Dyson v. Sharkninja - Def. MSJ Non-Infringement

Case: 1:14-cv-00779 Document #: 383 Filed: 05/15/17 Page 1 of 72 PageID #:16745
IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
)
DYSON, INC. and )
DYSON TECHNOLOGY LIMITED, )
) Case No. 14-cv-779
Plaintiffs, )
) Judge Robert M. Dow, Jr.
v. )
) Magistrate Judge Susan E. Cox
SHARKNINJA OPERATING LLC )
SHARKNINJA SALES COMPANY, ) JURY TRIAL DEMANDED
)
Defendants. )
)
SHARKNINJAS MOTION FOR SUMMARY JUDGMENT OF

NON-INFRINGEMENT OR, IN THE ALTERNATIVE, INVALIDITY
REDACTED VERSION
TABLE OF CONTENTS
Page
INTRODUCTION ......................................................................................................................... 1
I. FACTS ............................................................................................................................... 5
A. The asserted design patents .................................................................................... 5
1. The hand vacuum patent (163 patent) ...................................................... 5
2. The stick vac design patents (010 and 823 patents) ................................ 6
B. Dyson and its products ........................................................................................... 9
C. SharkNinja, its Shark Rockets, and the Shark Rocket design patents ................. 10
D. SharkNinjas March 2, 2015 early summary judgment motion........................... 12
E. The Courts October 13, 2016 claim construction Order .................................... 13
F. Comparison prior art ............................................................................................ 14
1. The DC31 manual, U.K. Reg. Des. No. 4,010,242, and U.S. Patent
No. D480,848 ........................................................................................... 14
2. The 2006 DC16 post ................................................................................ 15
3. The 2009 DC31 video .............................................................................. 16
4. The 2005 Peace sketch ............................................................................. 17
5. Pistol-grip hand vacuums ..................................................................... 18
II. LEGAL STANDARDS ................................................................................................... 19
A. Functional features require strictly confining claim scope to the
ornamental features depicted in the patent drawings. .......................................... 19
B. Prior art provides a frame of reference for assessing differences and
similarities of the accused designs, the prior art, and the claimed designs. ......... 24
III. ARGUMENT ................................................................................................................... 28
A. The Shark Rockets do not infringe the 163 patent under the Courts claim
construction Order, and further in view of the prior art. ...................................... 30
1. The Shark Rockets have a substantially different ornamental
appearance than the design claimed in the 163 patent............................ 30
2. The prior art further proves that no one would confuse the Shark
Rockets with the 163 patented design. ................................................... 36
B. The Shark Rockets do not infringe 010 and 823 patents under the Courts
claim construction, and further in view of the prior art. ...................................... 37
appearance than the claimed 010 and 823 patent designs. .................... 37
REDACTED VERSION
TABLE OF CONTENTS
(continued)
Page
2. The prior art highlights the Shark Rockets distinct ornamental

appearances, and further confirms non-infringement of the 010
and 823 patents. ...................................................................................... 43
(a) The DC31 manual, 242 design, and 848 patent teach the
ordinary observer that the Shark Rockets have distinct
ornamental designs....................................................................... 44
(b) The 2006 DC16 post and the 2009 DC31 video further
show the ordinary observer that the Shark Rockets differ
from the asserted patents. ............................................................. 45
(i) The 2006 DC16 post is a printed publication. .............. 48
(ii) The 2009 DC31 video is a printed publication............. 53
(c) The 2005 Peace sketch also shows the ordinary observer
that the Shark Rockets differ from the prior art and the
patent drawings. ........................................................................... 55
(i) The 2005 Peace sketch is 102(f) prior art. .................... 56
C. Alternatively, under Dysons view of claim scope, the asserted patents are
so broad in scope that they are invalid for anticipation. ...................................... 59
1. The 163 patent is invalid as anticipated under Dysons view of
claim scope............................................................................................... 60
2. The 010 and 823 patents are invalid as anticipated under Dysons
view of claim scope. ................................................................................ 61
IV. CONCLUSION ................................................................................................................ 62
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- ii -
TABLE OF AUTHORITIES
Page
CASES
Alloc, Inc. v. Pergo, Inc.,

No. 02-C-736, 2008 U.S. Dist. LEXIS 35944 (E.D. Wis. May 1, 2008) ................................58
Apotex Inc. v. Cephalon, Inc.,

No. 2:06-cv-2768, 2011 U.S. Dist. LEXIS 125859 (E.D. Pa. Oct. 31, 2011) .........................58
Arminak & Assocs., Inc. v. Saint-Gobain Calmar, Inc.,

501 F.3d 1314 (Fed. Cir. 2007)................................................................................................19
Auxilium Pharms., Inc. v. Watson Labs., Inc.,

No. 12-3084 (JLL), 2014 U.S. Dist. LEXIS 184032 (D.N.J. Dec. 16, 2014) ..........................58
Contessa Food Prods., Inc. v. Conagra, Inc.,

282 F.3d 1370 (Fed. Cir. 2002)............................................................................................6, 38
Creative Compounds, LLC v. Starmark Labs.,

651 F. 3d 1303 (Fed. Cir. 2011)...............................................................................................56
Crocs, Inc. v. Intl Trade Commn,

598 F.3d 1294 (Fed. Cir. 2010)................................................................................................60
Delta Frangible Ammunition, LLC v. Sinterfire, Inc.,

663 F. Supp. 2d 405 (W.D. Pa. 2009) ......................................................................................58
Dyson, Inc. v. SharkNinja Operating LLC,

No. 14-9442, Dkt. 424 at 1 (N.D. Ill. Apr. 26, 2017) ................................................................1
Egyptian Goddess, Inc. v. Swisa, Inc.,

543 F.3d 665 (Fed. Cir. 2008).......................................................................................... passim
Elmer v. ICC Fabricating, Inc.,

67 F.3d 1571 (Fed. Cir. 1995).......................................................................................... passim
Ethicon Endo-Surgery, Inc. v. Covidien, Inc.,

796 F.3d 1312 (Fed. Cir. 2015)........................................................................................ passim
Gorham Co. v. White,

81 U.S. 511 (1871) ...................................................................................................1, 19, 23, 59
REDACTED VERSION
- iii -
(continued)
Page
Great Neck Saw Mfrs., Inc. v. Star Asia U.S.A., LLC,

727 F. Supp. 2d 1038 (W.D. Wash. 2010) .........................................................................35, 43
Hay & Forage Indus. v. New Holland N. Am., Inc.,

25 F. Supp. 2d 1180 (D. Kans. 1998) ......................................................................................58
High Point Design LLC v. Buyers Direct, Inc.,

730 F.3d 1301 (Fed. Cir. 2013)................................................................................................59
Hoop v. Hoop,
279 F.3d 1004 (Fed. Cir. 2002)................................................................................................60
In re Bendamustine Consol. Cases,

No. 13-2046-GMS, 2016 U.S. Dist. LEXIS 75624 (D. Del. June 10, 2016)...........................58
In re Hall,
781 F.2d 897 (Fed. Cir. 1986)..................................................................................................49
Intl Seaway Trading Corp. v. Walgreens Corp.,

589 F.3d 1233 (Fed. Cir. 2009)................................................................................4, 34, 59, 60
J.S. & L.S. v. Am. Inst. for Foreign Study, Inc.,

No. SA-12-CA-1036-XR, 2013 U.S. Dist. LEXIS 136073 (W.D. Tex. Sept.
24, 2013) ..................................................................................................................................52
Lee v. Dayton-Hudson Corp.,

838 F.2d 1186 (Fed. Cir. 1988)........................................................................................ passim
Medtronic Xomed, Inc. v. Gyrus ENT LLC,

440 F. Supp. 2d 1300 (M.D. Fla. 2006) ...................................................................................58
MRC Innovations, Inc. v. Hunter Mfg., LLP,

747 F.3d 1326 (Fed. Cir. 2014)..................................................................................................1
Natl Presto Indus., Inc. v. West Bend Co.,

76 F.3d 1185 (Fed. Cir. 1996)............................................................................................34, 42
OddzOn Prods., Inc. v. Just Toys, Inc.,

122 F.3d 1396 (Fed. Cir. 1997)........................................................................................ passim
Pac. Coast Marine Windshields Ltd. v. Malibu Boats, LLC,

739 F.3d 694 (Fed. Cir. 2014)....................................................................................................5
REDACTED VERSION
- iv -
(continued)
Page
Richardson v. Stanley Works, Inc.,

597 F.3d 1288 (Fed. Cir. 2010)........................................................................................ passim
RNA Corp. v. Procter & Gamble Co.,

747 F. Supp. 2d 1008 (N.D. Ill. 2010) (Zagel, J.) ..............................................................34, 42
Robert Bosch, LLC v. Pylon Mfg. Corp.,

748 F. Supp. 2d 383 (D. Del. 2010), revd on other grounds, 659 F.3d 1142
(Fed. Cir. 2011) ........................................................................................................................58
Smith v. Whitman Saddle Co.,

148 U.S. 674 (1893) ......................................................................................................... passim
Suffolk Techs., LLC v. AOL, Inc.,

752 F.3d 1358 (Fed. Cir. 2014)....................................................................................48, 49, 50
Synthon IP, Inc. v. Pfizer Inc.,

No. 1:05-cv-1267, 2007 U.S. Dist. LEXIS 26115 (E.D. Va. Apr. 6, 2007) ............................57
T&M Inventions, LLC v. Acuity Brands Lighting, Inc.,

No. 14-CV-947, 2016 U.S. Dist. LEXIS 71333 (E.D. Wis. June 1, 2016)..............................58
Taurus IP, LLC v. DaimlerChrysler Corp.,

726 F.3d 1306 (Fed. Cir. 2013)................................................................................................54
Thomas Indus., Inc. v. Gast Mfg., Inc.,

No. 04-C-375-C, 2005 WL 1400391 (W.D. Wis. June 14, 2005) .....................................34, 42
Voltstar Techs., Inc. v. Amazon.com, Inc.,

No. 13 C 5570, 2014 U.S. Dist. LEXIS 102306 (N.D. Ill. July 28, 2014) (Lee,
J.), summarily affd, 599 F. Appx 385 (Fed. Cir. Apr. 14, 2015) ................................... passim
Young Dental Mfg. Co. v. Q3 Special Prods., Inc.,

112 F.3d 1137 (Fed. Cir. 1997)................................................................................................16
STATUTES
35 U.S.C. 102(a) .............................................................................................................16, 48, 53
35 U.S.C. 102(b) .............................................................................................................15, 19, 48
35 U.S.C. 102(f) ........................................................................................................17, 53, 56, 58
REDACTED VERSION
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(continued)
Page
OTHER AUTHORITIES
MPEP 1503 ...................................................................................................................................5
MPEP 1504.02 ............................................................................................................................34
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The Court should grant summary judgment of non-infringement because Dysons
infringement claim is contrary to Federal Circuit law, the Courts claim construction Order, and
Dysons own positions as to validity.
This lawsuit arose as one of Dysons responses to the fact that SharkNinja recently
unseated Dyson as a leader in the vacuum cleaner market. As Judge Gottschall observed in
another such case, however, courts do not exist to protect sellers from competition from better
or cheaper products . . .1 This lawsuit is meritless and should be summarily dismissed.
Design patents cover only the ornamental aspects of an article as they are arranged and
depicted in the patent drawings. Ethicon Endo-Surgery, Inc. v. Covidien, Inc., 796 F.3d 1312,
1333 (Fed. Cir. 2015). [D]esign patents have almost no scope beyond the precise images
shown in the drawings. MRC Innovations, Inc. v. Hunter Mfg., LLP, 747 F.3d 1326, 1333 n.1
(Fed. Cir. 2014) (citation omitted).
Unlike a utility patent, a design patent cannot include claims to the structural or
functional aspects of the article. Lee v. Dayton-Hudson Corp., 838 F.2d 1186, 1188 (Fed. Cir.
1988). For this reason, design patents also cannot monopolize general design concepts or
categories. Ethicon, 796 F.3d at 1334.
The test for design patent infringement is whether an ordinary observer, giving such
attention as a purchaser usually gives, would view the patented and accused designs to be
substantially the same, such that he or she would purchase the accused design supposing it to be
the other. Egyptian Goddess, Inc. v. Swisa, Inc., 543 F.3d 665, 670 (Fed. Cir. 2008) (citing
Gorham Co. v. White, 81 U.S. 511, 528 (1871)). In applying this test, the Federal Circuit strictly
limits claim scope to the depicted ornamental aspects and excludes any underlying functional
features or general design concepts, as exemplified by the OddzOn case:

