Anderson v. Kimberly-Clark - Appellee Brief

February 24, 2014
No. 14-1117

IN THE
United States Court of Appeals
FOR THE FEDERAL CIRCUIT

MUFFIN FAYE ANDERSON,
Plaintiff-Appellant,
v.
KIMBERLY-CLARK CORPORATION,
Defendant-Appellee,

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WASHINGTON IN
CASE NO. 12-CV-1979, J UDGE RICHARD A. J ONES

KIMBERLY-CLARK CORPORATIONS
APPELLEE BRIEF

STEVEN J . NATAUPSKY
Counsel of Record
BORIS ZELKIND
COLIN B. HEIDEMAN
KNOBBE, MARTENS, OLSON & BEAR, LLP
2040 Main Street, 14
th
Floor
Irvine, CA 92614
(949) 760-0404

Attorneys for Defendant-Appellee
Kimberly-Clark Corporation

Case: 14-1117 CASE PARTICIPANTS ONLY Document: 16 Page: 1 Filed: 02/24/2014
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CERTIFICATE OF INTEREST
Counsel for Defendant-Appellee Kimberly-Clark Corporation certifies:
1. The full name of every party or amicus represented by me is:
Kimberly-Clark Corporation
2. The name of the real party in interest (if the party named in the caption is not
the real party in interest) represented by me is:
Not applicable.
3. All parent corporations and any publicly held companies that own 10 percent
or more of the stock of the party represented by me are:
None.
4. The names of all law firms and the partners or associates that appeared for
the party or amicus now represented by me in the trial court or agency or are
expected to appear in this court are:
Steven J . Nataupsky, Boris Zelkind, Colin B. Heideman
(KNOBBE MARTENS OLSON & BEAR LLP).
Dated: February 24, 2014 By: /s/ Colin B. Heideman
Steven J . Nataupsky
Boris Zelkind
Colin B. Heideman
Attorneys for Defendant-Appellee,
KIMBERLY-CLARK CORPORATION
TABLE OF CONTENTS

Page No.

- ii -
I. STATEMENT OF RELATED CASES ........................................................... 1
II. J URISDICTIONAL STATEMENT ................................................................ 1
III. STATEMENT OF THE ISSUES .................................................................... 1
IV. STATEMENT OF THE CASE ....................................................................... 1
V. STATEMENT OF THE FACTS ..................................................................... 4
A. Appellants 328 Patent And Design Patent Infringement
Claims .................................................................................................... 4
B. Kimberly-Clark Has Designed Absorbent
Undergarments For Over 40 Years ....................................................... 6
C. Kimberly-Clarks Allegedly Infringing Products ................................. 8
D. Kimberly-Clarks Competitors Products ............................................. 8
E. The District Courts J udgment .............................................................. 9
VI. SUMMARY OF ARGUMENT ..................................................................... 11
VII. ARGUMENT ................................................................................................. 11
A. Standard Of Review ............................................................................ 12
B. The Legal Standard ............................................................................. 12
C. The District Court Did Not Commit Any Procedural
Errors ................................................................................................... 14
1. The District Court Relied On Evidence Available
To It On A Rule 12(c) Motion .................................................. 14
a. The Court Properly Considered the Asserted
328 Patent ...................................................................... 14
b. The Court Properly Considered Photographs
Of The Accused Products ............................................... 15
i. The Appearance of Defendants
Accused Products Is Central To
Plaintiffs Claim And The
Authenticity Of The Photographs Is
Not Disputed ......................................................... 15
TABLE OF CONTENTS
(contd)
Page No.

- iii -
ii. The Court Can Take J udicial Notice
Of The Appearance Of Kimberly-
Clarks Products ................................................... 16
c. The District Court Properly Considered The
Prior Art 950 Publication .............................................. 17
2. The Timing Of The Rule 26(f) Conference Is
Irrelevant ................................................................................... 18
3. The District Court Properly Granted Appellants
Motion To File An Amended Complaint .................................. 18
D. The District Courts J udgment Of Noninfringement
Should Be Affirmed ............................................................................ 19
1. The District Court Correctly Concluded That The
Five Accused Kimberly-Clark Products Do Not
Infringe The 328 Patent ........................................................... 19
a. Kimberly-Clarks Depend
Products Do Not
Infringe The 328 Patent ................................................. 21
b. Kimberly-Clarks GoodNites
Product Does
Not Infringe The 328 Patent .......................................... 22
c. The Court Correctly Found That, If
Appellants Allegations Are Accepted As
True, The 328 Patent Is Invalid ..................................... 24
2. The Court Properly Concluded That Kimberly-
Clark Could Not Be Liable For Allegedly
Infringing Products Made and Sold By Its
Competitors ............................................................................... 25
VIII. CONCLUSION and STATEMENT OF RELIEF ......................................... 27
TABLE OF AUTHORITIES

Page No(s).

