design patent infringement test. The district court instructed the jury
42
that all prior patents are prior art without any instruction to limit the
comparison prior art for the infringement analysis to like-kind articles
of manufacture, namely, heat reflective materials.
However, “[t]he scope of prior art is not the universe of abstract
design.” Hupp, 122 F.3d at 1462. Notably, this Court recently clarified
that:
A design claim is limited to the article of

manufacture identified in the claim; it does not
broadly cover a design in the abstract. The Patent
Act permits the grant of a design patent only to
“[w]hoever invents any new, original and
ornamental design for an article of manufacture.”
Surgisil, 14 F.4th at 1382 (emphasis in original.)
Surgisil makes clear that, inasmuch as a design patent’s scope is
limited “to the particular article of manufacture identified in the claim,”
the relevant prior art for anticipation must be limited to like-kind articles
of manufacture. Id. Importantly, this Court has long-held that, for
design patents, anticipation and infringement are opposite sides of the
same coin and that the standards for judging each are identical. Int’l
Seaway Trading Corp. v. Walgreens Corp., 589 F.3d 1233, 1239 (Fed. Cir.
2009). Inasmuch as the scope of a design patent and its relevant art for
anticipation purposes is limited to like-kind articles of manufacture, so
43
must be the scope of a design patent and its relevant prior art for
infringement purposes.
Here, none of the alleged comparison prior art asserted by Seirus
involved “heat reflective materials.” The district court’s failure to
instruct the jury on the scope of the relevant comparison prior art was
prejudicial error.
Third, even assuming the broader scope of art relevant to an
obviousness analysis should apply to an infringement analysis, this
Court’s jury instructions were still erroneous. The district court declined
to apprise the jury that the scope of prior art is limited to the scope
articulated in Hupp. Instead, the district court erroneously directed the
jury to consider all prior patents, even from non-analogous arts.
Fourth, the district court erred in ordering that Columbia’s counsel
could not present evidence or argue that the asserted comparison prior
art failed to disclose heat reflective materials, the particular article of
manufacture identified in the claim of the D’093 patent.
B. Errors Concerning Relevance of Source Confusion
The district court also erred in failing to instruct the jury,
consistent with Unette, Braun, and L.A. Gear, that “likelihood of
44
confusion” as to source is not relevant in determining infringement in a
design patent case.
The district court instructed the jury based on the standard set by
the Supreme Court in Gorham, which instructs the jury to find
infringement if “the resemblance is such as to deceive such an observer,
inducing him to purchase one supposing it to be the other …”
But, as explained by this Court in subsequent decisions, the district
court must clarify the meaning of this language where either (1) the
patent owner does not make a patented product available for “purchase,”
or (2) like Seirus, the infringer argues that labelling the product with its
name avoids “deception.” Specifically, the “deception” referenced in
Gorham relates solely to the similarity of two designs in the marketplace,
and not to consumer confusion as to source. Unette, 785 F.2d at 1029.
This Court has repeatedly emphasized that while confusion as to
source may be a lynchpin in a trade dress case, such “likelihood of
confusion” has no relevance to a determination of design patent
infringement. Id. In the leading Unette/Braun/L.A. Gear trilogy of cases,
this Court reinforced this key point, further holding that “[d]esign patent
infringement … does not … allow of avoidance of infringement by
45
labelling.” L.A. Gear, 988 F.2d at 1126.
In this case, where the logo issue was front and center, it was
particularly critical for the district court to instruct the jury on issues
relating to likelihood of confusion. Seirus exploited the absence of
instructions about source confusion in its closing argument by openly
inviting the jury to find no infringement because the “Seirus” brand name
on its products made clear that Seirus, and not Columbia, was the source
of its infringing products. The district court’s failure to give the
requested clarifying instruction allowed the jury to wrongly dispose of
the case based on principles of trademark law rather than the design
patent principles actually laid out in Gorham.
ARGUMENT
I. Standards of Review
“This court reviews challenges to jury instructions under the law of
the regional circuit where the district court sits.” Voda v. Cordis Corp.,
536 F.3d 1311, 1328 (Fed. Cir. 2008).
The Ninth Circuit “review[s] a district court’s formulation of civil
jury instructions for an abuse of discretion, but [] consider[s] de novo
whether the challenged instruction correctly states the law.” Wilkerson
46
v. Wheeler, 772 F.3d 834, 838 (9th Cir. 2014) (internal citation omitted).
“Jury instructions must be formulated so that they fairly and
adequately cover the issues presented, correctly state the law, and are
not misleading.” Gilbrook v. City of Westminster, 177 F.3d 839, 860 (9th
Cir. 1999). Jury instructions are erroneous if they do not adequately
inform the jury of the law. Bateman v. Mnemonics, Inc., 79 F.3d 1532,
1543-44 (11th Cir. 1996). The need for sufficient jury instructions applies
with greater force in the complex field of intellectual-property rights
where “the need for proper guidance is accentuated and heightened … .”
Id. Failure to instruct the jury on an important contested issue mandates
a new trial. Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 251
(1940).
“In evaluating jury instructions, prejudicial error results when,
looking to the instructions as a whole, the substance of the applicable law
was not fairly and correctly covered. Harmless error review for a civil
jury trial shifts the burden to the defendant to demonstrate that it is
more probable than not that the jury would have reached the same
verdict had it been properly instructed.” Wilkerson, 772 F.3d at 838
(cleaned up, quotes omitted).
47
Similarly, “[t]his court reviews a district court’s decision to exclude
evidence under the law of the regional circuit.” Star Sci., Inc. v. R.J.
Reynolds Tobacco Co., 655 F.3d 1364, 1372 (Fed. Cir. 2011). In the Ninth
Circuit, evidentiary rulings are generally reviewed for an abuse of
discretion. Wagner v. Cnty. of Maricopa, 747 F.3d 1048, 1052 (9th Cir.
2013). The same applies to orders that an attorney may not make certain
arguments to the jury. Id.
II. The District Court Erred in Its Jury Instructions by

Failing to Limit the Scope of Comparison Prior Art for the
Design Patent Infringement Test.
The district court erred by instructing the jury, in effect, that any
prior patent, regardless of field of endeavor or subject matter, is “prior
art” that should be considered in a design patent infringement analysis.
At minimum, the district court should have instructed the jury,
consistent with Columbia’s proposed jury instruction, that the scope of
comparison prior art—sometimes referred to as the “design corpus,”2—is
limited to “designs of the same article of manufacture or of articles so
similar that a person of ordinary skill would look to such articles for their
2See, e.g., L’Oréal Société Anonyme v. RN Ventures Ltd., [2018] EWHC

