Trials@uspto.gov Paper No.

7
571.272.7822 Filed: November 16, 2016

UNITED STATES PATENT AND TRADEMARK OFFICE

____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD

____________

SKECHERS U.S.A., INC.,

Petitioner,

v.

NIKE, INC.,
Patent Owner.
____________

Case IPR2016-01045
Patent D707,032 S
____________

Before KEN B. BARRETT, SCOTT A. DANIELS, and

TRENTON A. WARD, Administrative Patent Judges.

BARRETT, Administrative Patent Judge.

DECISION
Denying Institution of Inter Partes Review
37 C.F.R. § 42.108
IPR2016-01045
Patent D707,032 S

I. INTRODUCTION
Skechers U.S.A., Inc. (“Petitioner”) filed a Petition requesting inter
partes review of the sole claim of U.S. Patent No. D707,032 S (Ex. 1001,
“the ’032 patent”). Paper 1 (“Pet.”). NIKE, Inc. (“Patent Owner”) filed a
Preliminary Response to the Petition. Paper 6. Under 35 U.S.C. § 314, an
inter partes review may not be instituted “unless . . . the information
presented in the petition . . . shows that there is a reasonable likelihood that
the petitioner would prevail with respect to at least 1 of the claims
challenged in the petition.”
After considering the information presented in the Petition, we
determine that Petitioner has not established a reasonable likelihood that it
would prevail with respect to the claim challenged in the Petition.
Accordingly, we do not authorize an inter partes review to be instituted as to
the challenged claim of the ’032 patent.

A. Related Proceedings
Both parties identify, as a matter involving or related to the ’032
patent, Nike, Inc. v. Skechers U.S.A., Inc., No. 3:16-cv-00007-PK (D. Or.).
Pet. 3; Paper 5, 2. Patent Owner additionally identifies as related matters
Nike, Inc. v. Fujian Bestwinn (China) Industry Co., Ltd., No. 2:16-cv-00311
(D. Nev.), and Inter Partes Reviews IPR-2016-01043 (U.S. Patent No.
D696,853) and IPR-2016-01044 (U.S. Patent No. D700,423). Paper 5, 2.

B. The ’032 Patent and the Claim

In an inter partes review, claim terms in an unexpired patent are given
their broadest reasonable construction in light of the specification of the
patent in which they appear. 37 C.F.R. § 42.100(b); see also Cuozzo Speed
Techs., LLC v. Lee, 136 S. Ct. 2131, 2144–46 (2016). With regard to design

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patents, it is well-settled that a design is represented better by an illustration

than a description. Egyptian Goddess, Inc. v. Swisa, Inc., 543 F.3d 665, 679
(Fed. Cir. 2008) (en banc) (citing Dobson v. Dornan, 118 U.S. 10, 14
(1886)). Although preferably a design patent claim is not construed by
providing a detailed verbal description, it may be “helpful to point out . . .
various features of the claimed design as they relate to the . . . prior art.”
Egyptian Goddess, 543 F.3d at 679–80; cf. High Point Design LLC v. Buyers
Direct, Inc., 730 F.3d 1301, 1314–15 (Fed. Cir. 2013) (remanding to district
court, in part, for a “verbal description of the claimed design to evoke a
visual image consonant with that design”).
The ’032 patent is titled “Shoe Upper,” and the claim recites “[t]he
ornamental design for a shoe upper, as shown and described.” Ex. 1001
(54), (57). The ’032 patent contains three figures. Figures 1 and 2 are
reproduced below.

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Figure 1 is a front perspective view of the claimed shoe upper and Figure 2
is a side view thereof. Id. at 1. The description of the ’032 patent states:
The broken lines immediately adjacent to the shaded areas
represent unclaimed boundaries of the design. The broken lines
showing the remainder of the shoe are for environmental
purposes only and form no part of the claimed design.
Id.
We determine that the following verbal descriptions will be helpful by
pointing out “various features of the claimed design as they relate to the . . .
prior art.” Egyptian Goddess, 543 F.3d at 679–80. The parties—utilizing
different labels—discuss two features of the claimed design. Petitioner
refers to “inlaid strands” and a “space-dye pattern.” Pet. 39, 43. Patent
Owner refers to these same features as “inverted Vs” and “arrays of fine
lines.” Prelim. Resp. 4. To demonstrate its labeling, Patent Owner provides
Illustration 2, shown below:

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Prelim. Resp. 7. Illustration 2 is Patent Owner’s annotated version of the

side view of the claimed design.
With regard to the fine lines, Petitioner, relying on the testimony of
Mr. Robert John Anders (Ex. 1017), argues:
[T]he ’032 Patent also claims an upper design with a number of
textured lines of various heights extending upward from the sole
boundary line to form a jagged pattern. The lines appear
speckled or otherwise nonuniform in shading and seem to follow
the curvature of the upper. The uneven and unsolid stripes give
the appearance of the design having been knit with space-dyed
yarn.
Pet. 43 (citing Ex. 1017 ¶ 38). The Petition then immediately turns to a
discussion of the purported commercial embodiment of the claimed design,
the Nike Flyknit Air Max Shoe, asserting that the space-dye pattern
corresponds to the knit stripes of the commercial embodiment and citing the
declaration of Ms. Deborah Young as support. Pet. 46 (citing Ex. 1015
¶ 67). Ms. Young, however, does not opine in the cited paragraph that the
Flyknit Air Max shoe is an embodiment of the claimed design, but rather
compares the color image of that Flyknit Air Max shoe to Petitioner’s
primary reference, RCD 0015. Ex. 1015 ¶ 67. In construing the claim, we

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decline to rely on extrinsic evidence in the form of an image of a purported

commercial embodiment.
In response to Petitioner’s assertion that the fine lines of the claimed
design should be construed as having the appearance of having been knit
with space-dyed yarn (Pet. 43–44 (citing Ex. 1017 ¶ 38)), Patent Owner
argues that the Petition does not identify—and that the claimed design does
include—the “uneven and unsolid stripes,” and maintains that the design of
the ’032 patent does not claim a “space-dye pattern.” Prelim. Resp. 5.
Patent Owner further argues that Petitioner’s position lacks any factual
support and is speculation. See id.
We are not persuaded by Petitioner’s argument regarding space-dyed
yarn. In the paragraph of his declaration cited by Petitioner, Mr. Anders
does not testify explicitly that any “uneven and unsolid stripes” in the
claimed design would be understood, by a designer of ordinary skill, as
indicating an appearance of a knit product. See Ex. 1017 ¶ 38(b). Rather,
Mr. Anders testifies that he discerns “discontinuous lines” in the claimed
design and that he understands that discontinuous lines are indicative of the
article having been knit with space-dyed yarn and of articles knit to imitate
the use of the same. Id. He bases this opinion not on his own understanding
of the art and he does not reference, in that paragraph of the declaration, the
hypothetical designer of ordinary skill in the art. Id. He explains that his
understanding comes from reading the Young Declaration. Id. Mr. Anders
does not provide a pinpoint citation to the Young Declaration and Petitioner
does not direct our attention to any testimony from Ms. Young explicitly
opining that a designer of ordinary skill in the art would have understood the
fine lines of the claimed design to be indicative of an ornamental appearance

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of a knit from space-dye yarn or even a knit pattern. For the above-reasons,
we decline to construe the claimed design as that having an appearance of
having been knit with space-dyed yarn.
Petitioner also argues that the lines forming the inverted Vs and the
orientation of the fine lines in and around those Vs are dictated primarily by
function and, therefore, the “the claimed design must be construed narrowly
to focus only on the ornamental nature” of the “inlaid strands” and the
“space-dye pattern” “as part of the whole ornamental design” separate from
the purported functional purposes. Pet. 43, 47 (citing, inter alia, Sport
Dimension, Inc. v. The Coleman Co., Inc., 820 F.3d 1316 (Fed. Cir. 2016)).
We agree with Patent Owner that Petitioner does not articulate clearly its
proposed narrow construction. Prelim. Resp. 7. Further, Petitioner’s
argument impliedly assumes that the claimed design must be created by or at
least have the appearance of having been created by particular
manufacturing techniques used in constructing the purported commercial
embodiment of the claimed design1 or embodiments of certain utility
patents. Pet. 42–47. Even were we to find that the appearance of the
isolated features are dictated primarily by functional considerations—which
we do not—we nonetheless “look to the overall design of [the claimed shoe
upper] to determine the proper claim construction [and] . . . focus on what
these [purported functional] elements contribute to the design’s overall