- iv -
Ashcroft v. Iqbal,
556 U.S. 662 (2009)....................................................................................... 13
Bell Atl. Corp. v. Twombly,
550 U.S. 544 (2007)....................................................................................... 13
Cafasso v. Gen. Dynamics C4 Sys.,
637 F.3d 1047 (9th Cir. 2011) ....................................................................... 13
Colida v. Nokia, Inc.,
347 Fed. Appx. 568 (Fed. Cir. 2009) ............................................................ 24
Datel Holdings, Ltd. v. Microsoft Corp.,
712 F. Supp. 2d 974 (N.D. Cal. 2010) ........................................................... 26
Dvora v. Gen. Mills, Inc.,
No. CV 11-1074-GW (PLAx), 2011 U.S. Dist. LEXIS 55513,
(C.D. Cal. May 16, 2011) .............................................................................. 26
Egyptian Goddess, Inc. v. Swisa, Inc.,
543 F.3d 665 (Fed. Cir. 2008) ..................................................... 10, 19, 20, 22
Hoganas AB v. Dresser Indus., Inc.,
9 F.3d 948 (Fed. Cir. 1993) ..................................................................... 15, 17
Imation Corp. v. Koninklijke Philips Elecs. N.V.,
586 F.3d 980 (Fed. Cir. 2009) ....................................................................... 12
Intl Seaway Trading Corp. v. Walgreens Corp.,
589 F.3d 1233 (Fed. Cir. 2009) ..................................................................... 25
Mack v. S. Bay Beer Distribs., Inc.,
798 F.2d 1279 (9th Cir. 1986), overruled on other grounds by
Astoria Fed. Sav. & Loan Assn v. Solimino, 501 U.S. 104 (1991) ........ 15, 17
Marder v. Lopez,
450 F.3d 445 (9th Cir. 2006) ........................................................................... 9
(contd)
Page No(s).

- v -
Mayfield v. Sara Lee Corp.,
No. C 04-1588 CW, 2005 U.S. Dist. LEXIS 42458
(N.D. Cal. J an. 13, 2005) ............................................................................... 26
McGlinchy v. Shell Chem. Co.,
845 F.2d 802 (9th Cir. 1988) ......................................................................... 12
McZeal v. Sprint Nextel Corp.,
501 F.3d 1354 (Fed. Cir. 2007) ..................................................................... 12
Miller v. Ghirardelli Chocolate Co.,
912 F. Supp. 2d 861 (N.D. Cal. 2012) ........................................................... 26
Or. Natural Desert Assn v. United States Forest Serv.,
550 F.3d 778 (9th Cir. 2008) ......................................................................... 12
Parrino v. FHP, Inc.,
146 F.3d 699 (9th Cir. 1998) ............................................................. 14, 15, 16
Spreewell v. Golden State Warriors,
266 F.3d 979 (9th Cir. 2001) ......................................................................... 13
Swartz v. KPMG LLP,
476 F.3d 756 (9th Cir. 2007) ................................................................... 14, 15
Vigil v. Walt Disney Co.,
2000 U.S. App. LEXIS 32071 (Fed. Cir. Apr. 5, 2000) .......................... 16, 17
Vigil v. Walt Disney Co.,
No. C-97-4147-MHP, 1998 U.S. Dist. LEXIS 22853 (N.D. Cal. Dec.
1, 1998), affd in relevant part without published opinion, 2000 U.S.
App. LEXIS 32071 (Fed. Cir. Apr. 5, 2000) ........................................... 16, 17
OTHER AUTHORITIES
28 U.S.C. 1295 .................................................................................................... 1, 2
Fed. Cir. R. 30 ............................................................................................................ 2
Fed. R. Civ. P. 8 ....................................................................................................... 12
(contd)
Page No(s).