173 (Pat).
48
designs.” Hupp, 122 F.3d at 1462. That was the broadest design corpus
applicable to any design patent analysis at the time of trial.
However, subsequent to the jury trial, this Court issued its decision
in Surgisil, which held that a narrower scope of prior art is relevant to
the question of anticipation—the prior art must be designs of the article
of manufacture recited in the claim. Surgisil, 14 F.4th at 1382. Based
on this Court’s prior holding that “the same test must be used for both
infringement and anticipation,” Int’l Seaway, 589 F.3d at 1239, the scope
of comparison prior art relevant to design patent infringement likewise
should be limited to designs for the particular article of manufacture
recited in the asserted design patent claim—here, “heat reflective
materials.”
As a matter of first impression, this Court should decide whether
the scope of prior art relevant to a design patent infringement analysis is
limited to the narrow scope applicable to anticipation, or should be
expanded to encompass the broader scope applicable to obviousness
determinations. Either way, the district court erred by suggesting that
all prior patents “must” be considered in an infringement analysis. This
Court should reverse and remand with clear instructions of the scope of
49
comparison prior art relevant to a design patent infringement analysis.
None of Seirus’s alleged prior art qualifies.
A. The scope of prior art relevant to design patent

infringement is limited to designs for the particular
article of manufacture identified in the asserted
design patent.
In its en banc decision in Egyptian Goddess, this Court held that an
infringement determination in a design patent case should include
reference to prior art, as “context in which the claimed and accused
designs are compared.” 543 F.3d at 677. The en banc Egyptian Goddess
Court referred to this prior art as “comparison prior art.” Id. at 678.
However, “[t]he scope of prior art is not the universe of abstract
design.” Hupp, 122 F.3d at 1462. This Court has never directly
addressed whether the scope of comparison prior art for determining
patent infringement is limited to prior art relevant to anticipation, or
includes the expanded scope of prior art that may be relevant to
obviousness. However, this Court has held that “the same test must be
used for both infringement and anticipation.” Int’l Seaway, 589 F.3d at
1239.
Int’l Seaway issued shortly after Egyptian Goddess and considered
whether the standard for finding anticipation of a design patent needed
50
to be conformed to the new infringement standard articulated in
Egyptian Goddess. This Court altered the standard applicable to
anticipation of design patents to “continue our well-established practice
of maintaining identical tests for infringement and anticipation.” Id. at
1240.
Two recent decisions by this Court have established that: (i)
infringement is limited to designs involving the claimed article of
manufacture (Curver); and (ii) anticipatory prior art is limited to art
involving the same article of manufacture (Surgisil). Taking these
decisions together with the earlier Int’l Seaway decision leads to the
conclusion that the only comparison prior art relevant to an infringement
analysis is prior art involving the particular article of manufacture
recited in the patent claim.
In the first of these two recent decisions, this Court held that a
design patent claim’s scope is limited to the article of manufacture
identified in its claims. Curver, 938 F.3d at 1339-42. In addition to
Supreme Court precedent, this Court relied on Patent Office regulations,
including, e.g., MPEP 1502 which defines “the subject matter which is
claimed [a]s the design embodied in or applied to an article of
51
manufacture,” and explains that the “[d]esign is inseparable from the
article to which it is applied and cannot exist alone merely as a scheme
of surface ornamentation.” The Curver Court also specifically noted that
the scope of a design patent is directly related to the scope of relevant
prior art: limiting scope to the claimed article of manufacture reduces
the need for prior art searching during examination. Curver, 938 F.3d at
1341, fn. 3. The Curver court thus held that a design patent covering a
“chair” as an article of manufacture could not be infringed by a basket.
Curver, 938 F.3d at 1336-38.
After the remand trial in this case, this Court reaffirmed and
expanded this principle in Surgisil. Surgisil was an appeal from a Patent
Office decision rejecting a design patent claim for a “lip implant” as
anticipated by an “art tool” that looked like a pencil.
This Court reversed, stating that “[a] design claim is limited to the article
of manufacture identified in the claim. It does not broadly cover a design
52
in the abstract.” Id., 14 F.4th at 1382. Thus, the Court confirmed that
the scope of prior art for anticipation purposes is limited to the article of
manufacture identified in the patent’s claim.
Applying this Court’s rationale in Int’l Seaway to its recent
decisions in Curver and Surgisil, this Court should now confirm that the
scope of prior art relevant to design patent infringement is limited to
designs involving the article of manufacture recited in the patent claim.
Such a holding will preserve the “well-established practice of
maintaining identical tests for infringement and anticipation.” Int’l
Seaway, 589 F.3d at 1240.
Notably, in its prior cases applying prior art to an infringement
analysis, this Court has, in practice, always limited “comparison prior
art” to art involving the claimed article of manufacture. See, e.g.,
Egyptian Goddess, 543 F.3d at 680 (relying on, as prior art, “[t]he two
closest prior art nail buffers”); Arminak & Assocs., Inc. v. Saint-Gobain
Calmar, Inc., 501 F.3d 1314, 1324-25 (Fed. Cir. 2007) (infringement
determined in context of prior “trigger sprayer shrouds’ patented
designs”); Unidynamics Corp. v. Automatic Prods. Int’l, Ltd., 157 F.3d
1311, 1324 (Fed. Cir. 1998) (infringement determined in context of prior
53
vending machine designs); Braun, 975 F.2d at 820 (comparison to prior
hand-held electric mixer designs).
B. At minimum, the Court should hold the scope of prior

art is limited to the design corpus relevant to an
obviousness analysis.
The design corpus applicable to a design patent obviousness
analysis is broader than the new standard for anticipation prior art
adopted in Surgisil. Specifically, for obviousness purposes, “[t]he scope
of the prior art” is limited to “designs of the same article of manufacture
or of articles sufficiently similar that a person of ordinary skill would look
to such articles for their designs.” Hupp, 122 F.3d at 1462 (emphasis
added).
Although Seirus argued for a broader scope of “prior art” before the
district court, it has cited no case where a court has considered art for
infringement purposes beyond the scope relevant to invalidity. Nor has
Seirus cited any theory, principle, or policy by which the Court should
expand the scope of comparison prior art for infringement beyond the art
relevant to an obviousness analysis.
C. The scope of the D’093 Patent is limited to “heat