1
Dyson, Inc. v. SharkNinja Operating LLC, No. 14-9442, Dkt. 424 at 1 (N.D. Ill. Apr. 26, 2017).
REDACTED VERSION
Claimed design in OddzOn Non-infringing accused designs in OddzOn
OddzOn Prods., Inc. v. Just Toys, Inc., 122 F.3d 1396, 1399-1400 (Fed. Cir. 1997) (affirming
summary judgment of non-infringement). As OddzOn and other Federal Circuit cases show,2 the
ornamental details claimed in the drawings are dispositive in a design patent case.
In this case, Dyson accuses SharkNinjas Shark Rocket vacuum cleaners of infringing
three design patents. One patent claims a design of a hand vacuum (U.S. Patent No. D577,163
(163 patent); the other two claim a design of a stick vac, i.e., a hand vacuum with a
detachable suction tube and a floor unit (U.S. Patent Nos. D668,010 (010 patent) and
D668,823 (823 patent)).
OddzOn and other precedents mandate summary judgment here. The Courts claim
construction Order identified the functional features that are not protected by the design
patent[s] and confined claim scope to the particular shape and ornamentation of the designs
depicted in the drawings. Dkt. 293 at 15-16 (emphasis added). The functional features include
the pistol-grip, the long suction tube, the low-profile floor unit, and the spherical wheels. Id.
Under the Courts claim construction Order, the Shark Rockets do not infringe for two
independently-sufficient reasons. First, Dyson must do more than show that the Shark Rockets
are pistol-grip hand vacuums with long suction tubes and low-profile floor units with wheels. To
the contrary, Dyson must prove that the ornamental features in the Shark Rockets combine to
2
See e.g., Ethicon, 796 F.3d at 1336; Richardson v. Stanley Works, Inc., 597 F.3d 1288, 1291-
92, 1296 (Fed. Cir. 2010); Elmer v. ICC Fabricating, Inc., 67 F.3d 1571, 1575-76 (Fed. Cir.
1995); Lee, 838 F.2d at 1188-89.
REDACTED VERSION
-2-
provide substantially the same overall ornamental appearance to the overall ornamental
appearance of the patented designs. Dyson largely ignores these ornamental features, however,
because they combine to give the Shark Rockets their own distinctive appearance. Indeed, the
U.S. Patent and Trademark Office (USPTO) determined that the Shark Rocket designs are not
substantially similar to Dysons designs by granting six design patents for the Shark Rockets
over the patents-in-suit. Even Dyson sought, and obtained, separate design patents on its newer
vacuum designs over the patents-in-suit, which reaffirms their limited scope. After properly
accounting for the functional features, an ordinary observer, giving as much attention as
purchasers of premium vacuums usually do, would not buy a Shark Rocket design thinking it is
the same as the claimed designs.
Second, the ordinary observer also is charged with knowledge of the relevant prior art,
Egyptian Goddess, 543 F.3d at 678, such as the following example:
Prior art
010 patent (left) and 823 patent (right, claimed elements in gray)
Accused Shark Rockets (HV300 (top), HV321 (middle), HV381 (bottom))
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The Court should grant summary judgment of non-infringement of the asserted patents,
or, alternatively, that the asserted patents are invalid. Dyson cannot have it both ways.
I. FACTS
A. The asserted design patents
1. The hand vacuum patent (163 patent)
The earliest of the three asserted patents, the 163 patent, issued from an application filed
in the U.S. on January 18, 2007. (SOF 11.)3 The 163 patent claims the benefit of an earlier
application filed in the U.K. on July 19, 2006. (SOF 11.)
The 163 patent claims4 a hand vacuum design that is powered by a battery and thus does
not have a power cord. (SOF 11; Ball Decl. Ex. 2 at 19-30.) The 163 patent claims a
machine-like, intricate-looking arrangement of geometric shapes like cones, cylinders, and tubes:
(Ball Decl. Ex. 2 at 24.)
3
Citations to SharkNinjas Local Rule 56.1 Statement of Facts are indicated by SOF __.
Each statement in SharkNinjas Local Rule 56.1 Statement of Facts provides citations to
additional supporting authority, including by reference to exhibits to the Declaration of John C.
Evans.
4
In contrast to utility patents, a design patent application may only include a single claim.
Pac. Coast Marine Windshields Ltd. v. Malibu Boats, LLC, 739 F.3d 694, 703 (Fed. Cir. 2014)
(quoting MPEP 1503).
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(Ball Decl. Ex. 2 at 19-30.) For example, Dyson claimed features of its signature mechanical
styling theme, including Dysons prominent crown or array of conical cyclones, a cylindrical
motor housing, and flat battery pack housing. (Id.) Dyson claimed the depicted arrangement of
all of these features that creates a certain overall appearance. (Id.)
2. The stick vac design patents (010 and 823 patents)
The 010 and 823 patents issued from applications filed on February 8, 2011 and
February 4, 2011, respectively. (SOF 12, 14.) Both patents claim the benefit of applications
filed in the European Union on August 27, 2010. (SOF 12, 14.)
The 010 patent claims a cordless stick vac design depicted from different angles in seven
figures.5 (SOF 13.) The 823 patent claims the same basic design, but disclaimed certain
elements by using broken lines.6 (SOF 15.) Shown below are representative views of the 010
patent (left) and 823 patent (right; claimed elements highlighted in gray):
010 patent 823 patent

5
The Court construed the 010 patent drawings as the replacement drawings from the file history
of the 010 patent. Dkt. 293 at 15. All citations in this brief to the 010 patent drawings refer to
those replacement drawings.
6
The solid lines in design patent drawings define the claimed subject matter; disclaimed features
are shown in broken lines. See Contessa Food Prods., Inc. v. Conagra, Inc., 282 F.3d 1370,
1378 (Fed. Cir. 2002) ([T]he patentee is permitted to show the features in broken lines to
exclude those features from the claimed design, and the failure to do so signals inclusion of the
features in the claimed design.).
REDACTED VERSION
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As shown above, Dyson used solid lines to expressly claim an overall design that includes
intricate ornamental details. The drawings depict Dysons mechanical and geometrical styling
that includes cones, cylinders, and spheres with defined boundaries and chamfers. (Ball Decl.
Ex. 2 at 47-77.) Shown below is a diagram of the claimed ornamental details of the hand
vacuum in the 010 patent (some of which also are claimed in the 823 patent):
(Ball Decl. Ex. 2 at 56.)
As shown above, Dyson claimed the combination of its conspicuous crown or array of conical
cyclones, the tubular cyclone manifolds, the cylindrical motor housing above a pistol-grip
handle (and its trigger), the cyclonic separator cylinder, the flat battery housing below the
pistol-grip, and the nozzle cylinder. (Ball Decl. Ex. 2 at 52-55; see Ball Decl. Ex. 2 at 47-
77.) Again, Dyson claimed the specifically depicted combination of each of these individual
geometric features. (Id.)
REDACTED VERSION
-7-
As for the low-profile floor unit, Dyson again claimed an intricate combination of
features.7 Cylinders and spheres again display geometrical styling, including Dysons eye-
catching spherical-shaped wheel with concentric ribbing, as shown below (Ball Decl. Ex. 2 at
72-77):
(Ball Decl. Ex. 2 at 75)
Dyson similarly used geometric shapes in the long suction tube claimed in the 010
and 823 patent drawings. (Ball Decl. Ex. 2 at 55, 74.) As shown above, the long suction
tube has cylindrical cuffs that connect to the hand vacuum on one end, and to the floor unit on
the other. (Ball Decl. Ex. 2 at 55, 74.)
7
Dyson claimed the floor unit in the 010 patent, but disclaimed it in the 823 patent.
REDACTED VERSION
-8-
B. Dyson and its products
Starting in October 2006, Dyson sold a hand vacuum called the DC16 in the United
States. (SOF 3.) The DC16 had substantially the same ornamental design as depicted in the
163 patent (see SOF 2, 11):
DC16 163 patent
Dyson launched its DC35 product in the United States in 2010. (SOF 3.) The DC35
was a stick vac because it combined a hand vacuum with a detachable suction tube and low-
profile floor unit. As shown below, the DC35 had basically the same ornamental design as
depicted in the 010 and 823 patent drawings:
DC35 (DC31 hand vac) DC35 (stick vac) 010 and 823 patents
(SOF 3, 13, 15.) The DC35 design is a combination of prior art designs, including a prior art
DC31 hand vacuum and a prior art floor unit derived from another prior art vacuum, the DC26.
REDACTED VERSION
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(Ball Decl. Ex. 2 at 355-73.) Dyson contends that at least 36 utility patents cover the DC35.
(SOF 4.)
C. SharkNinja, its Shark Rockets, and the Shark Rocket design patents
SharkNinja makes and sells vacuum cleaners under its Shark brand. (SOF 6.) In
recent years, JD Power has rated Shark vacuums as highest in customer satisfaction. (SOF 6.)
The accused products in this case are SharkNinjas Shark Rocket stick vacuum cleaners. The
accused Shark Rockets have four series numbers, HV300, HV310, HV320, and HV380.8 Shown
below are representative designs:
Shark Rockets: HV300 (left), HV321 (middle), and HV381 (right)

8
The designs of the HV300 and HV310 have some differences, but they may be analyzed
together for non-infringement. (SOF 7; see Ball Decl. Ex. 2 at 80-98.) For purposes of non-
infringement, the HV300 vacuum cleaner represents the HV300 and HV310 series, the HV321
vacuum cleaner represents the HV320 series, and the HV381 vacuum cleaner represents the
HV380 series. (Ball Decl. Ex. 2 at 80-98, 171-91, 252-68.)
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(SOF 7.) Like prior art stick vacs, the accused Shark Rockets include a hand vacuum, a suction
tube, and a floor unit. Each Shark Rocket, while sharing SharkNinjas streamlined and
aerodynamic styling theme, has a different configuration, shape, and ornamentation. (Ball Decl.
Ex. 2 at 80-98, 171-91, 252-68.) As shown above, the HV300 design theme is aerodynamic
and lacks mechanical shapes like the crown, cones, cylinders, and spheres, except for the
cylindrical suction tube. (SOF 17-18; Ball Decl. Ex. 2 at 80-98.) The HV300 has a motor-
below-the-handle configuration. (SOF 17-18; Ball Decl. Ex. 2 at 94.) The HV300 has no
battery; instead it has a power cord that is about 30 feet long and runs from the back of the hand
vacuum. (Id.) The HV300 does not have a cylindrical dust cup. (Id.) The HV300 also has a
pair of flat-sided wheels and a wide floor unit design. (SOF 17-18; Ball Decl. Ex. 2 at 98.)
SharkNinja originally applied for design patents on the HV300 design on November 11, 2013,
before Dyson filed its first complaint. (SOF 19.) The USPTO has allowed three HV300
design patents over the asserted patents: U.S. Patent Nos. D731,720, D738,583, and D742,083.
(SOF 19.)
The HV321 is the next-generation Shark Rocket after the HV300. As shown above, the
HV321 is even more streamlined than the HV300, and also lacks geometric features such as
crown, cones, cylinders, and spheres, except for the cylindrical suction tube. (SOF 22-23;
Ball Decl. Ex. 2 at 171-91.) The HV321 has a motor-in-front-of-the-handle configuration.
(SOF 22-23; Ball Decl. Ex. 2 at 182.) The HV321 does not have a cylindrical dust cup.
(Id.) As with the other Shark Rockets, the HV321 also has a 30-foot long power cord attached to
the back of the hand vacuum rather than a battery. (Id.) The USPTO also allowed three patents
for the HV321 design over all of the asserted patents: U.S. Patent Nos. D738,584, D745,231,
and D762,031. (SOF 24.)
REDACTED VERSION
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The most recent Shark Rocket is the HV381. (SOF 25-27.) The HV381 also has an
overall streamlined theme, like the HV300 and HV321, and also lacks the geometric features of
the crown, cones, cylinders, or spheres (except for the cylindrical suction tube). (SOF 25-27;
Ball Decl. Ex. 2 at 252-68; see id. 269-332) The HV381 has a motor-in-front-of-the-
handle configuration. (SOF 25-27; Ball Decl. Ex. 2 at 265-66.) It also has more angular
styling elements and a non-cylindrical dust cup. (SOF 25-27; Ball Decl. Ex. 2 at 265-66,
272.) The HV381 also has a noticeably larger floor unit design than the HV300 and HV321.
(SOF 25-27; Ball Decl. Ex. 2 at 252-68.) SharkNinjas design patent applications for the
HV381 are currently pending. (SOF 28.)
D. SharkNinjas March 2, 2015 early summary judgment motion
On March 2, 2015, SharkNinja filed an early summary judgment motion arguing that the
Court should summarily determine that the Shark Rockets are plainly dissimilar from the
claimed designs, without needing any claim construction or looking at the prior art. Dkt. 65-66.
On September 2, 2015 the Court denied that motion, and in doing so ruled that the patents
functional aspects and the prior art must be taken into account. Dkt. 125. Without construing
the claims or considering the prior art, the Court held that the overall design of the accused
products is not plainly dissimilar to the patented design. Therefore, the prior art must be taken
into account. Id. at 7. On the issue of functional features, the Court held, at that time, that
[w]hether certain aspects of the design are functional is a question of material fact for the
jury. Id. at 8.
SharkNinja moved for reconsideration because the issue of whether features are
functional is a question of law for the Court. Dkt. 127. In its Order on that motion, the Court
maintained its ruling (without claim construction) of no plain dissimilarity. Id. at 3-4.
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acknowledged that its ruling had been incorrect, id. at 3, but deemed it premature to definitively
resolve the case prior to claim construction, noting that unlike SharkNinjas main authority
(Ethicon), [t]here has been no claim construction in this case, and the parties disagree about
what aspects of the design are functional and to what extent. Id. at 3-4.
E. The Courts October 13, 2016 claim construction Order
On March 2, 2016, the Court held a lengthy Markman hearing. The Court then issued its
claim construction Order on October 13, 2016. Dkt. 293.
In its Order, the Court identified the functional features that are not protected by the
design patent[s] and confined the scope of the asserted patents to the particular shape and
ornamentation depicted in the drawings. Dkt. 293 at 15.9 The functional features include the
straight pistol-grip handle, the long suction tube, the low-profile floor unit and the spherical
wheels. Id. In the Conclusion, the Court stated:
The patents are construed as the ornamental design of the drawings