- vi -
Fed. R. Civ. P. 12 ......................................................................................... 12, 13, 14
Fed. R. Civ. P. 26 ............................................................................................... 11, 18
Fed. R. Evid. 201 ..................................................................................................... 16


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Appellee Kimberly-Clark Corporation (Kimberly-Clark) hereby submits
this brief in response to the Informal Brief of Appellant, Muffin Faye Anderson
(Appellant).
I. STATEMENT OF RELATED CASES
Kimberly-Clark is not aware of any related cases.
II. JURISDICTIONAL STATEMENT
The United States District Court for the Western District of Washington
granted Kimberly-Clarks motion for judgment on the pleadings, dismissed the
action with prejudice, and entered final judgment, finding that Kimberly-Clark has
not infringed Appellants design patent. Since this case arises under the United
States patent laws, this Court has jurisdiction over this appeal pursuant to 28
U.S.C. 1295(a)(1).
III. STATEMENT OF THE ISSUES
Whether the trial court properly granted Kimberly-Clarks motion for
judgment on the pleadings.
IV. STATEMENT OF THE CASE
The district court properly recognized the baseless nature of Appellants
design patent infringement claim. In doing so, the district court undertook a
detailed infringement analysis and provided a thorough and well-reasoned opinion.

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(A2-A7.)
1
The district court concluded that the accused products do not infringe
Appellants design patent and that Appellants conduct was suggestive of bad faith.
(A6 at n. 2.) Despite the district courts guidance that Appellant reconsider her
approach if she continues to assert the 328 patent (id.), Appellant now appeals
the district courts decision.
On November 19, 2012, Appellant filed a complaint (captioned First
Amended Complaint) for design patent infringement, alleging that nine different
products
2
infringed now-expired U.S. Patent No. Des. 401,328 (the 328 patent).
3

(A25-A28.) Kimberly-Clark timely filed its Answer and Counterclaims on
December 11, 2012. (A29-A42.) Appellant filed an Answer to the Counterclaims
on December 26, 2012. (A43-A55.)

1
Because Appellant is pro se and did not submit an appendix, Kimberly-
Clark is filing an appendix herewith pursuant to Federal Circuit Rule 30(e).
2
The nine allegedly infringing products are identified in the complaint as:
(1) Boys and Girls Overnighter Boxer and Good-Nites Boxers for nighttime
(2) Depend-certainty; (3) Depend For Women Moderate Absorbency;
(4) Silhouelle For Women; (5) Assurance Underwear For Men; (6) Assurance
Underwear For Men; (7) Depend Underwear For Men Maximum Absorbency;
(8) Depend Real Fit For Men Briefs Maximum Absorbency; and (9) Assurance
Casual Style Boxers For Men Maximum Absorbency. (A27 at 7.)
3
The 328 patent expired on November 17, 2012. (A51.)

- 3 -
On J anuary 9, 2013, after being informed that Kimberly-Clark does not
manufacture four of the products identified in the complaint (i.e., products sold
under the Assurance
and Certainty
brands), Appellant filed a motion for leave to

file a second amended complaint. (A56-A59.) That motion included Appellants
proposed Second Amended Complaint, which deleted all allegations relating to the
Assurance
and Certainty
products. (A58 at 7.) The district court granted the

unopposed motion (A60), but Appellant never filed the proposed second amended
complaint.
On March 6, 2013, Kimberly-Clark moved for judgment on the pleadings
because Appellants complaint failed to state a plausible claim for relief. (A63-
A84.) Specifically, Kimberly-Clark sought judgment on the claims relating to the
five Kimberly-Clark products because those products are plainly dissimilar from
the patented design. (Id. at A73-A82.) Kimberly-Clark sought judgment on the
claims relating to the four allegedly infringing products made by Kimberly-Clarks
competitors on the grounds that Kimberly-Clark could not be liable for such
products. (Id. at A82-A84.) In support of its motion, Kimberly-Clark submitted
photographs showing the allegedly infringing products, as well as publicly
available patents and patent applications. (A91-A216.)
Appellant opposed Kimberly-Clarks motion for judgment on the pleadings
(see A217-A223), but did not dispute that the photographs of the products, as

- 4 -
submitted by Kimberly-Clark, accurately represented the appearance of the
allegedly infringing products. (See id.) Appellant did not dispute that four of the
allegedly infringing products are made by Kimberly-Clarks competitors. (Id.)
Nor did Appellant dispute that each of the five allegedly infringing Kimberly-Clark
products is plainly dissimilar from the patented design. (Id.) Kimberly-Clark
submitted a reply brief (A224-A231), and the district court granted Kimberly-
Clarks motion (A2-A7). Appellant now appeals.
V. STATEMENT OF THE FACTS
A. Appellants 328 Patent And Design Patent Infringement Claims