reflective materials”
As Curver and Surgisil make clear, the scope of the D’093 Patent is
54
limited to “heat reflective materials”—a term that was generally known
in the field. (See Appx617-618.) That the D’093 Patent is directed—and
limited—to a design for “heat reflective materials” is taken directly from
the title (“HEAT REFLECTIVE MATERIAL”), the express language of
the single claim (“The ornamental design of a heat reflective
material”), and each of the 10 figure descriptions. (E.g. “FIG. 1 is an
elevational view of a heat reflective material”) (Appx4); see also
Surgisil, 14 F.4th at 1382 (“[a] design claim is limited to the article of
manufacture identified in the claim”).
Moreover, the fact that the D’093 patent claim is limited to a “heat
reflective material” was already established as law of the case. In its
Markman/summary judgment decision, the district court held that
“Columbia's D’093 patent protects the ‘ornamental design of a heat
reflective material, as shown and described.’” (Appx119.) The district
court further held that “the vast majority of Seirus’s prior art covers
products far afield from Columbia’s ‘heat management materials,’ which
… significantly limits relevance of the prior art in this case.” (Id.)
Indeed, the district court specifically excluded both Respess and Boorn
and further held that Blauer only “approache[d] relevance.” (Appx120.)
55
Thus, in 2016, the district court properly limited the scope of the claim,
and the relevant prior art, to “heat reflective materials,” consistent with
the title, claim, and description of the figures. (Appx4.) Seirus failed to
challenge that holding on appeal, raising it for the first time only in the
remand proceeding.
Therefore, even in the absence of Surgisil, the proper scope of the
D’093 Patent to “heat reflective materials” was law of the case and not
subject to further review. See, e.g., Engel Indus., 166 F.3d at 1382-83
(“Unless remanded by this court, all issues within the scope of the
appealed judgment are deemed incorporated within the mandate and
thus are precluded from further adjudication.”).
As further discussed below, the district court’s failure to properly
limit the jury’s consideration of comparison prior art was prejudicial
error.
D. The court’s jury instructions misstated the law and

erroneously instructed the jury that all prior patents
are prior art that could be considered.
In pre-trial proceedings, Columbia sought Requested Instruction
9E (Claim Scope), which in relevant part asked the Court to instruct the
jury that the D’093 Patent “is limited to the design of Heat Reflective
56
Materials, as shown and described in the patent.” (Appx360-363.)
Columbia sought the same in its proposed instruction 9F, which asked
the Court to instruct the jury that “[t]he subject matter and field of
endeavor of the D’093 patent is ornamental designs for Heat Reflective
Materials.” (Appx369-372.) Seirus objected to these proposed
instructions. (Appx363-368, Appx372-376.) The district court ultimately
declined to give any instruction concerning the scope of the D’093 Patent.
Indeed, the district court went further and instructed Columbia’s counsel
that they were prohibited from raising whether any of the alleged
comparison prior art were “heat reflective materials.” (Appx421.)
Columbia also asked the district court, twice, to instruct the jury
about the scope of comparison prior art for purposes of the design patent
infringement test. (Appx369, Appx1481.) Rather than instruct the jury
about the scope of the patent claim and the relevant comparison prior
art, the judge effectively instructed the jury that all prior patents,
regardless of article of manufacture, “must” be considered in the design
patent infringement test. (Appx1521.) This was clear error.
The district court should have instructed the jury that the scope of
the patent is limited to “heat reflective materials.” Since the scope of the
57
patent is limited to “heat reflective materials,” as recited in the claim, on
remand, this Court should hold that the scope of prior art relevant to an
infringement analysis is likewise limited to “heat reflective materials.”
As discussed above, such a holding is necessitated by this Court’s
holdings in Surgisil, Curver, Egyptian Goddess and Int’l Seaway.
The Court should further direct that none of the Respess, Boorn and
Blauer references should be considered as comparison prior art at a
retrial because none involve a “heat reflective material.”
(1) Respess regards a complex machine for making fabric used
“in making a rubber tire”—i.e. the interior structure of early
radial tires (Appx1467-1475)
(2) Boorn regards a method of inlaying plastic threads into
plastic sheets (Appx1464-1466)
(3) Blauer regards a “printed stratum” of acrylic urethane—a
clear elastomer coating that “maintain[s] [a] shell fabric
appearance” to provide “dimensional stability” to a
waterproof shell (Appx1461)
Indeed, the district court already found that Respess and Boorn were
both “far afield” and “not relevant to a comparison between Columbia’s
58
and Seirus’s designs for heat reflective material.” (Appx119-120.) The
district court found the same about Blauer, noting that it was “[t]he only
prior art that even approaches relevance.” Id. (emphasis added). Seirus
failed to challenge those findings during the prior appeal.3 Therefore, it
is law of the case that none of Seirus’s prior art is a heat reflective
material, and none of it should be considered in an infringement analysis.
Engel Indus., 166 F.3d at 1382-83.
E. The district court’s jury instructions were erroneous

even adopting the broader design corpus applicable
to obviousness
At the very least, the district court should have instructed the jury
that “[t]he term ‘prior art’ refers to prior designs of the same article of
manufacture or of articles so similar that a person of ordinary skill would
look to such articles for their designs,” as Columbia specifically
requested. (Appx1481 (citing Hupp); see also Appx369.)
The Court’s failure to properly instruct the jury on these critical
issues concerning the scope of the claim and the comparison prior art for
3 Although Seirus challenged the Court’s fact finding regarding Blauer,

its argument on appeal was limited to two sentences concerning the
shape of the wave in Blauer, not whether it discloses a heat reflective
material. See Columbia I, ECF 29, pp. 27-28.
59
design patent infringement purposes was harmful error, as discussed
immediately below, and should be reversed.
F. The district court’s failure to properly instruct the