1
As an example of the purported commercial embodiment, Petitioner argues
“[t]his ornamentation corresponds to a physical feature of the commercial
embodiment of the claimed design . . . , namely, an inlaid strand guided
through the knit upper of the shoe” and the “space-dye pattern corresponds
to a physical feature of the commercial embodiment of the claimed
design . . . , namely, the knit stripes of the upper.” Pet. 41, 46.
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ornamentation.” Sport Dimension, Inc., 820 F.3d at 1323; see also Ethicon
Endo-Surgery, Inc. v. Covidien, Inc., 796 F.3d 1312, 1329 (Fed. Cir. 2015)
(A proper inquiry assesses “the overall appearance of the article—the
claimed design viewed in its entirety,” “not the functionality of elements of
the claimed design viewed in isolation.”). Accordingly, Petitioner fails to
persuade us to ascribe its narrow and insufficiently articulated construction
to the claimed design based on arguments concerning functionality.
For purposes of this Decision, we conclude that further verbal
elaboration of the claim of the ’032 patent is unnecessary.

C. Applied References
Reference Exhibit No.
Registered Community Design No. 002049825-0015, Ex. 1003
May 30, 2012 (“RCD 0015”)
COLLEZIONI ACCESSORI, Issue 60, 2010-2011, at 96 Ex. 1004
(“Collezioni Accessori 60”)
CLOSE-UP KNITWEAR MAN, Issue 9, Spring/Summer 2014, Ex. 1005
at 73 (“Close-up Knitwear Man 9”)
CLOSE-UP RUNWAY, Issue 2, Fall/Winter 2010-11, at 371 Ex. 1006
(“Close-up Runway 2”)
Petitioner, as mentioned above, relies also on the Declaration of
Deborah Young, dated May 13, 2016, (Ex. 1015) and the Declaration of
Robert John Anders, dated May 14, 2016, (Ex. 1017) in support of
Petitioner’s arguments.

D. Asserted Grounds of Unpatentability

Petitioner asserts the following grounds of unpatentability for the
claim of the ’032 patent:

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Patent D707,032 S

Ground References Basis

1 RCD 0015 in view of Collezioni Accessori 60 § 103(a)
2 RCD 0015 in view of Close-up Knitwear § 103(a)
Man 9 alone and/or in further combination
with Collezioni Accessori 60
3 RCD 0015 in view of Close-up Runway 2 § 103(a)
alone and/or in further combination with
Collezioni Accessori 60

II. ANALYSIS
A. Principles of Law
“In addressing a claim of obviousness in a design patent, the ultimate
inquiry is whether the claimed design would have been obvious to a designer
of ordinary skill who designs articles of the type involved.” Apple, Inc. v.
Samsung Elec. Co., 678 F.3d 1314, 1329 (Fed. Cir. 2012) (internal quotation
and citations omitted). This obviousness analysis generally involves two
steps: first, “one must find a single reference, a something in existence, the
design characteristics of which are basically the same as the claimed
design”; second, “once this primary reference is found, other references may
be used to modify it to create a design that has the same overall visual
appearance as the claimed design.” High Point Design, 730 F.3d at 1311
(internal quotation and citations omitted). In performing the first step, we
must “(1) discern the correct visual impression created by the patented
design as a whole; and (2) determine whether there is a single reference that
creates basically the same visual impression.” Id. at 1312 (internal quotation
and citations omitted). In the second step, the primary reference may be
modified by secondary references “to create a design that has the same
overall visual appearance as the claimed design.” Id. at 1311 (internal
quotation and citations omitted). However, the “secondary references may

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only be used to modify the primary reference if they are ‘so related [to the
primary reference] that the appearance of certain ornamental features in one
would suggest the application of those features to the other.’” Durling v.
Spectrum Furniture Co., 101 F.3d 100, 103 (Fed. Cir. 1996) (quoting In re
Borden, 90 F.3d 1570, 1575 (Fed. Cir. 1996)).