The 328 patent issued in 1998 and claims the appearance of an absorbent
disposable undergarment. (A50-A55.) Figures 1, 2 and 3 of the 328 patent are
shown below:

Front-Angle View Front View Rear View

(A52-A53.) As is immediately apparent from these figures, the claimed design has
numerous prominent ornamental features, including:

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(1) A bloomers-style shape with extended tubular leg portions;
(2) A first material that covers only the outer leg and the upper area in the
front of the garment, and is not used in the crotch area;
(3) A second, different material that covers the crotch area and also
extends to the top of the garment in the rear;
(4) An inverted U-shaped border on the front of the garment separating
the first and second materials;
(5) Two vertical borders on the rear of the garment separating the first
and second materials and extending from the leg openings to the waistband;
(6) A band, similar to the waistband, around each of the leg openings;
(7) Ruffles around each of the leg openings;
(8) An arched crotch area;
(9) Bunching of the second material in the crotch area to form a billowy
appearance;
(10) The garment is wider at the leg openings than at the waistband; and
(11) The leg openings are substantially parallel to the waist opening.
Notably, the second material forms a portion of the outer layer of the garment and
is visible from the exterior of the garment. The claimed design is not a design in
which a second material is attached to the interior of the garment.

- 6 -
Appellants complaint alleged that nine different products infringe the 328
patent. (A27 at 7.) Appellant attached the 328 patent, as well as a receipt
showing Appellants purchase of the allegedly infringing products, to the
pleadings. (A49-A55.) Appellant did not attach pictures or samples of the
products to the pleadings. (See id.).
B. Kimberly-Clark Has Designed Absorbent Undergarments For Over 40
Years

Kimberly-Clark has been an innovative leader of household products for
over 140 years and its brands include Kleenex
, Cottonelle
, Scott
, Huggies
,
Kotex
, Depend
, Poise
, Pull-Ups
, Viva
, and GoodNites
. Kimberly-Clark
has a long history of designing and manufacturing undergarments, including
absorbent undergarments. For example, over 40 years ago, Kimberly-Clark filed a
patent application for an undergarment having an improved crotch construction
[in] which at least one auxiliary layer of absorbent material is disposed over the
crotch area on the inner surface thereof[.] (A106, U.S. Pat. No. 3,599,638 (the
638 patent) at Abstract.) That application disclosed the following design:


- 7 -
(Id.) Since the issuance of the 638 patent in 1971, Kimberly-Clark has obtained
numerous additional patents relating to absorbent undergarments, and those patents
disclose a wide variety of potential product configurations and designs. Some of
those designs are reproduced below, with the patent numbers and filing year:

Pat. No. 4,690,681 (1986) Pat. No. 4,940,464 (1989) Pat. No. 4,938,757 (1989)

(A110-A163.) In J uly, 1994, more than three years before Appellant filed her
application for the 328 patent, Kimberly-Clark filed a patent application
containing a design for an absorbent swimming garment having a conventional
boxer-short design, as shown below:

Intl Pat. Publ. No.
WO 96/03950 (1994)

(A165-A193 (claiming priority to U.S. Application No. 08/283,101).) That
application published in 1996 as WO 96/03950 (the WO 950 publication). (Id.)

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C. Kimberly-Clarks Allegedly Infringing Products

Of the nine allegedly infringing products, only five are manufactured or sold
by Kimberly-Clark. Four of those products are sold under the Depend
brand and
one is sold under the GoodNites
brand. (A27 at 7.) As shown below, the

Depend
products are all shaped like briefs, and the GoodNites
boxers have a
boxer-short appearance that is virtually identical to the design shown in the WO
950 publication.

(A195-A204.)

D. Kimberly-Clarks Competitors Products

Appellants complaint also asserts that Kimberly-Clark is liable for
infringement because three products sold under the Assurance
brand, and a
product sold under the Certainty
brand, infringe the 328 patent. (A27 at 7.)