jury about the relevant comparison prior art for the
design patent infringement test was prejudicial.
Where the jury instructions fail to fairly and correctly cover the law,
prejudice is presumed. Wilkerson, 772 F.3d at 838. Here, the error was
clearly prejudicial. Seirus’s alleged “prior art” was critical to its non-
infringement case. Seirus argued that the scope of the D’093 patent was
narrowed in view of that art, and thus the D’093 patent could not
encompass the accused Seirus design. Its lead witness testified at length
about its asserted art and Seirus’s counsel discussed this art at length
during their closing argument, replete with numerous slides depicting it.
(Appx1634, Appx1644-1650, Appx1663.) One of those slides directly
exploited the district court’s flawed jury instruction. Specifically,
Seirus’s counsel showed the erroneous instruction to the jury,
highlighting the following: “Prior art includes things … that were
patented … before the creation of the claimed design.” (Appx1624.) Thus
Seirus reinforced the judge’s erroneous instruction that all prior patents
were “prior art” that “must” be considered in the infringement analysis.
60
Without a jury instruction to the contrary, Seirus leaned heavily on prior
art unrelated to the article of manufacture specified in the D’093 patent
to make its non-infringement case.
Worse yet, another slide compared the D’093 Patent with Seirus’s
HeatWave™ heat reflective material, with all three alleged “prior art”
references positioned in between.
(Appx1663.) Seirus’s argument was that the scope of the D’093 patent is
fenced off (i.e. narrowed) by the three asserted references. None,
however, should have been presented to the jury as none deal with heat
61
reflective materials.4
Notably, Seirus failed to adduce any evidence that “a person of
ordinary skill would look to such articles” for designing a heat reflective
fabric. Indeed, neither of the designers who testified in the case did.
Moreover, Seirus’s lead witness, its owner and CEO, testified that the
patents were “old,” “difficult to understand,” and for products that are
“not an area that we make product for.” (Appx1064, Appx1072.) Thus,
they would not be relevant under either possible design corpus.
Accordingly, this Court, exercising de novo review, should find the
district court’s jury instruction was legally erroneous and prejudicial.
Wilkerson, 772 F.3d at 838. The Court should reverse and remand for a
new infringement trial for this reason alone.
G. If the Court remands for consideration of any of

Seirus’s prior art, it should order the district court to
instruct the jury about the meaning of “heat reflective
material.”
As discussed above, none of Seirus’s “prior art” discloses a heat
4The only one of the three patents to mention the word “heat” is Boorn,
which talks about using heat as part of the manufacturing process, an
application that is irrelevant to the heat reflective materials for hats,
shoes and socks claimed in the D’093 patent. (Appx1465-1466, cols. 3-4.)
62
reflective material—a fact that is now law of the case. None of those
references discloses use of metallic foil on a base material to reflect heat,
as the term was defined during reexamination. (See Appx617-618.)
Notwithstanding those facts, in pretrial briefing, Seirus argued that
Respess, Boorn, and Blauer all disclose “heat reflective materials” based
on abstruse principles of theoretical physics suggesting that all materials
in the universe reflect some nominal amount of heat. This argument does
not pass the red-face test. This Court has repeatedly rejected such
arguments, including in Eon Corp., 815 F.3d at 1320-1323 (the plain and
ordinary meaning of “mobile” does not include utility meters bolted to
buildings). As discussed above, adopting the Surgisil standard, none of
this art was admissible because none of it was for the same article of
manufacture recited in the claim.
Moreover, if this Court remands for consideration of any of Seirus’s
art, it should also direct the district court to instruct the jury consistent
with Columbia’s Proposed Instruction 9E. That proposed instruction
concerned the plain and ordinary meaning of “heat reflective materials”
as that term was used in the D’093 Patent:
The term “Heat Reflective Materials” has its plain

and ordinary meaning. The ordinary meaning of a
63
claim term is not the meaning of the term in the

abstract. Instead, the “ordinary meaning” of a claim
term is its meaning to the ordinary artisan after
reading the entire patent. In other words, the term
takes its meaning from the context in which it is used
in the patent.
The plain and ordinary meaning of “Heat Reflective

materials” in the context of the Design Patent does
not include all materials.
(Appx360-361, quoting largely verbatim from Eon Corp., 815 F.3d at 1320
(Fed. Cir. 2016).) The district court erred in declining to give this
instruction. Such an instruction is critical to understanding the correct
scope of the patent claim and the prior art, if the jury is allowed to
consider that art at all.
III. The District Court Erred in Prohibiting Columbia’s

Counsel From Distinguishing Prior Art Based on Whether
it Was “Heat Reflective.”
Beyond its failure to properly instruct the jury, the district court
also erred in prohibiting Columbia’s counsel from arguing about the scope
of the relevant comparison prior art. Seirus moved in limine that
Columbia should not be permitted to distinguish any prior art based on
what it called “functional grounds,” i.e., whether the alleged prior art
reference concerned the relevant article of manufacture, namely, a “heat
reflective material.” The district court held, “[f]unctional grounds are not
64
a relevant consideration. So that motion is granted.” (Appx421.) That
precluded Columbia from asking any questions to distinguish the prior
art based on whether it disclosed a “heat reflective material.”
At trial, when Columbia asked Seirus’s witness what “the purpose
of painting this wavy structure” on the shell of Blauer was, the Court
upheld an objection on the basis that the question violated the in limine
order because it was probative of the “function” of Blauer’s invention.
(Appx1064-1065.)
The district court’s decision here, too, was wrong for all the reasons
discussed above in connection with this Court’s Curver, Surgisil, and
Hupp decisions. As this Court decided in Surgisil, a design patent claim
is limited to the article of manufacture recited in the claim—here, heat
reflective materials. Surgisil, 14 F.4th at 1382. This does not, as Seirus
incorrectly argued, import a functional limitation into the claim. Instead,
it prevents the claim from “broadly cover[ing] a design in the abstract.”
Id. Just as Surgisil’s design patent did not cover its claimed shape on
any and all articles of manufacture, Columbia’s design patent does not
cover its design regardless of article of manufacture. Instead, the scope
of the D’093 patent, and its relevant comparison prior art, is limited to
65
the particular article of manufacture identified in the D’093 patent—a
heat reflective material.
Columbia should have been permitted to question witnesses and
argue to the jury that asserted prior art was irrelevant to infringement
because it had nothing to do with heat reflective material. Because
comparison prior art is limited by the article of manufacture recited in a
design patent’s claim, it was error for the district court to exclude any
questioning or argument on whether the prior art related to the claimed
article of manufacture.
Moreover, even if the scope of prior art is not strictly limited to heat
reflective materials, a reasonable jury could decide that the “function” of
the prior art is relevant to whether “a person of ordinary skill would look
66
to such articles for their designs.” Hupp, 122 F.3d at 1462. Indeed,
Columbia’s inventor, Zach Snyder, and Seirus’s designer, Sean Carey,
both testified that they were looking for a design that would convey the
idea of reflecting heat and making the user warmer. (Appx785-786,
Appx1111) Whether a prior patent had anything to do with reflecting
heat or making a user warmer would have been directly relevant to
whether an ordinary designer of skill would have “look[ed] to” it for
inspiration. Hupp, 122 F.3d at 1462.
It was an abuse of discretion to order Columbia not to distinguish
prior art on the basis that it was not a “heat reflective material.” This
Court should reverse and remand this case for a new trial for this
additional reason.
IV. The District Court Erred by Failing to Instruct the Jury