contained in the patents themselves for the 163 Patent and the
823 Patent and as the replacement drawings for the 010 Patent,
subject to the functionality findings. The straight, pistol-grip
handle, the long tube, and the low-profile floor unit are functional
features that are not protected by the design patent; but the shape
and ornamentation of those features are protected to the extent that
they contribute to the overall ornamentation of the design. The
spherical wheels are functional features that are not protected by
the design patent, but the ornamentation of the spherical wheels are
protected to the extent that it contributes to the overall
ornamentation of the design.
Id. at 15-16.
In view of the claim construction Order and the comparison prior art discussed below,
summary judgment of non-infringement based on the Courts functionality findings is now ripe.
9
Quoting one of Dysons co-pending utility patent[s], the Court also held that the position of
the cylinder was ergonomically-driven, but concluded that its shape and orientation included
ornamental features. Dkt. 293 at 11-12.
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Granting summary judgment of non-infringement based on the Courts functionality findings
would moot the need to reach the other issues also discussed herein.
F. Comparison prior art
Prior to its claim construction identifying functional aspects, the Court held that the
prior art must be considered. Dkt. 125 at 8. This prior art further emphasizes the distinctive
Shark Rocket designs compared to the prior art and the claimed designs.
1. The DC31 manual, U.K. Reg. Des. No. 4,010,242, and U.S. Patent No.
D480,848
As set forth above, Dysons 010 and 823 patents combine various prior art designs.
The hand vacuum is the prior art Dyson DC31, the floor unit design came from the prior art
Dyson DC26 floor unit (described in U.K. Reg. Des. No. 4,010,242 (242 design), and the
cuffed cylindrical suction tube is basically the prior art tube described in U.S. Patent No.
D480,848 (848 patent). This prior art is shown below next to the 010 patent design:
DC31 hand vacuum Cuffed cylindrical suction tube DC26 floor unit
(DC31 manual) (848 patent) (242 design)
010 patent
(SOF 31-34.) SharkNinjas expert, Alan Ball, opined that an ordinary observer familiar with
these prior art designs would see the similarity between this prior art and the claimed designs,
REDACTED VERSION
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and thus further appreciate the significant ornamental differences between the Shark Rockets and
the prior art and claimed designs. (Ball Decl. Ex. 2 at 356, 360, 368; see id. at 355-73.)
Dysons expert, Charles Mauro,
. (SOF 35.)
Each of these prior art references is prior art to the 010 and 823 patents under 35 U.S.C.
102(b). The Dyson DC31 manual bears a publication date of April 20, 2009. (SOF 31.)
Dyson obtained the 242 design registration in the U.K. on August 18, 2009. (SOF 33.) The
848 patent issued on October 14, 2003. (SOF 34.)
2. The 2006 DC16 post
An October 21, 2006 forum post (2006 DC16 post) published on whatsthebest-
vacuum.com is a prior art printed publication under 35 U.S.C. 102(b). It describes a working
stick vac assembled from then-existing Dyson products:
There IS an adapter to allow you to use the attachments that come

in the Dyson Car Cleaning Kit with the DC16. I fitted the
adapter to my DC16, then added the telescopic extension wand
from my DC02 canister, along with the Dyson-Designed Low
Reach Floor Tool, and it picked up perfectly on the floors
(SOF 36 (emphases added).) Shown below is an 010 patent drawing next to a model of the
stick vac described in the 2006 DC16 post:
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010 patent 2006 DC16 post
(SOF 48-52.10) Dyson Rule 30(b)(6) witness and named inventor Peter Gammack testified that
this 2006 DC16 post model is substantially similar to the 010 and 823 patents. (SOF 53.)
Mr. Ball similarly opined that, under Dysons view of claim scope, the stick vac described in the
2006 DC16 post is substantially similar to the 010 and 823 patents. (Ball Decl. Ex. 1 at 221-
23; see Ball Decl. Ex. 1 at 188-220, Ball Decl. Ex. 2 at 342-54.) Mr. Mauro
(SOF 53.)
3. The 2009 DC31 video
Another prior art reference is a YouTube video entitled Dyson Dc31 Modification that
was published on December 28, 2009 (2009 DC31 video). The 2009 DC31 video is prior art
under 35 U.S.C. 102(a). In the video, the author combines the DC31 with a long cylindrical
10
SharkNinjas expert Mr. Ball assembled this model to assist the fact-finder in understanding
the appearance of the stick vac described in the 2006 DC16 post. Young Dental Mfg. Co. v. Q3
Special Prods., Inc., 112 F.3d 1137, 1145-46 (Fed. Cir. 1997) (affirming admission into evidence
of a demonstrative model of prior art, where the model was accurate and the patent owner had
the opportunity to cross-examine all witnesses relying on the model). Mr. Ball opined that each
model component accurately reflects the DC16 and the other Dyson parts, relying on the
testimony of Dysons Rule 30(b)(6) witness and publicly available information (including
Dysons own website). (SOF 48-52; Ball Decl. Ex. 1 at 180-220; see Ball Decl. Ex. 2 at
342-54.) Dyson had the opportunity to depose Mr. Ball about this model during his deposition.
REDACTED VERSION
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suction tube and a low-profile floor unit. (SOF 54; Ball Decl. Ex. 1 at 238-40.) An image
from the 2009 DC31 video appears below, next to the 010 patent:
010 patent 2009 DC31 video
Dysons Rule 30(b)(6) witness and named inventor Mr. Gammack testified that
(SOF 59.) Mr. Ball similarly opined that the overall appearance of the stick vacuum
in the 2009 DC31 video is substantially the same as the overall appearance of the design claimed
in the 010 and 823 patents. (Ball Decl. Ex. 1 at 233-43; see Ball Decl. Ex. 2 at 342-54.)
Mr. Mauro
. (SOF 59.)
4. The 2005 Peace sketch
11
(SOF 60, 62.) The 2005 Peace sketch is prior art under 35
11
Mr. Peace is no longer at Dyson. Dyson contends that
. (SOF 62-
64.) SharkNinja disputes this contention. Regardless, for purposes of this motion, it is
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U.K. Patent Application No. GB 2 035 787 A (GB2035787) was published on June 25, 1980
and is prior art to the 163 patent under 35 U.S.C. 102(b). (SOF 69.) GB2035787 describes
a pistol-grip hand vacuum with an upright cyclone separator close to the handle and a suction
nozzle at the front. (SOF 69; see Ball Decl. Ex. 1 at 370-73, Ball Decl. Ex. 2 at 399-
401.) JP2002-85297 was published on March 26, 2002 and is prior art to the 163 patent under
35 U.S.C. 102(b). (SOF 70.) JP2002-85297 also describes a pistol-grip hand vacuum with a
separator in front of the handle and a suction nozzle at the front, but with an overall shape that
includes a more angled handle and a power cord. (SOF 70; Ball Decl. Ex. 1 at 380-83, Ball
Decl. Ex. 2 at 399-401.)
II. LEGAL STANDARDS
A. Functional features require strictly confining claim scope to the ornamental

features depicted in the patent drawings.
Whether a design patent is infringed is determined by first construing the claim to the
design, when appropriate, and then comparing it to the design of the accused device. OddzOn,
122 F.3d at 1404-05) (citing Elmer, 67 F.3d at 1577). After construing the design, infringement
is governed by the Supreme Courts ordinary observer test announced long ago in Gorham:
[I]f, in the eye of an ordinary observer, giving such attention as a

purchaser usually gives, two designs 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.
81 U.S. at 528; see Egyptian Goddess, 543 F.3d at 678; see also Arminak & Assocs., Inc. v.
Saint-Gobain Calmar, Inc., 501 F.3d 1314, 1323 (Fed. Cir. 2007) (ordinary observer makes a
reasonably discerning purchasing decision between claimed and accused designs).
Summary judgment of non-infringement is warranted when the nonfunctional,
ornamental aspects of the claimed and accused designs [are] plainly dissimilar . . . Ethicon, 796
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Finally, in Lee v. Dayton-Hudson, the Federal Circuit affirmed final judgment of
noninfringement after a bench trial. 838 F.3d at 1190. Shown below are claimed and accused
designs for massage devices that were at issue in Lee:
Claimed design Non-infringing accused product
The patentee argued that the different details did not matter, and that the patent is perforce
infringed by a massage device with [the same] general configuration. 838 F.2d at 1188. The
Federal Circuit disagreed, holding that [d]esign patents do not and cannot include claims to the
structural or functional aspects of the article . . . . Id. (collecting cases). Thus, all the claimed
details mattered and the district court correctly viewed the design aspects of the accused
devices: the wooden balls, their polished finish and appearance, the proportions, the carving on
the handle, and all other ornamental characteristics, considered to the extent that they would be
considered by the eye of an ordinary observer, Gorham, 81 U.S. at 528. Id. (emphasis added).
The Federal Circuit agreed with the district court that the differences in appearance . . . are
sufficient to make apparent to an ordinary observer that one design is not the other. Id.
With the Courts claim construction Order now in place, this case is ripe for summary
judgment of non-infringement, as the foregoing cases show. To sum up, the Federal Circuit
strictly construes design patents that have functional features to ensure that only the ornamental
features are protected and to deny a patent monopoly, through a design patent, to functional
features or general design concepts or categories. E.g., Ethicon, 796 F.3d at 1334. Alleged
similarity in terms of general or overall shape is insufficient as a matter of law to show
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design patent infringement. Id. at 1333 (Similarity at [a] conceptual level . . . is not sufficient to
demonstrate infringement of the claimed designs.). To the contrary, a patentee must prove
substantial ornamental similarity, as defined by the particular shapes and ornamentations that are
depicted in the patent drawings, and claimed details matter significantly in this regard. Lee, 838
F.2d at 1188-89. Given this law, Dyson cannot meet its burden of proof in this case.
B. Prior art provides a frame of reference for assessing differences and