The packaging of those products, however, clearly indicates that the products are
not Kimberly-Clarks, but in fact are sold by Kimberly-Clarks competitors.
Accused Kimberly-Clark Products

Depend
For
Women Moderate
Absorbency
Depend
Silhouette
For Women
Depend
Real Fit
For Men Briefs
Maximum
Absorbency
Depend

Underwear for Men
Maximum
Absorbency
GoodNites
Boxers

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(A205-A216.) The Assurance
brand products are sold by Wal-Mart Stores, Inc.

(A212-A213) and the Certainty
brand product is sold by Walgreens (A215-

A216).
E. The District Courts Judgment

The district court granted Kimberly-Clarks motion for judgment on the
pleadings. The district court first concluded that Kimberly-Clark could not be
liable for products sold by its competitors. (A3 at n. 1.) In doing so, the Court
indicated that it could take judicial notice of the uncontested fact that Kimberly-
Clark is not responsible for those products. (Id.) Alternatively, the court took
Appellants proposed second amended complaint, in which Appellant deleted all
allegations relating to the Assurance
and Certainty
products, as an admission
that Kimberly-Clark was not responsible for those products. (Id.)
The district court also concluded that the five accused Kimberly-Clark
products do not infringe the 328 patent. (A3-A6.) The district court relied only
on the asserted 328 patent and photographs of the accused products submitted by
Kimberly-Clark. Consistent with Ninth Circuit precedent, the court considered the
photographs of the accused products because they are central to the allegations of
[Appellants] complaint and because Appellant did not contend that Kimberly-
Clarks photographs are anything other than true depictions of its accused
products. (A4 (citing Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006)).)

- 10 -
Relying on the undisputedly accurate photographs of the accused products,
the district court undertook the design patent infringement analysis set forth in
Egyptian Goddess, Inc. v. Swisa, Inc., 543 F.3d 665 (Fed. Cir. 2008). The district
court found that, [i]n this case, a side-by-side comparison of the drawings of the
328 Patent to the accused products suffices to demonstrate that there is no
infringement. (A5.) The Court expressly identified the most striking
differences between the accused products and the patented design, and noted that it
could recount other differences as well. (A6.) Given the numerous and obvious
differences, the district court granted Kimberly-Clarks motion for judgment on the
pleadings.
As an alternative basis for its decision, the district court took judicial notice
of the WO 950 publication and concluded that, if the court were to accept
Appellants infringement allegations as true, the court would have to declare the
328 patent invalid. (A5-A6.)
The district court concluded by noting that, [e]ven construing [Appellants]
opposition and her complaint with the utmost liberality, she has fallen well short of
a viable infringement claim. (A6 at n. 2.) The district court further noted, sua
sponte, that Appellants conduct was suggestive of bad faith and arguably
warranted sanctions. (Id.)

- 11 -
VI. SUMMARY OF ARGUMENT
The district courts decision is grounded in well-established precedent and
should be affirmed. The Court properly relied on: (1) the asserted patent; (2)
undisputedly accurate photographs of the accused products; and optionally (3) a
published patent application. Each of these documents is either: (a) subject to
judicial notice, or (b) integral to Appellants complaint and the authenticity of the
document cannot be (and is not) disputed. Relying on such evidence, the district
court applied the law as set forth in this Courts precedent and concluded that
Appellants complaint failed to state a plausible claim for design patent
infringement.
VII. ARGUMENT
Appellant does not dispute the Courts finding that Kimberly-Clark does not
manufacture four of the nine allegedly infringing products. Nor does Appellant
dispute that, if the Court properly relied on the 328 patent and the pictures of the
allegedly infringing products, the Courts noninfringement determination was
correct. The only issues raised in Appellants informal brief(s) are procedural, i.e.,
whether the district court: (1) improperly considered evidence not attached to the
pleadings (Appeal Nos. 1 & 4); (2) failed to consider that a Rule 26(f) conference
had not occurred (Appeal No. 2); and (3) improperly granted Appellants motion to

- 12 -
file a second amended complaint (Appeal No. 3). Because no error occurred, the
district courts thorough decision should be affirmed.
A. Standard Of Review

When reviewing a district courts judgment on the pleadings, this Court
applies the law of the regional circuit. Imation Corp. v. Koninklijke Philips Elecs.
N.V., 586 F.3d 980, 984-85 (Fed. Cir. 2009); see also McZeal v. Sprint Nextel
Corp., 501 F.3d 1354, 1355-56 (Fed. Cir. 2007) (the standards applicable to Rule
12 motions are not unique to patent law and are evaluated under the law of the
regional circuit). In the Ninth Circuit, a grant of judgment on the pleadings is
reviewed de novo. Or. Natural Desert Assn v. United States Forest Serv., 550
F.3d 778, 782 (9th Cir. 2008).
B. The Legal Standard