B. Primary Reference
For all of its asserted grounds, Petitioner utilizes RCD 0015
(Ex. 1003) as the primary reference. Petitioner argues RCD 0015 creates
basically the same visual impression as the claimed design. Pet. 53–55. To
support its argument, Petitioner provides the following comparison:

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Pet. 54. The top figure is a side view from RCD 0015 (Ex. 1003, 6) and the
bottom figure is a side view of the claimed design (Ex. 1001, 1).
Petitioner identifies two “noteworthy differences” between the
primary reference and the claimed design—first, “the positioning of inlaid
strands,” and second, “the particular knit pattern(s) used to complement the
inlaid strands.” Id. at 55 (citing Ex. 1017 ¶ 48). Mr. Anders refers to these
as “notable differences.” Ex. 1017 ¶ 48. Regarding the second difference,
Petitioner asserts that “RCD 0015 depicts a mesh knit pattern characterized
by small holes between the inlaid strands and a jagged stripe pattern within
the upper area enclosed by the inlaid strands.” Pet. 61; see also Prelim.
Resp. 23 (“RCD 0015 discloses a mesh design outside of each of four
inverted Vs, and substantially parallel lines between the two inverted Vs
closest to the toe of the shoe.”).
Patent Owner responds that RCD 0015 does not qualify as a primary
reference, pointing out that the two “noteworthy differences” identified by
Petitioner pertain to the same and only two features identified by Petitioner
as relevant for consideration. PO Resp. 22; see Pet. 36 (Petitioner
identifying “two distinct elements of the claimed design relevant to the
obviousness of the ’032 Patent” as the “inlaid strands” and the “space-dye
pattern.”); see also In re Jennings, 182 F.2d 207, 208 (CCPA 1950) (“In
considering patentability of a proposed design the appearance of the design
must be viewed as a whole, as shown by the drawing, or drawings, and
compared with something in existence—not with something that might be
brought into existence by selecting individual features from prior art and
combining them, particularly where combining them would require
modification of every individual feature, as would be required here.”).

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Patent Owner argues: “Here, far from de minimis, the primary reference
would have to be modified in toto. Prelim. Resp. 22.
After comparing the overall appearances of the prior art shoe upper
and the claimed shoe upper in light of the parties’ discussion of the two
distinctions, we are not persuaded by Petitioner that that RCD 0015 creates
the same visual impression as the claimed shoe upper. Further, even were
we to determine that RCD 0015 qualifies as a primary reference, we are not
persuaded, for the reasons given below, that Petitioner has met its burden of
demonstrating a reasonable likelihood that it would prevail with respect to
the obviousness of the claimed design.
As to the first of the two “noteworthy differences”—the positioning of
the “inlaid strands” (the inverted Vs)—Petitioner does not adequately
explain why the proposed modification would have been obvious. Petitioner
asserts that “repositioning of the dashed line peaks” of the “inlaid strands”
“would have been well within the skill of a designer of ordinary skill in the
art” and that one would have understood that “an inlaid strand could be
added to support the toemost eyelet if such function (i.e., tension support and
fit enhancement) or ornamentation (i.e., another visual dashed line peak) was
desired.” Pet. 55–56 (footnote and citations omitted); see also Ex. 1017 ¶ 49
(Mr. Anders opining similarly). Petitioner’s argument, if accepted as true,
merely indicates that the proposed modification could have been made if it
was desirable. Pet. 55–56; see also Ex. 1017 ¶ 49. Petitioner, however,
does articulate adequately why a designer of ordinary skill would have
desired to make the proposed change to the shoe design of RCD 0015. We,
like Patent Owner (Prelim. Resp. 22), recognize that de minimis differences
do not necessarily preclude a conclusion of obviousness. MRC Innovations,