similarities of the accused designs, the prior art, and the claimed designs.
As Judge Darrah held here, in some cases, the design patent non-infringement inquiry can
benefit from using the prior art as a frame of reference to compare the similarities and
differences among the accused designs, the prior art, and the patent drawings. Dkt. 125 at 8.
Accordingly, in Egyptian Goddess, the Federal Circuit held that the ordinary observer is
conversant in the prior art and makes an informed visual comparison of the accused designs
differences and similarities to the prior art references and the patent drawings. Egyptian
Goddess, 543 F.3d at 678 ([D]ifferences between the claimed and accused designs that might
not be noticeable in the abstract can become significant to the hypothetical ordinary observer
who is conversant with the prior art); see also Richardson, 597 F.3d at 1295 (The patentee
must establish that an ordinary observer, familiar with prior art designs, would be deceived into
believing that the accused product is the same as the patented design.).
The Federal Circuit crafted the Egyptian Goddess prior art test from the Supreme Courts
non-infringement analysis in Smith v. Whitman Saddle Co., 148 U.S. 674 (1893). See Egyptian
Goddess, 543 F.3d at 672-74. In Whitman Saddle, the Supreme Court relied on a combination of
two prior art references, the front half of one saddle (Granger) and the back end of another
(Jenifer). 148 U.S. at 680-82. The Supreme Court used that combination of prior art as its
frame of reference for non-infringement. Id. The claimed design was essentially a combination
REDACTED VERSION
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of those two prior art elements, but added a distinctive drop of the pommel feature. Id. at 682.
The Supreme Court held that the accused saddle did not infringe because it lacked the particular
drop of the pommel feature of the claimed design. Id.
In Egyptian Goddess, the asserted 389 patent claimed a hollow nail buffer with a
generally square cross-section and featuring buffer surfaces on three of its four sides. 543 F.3d
at 668. The accused Swisa buffer was a hollow tube having a square cross-section, but
featuring buffer surfaces on all four of its sides. Id. The court also considered a combination of
prior art references (Falley Buffer Block and Nailco Patent). Id. at 681. The prior art,
accused design, and claimed design are shown below:
Similar to the Supreme Courts approach in Whitman Saddle, the Federal Circuit in
Egyptian Goddess relied on a combination of prior art, i.e., the Falley Buffer Block (a solid,
square cross-section buffer with pads on four sides) and the Nailco Patent (a hollow, triangular
cross-section buffer with pads on three sides), shown above. The court affirmed summary
judgment of non-infringement, even though the claimed and accused designs had the same
overall shape. Egyptian Goddess, 543 F.3d at 682-83. The combination of prior art confirmed
that the ordinary observer would notice the one feature that was different between the claimed
and accused designs, i.e., the presence or absence of a fourth nail buffing pad. Id.
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As Whitman Saddle and Egyptian Goddess establish, the ordinary observer uses prior art
designs and combinations thereof to better appreciate the differences and similarities in the
accused design, the prior art, and the patent drawings. A helpful example of how this analysis
works is Judge Lees recent decision granting summary judgment of non-infringement in a
design patent case, Voltstar Techs., Inc. v. Amazon.com, Inc., No. 13 C 5570, 2014 U.S. Dist.
LEXIS 102306 (N.D. Ill. July 28, 2014) (Lee, J.), summarily affd, 599 F. Appx 385 (Fed. Cir.
Apr. 14, 2015) In Voltstar, Judge Lee considered the claimed, accused, and prior art designs for
USB plug in devices. He found that, while the claimed and accused designs shared a taper
feature (shown below in yellow) not depicted in the prior art, the two tapers were distinctly
different because the claimed plug had a plateau (middle image, blue) while the accused plug
had a lip (right image, pink):
Prior art Claimed design Non-infringing accused design
Id. at *12. He then considered end-on views showing the flatter sides of the more box-like
claimed design compared to the more-rounded, lozenge-like accused design and the prior art
(see green arrows):
Prior art Claimed design Non-infringing accused design
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- 26 -
Id. at *12-13. Considering these two different plateau and lozenge details as well as
similarities he held that while all three may share some features among them, a reasonable
juror could not confuse any of them for each other, including the accused and patented designs.
Id. at *13. As in Voltstar, the prior art in this case further demonstrates key ornamental
differences between the claimed and accused designs, such as the prominent crown of cyclones
feature that appears in the claimed designs (and certain prior art), as highlighted in yellow below,
but not the Shark Rockets:
Prior art 010 patent Shark Rocket HV321
Prior art 163 patent Shark Rocket HV321
The conspicuous differences between the claimed crown and the accused designs, as well as
numerous other differences, become even more clear when the prior art is considered as a point
of reference.
REDACTED VERSION
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III. ARGUMENT
After accounting for the functional features that are not protected by Dysons design
patents and confining claim scope to the shape and ornamentation that is depicted in the
drawings, there is no genuine dispute that an ordinary observer, giving such attention as
purchasers usually give, would not purchase a Shark Rocket design believing it to be the same as
the designs depicted in the asserted patents. For this reason alone, SharkNinja is entitled to
summary judgment of non-infringement as to all asserted patents. Ethicon, 796 F.3d at 1337.
As discussed above, Judge Darrah identified the functional aspects of the claimed
designs, including the pistol-grip handle (shown in yellow below), the long suction tube (blue),
the low-profile floor unit (pink), and the spherical wheels (green):
See Dkt. 293 at 15-16. Accordingly, it is not enough for Dyson to show that the Shark Rockets
have pistol-grip hand vacuums with long tubes and low-profile floor units with wheels. See, e.g.,
Ethicon, 796 F.3d at 1336 (Similarity at [a] conceptual level . . . is not sufficient to demonstrate
infringement of the claimed designs.).12 Instead, Dyson must prove that the ornamental
features in the Shark Rockets combine to provide substantially the same overall ornamental
appearance to the protected ornamental appearance of the patented designs. Dyson cannot do
12
See also, e.g., Richardson, 597 F.3d at 1296 ([I]gnoring the functional elements of the
[claimed and accused] tools, the two designs are indeed different.); OddzOn, 122 F.3d at 1405
(rejecting contention that overall similarity of the rocket-like appearance is sufficient to show
infringement); Lee, 838 F.2d at 1188 (rejecting contention that the patent is perforce infringed
by [an accused product] with that general configuration and affirming non-infringement based
on different surface details).
REDACTED VERSION
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this because the ornamental features in the Shark Rockets (which Dyson improperly ignores or
downplays) create their own distinctive appearances. Under the Courts claim construction and
Federal Circuit law limiting the scope of Dysons patents to their non-functional, ornamental
aspects, the Court should grant summary judgment of non-infringement as to all asserted patents.
A comparison to the prior art further confirms that the Shark Rockets have their own
unique appearances compared to the prior art and the claimed designs. This prior art shows that
the ornamental aspects, as depicted and arranged in the patent drawings, are missing from the
Shark Rockets. In fact, even though just one distinguishing feature sufficed to find non-
infringement in Whitman Saddle and Egyptian Goddess, the Shark Rockets lack numerous
ornamental aspects, individually and in combination, that are depicted in the prior art and in the
patent drawings. As Judge Lee held in Voltstar v. Amazon, although analyzing the prior art was
unnecessary in his case, it nevertheless bolsters the conclusion that there is no infringement in
this case. 2014 U.S. Dist. LEXIS 102306, at *10. Thus, for this additional and independently-
sufficient reason, SharkNinja is entitled to summary judgment of non-infringement of asserted
patents.
Alternatively, under Dysons view of claim scope, which improperly reads out all of
the ornamental aspects depicted in the drawings and reads in all of the functional features that
the Court explicitly held were not protected by the asserted patents, there is no distinction
between the claimed designs and the prior art. Thus, if Dysons view of claim scope is allowed,
and overall shape is all that is required, then the Court should grant summary judgment that the
asserted patents are invalid for anticipation.
REDACTED VERSION
- 29 -
A. The Shark Rockets do not infringe the 163 patent under the Courts claim
construction Order, and further in view of the prior art.

appearance than the design claimed in the 163 patent.
When the functional aspects identified in the Courts claim construction are properly
considered and claim scope is confined to the claimed arrangement of ornamental features
depicted in the drawings, no ordinary observer would buy a Shark Rocket hand vacuum thinking
it was the same as the 163 patent design. For this reason alone, the Court should grant summary
judgment of non-infringement as to the 163 patent.
The Shark Rockets hand vacuums lack the claimed arrangement of ornamental features
depicted in the 163 patent drawings, as shown below:
163 Patent HV300
HV321 HV381
On an overall theme level, the Shark Rockets have streamlined shapes with flowing contours that
create an aerodynamic look, whereas the Dyson design has regular geometric shapes like the
crown, cylinders, cones, tubes, and rectangles that create an industrial, machine-like look. See
REDACTED VERSION
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Richardson, 597 F.3d at 1296 (In a side-by-side comparison with the [claimed] design, the
overall effect of this streamlined theme makes the [accused] tools significantly different from
[the boxy claimed] design.).
As shown above, major claimed features and details in Dysons 163 patent drawings are
either missing or substantially different in the Shark Rocket designs. For example, Dysons
striking crown or array of cyclones, connected to tubes reminiscent of engine manifolds, are
not found in any Shark Rocket. The claimed battery housing beneath the handle also is
conspicuously absent, and for good reason: No Shark Rocket has a battery. To the contrary, all
Shark Rockets have a 30 foot power cord coming out the back, and an ordinary observer could
not miss it. No Shark Rocket has a cylindrical dust cup, either. Finally, no Shark Rocket has a
cylindrical motor housing above the handle; instead, the motor is either below the handle or in
front of it. These different ornamental design aspects (and others) are summarized in Mr. Balls
report. (Ball Decl. Ex. 2 at 105, 192, 274.) All of these differences create a substantially
different visual appearance for each design in the eyes of the ordinary observer. Ethicon, 796
F.3d at 1337; Richardson, 597 F.3d at 1296; OddzOn, 122 F.3d at 1407; Elmer, 67 F.3d at 1577-
78; Lee, 838 F.2d at 1188; see also Voltstar, 2014 U.S. Dist. LEXIS 102306, at *8-9.
Dyson offers no analysis of whether any of the nonfunctional, ornamental aspects create
the necessary overall similarity, and that is fatal to Dysons infringement claim. OddzOn, 122
F.3d at 1405 (rejecting patentees expert testimony that was wholly conclusory and devoid of
any analysis regarding whether the ornamental features created the overall similarity); see also
Lee, 838 F.2d at 1188. Instead, Dyson contends that there is similarity only at the abstracted
levels of pistol-grip, and suction tube and suction device shapes. (SOF 29-30; Evans
Decl. Ex. 22, Mauro Supp. Inf. Rept. 72; Dkt. 75 & 78 Ex. A at 144; Ball Decl. Ex. 2 at
REDACTED VERSION
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407-24.) Putting aside that the actual shapes and ornamentations of the patented and
accused designs look different (as discussed and shown above), Dyson fails to account for the
functional features that the Court expressly held are not protected by the design patents,
including the pistol-grip.13 Dkt. 293 at 15-16. Dyson and its expert ignore the strikingly
different shapes and ornamentations depicted in the patent drawings, instead insisting in
conclusory fashion that they are minor differences in detail. (Evans Decl. Ex. 22, Mauro Supp.
Inf. Rept. 46, 67, 90.) This defies not only the law, e.g., Lee, 838 F.2d at 1188, but common
sense. It is akin to saying that two adults of the same height and weight look the same because
they each have a head, arms, hands, trunks, legs, and feet, while ignoring their faces and other
distinguishing details. Contrary to Dysons arguments, the shapes and ornamentations depicted
in the patent drawings are not minor; they are the only subject matter that Dyson can
permissibly claim under the Courts claim construction and controlling law.
Further, even though Dysons proposed expert testimony should be excluded as
unreliable and irrelevant,14 his opinions support non-infringement. He offered this so-called
Overlapping Transformational Alignment figure (whatever that means):
13
Dysons expert admits that the functional pistol-grip feature contributes significantly to the
overall visual impression of the 163 patent claim. (SOF 30.) Nonetheless, he did nothing to
account for the Courts holding that this feature is not protected by the 163 patent or
otherwise confine claim scope to the ornamental aspects depicted in the drawings.
14
Because of the problems with his infringement opinions (and others), SharkNinja has
concurrently filed a motion to exclude the opinions of Dysons expert Mr. Charles Mauro.
SharkNinja hereby incorporates the arguments set forth in that motion by reference.
REDACTED VERSION
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(Evans Decl. Ex. 22, Mauro Supp. Inf. Rept. App. H.) Nothing aligns in this picture, which
only highlights the different designs. The Shark Rocket can be clearly seen behind the claimed
design, despite Mr. Mauros attempts to obscure the ornamental appearance of the HV381
product by painting it white and clipping off its 30-foot power cord (neither of which an ordinary
observer would do during normal use or while making a purchasing decision). Indeed, Mr.
Mauro had nothing to say about this lack of alignment in his report, and for good reason: This
image confirms that the Shark Rockets have different structural elements (e.g., they lack the
claimed battery pack housing, and instead have a power cord that is almost 30 feet long) that are
arranged in a different configuration (e.g., they have no motor above the handle, but rather
underneath the handle (the HV300) or in front of it (the HV321 and HV381)) with entirely
different ornamental features (e.g., they lack Dysons crown or cyclone array, the cylindrical
motor housing, and the flat battery pack housing, among many others).
The USPTO confirmed this distinctive dissimilarity when it granted SharkNinja its own
design patents over the 163 patent. SharkNinjas design patents on the distinctive Shark Rocket
hand vacuums are shown below next to the 163 patent:
REDACTED VERSION
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163 patent HV321 hand vacuum HV300 hand vacuum