A party may move for judgment on the pleadings as soon as the pleadings
are closed. Fed. R. Civ. P. 12(c). A Rule 12(c) motion may be based on the
Plaintiffs failure to state a claim upon which relief can be granted. Fed. R. Civ. P.
12(h)(2)(B), (i). Such a motion under Rule 12(c) faces the same test as a motion
under Rule 12(b)(6). McGlinchy v. Shell Chem. Co., 845 F.2d 802, 810 (9th Cir.
1988).
A complaint must contain a short and plain statement of the claim showing
the pleader is entitled to relief. Fed. R. Civ. P. 8(a)(2) (emphasis added). To

- 13 -
survive a motion to dismiss, a complaint must contain sufficient factual matter to
state a claim for relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662
(2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also
Cafasso v. Gen. Dynamics C4 Sys., 637 F.3d 1047, 1054 n. 4 (9th Cir. 2011) (Iqbal
applies to Rule 12(c) motions because Rule 12(b)(6) and Rule 12(c) motions are
functionally equivalent). This plausibility requirement requires the allegations
in the complaint to be enough to raise a right to relief above the speculative
level. Twombly, 550 U.S. at 555. The plaintiff must plead factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged. Iqbal, 556 U.S. at 678. Determining whether a complaint
states a plausible claim for relief is a context-specific task that requires the
reviewing court to draw on its judicial experience and common sense. Id. at 679.
Generally, in evaluating a motion for failure to state a claim upon which
relief can be granted, [a]ll allegations of material fact are taken as true and
construed in the light most favorable to the nonmoving party. Spreewell v.
Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). A court need not,
however, accept as true allegations that contradict matters properly subject to
judicial notice or by exhibit. Id. Nor is the court required to accept as true
allegations that are merely conclusory, unwarranted deductions of fact, or
unreasonable inferences. Id.; see also Iqbal, 556 U.S. at 678-679 (the modern

- 14 -
pleading standard does not unlock the doors of discovery for a plaintiff armed
with nothing more than conclusions).
While a Rule 12(b)(6) motion is generally limited to the pleadings, a court
may rely on documents outside the pleadings if they are integral to the plaintiffs
claims and their authenticity is not disputed. Parrino v. FHP, Inc., 146 F.3d 699,
705-06 (9th Cir. 1998) (superseded on other grounds). The court may also rely on
matters subject to judicial notice. Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th
Cir. 2007). This rule prevents plaintiffs from surviving a Rule 12(b)(6) motion by
deliberately omitting documents upon which their claims are based. Id.
C. The District Court Did Not Commit Any Procedural Errors

1. The District Court Relied On Evidence Available To It On A Rule
12(c) Motion

Appellants Appeal No. 1 and Appeal No. 4 assert that the district court
improperly relied on evidence outside the pleadings. However, the district courts
decision was based only on: (1) the 328 patent; (2) photographs of the allegedly
infringing products; and, as an alternative, (3) the WO 950 publication, each of
which was properly before the court on this motion.
a. The Court Properly Considered The Asserted 328 Patent

The district court properly relied on Appellants 328 patent because
Appellant attached the patent to her pleadings. (A50-A55.) In addition, it is well
established that a court can take judicial notice of patents and published patent

- 15 -
applications. Hoganas AB v. Dresser Indus., Inc., 9 F.3d 948, 954 n. 27 (Fed. Cir.
1993); see also Mack v. S. Bay Beer Distribs., Inc., 798 F.2d 1279, 1282 (9th Cir.
1986) (court may take judicial notice of administrative records), overruled on other
grounds by Astoria Fed. Sav. & Loan Assn v. Solimino, 501 U.S. 104 (1991).
Therefore, even if Appellant had not attached the asserted patent to her pleadings,
it would have been proper for the court to take judicial notice of the 328 patent.
b. The Court Properly Considered Photographs Of The
Accused Products

i. The Appearance of Defendants Accused Products Is
Central To Plaintiffs Claim And The Authenticity Of
The Photographs Is Not Disputed