That Confusion as to Source is Not an Appropriate
Consideration For Design Patent Infringement.
H. This Court’s precedents confirm that “likelihood of

confusion” is not an appropriate consideration for
design patent infringement
This Court has held that jury instructions concerning design patent
infringement “must … follow the standard articulated in Gorham”:
[I]f, in the eye of an ordinary observer, giving such

attention as a purchaser usually gives, two designs
67
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, 81 U.S. at 528; Braun, 975 F.2d at 819.
But Gorham concerned a typical case where the patent owner
makes a patented product that competes in the marketplace with a
similar product offered by the accused infringer. 81 U.S. at 530. Thus,
the language “if the resemblance is such as to deceive such an observer,
inducing him to purchase one supposing it to be the other,” can logically
apply to such a situation. Consistent with this framework, this Court
has held that, where the patentee makes a product embodying the
invention, it is appropriate to compare the two products to each other.
See Braun, 975 F.2d at 821.
However, this Court, in Unette, clarified that likelihood of consumer
confusion as to source is not part of the design patent infringement test.
This is especially true where, as here, the patentee does not sell a product
covered by the patent. As Unette points out:
Likelihood of confusion as to the source of the goods

is not a necessary or appropriate factor for
determining infringement of a design patent. The
holder of a valid design patent need not have
progressed to the manufacture and distribution of a
68
‘purchasable’ product for its design patent to be

infringed by another’s product.
785 F.2d at 1029 (emphases added). The Court further referenced a
“clear line that exists between the test for infringement of a design patent
and the ‘likelihood of confusion’ test for infringement of a trademark.” Id.
This Court similarly contrasted the tests for trade dress
infringement and design patent infringement in Braun. There, Braun
sued a competitor for both trade dress and design patent infringement
concerning handheld electric blenders. The jury found for Braun in
regards to both.
On appeal this Court held that “[d]esign patent infringement does
not concern itself with the broad issue of consumer behavior in the
marketplace,” citing Unette’s language about “likelihood of confusion.”
975 F.2d at 820, 828. The Court ultimately affirmed a finding of design
patent infringement. Id. at 821-22. However, the Court reversed the
verdict of trade dress infringement. Id. at 825-828. Critically, the Court
focused on the brand names, logos, and other source identifying
information on the packaging to conclude that there was no “likelihood of
confusion” for trade dress purposes:
69
Braun identifies its product as a “hand blender” in

horizontal red letters directly below the brand name
“Braun” and the product named “Multipractic” in
plain black lettering. The name Braun also appears
in stylized black lettering on the white background at
the bottom of the carton. In contrast, Waring refers
to its product by its registered trademark “Blendor”
preceded by the words “Hand Held” in vertical white
lettering on a grey stripe of the front panel that is
bordered by a red stripe. Its Waring name appears in
logo form in white letters on a red rectangle.
Id. at 827-28. The Court also noted: “[i]n addition, Waring’s prominent
labelling of the carton with its brand name and trademark logo is
probative evidence that the cartons are not confusingly similar.” Id. at
828. This lack of likely confusion did not, however, shield the defendant
from design patent infringement. Id. at 821-22.
Following its key holdings, and in a discrete section of its opinion,
the Court contrasted the standards for design patent infringement and
trade dress in relation to “likelihood of confusion.” Id. at 828. The Court
noted that:
[P]urchasers’ likelihood of confusion as to the source

of a good is a necessary factor for determining
trademark and trade dress infringement. To show
infringement, the holder of a trademark or trade
dress therefore must have progressed to the
manufacture and distribution of a “purchasable”
product. A[s] a result, consumer behavior in the
marketplace is a highly relevant factor in
70
determining trademark and trade dress

infringement… .
In contrast, … a different quantum of proof applies to

design patent infringement, which does not concern
itself with the broad issue of consumer behavior in
the marketplace. Unette, 785 F.2d at 1029. The
single element here required to show design patent
infringement involves a much narrower field of
inquiry. In short, a design patentee may prove
infringement simply by showing that an ordinary
observer would be deceived by reason of an accused
device’s ornamental design.
Id. (quote omitted).
Four years later, the Court reached the same result through a
similar analysis in L.A. Gear. L.A. Gear concerned design patent and
trade dress claims over a “shoe upper.” 988 F.2d at 1121 (citing U.S.
Design Patent No. D’299,081). The D’081 Patent disclosed the surface
ornamentation and design of the shoe upper. Thom McAn copied the
general design of the shoe and also added the brand name “balloons” in a
stylized font as shown below.
71
Id. at 1121, 1125.
Notably, the designs are not identical. For example, the
crosshatched fabric in the lower portion of the patent drawing is clearly
not the same as the portion under the “balloons” mark. Nonetheless, the
district court found the shoes were “strikingly similar,” and found Thom
McAn liable for both trade dress and design patent infringement. Id. at
1122.
As in Braun, the Federal Circuit reversed the district court’s finding
of trade dress infringement, finding that the inclusion of the logo was
sufficient to avoid any likelihood of consumer confusion. Id. at 1133-34.
However, the Federal Circuit affirmed the finding of design patent
infringement. In distinguishing the tests for trade dress and design
patent infringement, the Court again held, “[d]esign patent infringement
relates solely to the patented design, and does not require proof of unfair
competition in the marketplace … or allow of avoidance of infringement
by labelling.” Id. at 1126. The Court cited Unette, 785 F.2d at 1029,
further holding that “[l]ikelihood of confusion as to the source of the goods
is not a necessary or appropriate factor for determining infringement of
a design patent.”
72
Unette, Braun, and L.A. Gear establish three principles that help
to inform the basic Gorham standard, particularly where (i) there are not
competing products in the marketplace (Unette), and (ii) source-
identifying information is applied to the accused products (Braun, L.A.
Gear). First, design patent infringement can occur even where the patent
holder does not practice its patent, making a comparison between
“purchasable” products (and the corresponding “deception” described in
Gorham) impossible. Unette, 785 F.2d at 1029. Second, courts must
avoid allowing the jury to apply trademark law’s “likelihood of confusion”
standard to deciding infringement in a design patent case, where source
confusion has no relevance. Id.; Braun, 975 F.2d at 828. Third, as this
Court held in L.A. Gear “[d]esign patent infringement … does not … allow
of avoidance of infringement by labelling.” 988 F.2d at 1126.
Unette, L.A. Gear, and Braun all remain good law. Robert Bosch,
LLC v. Pylon Mfg. Corp., 719 F.3d 1305, 1316 (Fed. Cir. 2013) (en banc)
(“Panel opinions are, of course, opinions of the court and may only be
changed by the court sitting en banc.”). They have been repeatedly relied
upon by this Court for these holdings. See, e.g., Minka Lighting, Inc. v.
Craftmade Int’l, Inc., 93 Fed. Appx. 214, 217 (Fed. Cir. 2004) (quoting
73
Unette on inappositeness of likelihood of confusion standard in design
patent analysis); Contessa Food Prods., Inc. v. Conagra, Inc., 282 F.3d
1370, 1380 (Fed. Cir. 2002), abrogated on other grounds by Egyptian
Goddess, 543 F.3d 665 (quoting Unette on likelihood of confusion at point
of sale).
I. The district court erred in failing to instruct the jury