(U.S. Patent No. D745,231) (U.S. Patent No. D731,720)
SharkNinjas design patents were allowed over the 163 patent by the same examiner who
originally examined the 163 patent (Ms. Ruth McInroy). (SOF 19, 24.) The fact that the
same examiner considered both the 163 patent and the Shark Rockets designs under the
ordinary observer test, and then concluded that the HV300 and HV321 designs were not
substantially the same as the 163 patent, further confirms that the Shark Rockets are
distinctively different from the 163 patent.15 See, e.g., RNA Corp. v. Procter & Gamble Co.,
747 F. Supp. 2d 1008, 1019 (N.D. Ill. 2010) (Zagel, J.) (separate design patent on accused design
lent support to the lack of infringement of [patentees] design by the [accused] product);
Thomas Indus., Inc. v. Gast Mfg., Inc., No. 04-C-375-C, 2005 WL 1400391, at *14 (W.D. Wis.
June 14, 2005) (non-infringement supported by fact that separate patent on accused product was
allowed by the same examiner who originally examined the patent-in-suit); cf. Natl Presto
Indus., Inc. v. West Bend Co., 76 F.3d 1185, 1192 (Fed. Cir. 1996) (The fact of separate
patentability is relevant [to non-infringement], and is entitled to due weight.).
Dyson also illustrated the inconsistency of any claim that details dont matter by
seeking, and obtaining, its own separate design patents for its later-generation hand vacuum
15
The Manual for Patent Examining Procedures (MPEP) requires examiners to apply the same
ordinary observer test to determine whether an application is anticipated by the prior art as the
test that courts use to determine infringement. MPEP 1504.02 ([T]he ordinary observer test is
the sole test for anticipation.) (quoting Intl Seaway, 589 F.3d at 1239-40).
REDACTED VERSION
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designs, including the DC59 (U.S. Patent No. D731,134) and the V6 and V8 (U.S. Patent Nos.
D739,102, D741,558, D747,571, and D747,572). (SOF 16.) The hand vacuum designs that
Dyson and the USPTO believed were so ornamentally-distinctive as to be worthy of their own
separate design patent protection over the 163 patent are shown below:
163 patent U.S. Patent No. D739,102 U.S. Patent No. D741,558
U.S. Patent No. D731,134 U.S. Patent No. D747,571 U.S. Patent No. D747,572
That Dyson applied for, and the USPTO agreed to grant, separate patents on its own later-model
hand vacuum designs further confirms that details matter, that the 163 patent has limited
claim scope, and that a finding of non-infringement is warranted. Great Neck Saw Mfrs., Inc. v.
Star Asia U.S.A., LLC, 727 F. Supp. 2d 1038, 1057 (W.D. Wash. 2010) (The Primary
Examiners conclusion that the claimed designs are sufficiently dissimilar to each other to
warrant separate patents supports the Courts view that the subtle but greater differences between
the claimed designs and the accused device requires a judgment of non-infringement.) Dyson
should not be able to gain the benefit of separate patents for its own different designs, yet argue
that the much more different Shark Rocket designs are within the scope of the patents-in-suit.
In sum, there are many differences between the Shark Rockets hand vacuum designs and
the ornamental features and details depicted in the 163 patent drawings, as construed by the
Court. See Ethicon, 796 F.3d at 1337 ([A]t the proper level of granularity, the claimed
REDACTED VERSION
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ornamental designs of the Design Patents are, as a whole, plainly dissimilar from the ornamental
design of [the] accused [products].). There is no genuine dispute that the 163 patent, as
construed by the Court, is not infringed by any Shark Rocket hand vacuum. For this reason
alone, summary judgment of non-infringement is appropriate as to the 163 patent. Id. at 1337.
2. The prior art further proves that no one would confuse the Shark
Rockets with the 163 patented design.
As in Voltstar, the prior art in this case teaches that there are different designs for pistol-
grip hand vacuums and the ordinary observer could not confuse any of them for each other,
including the accused and patented designs. Voltstar, 2014 U.S. Dist. LEXIS 102306, at *13.
For similar reasons, the ordinary observer would recognize that the Shark Rockets and
the 163 patent each depart from the prior art pistol-grip hand vacuums in different ways.
Prior art pistol-grip hand vacuum designs confirm that the Shark Rockets hand vacuums are
different from both the prior art and from the 163 patent drawings:
163 patent JP2002-85297 (top) and HV300 (top), HV321 (middle)

GB2035787 (bottom) and HV381 (bottom)
As shown above, the overall shape of a pistol-grip or point and shoot configuration with a
suction nozzle was known in the prior art. (SOF 69-70; Ball Decl. Ex. 2 399-406.)
Further, similar to the different taper and lozenge features in Voltstar, the ordinary observer
REDACTED VERSION
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would notice that the claimed designs differ from prior art pistol-grip hand vacuums and from
the Shark Rockets in several major respects, including, for example, Dysons striking crown or
array of cyclones (as discussed above), the flat battery housing, the cylindrical dust cup, and the
cylindrical motor housing. And each Shark Rocket has a 30 foot power cord. These and other
ornamental distinctions of the Shark Rockets from the claimed design (and the prior art) are
discussed above in Section III.A, and summarized in Mr. Balls report (Ball Decl. Ex. 2 at
105, 192, 274.) For this additional and independent reason, the Court should grant summary
judgment of non-infringement as to the 163 patent.
B. The Shark Rockets do not infringe 010 and 823 patents under the Courts
claim construction, and further in view of the prior art.

appearance than the claimed 010 and 823 patent designs.
After properly accounting for the features that the Court identified as functional and
limiting claim scope to the claimed combination of ornamental aspects depicted in the patent
drawings, no reasonable jury could find that an ordinary observer who devotes the attention that
purchasers usually do would purchase a Shark Rocket thinking it to be the same as Dysons
designs in the 010 and 823 patents. For this reason alone, SharkNinja is entitled to summary
judgment of non-infringement as to the 010 and 823 patents. Ethicon, 796 F.3d at 1337.
On an overall styling level, the Shark Rockets have a streamlined, aerodynamic theme
with non-geometric shapes (e.g., teardrops, ovals, and racetracks) and flowing contours, whereas
Dysons design features regular geometric shapes (e.g., cylinders, cones, tubes, and rectangles)
and perpendicular angles that create Dysons more industrial, machine-like look. See
Richardson, 597 F.3d at 1296 (holding that the streamlined theme of accused crowbar design
REDACTED VERSION
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created a different visual impression than the boxy theme of the claimed design). The different
designs are shown below:
010 patent (top) and 823 patent (bottom; claimed elements in gray)
HV300 (top), HV321 (middle), HV381 (bottom)
In assessing design patent infringement, all views must be considered (not just a side view).
Contessa, 282 F.3d at 1378 ([T]he ordinary observer analysis is not limited to the ornamental
features of a subset of the drawings, but instead must encompass the claimed ornamental features
of all figures of a design patent.). As shown below, additional views confirm the ornamental
REDACTED VERSION
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differences of the Shark Rockets, such as the comparisons of the hand vacuum and floor unit
designs shown below:
Left to right: 823 patent, 010 patent, HV300, HV321, and HV381 hand vacuum designs
010 patent floor unit HV381 floor unit
REDACTED VERSION
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As shown above, and consistent with the ornamental differences noted above for the 163
patent, major claimed features and details in Dysons 010 and 823 patent drawings are either
missing or significantly different in the Shark Rocket designs. No Shark Rocket includes the
prominent crown or array of cyclones or flat battery housing. All Shark Rockets have a
prominent 30 foot power cord coming out the back. Nor do any Shark Rockets have a
cylindrical motor housing above the handle, or a cylindrical dust cup. The Shark Rocket floor
units have completely different sizes, shapes, and ornamentations. They are much wider overall,
have a pair of flat-sided wheels, and lack the prominent spherical wheels claimed in the 010
patent. These and other design distinctions between the 010 and 823 patents and the Shark
Rockets are summarized in Mr. Balls report (Ball Decl. Ex. 2 138, 162-63, 225, 245, 303,
323). The combined effect of these differences creates a substantially different visual
appearance for each design in the eyes of the ordinary observer. Ethicon, 796 F.3d at 1337;
Richardson, 597 F.3d at 1296; OddzOn, 122 F.3d at 1407; Elmer, 67 F.3d at 1577-78; Lee, 838
F.2d at 1188; see also Voltstar, 2014 U.S. Dist. LEXIS 102306, at *8-9.
Here, as well, Dyson offers no analysis of whether any of the nonfunctional, ornamental
aspects create the necessary overall similarity, and that is fatal to Dysons infringement claim.
REDACTED VERSION
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OddzOn, 122 F.3d at 1405. In the case of the 010 and 823 patents, Dyson contends that there is
similarity only at the abstracted level of pistol-grip, suction tube, and floor suction shapes.
(SOF 29; Evans Decl. Ex. 22, Mauro Supp. Inf. Rept. at 28; Ball Decl. Ex. 2 at 407-24.)
Once again, as shown above, the actual shapes and ornamentations of the patented and accused
designs are different (as discussed and shown above), and these are, again, all functional features
that are not protected by the design patents.16 Dkt. 293 at 15-16. As with the 163 patent,
Dyson and its expert offer only the unexplained (and wrong) conclusion that the strikingly
different shapes and ornamentations depicted in the patent drawings amount to minor
differences in detail. (Evans Decl. Ex. 22, Mauro Supp. Inf. Rept. 46, 67, 90.) Again, Dyson
defies the Courts claim construction Order, controlling law, and common sense. The
ornamental shapes and ornamentations depicted in the patent drawings represent the outer limits
of what Dyson can protect with design patents, and the Shark Rockets are well outside those
limits under the Courts claim construction.
As with the 163 patent, the experts at the USPTO have provided a helpful reality
check for the analysis here. The USPTO has recognized that the designs of the Shark Rockets
are patentably distinct from the asserted designs by granting SharkNinja its own design patents
over the asserted patents, as discussed above. By issuing these separate design patents, the
USPTO has determined that the HV300 and HV321 designs are not substantially similar to the
asserted designs. The separate patents awarded to SharkNinja for the Shark Rockets designs
further confirm that their ornamental appearances are substantially dissimilar from the asserted
16
Dysons expert also admitted that the functional pistol-grip, suction tube, low-profile floor
unit, and spherical wheels features contribute significantly to the overall visual impression of
the 010 and 823 patents, and that they correspond to his so-called salient shapes. (SOF 29.)
Nonetheless, he did nothing to account for the Courts holding that these functional features are
not protected by the design patents, Dkt. 293 at 15-16, or restrict claim scope to the ornamental
shapes and ornamentations depicted in the patent drawings.
REDACTED VERSION
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designs and that there is no infringement. RNA, 747 F. Supp. 2d at 1019-20; Thomas Indus.,
2005 WL 1400391, at *14; cf. Natl Presto, 76 F.3d at 1191-92.
Further, the USPTO also determined that even Dysons later-generation hand and stick
vac designs (for its DC59, V6, and V8 models) are not substantially similar to the asserted
patents which further confirms their limited claim scope. For example, Dyson sought, and
obtained, separate design patents on its later-generation DC59 stick vac designs (shown below),
which were allowed over the 010 and 823 patents:17
U.S. Patent No. D731,130 (DC59 design)
U.S. Patent No. D731,134 (DC59 design)
010 patent
823 patent (claimed elements in gray)
17
In fact, the same examiner who examined and allowed Dysons asserted patents (Ms. Ruth
McInroy) determined that five HV300 and HV321 designs were patentably distinct from the
asserted designs. (SFO 29, 40.) Ms. McInroy also examined and allowed Dysons separate
design patents covering Dysons later-generation hand and stick vacuum designs, the DC59, V6,
and V8. (SOF 16.)
REDACTED VERSION
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(SOF 16.) The fact that Dyson believed and the USPTO agreed that its own later-
generation designs, such as the DC59, were so ornamentally distinctive to be deserving of their
own design patent protection over the asserted patents belies Dysons claim in this case that
details dont matter and further supports a finding of non-infringement. Great Neck Saw, 727
F. Supp. 2d at 1056-57. Again, Dyson should not be allowed to represent to the USPTO
successfully that its own different designs are not substantially similar to the patents-in-suit,
yet argue to this Court that the much more different Shark Rocket designs are somehow within
the scope of the patents-in-suit.
There is no genuine dispute that when functional features are properly accounted for and
claim scope is limited to the shapes and ornamentations depicted in the 010 and 823 patent
drawings, an ordinary observer would not purchase a Shark Rocket design thinking it to be the
claimed designs. See Ethicon, 796 F.3d at 1337. For this reason alone, summary judgment of
non-infringement is warranted.
2. The prior art highlights the Shark Rockets distinct ornamental