The district court also properly considered photographs of the accused
products. In a design patent infringement case, the appearance of the accused
product is at the heart of a plaintiffs infringement claim. (A4.) Appellant does
not dispute that the photographs accurately represent the appearance of the accused
products. (Id.) Because the appearance of the accused products is integral to
plaintiffs infringement claim and the authenticity of the photographs is not
disputed, the district court properly relied on them. Parrino, 146 F.3d at 705-06;
Swartz, 476 F.3d at 763.
Moreover, Appellant purchased the accused products and attached a
receiptbut not pictures or samplesto Appellants pleadings. (A49.) Appellant
deliberately chose not to include in her pleadings the products themselves, or

- 16 -
pictures showing the accused products. This is precisely the type of conduct that
the rule allowing the court to consider certain evidence outside the pleadings is
designed to prevent. Parrino, 146 F.3d at 706. Appellant cannot avoid a motion to
dismiss or a motion for judgment on the pleadings by intentionally omitting
evidence that is critical to Appellants claim, i.e., evidence of the actual appearance
of the allegedly infringing products. Id. Accordingly, the district court properly
considered the photographs of the accused products.
ii. The Court Can Take Judicial Notice Of The
Appearance Of Kimberly-Clarks Products

A court may take judicial notice of any fact that is not subject to reasonable
dispute because it can be accurately and readily determined from sources whose
accuracy cannot reasonably be questioned. Fed. R. Evid. 201(b); Vigil v. Walt
Disney Co., No. C-97-4147-MHP, 1998 U.S. Dist. LEXIS 22853, *5 (N.D. Cal.
Dec. 1, 1998), affd in relevant part without published opinion, 2000 U.S. App.
LEXIS 32071, *1 (Fed. Cir. Apr. 5, 2000) (see A232). In Vigil, the plaintiff
alleged that the defendants duck call and key chain infringed the plaintiffs design
patent. Id. In granting the defendants motion to dismiss, the district court took
judicial notice of the appearance of the defendants duck call and key chain, as
submitted by the defendant with its motion to dismiss, because they were beyond
reasonable dispute. Id. at *6-*7. The district court conducted its infringement
analysis based on that evidence, concluded that no infringement exists, and

- 17 -
dismissed the complaint. Id. at *7-*10. This Court affirmed. Vigil, 2000 U.S.
App. LEXIS 32071 (see A232).
Here, as in Vigil, there is no dispute about the appearance of the accused
products. The products are widely available at stores throughout the country and
online, and Appellant does not dispute that the photographs accurately depict the
accused products. (A4.) Thus, the district court may take judicial notice of the
appearance of the accused products, and properly relied on the photographs of the
products submitted by Kimberly-Clark in granting the motion for judgment on the
pleadings.
c. The District Court Properly Considered The Prior Art 950
Publication

Although it was not necessary for the district courts decision, the district
court relied on the WO 950 publication as an alternative basis for granting
Kimberly-Clarks motion for judgment on the pleadings. (A5-A6.) Contrary to
Appellants assertion, the district court properly took judicial notice of the WO
950 publication, which is a publicly available government document. Hoganas, 9
F.3d at n. 27; Mack, 798 F.2d at 1282.
Thus, the district court did not err in considering the 328 patent, the
photographs of the allegedly infringing products, and the WO 950 publication in
deciding Kimberly-Clarks motion for judgment on the pleadings.

- 18 -
2. The Timing Of The Rule 26(f) Conference Is Irrelevant

Appellants Appeal No. 2 argues that the district court incorrectly fail[ed]
to take into account there was no meet and conference [sic] according to FRCP
#26(f). (Appeal No. 2 at 1; see also Informal Opening Br. at 2 (referring to
Kimberly-Clarks alleged failure to participate in a Rule 26(f) conference). The
timing of the Rule 26(f) conference is irrelevant to Kimberly-Clarks motion,
which tests the sufficiency of the complaint. Moreover, Appellants assertion that
Kimberly-Clark failed to conduct the Rule 26(f) conference by February 4, 2013,
ignores that the district court vacated that deadline. (A61-A62.) Thus, Appellants
Appeal No. 2 does not provide any basis for disturbing the district courts
decision.
3. The District Court Properly Granted Appellants Motion To File
An Amended Complaint