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Inc. v. Hunter Mfg., LLP, 747 F.3d 1326, 1335 (Fed. Cir. 2014); In re
Harvey, 12 F.3d 1061, 1065 (Fed. Cir. 1993) (“[I]f prior art designs are to be
modified in more than one respect to render a claimed design obvious, then
those modifications must be ‘de minimis’ in nature and unrelated to the
overall aesthetic appearance of the design.”). Petitioner, however, does not
argue persuasively that the proposed repositioning of the dashed line peaks
and the addition of an inlaid strand would have been considered de minimis.
See Pet. 55–56 (discussing the differences between the claimed design and
the primary reference but failing to address whether necessary modifications
would have been de minimis or unrelated to the overall aesthetic
appearance); but see Pet. 59 (Petitioner offering the conclusory argument
that “[a]ny perceived differences” between the proposed combination of
RCD 0015 and Collezioni Accessori 60 and the claimed design are de
minimis.); id. at 63, 67 (same arguments for the proposed combinations of
the second and third grounds).
As to the second of the two “noteworthy differences”—that referred to
by Petitioner as “the particular knit pattern(s) used to complement the inlaid
strands” (Pet. 55)—Petitioner relies on several secondary references. We
address below the proposed combinations.

C. The Ground of Alleged Obviousness over RCD 0015 in view of

Collezioni Accessori 60
Petitioner asserts that the claim of the ’032 patent would have been
obvious over RCD 0015 and Collezioni Accessori 60 (Ex. 1006). Pet. 53–
59. Petitioner relies on two cropped images from Collezioni Accessori 60.
Pet. 57, 58. The complete images are shown below:

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Ex. 1004, 4, 5. The images above depict knitted boots. Id. at 4.

Petitioner maintains that Collezioni Accessori 60 teaches the use of a
space-dye pattern that is similar to that of the claimed design and that could
be substituted as the pattern of RCD 0015. Pet. 56. Patent Owner argues
“the high-heeled shoe designs in Collezioni Accessori 60 are ‘so different in
visual appearance’ from the athletic shoe design in RCD 0015 that they do
not qualify as comparison references.” Prelim Resp. 31 (quoting Apple, 678
F.3d at 1331). Patent Owner also argues that Petitioner has engaged in the
selective use of design characteristics of the prior art thereby suggesting
hindsight reconstruction. Id. at 27. According to Patent Owner, “the
Petition fails to explain why a designer of ordinary skill in the art would be
motivated to focus on the identified individual designs from catalogs
numbering in the hundreds of pages and containing thousands of images.”
Id. at 28.
In Collezioni Accessori 60, the knitted boots appear as a high heel
fashion style of footwear defining a significant heel-elevating opening, or
space, under a portion of the sole that is entirely different from the

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substantially flat and more stable, i.e. athletic, appearing sole shown in
RCD 0015. The knitted boots include a black strap encircling the heel and
midfoot area of the knit upper of the footwear and a dangling spur
accoutrement hanging loosely below the heel under the sole of the boots.
See Ex. 1004, 4 (“knitted boots embellished with chrome spurs”).
Additionally, the boot upper has a consistent pattern of random length multi-
color stripes that extends the entire length of the boot, i.e. contiguously from
the lower leg of the wearer over the ankle to the toe of the boot. This
comparison illustrates the significant differences in overall visual
appearance between Collezioni Accessori 60 and the low-cut athletic shoe in
RCD 0015. Based on such a disparity in visual appearance, we are not
persuaded that Collezioni Accessori 60 qualifies as a proper secondary
reference under the appropriate analysis. See Apple, 678 F.3d at 1331
(determining that the secondary reference “is so different in visual
appearance from the [primary] reference that it does not qualify as a
comparison reference under that standard”).
Further, Petitioner, at most, has shown via Collezioni Accessori 60
that footwear may be manufactured from space-dye knits. Petitioner
similarly relies on several references not listed in the grounds of rejection as
purportedly indicating that a designer of ordinary skill had knowledge that
knit patterns from non-shoe products could be applied to footwear. Pet. 49–
53. Petitioner argues that a designer of ordinary skill would know that
“cutting-edge” knit designs could be a possible source for modification of
knit footwear, and would recognize that combinations of the articulated
grounds would have been “technically feasible . . . and likely to yield
acceptable results.” Id. Petitioner, however, does not adequately and

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persuasively explain why a designer of ordinary skill would have selected,

from all possible designs, the specific relied-upon patterns of Collezioni
Accessori 60 and then substituted such a pattern for only a portion of the
design of the RCD 0015 reference. See In re Harvey, 12 F.3d at 1064-65
(Even if all the design characteristics of the claimed design were found in
the prior art references, a design would not be shown to be obviousness
absent a suggestion to combine them.).
We determine Petitioner has not demonstrated that there is a
reasonable likelihood that it would prevail in showing that the challenged
claim is rendered obvious by RCD 0015 in view of Collezioni Accessori 60.