appearances, and further confirms non-infringement of the 010 and
823 patents.
A comparison to the prior art further confirms that the Shark Rockets have their own
unique appearances compared to the prior art and the asserted design patents. Even though just
one distinguishing feature sufficed to find non-infringement under Whitman Saddle and Egyptian
Goddess, the Shark Rockets are missing many the ornamental aspects that are arranged and
depicted in the prior art and in the patent drawings. Thus, for this additional and independently-
sufficient reason, SharkNinja is entitled to summary judgment of non-infringement.
REDACTED VERSION
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(a) The DC31 manual, 242 design, and 848 patent teach the
ordinary observer that the Shark Rockets have distinct
ornamental designs.
The ordinary observer would appreciate the Shark Rockets distinct appearances in view
of the prior art DC31 manual, DC26 floor unit design (as claimed in the 242 design), and the
cuffed cylindrical tube claimed in the 848 patent, which are shown below:
DC31 manual 848 patent 242 design
010 patent (top) and 823 patent (bottom)
Shark Rockets (HV300 (top), HV321 (middle), HV381 (bottom))
REDACTED VERSION
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The ordinary observer, using this combination of prior art as a frame of reference, would notice
that the Shark Rockets have distinctively different designs.18 For example, the ordinary observer
would know that the asserted patent drawings include the same or substantially the same
ornamental designs as the prior art DC31 manual, 242 design, and 848 patent. Thus, the
ordinary observer would know that, insofar as the claims have any distinctions over the designs
in the prior art, those distinctions do not appear in the Shark Rockets. Whitman Saddle, 148 U.S.
at 680; Egyptian Goddess, 543 F.3d at 682-83. As set forth above, Dysons expert admitted as
much. (SOF 35.) By contrast, the ordinary observer also would see that the Shark Rockets
have distinctly different designs, as reflected in the ornamental differences discussed in
Section III.B and summarized in Mr. Balls report. (Ball Decl. Ex. 2 at 138, 162, 225, 245,
303, 323, 355-73.). This prior art, standing alone, supports the conclusion that an ordinary
observer would not buy a Shark Rocket thinking it is the same as the patent drawings.
(b) The 2006 DC16 post and the 2009 DC31 video further show the
ordinary observer that the Shark Rockets differ from the
asserted patents.
As discussed above, the 2006 DC16 post and the 2009 DC31 video are two prior public
descriptions of stick vac designs assembled from same or similar hand vacuum, floor unit, and
suction tube designs as those in the 010 and 823 patents. The following shows the designs
described in the 2006 DC16 post and the 2009 DC31 video, next to the 010 and 823 patents
and the Shark Rockets:

18
While it is true that the ordinary observer analysis considers the prior art, the claimed
design, and the accused designs as overall designs, that does not mean that the ordinary observer
does not consider elements or features as part of that analysis. See Egyptian Goddess, 543 F.3d
at 682-83 ([W]e are satisfied that the [single element] difference on which the district court
focused is important, viewed in the context of the prior art.); see also Whitman Saddle, 148 U.S.
at 682 (finding non-infringement because accused design lacked single claimed feature of the
sharp drop of the pommel at the rear); Voltstar, 2014 U.S. Dist. LEXIS 102306, at *12-13.
REDACTED VERSION
- 45 -
2009 DC31 video (left) and 2006 DC16 post (right) 010 patent (left) and 823 patent (right)
Shark Rockets (HV300 (left), HV321 (middle), HV381 (right))
REDACTED VERSION
- 46 -
(Ball Decl. Ex. 2 at 342.) The following shows the different hand vacuum designs of the prior
art and claimed designs next to the Shark Rockets hand vacuums:
2009 DC31 video (left) and 2006 DC16 post (right) 010 patent (left) and 823 patent (right)
Shark Rockets (HV300 (left), HV321 (middle), HV381 (right))
(Ball Decl. Ex. 2 at 342.) For the same reasons discussed above, the ordinary observer would
recognize that the patent drawings are the same or substantially the same ornamental hand
vacuum, floor unit, and tube designs as described in the 2009 DC31 video and the 2006 DC16
post. Dysons Rule 30(b)(6) witness and named inventor Peter Gammack testified that
(SOF 53, 59.) Dysons expert did as well. (SOF 53, 59.) Again, the ordinary observer
familiar with this prior art would understand that none of the features in the claimed designs that
REDACTED VERSION
- 47 -
deviate from the prior art (if any) appear in the Shark Rockets. With this additional prior art as a
frame of reference, the ordinary observer would notice the ornamental differences discussed in
Section III.B and summarized in Mr. Balls report. (Ball Decl. Ex. 2 at 138, 162, 225, 245,
303, and 323.) This additional prior art independently supports the conclusion that an ordinary
observer would not buy a Shark Rocket thinking it is the same as the Dyson designs.
(i) The 2006 DC16 post is a printed publication.
Because Dyson cannot challenge the substantial similarity of the stick vac described in
the 2006 DC16 post, Dyson disputes the 2006 DC16 posts status as a prior art printed
publication under 35 U.S.C. 102(b). Contrary to Dysons technical challenges, the 2006
DC16 post was publicly accessible, and thus qualifies as a printed publication, before the
critical date of the 010 and 823 patents (August 27, 2009) and before Dysons earliest patent
application filing date (August 27, 2010).19 It therefore qualifies as prior art under both 35
U.S.C. 102(a) and (b).
Because there are many ways in which a reference may be disseminated to the interested
public, public accessibility has been called the touchstone in determining whether a reference
constitutes a printed publication bar under 35 U.S.C. 102(b). Suffolk Techs., LLC v. AOL,
Inc., 752 F.3d 1358, 1364 (Fed. Cir. 2014) (citation omitted). A given reference is publicly
accessible upon a satisfactory showing that such document has been disseminated or otherwise
made available to the extent that persons interested and ordinarily skilled in the subject matter or
art exercising reasonable diligence, can locate it. Id.
19
The 010 and 823 patents claim the benefit of the European Community registered design
applications filed in August 27, 2010, which is the relevant date for determining prior art under
35 U.S.C 102(a). (SOF 12, 14.) The critical date of the 010 and 823 patents for purposes
of determining prior art under 35 U.S.C. 102(b) is one year earlier, August 27, 2009.
REDACTED VERSION
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Whether a reference is publicly accessible is a low threshold. Indeed, before the
internet was part of everyday life, a single copy of a dissertation (in German) that was likely to
have been shelved in a library (in a German university) at the relevant time qualified as a
printed publication because it was sufficient[ly] accessib[le] to those interested in the art
exercising reasonable diligence. In re Hall, 781 F.2d 897, 900 (Fed. Cir. 1986). Naturally, the
law adapts to new technologies and the impact of the internet on public accessibility is no
exception. In Suffolk Technologies v. AOL, for example, the Federal Circuit held that a Usenet
newsgroup post published on June 29, 1995 was a prior art printed publication. 752 F.3d at
1364-65. The posts audience included those skilled in the art because those of ordinary skill in
the art actually were using such newsgroups. Id. at 1364. Similarly, even though that post
(unlike the post here) was non-indexed and non-searchable20 the newsgroups were organized
in a hierarchical manner and thus, someone interested in [the subject matter] could easily
locate a list of posts in this newsgroup. Id. at 1365. The newsgroup post also was sufficiently
disseminated, and there were at least six responses following its publication, and [m]any
more people may have viewed the posts without posting anything themselves. Id.
Likewise, in Voter Verified, Inc. v. Premier Election Solutions, Inc., the Federal Circuit
held an article placed online in 1995 was a printed publication even there was no evidence
(unlike here) that it could be found by search engines. 698 F.3d 1374, 1380-81 (Fed. Cir.
2012). The site was known to those interested in the subject matter (computer automation risks
relating to electronic voting technologies), and the submissions were public disclosures that
20
Index in this context refers to the content that a search engine like Google has collected from
the internet and stored in a database so that it can match users search queries to relevant content.
(SOF 38.) If a site has been indexed, that means the search engine has collected and stored
textual and other data from the site, and users can locate the site using search queries. (SOF
38.) As set forth herein, both the 2006 DC16 post and the 2009 DC31 video were indexed by
major search engines such as Google and YouTube at the relevant times and therefore locatable.
REDACTED VERSION
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could be freely and easily copied. Id. The site also had an internal search tool to find the article
with simple terms like vote, voting, ballot, or election. Id.
Here, as in Suffolk Technologies and Voter Verified, the same kinds of evidence show that
the 2006 DC16 post was both accessible to, and indeed frequently accessed by, the public.
(SOF 37, 39-47.) For example, Mr. Welch, the websites owner, testified that the interested
public actually viewed the 2006 DC16 post because:
he created the forums in order to engage the interested public and encourage them
to share information. (SOF 37.)
people interested in vacuum cleaner design not only viewed the thread but
contributed to it. (SOF 37, 42-47.)
all of his forums were public and visible to search engines like Google because he
used the forums contents to enhance his sites visibility to search engines like
Google. (SOF 37, 39-47.)
there were a number of ways that interested members of the public could find the
2006 DC16 post within his site, including directly navigating to the forum thread
through his sites hierarchical organization and using his sites internal search tool
for finding content. (SOF 37, 39-47; Bederson Decl. Ex. 1 at 44-45, Exhibit
of YaBB Test Files.)
SharkNinjas expert Dr. Bederson confirmed that the thread including the 2006 DC16
post was actually viewed over a thousand times by November 14, 2006. (SOF 47; Bederson
Decl. Ex. 1 at 40.) For example, he testified that, based on a November 14, 2006 Internet
Archive screen capture, the main forum page showed a link to this particular thread, which was
flagged as a Very Hot Topic with 58 replies and 1,445 views (despite the fact that the thread
was about a month old at the time). (SOF 47; Bederson Decl. Ex. 1 at 40.) Dr. Bederson also
showed how the sites internal search tool worked, and how the software recorded the number of
views. (Bederson Decl. Ex. 1 at 41-45, Ex. of YaBB Test Files.)
REDACTED VERSION
- 50 -
Those skilled in the art use this and similar forums as sources of feedback about products.
Mr. Ball opined that vacuum cleaner designers value such forums because:
[They] are hungry for looking for any insights to understand users
or people theyre designing products for. Theyre looking for
unmet needs, opportunities for innovation. They would
extensively search. You know, they would look at sites and it
would take them to other sites and if they could find a . . . dialogue
on a forum that describes merits of designs or configurations of
designs, they would be -- they would find that very, very insightful
and helpful.
(SOF 42.)21 Indeed, Dyson
. (SOF 42; Ball Decl. Ex. 1 at
207.) Further, Dysons expert Mr. Mauro relies on internet consumer feedback as supposed
infringement evidence. (SOF 42; Dkt. 75 & 78 Ex. A at 20 n.5.)
In addition to being viewed by the public, the 2006 DC16 post also was locatable using
search engines like Google, Yahoo!, and Bing. (SOF 37, 39-47.) Mr. Welch testified that all
of his forums including the post were locatable by major search engines between 2006 to the
present. (SOF 37.) He also testified that the post is still locatable through search engines
today, and he even proposed simple terms like dyson dc16 forum discussion that could be used
to locate the site. (SOF 43.) Mr. Ball testified that it would have been reasonable for
anybody interested in vacuum cleaner design to search the terms, Dyson or DC16 or Dyson
DC16 or DC16 post or Dyson DC16 discussion shortly after Dyson introduced the DC16 in
21
There also is evidence that vacuum cleaner designers actually frequented this forum and
contributed to this thread. As referenced in Mr. Balls report, the 2006 DC16 posts author
(dualcyclone) appears to have been an industry insider because he or she received a Dyson
DC16 before its official release but was not permitted to discuss details. (Ball Decl. Ex. 1 at
188-207;SOF 42.) Another post in the Abbys Guide legacy archive further indicates that
dualcyclone was a vacuum cleaner designer. See
https://www.abbysguide.com/vacuum/legacy/cgi-bin/yabb/5403~YaBB.html (last visited May
15, 2017) (referring to a gift that was given to me as a small thank you for designing the Air-
Way Signature Series for the Air-Way Company in 2000.).
REDACTED VERSION
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2006. (SOF 43-45.) Doing so would have located the 2006 DC16 post. (SOF 39-45.) Dr.
Bederson also opined that the post is locatable today, using simple terms such as dyson dc16
discussion. (SOF 45.) In her deposition, Dysons expert Jessie Stricchiola retrieved the post
using Google with the query dyson dc16 discussion. (SOF 45.) Ms. Stricchiola and Mr.
Mauro both admitted that it would be reasonable to use terms like dyson dc16, and variations
thereof to research the Dyson DC16. (SOF 43.)
Ms. Stricchiolas own methods confirmed that the 2006 DC16 post could be located at
the relevant times through search engines. In her deposition, she used her SEMRush tool
method to find at least 11 search terms that returned the 2006 DC16 post in the top 100 Google
results as of March 2017 (which she testified is a benchmark for search relevance in her field).
(SOF 39.) She also used the Google date range operator to determine the results that were
added to the [Google] index during [a] referenced time frame.22 (SOF 39.) Using that
method, she confirmed that the 2006 DC16 post was added to the Google index, and was thus
locatable, during the October 21, 2006 to December 31, 2006 time frame. (SOF 39, 44.) She
also confirmed that there were at least 20 search terms relating to dyson, dc16, dyson
dc16, or the like, that return the post among the results added to the Google index in that time
frame. (SOF 39, 44.)
22
Ms. Stricchiolas book describes the Google date range operator methodology as follows:
Using the very cool Google date range operator, you can determine how many times in the past
day, week, month, or year new content related to your term was added to the Google index.
[Y]ou can pick from Any time (which is the default), Past hour, Past 24 hours, Past week,
Past month, Past year, and Custom range. This will limit you to the results that were added
to the index during the referenced time frame. (SOF 39.) Beyond Ms. Stricchiolas
endorsement, courts have found the Google date range operator to be an appropriate way to
determine whether a website would have been likely to be returned among search engine query
results in the past, and where in the results the website would likely have been. J.S. & L.S. v.
Am. Inst. for Foreign Study, Inc., No. SA-12-CA-1036-XR, 2013 U.S. Dist. LEXIS 136073, at
*43-47 (W.D. Tex. Sept. 24, 2013).
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There is no genuine dispute that the 2006 DC16 post was both reasonably accessible to,
and accessed by, members of the public interested in vacuum design at the relevant times.
(ii) The 2009 DC31 video is a printed publication.
Similar to the 2006 DC16 post, the 2009 DC31 video is compelling prior art evidence
that Dyson avoids on substantial similarity, but attacks on perceived technicalities. Dyson
cannot show a genuine fact dispute as to whether the 2009 DC31 video was publicly accessible
on YouTube from December 28, 2009 up to the time that Dyson filed its earliest applications on
August 27, 2010. The 2009 DC31 video qualifies as a prior art printed publication under 35
U.S.C. 102(a) for several reasons.
First, Dyson cannot get behind any prior art with its recent claim that the 010 and 823
patents are entitled to an earlier priority date than the August 27, 2010 filing date. For purposes
of this motion, it suffices to say that Dysons recent claim that the 010 and 823 patents are
entitled to a 2006 priority date fails because Dyson identifies the wrong inventors and the wrong
time.23 According to Dysons theories and its own design documents, non-named inventor Mr.
Peace conceived Dysons stick vac designs in 2005. (SOF 60-68.) But March 6, 2006 is the
earliest time that Dyson contends that named inventors Messrs. Gammack and Dyson conceived
the 010 and 823 patents. (SOF 62-63.) For this reason alone, Dyson cannot claim the
23
As explained in SharkNinjas motion for leave to file a motion for leave to amend its answer
and counterclaims to assert inequitable conduct, Dkt 258 Ex. 1, it was not until March 31, 2016
that Dyson asserted that the 010 and 823 patents were entitled to a priority date earlier than the
August 27, 2010 application filing date. Before that, Dyson relied on the August 27, 2010 date.
After that, Dyson contends, among other things, that Messrs. Gammack and Dyson were the
first, original, and joint inventors of the 010 and 823 patents and that they jointly conceived the
designs on March 6, 2006. SharkNinja disputes all aspects of Dysons new invention story as
both factually incorrect and uncorroborated; however, the only issue that needs to be resolved in
this motion is whether Mr. Peace was the first inventor of the 010 and 823 patents, and not
Messrs. Gammack or Dyson. If he was, then Dysons priority claim must be rejected as
incorrect, and the 2005 Peace sketch qualifies as prior art under 35 U.S.C. 102(f).
REDACTED VERSION
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benefit of its alleged 2006 priority date. Taurus IP, LLC v. DaimlerChrysler Corp., 726 F.3d
1306, 1324 (Fed. Cir. 2013) (denying claim to earlier priority date where evidence did not
establish alleged first conception, but [i]nstead of corroborating [named inventors] testimony,
[the cited documentation] serves as the sole basis for it).
Second, any challenges to the public accessibility of the 2009 DC31 video similarly
lack merit. The 2009 DC31 video was published on YouTube, perhaps the most publicly
accessible forum of all time. (SOF 54, 57.) Indeed, the 2009 DC31 video was viewed 6,960
times from December 28, 2009 to August 8, 2016, including about a thousand views in the first
year after it was published. (SOF 56.) Further, on November 29, 2016, the European Patent
Office rejected Dysons speculation that this YouTube video might have been private and
determined that the video was made available to the public on 28.12.2009 and that it formed
part of the state of the art . . . . (SOF 56.)
The 2009 DC31 video also was locatable through search engines. YouTube is a search
engine, and any member of the public interested in vacuum cleaner design could have located the
video by searching for keywords in its title or description, such as Dyson DC31.24 (SOF
57-58.) Dr. Bederson testified that the 2009 DC31 video could be located in YouTube
because search terms that included any of the words in the title or description would likely turn
up the video, such as Dyson and DC31. (SOF 58.) Mr. Ball also testified that it would
have been reasonable for anybody interested in vacuum cleaner design to search the terms
Dyson or DC31 or Dyson DC31 shortly after the Dyson DC31 was introduced in 2009.
(SOF 58.) Again, such searches would have located the 2009 DC31 video. (SOF 58.)
24
Up until mid- to late-September 2016, the 2009 DC31 video was publicly accessible on
YouTube. (SOF 55.) The video is not currently publicly accessible, but that does not impact
its availability before Dyson filed its first applications on August 27, 2010.
REDACTED VERSION
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For largely the same reasons discussed above, the ordinary observer familiar with the 2005 Peace
sketch would recognize that the patent drawings include the same or substantially the same
ornamental hand vacuum, floor unit, and tube designs. Here, too, the ordinary observer would
appreciate that the Shark Rockets do not copy the features that separate the claimed designs from
the prior art (assuming there are any). Using the 2005 Peace sketch as a frame of reference, the
ordinary observer would notice that the Shark Rockets have their own distinctly different
designs, including the ornamental differences discussed in Section III.B and summarized in Mr.
Balls report. (Ball Decl. Ex. 2 at 138, 162, 225, 245, 303, 323 374-92.)
(i) The 2005 Peace sketch is 102(f) prior art.
Section 102(f) defines prior art in cases where, as here, the named inventor(s) did not
[themselves] invent the subject matter sought to be patented. See OddzOn, 122 F.3d at 1403-04
([S]ubject matter derived from another not only is itself unpatentable to the party who derived it
under 102(f), but, when combined with other prior art, may make a resulting obvious invention
unpatentable to that party under a combination of 102(f) and 103.). To show derivation
under 102(f), there must be proof of a both prior conception of the invention by another and
communication of that conception to the patentee. Creative Compounds, LLC v. Starmark
Labs., 651 F. 3d 1303, 1313 (Fed. Cir. 2011) (citation omitted).
The 2005 Peace sketch meets both requirements. With regard to prior conception,
Dysons Rule 30(b)(6) witness and Dysons own expert
. There also is no dispute
that the 2005 Peace sketch came before Dysons alleged 2006 priority date.
Mr. Peace also communicated his prior conception to Dyson and the named inventors.
Under 102(f), there is no rule that the requisite communication . . . take place in any
REDACTED VERSION
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particular form or that it occur directly between the prior inventor and the patentee. Synthon IP,
Inc. v. Pfizer Inc., No. 1:05-cv-1267, 2007 U.S. Dist. LEXIS 26115, at *12 (E.D. Va. Apr. 6,
2007) (finding jury had sufficient evidence of communication of prior conception based on
employee discussions and internal documents including a substantial number of documents
located in [patentees] files disclosing [the] prior use). Nevertheless, the record here amply
demonstrates that Mr. Peace communicated his prior conception to Dyson and the named
inventors:

(SOF 66.)
According to Dysons representations to the Court and the testimony of Dysons

witnesses,
(Dkt. 260 at 1, 3, 10; Dkt. 263 at 4, 5, 6, 13-14; SOF

66.)
Dyson represented to the Court that
(Dkt. 260 at 11; Dkt. 263 at 14; SOF

67.)
(Dkt. 260 at 11; Dkt. 263 at 14;

SOF 67.)

. (Dkt. 260 at
11
Dkt. 263 at 14 (same); SOF 67.)
Dyson also
. (SOF 67.)
REDACTED VERSION
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(SOF 60-66.) In view of the foregoing, Mr. Peace was the first to conceive of Dysons
alleged stick vac designs, and he also communicated that prior conception to Dyson or the named
inventors.25 Accordingly, the 2005 Peace Sketch qualifies as 102(f) prior art.
* * *
For all of the foregoing reasons, under the Courts claim construction and controlling
law, it is clear that the Shark Rockets do not infringe. No ordinary observer, with knowledge of
the prior art, would purchase a Shark Rocket thinking it was the same as the design depicted in
the asserted patents.
25
Courts have found that similar circumstantial evidence of communication by a non-named
inventor to either a patentee or a named inventor is sufficient to qualify the non-named
inventors prior conception as prior art under 102(f). See, e.g., In re Bendamustine Consol.
Cases, No. 13-2046-GMS, 2016 U.S. Dist. LEXIS 75624, at *44 (D. Del. June 10, 2016) (prior
conception communicated to patentee by providing patentee with patented drug and technical
literature); T&M Inventions, LLC v. Acuity Brands Lighting, Inc., No. 14-CV-947, 2016 U.S.
Dist. LEXIS 71333, at *22 (E.D. Wis. June 1, 2016) (prior conception communicated to patentee
by offer to patentee to manufacture or when mockup was built on patentees property); Auxilium
Pharms., Inc. v. Watson Labs., Inc., No. 12-3084 (JLL), 2014 U.S. Dist. LEXIS 184032, at *93-
95 (D.N.J. Dec. 16, 2014) (prior conception communicated to patentee where patentee acquired
prior inventors notebook); Apotex Inc. v. Cephalon, Inc., No. 2:06-cv-2768, 2011 U.S. Dist.
LEXIS 125859, at *64 (E.D. Pa. Oct. 31, 2011) (patent invalid based on prior communication of
claimed chemical compound and its specific properties to patentee); Robert Bosch, LLC v. Pylon
Mfg. Corp., 748 F. Supp. 2d 383, 398 (D. Del. 2010), revd on other grounds, 659 F.3d 1142
(Fed. Cir. 2011) (jury verdict of 102(f) invalidity supported by communication of conception at
meeting and meeting notes); Delta Frangible Ammunition, LLC v. Sinterfire, Inc., 663 F. Supp.
2d 405, 418 (W.D. Pa. 2009) (prior conception communicated to named inventor as an
employee of a former employer); Alloc, Inc. v. Pergo, Inc., No. 02-C-736, 2008 U.S. Dist.
LEXIS 35944, at *12-13 (E.D. Wis. May 1, 2008) (jury verdict of 102(f) invalidity supported
by communications to in-house lawyer, management, and engineers); Medtronic Xomed, Inc. v.
Gyrus ENT LLC, 440 F. Supp. 2d 1300, 1320-21 (M.D. Fla. 2006) (prior conception
communicated by providing prototype to patentees predecessor); Hay & Forage Indus. v. New
Holland N. Am., Inc., 25 F. Supp. 2d 1180, 1194 n.6 (D. Kans. 1998) (evidence showed
communication to named inventors based on records that prior inventor regularly collaborated
with [the named inventors] during the relevant time period.)
REDACTED VERSION
- 58 -
C. Alternatively, under Dysons view of claim scope, the asserted patents are so
broad in scope that they are invalid for anticipation.
As demonstrated above, the Court should grant summary judgment of non-infringement
in accordance with the Courts claim construction and the prior art. Nevertheless, under Dysons
view of claim scope, which reads out all of the ornamental aspects depicted in the drawings
and reads in all of the functional features that the Court explicitly held were not protected by
the asserted patents,26 the scope of its patents is so broad that it captures the prior art.
Dyson cannot have it both ways. The same claim scope must apply for purposes of both
infringement and invalidity. Intl Seaway, 589 F.3d at 1239. Therefore, if, as Dyson contends,
similarity in overall shape is all that is required for infringement, then the prior art discloses
the same overall shapes claimed in the asserted patents. In that event, the asserted patents
must be found invalid for anticipation.27
The ordinary observer test is the sole test for determining whether a design patent is
anticipated. Intl Seaway, 589 F.3d at 1240. Under the ordinary observer test, a design patent
claim is anticipated if, in the eye of an ordinary observer, giving such attention as a purchaser
usually gives, two designs 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. Id. at 1239
(quoting Gorham, 81 U.S. at 528). This comparison considers the significant differences
26
It is black-letter law that design patents cannot be read, as Dyson does, with too high a level
of abstraction, focusing on the unclaimed utilitarian aspects of the underlying article instead of
the claimed ornamental designs of that underlying article. Ethicon, 796 F.3d at 1315; see also
High Point Design LLC v. Buyers Direct, Inc., 730 F.3d 1301, 1314 (Fed. Cir. 2013) (district
court erred by interpreting the drawings at too high a level of abstraction by failing to focus
on the distinctive visual appearances of the reference and the claimed design (citations
omitted)).
27
SharkNinja also contends that the 010 and 823 patent are obvious under Dysons view of
claim scope. Nevertheless, SharkNinja only moves for summary judgment on the grounds that
the asserted patents are invalid as anticipated under Dysons view of claim scope.
REDACTED VERSION
- 59 -
between two designs; minor differences cannot prevent a finding of anticipation. Id. at 1243
(citation omitted). The designs overall visual effects determine whether the claimed design and
the prior art are substantially the same to an ordinary observer. Crocs, Inc. v. Intl Trade
Commn, 598 F.3d 1294, 1303 (Fed. Cir. 2010).
Accordingly, if Dysons overall shape view of claim scope is allowed (and it should
not be), then the Court should grant SharkNinjas alternative motion for summary judgment that
all the asserted patents are invalid as anticipated by the prior art.
1. The 163 patent is invalid as anticipated under Dysons view of claim