on the law as elucidated in Unette, Braun, and L.A.
Gear
Where, as here, an accused infringer argues that application of a
logo avoids a likelihood of consumer confusion, a district court must do
more than provide the jury with the basic Gorham standard; it should
also explain that “likelihood of confusion” is not an appropriate
consideration, and that, accordingly, labelling a product with source
identification or branding does not avoid infringement.
Columbia asked the district court to instruct the jury on these
critical issues, with language that came directly from these three cases.
In its pretrial jury instruction requests, Columbia asked for Requested
Jury Instruction 9B:
Confusion as to the source or provider of the goods

accused of infringing is irrelevant to determining
whether a patent is infringed.
74
(Appx348.) That proposed instruction cited Braun and L.A. Gear.
Columbia also asked for Requested Jury Instruction 9D titled
“Logos/Confusion”:
Labelling a product with source identification or

branding does not avoid infringement. Consumer
confusion as to the source or provider of the products
is not a consideration in an infringement analysis.
(Appx356 (citing L.A. Gear and Unette).)
However, at trial, the district court indicated it would give no
instruction on “logos,” “source identification,” or likelihood of consumer
confusion, and would only instruct the jury that it need not find “actual
confusion.” Columbia tried one more time, arguing that, while the court
addressed actual confusion, “the Federal Circuit has been clear that even
a likelihood of confusion is not … [an] appropriate factor in a design
infringement case.” (Appx1159-1160.) Citing Unette, Columbia argued
that the district court should at least include the following instruction on
“likelihood of confusion”:
You do not need, however, to find that any purchasers

were actually deceived, nor do you need to find any
actual confusion or likelihood of confusion
amongst consumers in the marketplace.
(Appx1481 (Columbia’s Requested modification to Court’s Instruction
75
No. 10 (citing Unette)).)
The district court again refused. This Court should now hold that
the district court’s failure to provide any of Columbia’s requested
clarifying instructions based on Unette, Braun, and L.A. Gear was
reversible error. Gilbrook, 177 F.3d at 860 (“Jury instructions must be
formulated so that they fairly and adequately cover the issues presented
… and are not misleading.”) That failure necessitates a new trial.
Montgomery Ward, 311 U.S. at 251.
J. The district court’s failure to provide a

Unette/Braun/L.A. Gear clarifying instruction was
prejudicial
As noted, where the jury instructions fail to fairly and correctly
cover the law, prejudice is assumed. Wilkerson, 772 F.3d at 838.
Prejudice is clear here, because Seirus exploited the district court’s
failure to explain the law to the jury on this critical issue. Shortly after
the court denied Columbia’s requests, Seirus misleadingly argued in its
closing that use of Seirus’s brand name, as source identifier, avoided
infringement by eliminating the “deception” referenced in Gorham.
Thus, contrary to this Court’s well-established law, Seirus’s counsel
erroneously argued that the elimination of source confusion by itself was
76
a sufficient basis to find no infringement. Seirus’s counsel started by
identifying the following clause in Gorham:
… the resemblance between the two designs is such

as to deceive an ordinary observer, inducing him to
purchase one supposing it to be the other.
(Appx1625 (emphases altered).) Seirus’s counsel then argued to the jury
that there could be no “deception” because the accused HeatWave™
products had a logo that identified Seirus as the source of those products:
Hard to imagine with all those logos that an

ordinary observer, the consumer, would be deceived
… I don’t see how that’s possible because Seirus is
telling the world this is ours. This is ours.
(Appx1225-1226 (emphases added).)
(Appx1616.)
But, as confirmed in this Court’s subsequent clarifying decisions,
77
Gorham actually had nothing to do with source confusion. While Seirus’s
counsel cleverly mimicked the language of Gorham, the thrust of their
argument undeniably was that consumers seeing a Seirus logo would
know that Columbia was not the source of Seirus’s product. The
argument openly invited the jury to decide that Seirus’s infringement
was avoided by source-labeling.
That is precisely the type of analysis that Unette, Braun, and L.A.
Gear held was improper. Seirus’s argument was also precisely the type
of specious analysis that Columbia’s proposed jury instructions would
have precluded.
Thus, the district court’s failure to instruct the jury on the proper
role—if any—that Seirus’s logo should play in the infringement analysis,
and that a “likelihood of confusion” was not to be considered, was
prejudicial. This Court should remand for a new trial on that additional
basis, with guidance to the district court about proper instructions for
consideration of a logo on an accused product in an infringement analysis.
K. This Court’s prior decision in this case does not

disturb the Court’s earlier precedent
In the prior appeal of this case, a panel of this Court held that the
district court erred in its reliance on L.A. Gear, and remanded the case
78
for trial. At summary judgment, the district court relied on L.A. Gear for
the proposition that “a defendant cannot avoid infringement by merely
affixing its logo to an otherwise infringing design.” Applying that
principle, the district court “d[id] not consider … the Seirus logo, in the
infringement analysis.” (Appx115.) In reversing, this Court held:
In evaluating infringement there, we explained that