D. The Ground of Alleged Obviousness over RCD 0015 in view of

Close-up Knitwear Man 9 alone and/or in further combination with
Collezioni Accessori 60, and
The Ground of Alleged Obviousness over RCD 0015 in view of
Close-up Runway 2 alone and/or in further combination with
Collezioni Accessori 60
Petitioner asserts that the claim of the ’032 patent would have been
obvious over RCD 0015 and Close-up Knitwear Man 9 (Ex. 1005) alone
and/or in further combination with Collezioni Accessori 60. Pet. 60–63.
Petitioner relies on a cropped, greatly enlarged, and rotated image from
Close-up Knitwear Man 9. Pet. 62. The complete image is shown below:

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Ex. 1005, 4. The image above depicts a knit cardigan sweater. See Pet. 31.
Petitioner additionally asserts that the claim of the ’032 patent would
have been obvious over RCD 0015 and Close-up Runway 2 (Ex. 1006) alone
and/or in further combination with Collezioni Accessori 60. Pet. 64–68.
Petitioner relies on a cropped and rotated image from Close-up Runway 2.
Pet. 66. The complete image is shown below:

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Ex. 1006, 4. The image above depicts, inter alia, a knit skirt. Pet. 34.
These asserted secondary references—Close-up Knitwear Man 9 and
Close-up Runway 2—are not related to footwear whereas the primary
reference, RCD 0015, is a shoe. See Exs. 1005, 1006 (illustrating patterns
on various articles of clothing, not footwear.). Petitioner’s arguments and
evidence fail to provide persuasive explanation that such prior art references
“are so related that the appearance of certain ornamental features in one
[design] would suggest the application of those features to the other.”
Apple, 678 F.3d at 1331. We agree with Patent Owner that Petitioner has
not shown sufficiently that the asserted secondary references properly
“bridge the gap” between RCD 0015 and the claimed design. See Prelim.
Resp. 25; see also Apple, 678 F.3d at 1331 (determining that a tablet with a
screen area surrounded by a gray area, a wide rounded-over metallic rim,
and indicator lights is not similar enough to the primary reference to be a
secondary reference in an obviousness analysis of a patented design with a
screen covering essentially the entire front face of the patented design
without any breaks or interruptions, and therefore “could not bridge the gap
between” the primary reference and the claimed design).
Petitioner argues, in the alternative, that Collezioni Accessori 60
could serve as an additional secondary reference “[t]o the extent the
nonuniform and discontinuous nature of the stripes in the claimed design is
perceived as a difference between [the] prior art combination[s] and the
claimed design.” Pet. 63 (the second ground); id. at 67 (the third ground).
Petitioner does not rely on Collezioni Accessori 60 in a manner that cures
the defect in the underlying two-reference combinations.

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We determine Petitioner has not demonstrated that there is a

reasonable likelihood that it would prevail in showing that the challenged
claim is rendered obvious over RCD 0015 and Close-up Knitwear Man 9
alone and/or in further combination with Collezioni Accessori 60. We also
determine that Petitioner has not demonstrated that there is a reasonable
likelihood that it would prevail in showing that the challenged claim is
rendered obvious over RCD 0015 and Close-up Runway 2 alone and/or in
further combination with Collezioni Accessori 60.

III. CONCLUSION
We determine Petitioner has not demonstrated a reasonable likelihood
of establishing the unpatentability of the claim of the ’032 patent.

IV. ORDER
For the foregoing reasons, it is
ORDERED that the Petition is denied as to the challenged claim, and
no trial is instituted.

For PETITIONER:

Brian Berliner, bberliner@omm.com

Xin-Yi Zhou, vzhou@omm.com
O’MELVENY & MYERS

For PATENT OWNER:

Christopher J. Renk, crenk@bannerwitcoff.com

Erik S. Maurer, emaurer@bannerwitcoff.com
BANNER & WITCOFF, LTD

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