scope.
Under Dysons view of claim scope, there is no difference between the overall shapes
of the 163 patent on the one hand, and the prior art pistol-grip hand vacuums described in
GB2035787 and JP2002-85297, on the other. As shown above, these two prior art references
disclose substantially the same overall shape of the pistol-grip hand vacuum that is claimed in
the 163 patent, because they have the pistol-grip shapes and suction tube and suction device
shapes that Mr. Mauro contends make up the overall shape of the 163 patent. (Evans Decl.
Ex. 21, Mauro Inv. Rept. at 72.) SharkNinjas expert Mr. Ball opines that, under Dysons view
of claim scope, an ordinary observer would find the 163 patent design substantially similar to
GB2035787 and JP2002-85297. (Ball Decl. Ex. 1 at 372, 382.) Dyson and its expert contend
that a broad range of pistol-grip hand vacuum shapes are substantially the same as the 163
patent, including a number of shapes that look less like the 163 patent than GB2035787 and
JP2002-85297. For example, according to Mr. Mauro, each of the plainly different designs
below is nevertheless substantially similar to the 163 patent:28
28
Dyson contends that these (and other) images evidence conception of the 163 patent, and are,
therefore, substantially similar to the 163 patent drawing. Hoop v. Hoop, 279 F.3d 1004,
1007 (Fed. Cir. 2002). (See SOF 29.)
REDACTED VERSION
- 60 -
163 patent DY_2559 DY_1882 DY_1880
(Evans Decl. Ex. 21, Mauro Inv. Rept. at 53-127.) Dyson and Mr. Mauro cannot contend that
these clearly different designs are substantially similar to the claimed designs for purposes of
priority and infringement, while simultaneously insisting that the ornamental details claimed in
the asserted patents do count for purposes of avoiding the prior art. There is no genuine dispute
that if the sketches shown above are substantially similar to the 163 patent (as Dyson and Mr.
Mauro contend), then the same is true of GB2035787 and JP2002-85297. Thus, if Dysons
overall shape view of claim scope is allowed, then the Court should grant SharkNinjas
alternative motion for summary judgment that the 163 patent is invalid as anticipated.
2. The 010 and 823 patents are invalid as anticipated under Dysons
view of claim scope.
Under Dysons view of claim scope, the 010 and 823 patents are anticipated by at least
the 2006 DC16 post, the 2009 DC31 video, and the 2005 Peace sketch, each of which describe
the same overall shape of Dysons claimed designs, as illustrated below:
010 patent 2006 DC16 post 2009 DC31 video 2005 Peace sketch
REDACTED VERSION
- 61 -
Dyson does not dispute the substantial similarity of these prior art designs. Dysons Rule
30(b)(6) witness and named inventor Mr. Gammack testified that
. (SOF 53, 59, 68.) Moreover,
SharkNinjas expert Mr. Ball opined that these references are substantially similar to the 010
and 823 patents under Dysons view of claim scope. (Ball Dec. Ex. 1 at 232, 253, 264.) In
his report, Dysons expert Mr. Mauro offered no opinion on the similarity between the 2006
DC16 post, the 2009 DC31 video, and the 2005 Peace sketch and the 010 and 823 patent
designs. (SOF 53, 59, 68.) However, during his deposition, Mr. Mauro admitted that this art
is substantially similar to the claimed designs. (SOF 53, 59, 68.) Accordingly, if any one of
these three prior art references qualifies as prior art (and they all do for the reasons discussed
herein), then the 010 and 823 patents are invalid.
If summary judgment of non-infringement is denied, then the 010 and 823 patents
should be deemed invalid as anticipated because there is no genuine dispute that each of the 2006
DC16 post, the 2009 DC31 video, and the 2005 Peace sketch is substantially similar to the 010
and 823 patents under Dysons overall shape view of claim scope.
IV. CONCLUSION
A proper analysis of the functional features construed by the Court as not protected by
the design patents compels the conclusion of non-infringement. No reasonable jury would find
that the Shark Rockets are the same as the ornamental aspects depicted in the patent drawings.
The same is true when the ordinary observer considers the prior art discussed herein, which
further confirms the distinctively different Shark Rocket designs relative to the prior art and the
claimed designs. Indeed, the USPTO has acknowledged the Shark Rockets innovative and
distinctive designs by awarding SharkNinja design patents over the asserted patents (and other
REDACTED VERSION
- 62 -
prior art). Dyson itself has acknowledged that details matter by pursuing separate design
patents. Under the Courts claim construction and controlling law, no reasonable jury could find
infringement for at least these two independently-sufficient reasons. SharkNinja respectfully
requests that the Court grant SharkNinjas motion for summary judgment of non-infringement.
In the alternative, if Dysons overall shape view of claim scope is allowed to move
forward (and it should not be), then the asserted patents must be found invalid under that same
broad claim scope because if the asserted patents are sufficiently broad to capture the accused
products, then they also capture (and hence are invalidated by) the prior art. As such,
SharkNinja respectfully requests that the Court grant SharkNinjas alternative motion for
summary judgment of invalidity of the asserted patents.
REDACTED VERSION
- 63 -
Dated: May 15, 2017 /s/ John C. Evans

David L. Witcoff
dlwitcoff@jonesday.com
Patrick J. ORear
porear@jonesday.com
JONES DAY
77 West Wacker Drive
Chicago IL 60601-1692
Telephone: (312) 782-3939
John G. Froemming
jfroemming@jonesday.com
Tracy A. Stitt
tastitt@jonesday.com
JONES DAY
51 Louisiana Avenue, NW
Washington, DC 20001
Telephone: (202) 872-3939
John C. Evans
jcevans@jonesday.com
JONES DAY
901 Lakeside Avenue
Cleveland, OH 44114
Telephone: (216) 586-3939
Attorneys for Defendants, Counterclaim-

Plaintiff SharkNinja Operating, LLC and
SharkNinja Sales Company
REDACTED VERSION
- 64 -
CERTIFICATE OF SERVICE
The undersigned attorney hereby certifies that on May 15, 2017, a true and correct copy
of the foregoing was filed electronically with the Clerk of the Court and was served via the
Courts CM/ECF System which will automatically provide electronic notice upon all counsel of
record. Service of a hardcopy of an unredacted sealed copy is also being made on chambers.
Service of an electronic copy of unredacted sealed copy is also being made on all counsel of
record via email.
/s/ John C. Evans
REDACTED VERSION

Dyson v. Sharkninja - Def. MSJ Non-Infringement

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Dyson v. Sharkninja - Def. MSJ Non-Infringement

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Case: 1:14-cv-00779 Document #: 383 Filed: 05/15/17 Page 1 of 72 PageID #:16745

IN THE UNITED STATES DISTRICT COURT

SHARKNINJAS MOTION FOR SUMMARY JUDGMENT OF

2. The prior art highlights the Shark Rockets distinct ornamental

Alloc, Inc. v. Pergo, Inc.,

Apotex Inc. v. Cephalon, Inc.,

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

Auxilium Pharms., Inc. v. Watson Labs., Inc.,

Contessa Food Prods., Inc. v. Conagra, Inc.,

Creative Compounds, LLC v. Starmark Labs.,

Crocs, Inc. v. Intl Trade Commn,

Delta Frangible Ammunition, LLC v. Sinterfire, Inc.,

Dyson, Inc. v. SharkNinja Operating LLC,

Egyptian Goddess, Inc. v. Swisa, Inc.,

Elmer v. ICC Fabricating, Inc.,

Ethicon Endo-Surgery, Inc. v. Covidien, Inc.,

Gorham Co. v. White,

Great Neck Saw Mfrs., Inc. v. Star Asia U.S.A., LLC,

Hay & Forage Indus. v. New Holland N. Am., Inc.,

High Point Design LLC v. Buyers Direct, Inc.,

In re Bendamustine Consol. Cases,

Intl Seaway Trading Corp. v. Walgreens Corp.,

J.S. & L.S. v. Am. Inst. for Foreign Study, Inc.,

Lee v. Dayton-Hudson Corp.,

Medtronic Xomed, Inc. v. Gyrus ENT LLC,

MRC Innovations, Inc. v. Hunter Mfg., LLP,

Natl Presto Indus., Inc. v. West Bend Co.,

OddzOn Prods., Inc. v. Just Toys, Inc.,

Pac. Coast Marine Windshields Ltd. v. Malibu Boats, LLC,

Richardson v. Stanley Works, Inc.,

RNA Corp. v. Procter & Gamble Co.,

Robert Bosch, LLC v. Pylon Mfg. Corp.,

Smith v. Whitman Saddle Co.,

Suffolk Techs., LLC v. AOL, Inc.,

Synthon IP, Inc. v. Pfizer Inc.,

T&M Inventions, LLC v. Acuity Brands Lighting, Inc.,

Taurus IP, LLC v. DaimlerChrysler Corp.,

Thomas Indus., Inc. v. Gast Mfg., Inc.,

Voltstar Techs., Inc. v. Amazon.com, Inc.,

Young Dental Mfg. Co. v. Q3 Special Prods., Inc.,

35 U.S.C. 102(a) .............................................................................................................16, 48, 53

35 U.S.C. 102(b) .............................................................................................................15, 19, 48

35 U.S.C. 102(f) ........................................................................................................17, 53, 56, 58

MPEP 1503 ...................................................................................................................................5

MPEP 1504.02 ............................................................................................................................34

The Court should grant summary judgment of non-infringement because Dysons

Dysons own positions as to validity.

or cheaper products . . .1 This lawsuit is meritless and should be summarily dismissed.

(Fed. Cir. 2014) (citation omitted).

categories. Ethicon, 796 F.3d at 1334.

features or general design concepts, as exemplified by the OddzOn case:

Claimed design in OddzOn Non-infringing accused designs in OddzOn

D668,823 (823 patent)).

the same as the claimed designs.

Egyptian Goddess, 543 F.3d at 678, such as the following example:

Accused Shark Rockets (HV300 (top), HV321 (middle), HV381 (bottom))

A. The asserted design patents

1. The hand vacuum patent (163 patent)

application filed in the U.K. on July 19, 2006. (SOF 11.)

(Ball Decl. Ex. 2 at 24.)

all of these features that creates a certain overall appearance. (Id.)

2. The stick vac design patents (010 and 823 patents)

010 patent 823 patent