design infringement is not avoided “by
labelling.” [L.A. Gear], at 1126. A would-be infringer
should not escape liability for design patent
infringement if a design is copied but labeled with its
name. But L.A. Gear does not prohibit the fact finder
from considering an ornamental logo, its placement,
and its appearance as one among other potential
differences between a patented design and an
accused one.
Columbia I, 942 F.3d at 1131. However, the L.A. Gear Court’s holding
did not rest on the fact that the product was copied. Its holding was based
on well-established case law, including Unette. And the L.A. Gear Court
expressly declined to consider the ornamental BALLOONS “logo, its
placement, or its appearance” in affirming a finding of design patent
infringement. It affirmed infringement without any such consideration.
As noted, in remanding this case, this Court should provide
guidance to the district court about how to properly instruct the jury
where a logo is applied to a product accused of infringing a design patent.
79
That guidance should be consistent with the holdings of Unette, Braun,
and L.A. Gear. To the extent Columbia I is in conflict with Unette, Braun,
or L.A. Gear, the prior cases control. Deckers Corp. v. United States, 752
F.3d 949, 964 (Fed. Cir. 2014); see also Newell Cos., v. Kenney Mfg. Co.,
864 F.2d 757, 765 (Fed. Cir. 1988) (“Where there is direct conflict, the
precedential decision is the first.”).
Stripped of its reliance on “copying,” this Court’s holdings in L.A.
Gear and Columbia I are difficult to reconcile. See 1 McCarthy on
Trademarks and Unfair Competition § 6:11, n. 21 and accompanying text
(5th ed.). This Court’s holding in Columbia I has also led to considerable
uncertainty among litigants and prospective litigants. The design patent
community has questioned whether “Adding a Logo to a Copycat Product
Qualif[ies] as a Successful Design Around?” Stern Kessler, IP Hot Topic:
Does Adding a Logo to a Copycat Product Qualify as a Successful Design
Around? (available at https://www.sternekessler.com/news-
insights/client-alerts/ip-hot-topic-does-adding-logo-copycat-product-
qualify-successful-design). And would-be infringers have taken note,
relying on a new “logo defense” to design patent infringement. For
example, in a recently filed case involving design patents for women’s
80
clothing, the following product and patent, among others, have been
alleged:
Peloton Accused Product Lululemon D903,233 Patent
Lululemon Athletica Canada Inc. v. Peloton Interactive, Inc., Case No.
2:21-CV-9252, ECF 1, p. 13 (C.D. Cal. Nov. 29, 2021) (yellow circle
added). Presumably relying on this Court’s decision in Columbia I, the
defendant filed a declaratory judgment action, arguing that “confusion
between products [is] a virtual impossibility due to the prominent display
of the parties’ respective trademarks on their products …” Peloton
81
Interactive, Inc. v. Lululemon Athletica Canada Inc., Complaint, Case No.
1:21-cv-10071-ALC, ECF 1, ¶ 5 (S.D.N.Y. Nov. 24, 2021).
Does this Court intend that adding a brand name should be
sufficient to avoid design patent infringement? Or that a jury may even
consider it? Does design patent protection really end when a prominent
label is applied to a product?
This Court should provide clear guidance, for the benefit of the
district court in this case and others, the role—if any—of logos or other
source identifiers in a design patent infringement analysis.
CONCLUSION
For the reasons stated herein, the Court should reverse the
judgment of non-infringement and remand for a new trial.
Dated this 13th day of January, 2022.
Respectfully submitted,
/s/ Nika Aldrich

Nika Aldrich
Scott D. Eads
Sara Kobak
Schwabe, Williamson & Wyatt
1211 S.W. Fifth Avenue, Suite 1900
Portland, OR 97204
naldrich@schwabe.com
seads@schwabe.com
82
skobak@schwabe.com
Telephone: 503-222-9981
Attorneys for Plaintiff-Appellant

Columbia Sportswear
North America, Inc.
83
Case: 21-2299 Document
Case 3:17-cv-01781-HZ Document:
606 16FiledPage: 93 1 Filed:
08/06/2 01/13/2022Page 1 of 1
PagelD.27282
FILED
AUG 06 2021.
CLERK US DISTRICT COURT
SOUTHERN OiST\'llCT OF CALI FORNIA
IN THE UNITED STATES DISTR[CT COUR v •.s DEPUTY
FOR THE SOUTHERN DISTRJCT OF CALlFORNIA
COLUMBIA SPORTSWEAR NORTH

AMERICA, INC.,
Plaintiff, No. 3:17-cv-01781 -HZ
v. VERDICT FORM
SEIRUS INNOVATIVE ACCESSORIES,

INC.,
Defendant.
We, the jury, being first duly empaneled and sworn in the above-entitled cause, do
unanimously find as follows:
1. Has Columbia proved by a preponderance of the evidence that Seirus infringed U.S:
Patent D657,093 ("Design Patent')'?
_ _ Yes --X,..._No
The Presiding Juror should sign and date this Verdict Form.
·DATED this _ __ 6~_day of.August, 2021
1 - VERDICT FORM
Appx1
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Appx2
Case: 21-2299 Document
Case 3:17-cv-01781-HZ Document:
60916FiledPage: 95 Filed:
08/10/21 01/13/2022Page 1 of 1
PageID.27599
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF CALIFORNIA
COLUMBIA SPORTSWEAR NORTH No. 3:17-cv-01781-HZ

AMERICA, INC.,
JUDGMENT
Plaintiff,
v.
SEIRUS INNOVATIVE ACCESSORIES,

INC.,
Defendant.
HERNÁNDEZ, District Judge:
This matter being tried and the jury having rendered its verdict on August 6, 2021, IT IS
ORDERED AND ADJUDGED that judgment is entered in favor of Defendant Seirus Innovative
Accessories, Inc., and against Plaintiff Columbia Sportswear North America, Inc.
August 10, 2021

DATED:____________________________.
____________________________________
MARCO A. HERNÁNDEZ
United States District Judge
1 – JUDGMENT
Appx3
USO0D657093S
(12) United States Design Patent (10) Patent No.: US D657,093 S

Snyder (45) Date of Patent: Apr. 3, 2012
(54) HEAT REFLECTIVE MATERIAL Primary Examiner * Susan Bennett Hattan

Assistant Examiner * Barbara B Lohr
(75) Inventor: Zach Snyder, Portland, OR (US) (74) Attorney, Agent, or Firm * SchWabe, Williamson &
Wyatt, PC.
(73) Assignee: Columbia Sportswear North America,
Inc., Portland, OR (US)
(57) CLAIM
(**) Term: 14 Years The ornamental design of a heat re?ective material, as shoWn
and described.
(21) App1.No.: 29/346,786
(22) Filed: Nov. 5, 2009 DESCRIPTION
(51) LOC (9) C1. ................................................ .. 29-03
(52) US. Cl. ................................................. .. D29/101.1 FIG. 1 is an elevational vieW of a heat re?ective material;
FIG. 2 is an enlarged elevational vieW thereof, taken from any
(58) Field of Classi?cation Search ................... .. D5/47,
area in the design;
135/54, 55, 56, 57; D6/582; 1332/40; 442/327, FIG. 3 is a cross-sectional side elevational vieW thereof, taken
442/394; D29/100, 101.2, 101.3, 101.4, in the direction of line 3-3 in FIG. 1;
1329/1015; 428/196, 131; 451/523, 533, FIG. 4 is a top perspective vieW of the heat re?ective material
451/537, 539; D8/90
See application ?le for complete search history. as used in a sleeping bag;
FIG. 5 is a front perspective vieW of the heat re?ective mate
(56) References Cited rial as used in footWear;
FIG. 6 is a front perspective vieW of the heat re?ective mate
U.S. PATENT DOCUMENTS rial as used in legWear;
3/1940 FIG. 7 is a rear perspective vieW of the heat re?ective material
D119,351 Tabin ............................. .. D5/56
D130,877 S * 12/1941 Tips . . . . . . . . . .. D5/47

as used in a sock;
D154,151 S * 6/1949 Ryan ...... .. D6/582 FIG. 8 is a rear perspective vieW of the heat re?ective material
7,226,879 B2 * 6/2007 Tilton et a1. .. .. 442/327 as used in handWear;
D551,407 S * 9/2007 Caruso et a1. D32/40 FIG. 9 is a front perspective vieW of the heat re?ective mate
D573,354 S * 7/2008 Nam . . . . . . . . . . . .. D5/62
D583,568 S * 12/2008 Sordi D5/28 rial as used in outerwear; and,

D631,262 S * 1/2011 Evans . D5/56 FIG. 10 is a rear perspective vieW of the heat re?ective mate
D638,224 S * 5/2011 K0 etal. .. D5/56 rial as used in footWear.
FOREIGN PATENT DOCUMENTS
The broken lines in the drawings depict environmental sub
ject matter only and form no part of the claimed design.
JP 63-125525 8/1988
* cited by examiner 1 Claim, 3 Drawing Sheets
PLAINTIFF'S
exhibitsticker.com
EXHIBIT
1
1
1
1
USDC 3:17-cv-01781
1 m A
Appx4
US. Patent Apr. 3, 2012 Sheet 1 of3 US D657,093 S
Appx5
Appx6
Appx7
CERTIFICATE OF COMPLIANCE
1. This brief complies with the type-volume limitation of
Federal Rules of Appellate Procedure and Federal Circuit Rule 32(b)
because this brief contains 13,993 words, excluding the parts of the
brief exempted by Fed. R. App. P. 32(f).
2. This brief complies with the typeface requirements of Fed. R.
App. P. 32(a)(5) and the type style requirements of Fed R. App. P.
32(a)(6) because this brief has been prepared in a proportionally spaced
typeface using Microsoft Word 2016 in 14 point Century Schoolhouse.
Dated: January 13, 2022.
/s/ Nika Aldrich

Nika Aldrich
CERTIFICATE OF SERVICE
I hereby certify that a copy of the CORRECTED OPENING
BRIEF OF APPELLANT COLUMBIA SPORTSWEAR NORTH
AMERICA, INC. was served by the Appellate CM/ECF System, on the
13th day of January, 2022, on the following parties:
Christopher S. Marchese
marchese@fr.com
Seth M. Sproul
sproul@fr.com
John W. Thornburgh
thornburgh@fr.com
Fish & Richardson P.C.
12390 El Camino Read
San Diego, CA 92130
Tel: 858-678-5070
Attorneys for Defendant/Cross-

Appellant Seirus Innovative
Accessories, Inc.
By: /s/ Nika Aldrich

Nika Aldrich

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Case: 21-2299 Document: 16 Page: 1 Filed: 01/13/2022

Case Nos. 2021-2299, -2338

UNITED STATES COURT OF APPEALS

COLUMBIA SPORTSWEAR NORTH AMERICA, INC.,

SEIRUS INNOVATIVE ACCESSORIES, INC.,

Appeals from the United States District Court

CORRECTED OPENING BRIEF OF PLAINTIFF-APPELLANT

Pursuant to Federal Circuit Rule 47.4, counsel for Plaintiff-

Appellant Columbia Sportswear North America, Inc. certifies:

1. The full name of every party or amicus curiae represented by

me is: Columbia Sportswear North America, Inc.

3. All parent corporations and any publicly held companies that

own 10 percent of more of the stock of the party or amicus curiae

represented by me are: Columbia Sportswear Company

or amicus curiae, or are expected to appear in this Court, are:

SCHWABE, WILLIAMSON & WYATT P.C.: Jason A. Wrubleski,

David R. Boyajian, David W. Axelrod, Devon Z. Newman, Brenna

K. Legaard, and Angela E. Addae.

STOEL RIVES LLP: Brian Nese.

5. The title and number of any case known to counsel to be

directly affected by this court’s decision in the pending appeal is:

Columbia Sportswear North America, Inc. and Columbia

Sportswear Company v. Ventex Co., Ltd., U.S.D.C. D. OR. No. 3:17-

6. Organizational victims in criminal cases and debtors and

trustees in bankruptcy cases: Not Applicable.

Dated this 13th day of January, 2022.

/s/ Nika Aldrich

CERTIFICATE OF INTEREST .................................................................. i

STATEMENT OF RELATED CASES ....................................................... 1

STATEMENT OF JURISDICTION ........................................................... 1

STATEMENT OF THE ISSUES ................................................................ 2

STATEMENT OF THE CASE ................................................................... 4

B. The Prior Appeal ........................................................... 20

C. The Reexamination ....................................................... 22

D. Proceedings on Remand ................................................ 23

E. The Jury Verdict ........................................................... 41

SUMMARY OF ARGUMENT .................................................................. 41

A. Errors Concerning Alleged Comparison Prior Art ...... 42

B. Errors Concerning Relevance of Source Confusion ..... 44

ARGUMENT ............................................................................................. 46

I. Standards of Review .............................................................. 46

II. The District Court Erred in Its Jury Instructions by

B. At minimum, the Court should hold the scope of

C. The scope of the D’093 Patent is limited to “heat

D. The court’s jury instructions misstated the law and

E. The district court’s jury instructions were erroneous

F. The district court’s failure to properly instruct the

G. If the Court remands for consideration of any of

III. The District Court Erred in Prohibiting Columbia’s

H. This Court’s precedents confirm that “likelihood of

I. The district court erred in failing to instruct the

J. The district court’s failure to provide a

K. This Court’s prior decision in this case does not

CONCLUSION ......................................................................................... 82

Judgment (Dkt. 609) .......................................................................... Appx1

Jury Verdict Form (Dkt.606)............................................................. Appx3

U.S. Patent D657,093 (D’093 Patent) ............................................... Appx4

Arminak & Assocs., Inc. v. Saint-Gobain Calmar, Inc.,

Bateman v. Mnemonics, Inc.,

Braun Inc. v. Dynamics Corp. of Am.,