Appellants Appeal No. 3 argues that the trial court incorrectly decided
and made a mistake to give consent to the trial Clerks to sign, file and mailed [sic]
minute order, doc. #24[,] which would force a third complaint. (Appeal No. 3.)
To the extent Appellant argues that the district court erred in granting Appellants
own motion, this argument is meritless. Appellant filed an unopposed motion for
leave to file a second amended complaint and attached thereto the proposed second
amended complaint. (A56-A59.) The district courts decision to grant Appellants

- 19 -
own motion for leave to amend does not provide any basis for disturbing the
district courts judgment of noninfringement.
In sum, Appellant has not identified any error in the district courts analysis,
and the district courts judgment should be affirmed.
D. The District Courts Judgment Of Noninfringement Should Be
Affirmed

Relying on the evidence properly before it, the district court conducted a
detailed infringement analysis and concluded that Appellants complaint does not
state a plausible claim for design patent infringement. Nowhere in Appellants
appeal briefs does Appellant argue that the district court erred in its substantive
infringement analysis. Nor could Appellant do so.
1. The District Court Correctly Concluded That The Five Accused
Kimberly-Clark Products Do Not Infringe The 328 Patent

A design patent is infringed only if the two designs are substantially the
same, i.e., an ordinary observer, familiar with the prior art, would be deceived
into thinking that the accused design was the same as the patented design.
Egyptian Goddess, 543 F.3d at 678. As this Court has recognized, in some
instances, the claimed design and the accused design will be sufficiently distinct
that it will be [clear] without more that the patentee has not met its burden of
proving the two designs would appear substantially the same to the ordinary
observer. Id. at 678.

- 20 -
The district court undertook the comparative analysis required by Egyptian
Goddess and found striking differences between the patented design and the
appearance of the accused products. (A6.) The district court properly recognized
that the 328 patent claims a bloomers-style undergarment that extends to cover
each leg substantially below the crotch, with a hem or gather at the leg and waist
openings that are designed to fit the leg and waist closely. (A5.) The district
court further stated that the leg and waist openings [of the patented design] are
parallel to each other, and would also be parallel to the ground if the person
wearing the undergarment was standing upright. (Id.) The claimed design also
requires an inverted U-shaped section of the undergarment . . . made of different
material (or at least a different piece of the same material) than the rest of the
garment. (A6.) These prominent features are readily apparent from even a
cursory review of the patented design:

Front-Angle View Front View Rear View

- 21 -
(A52-A53.)
a. Kimberly-Clarks Depend
Products Do Not Infringe The

328 Patent

As shown below, the four accused Depend
products bear no resemblance to

the design claimed in the 328 patent:
Accused Depend
Products Manufactured by Kimberly-Clark

Depend
For Women
Moderate Absorbency
Depend
Silhouette For
Women
Depend
Real Fit For Men

Briefs Maximum
Absorbency
Depend
Underwear for
Men Maximum
Absorbency

(A194-A201.)

The district court properly found that, in contrast to the bloomers-style
design claimed in the 328 patent, each of Kimberly-Clarks Depend
products is
a briefs-style undergarment, which is to say an undergarment with no leg
covering at all. (A5.) Unlike the patented design, [t]he leg opening of
[Kimberly-Clarks Depend
] undergarments are at or above the crotch, and they

run at approximately 45-degree angles to the waist opening. (Id.) The district
court further found that these products did not incorporate the inverted U-shaped
section required by the patented design. (A6.)

- 22 -
Importantly, the district court recognized that it could recount other
differences, but the ones it has mentioned are the most striking and that those
differences suffice to demonstrate that the accused products do not infringe the
328 patent. (Id.) The district courts detailed analysis and finding of
noninfringement should be affirmed.
b. Kimberly-Clarks GoodNites
Product Does Not Infringe

The 328 Patent

The district court found that the appearance of the accused Kimberly-Clark
GoodNites
product is different still because it consists of a briefs-style

undergarment not unlike the Depend products, but with a separate (or loosely
attached) boxer-short-style layer over it. GoodNites appear, on an external view,
to resemble boxer shorts, but their interior is a briefs-style undergarment. (A5.)
Thus, the district court further distinguished the appearance of the GoodNites

product from the unitary undergarment claimed in the 328 patent. (Id.) The
district court also recognized that the GoodNites
product does not have an

inverted-U-shaped section claimed in the 328 patent. (A6.)
Although the district court identified several differences between the
GoodNites
product and the claimed design, many more would be readily apparent
to any ordinary observer. Among other things, the GoodNites
product lacks: (1)

extended tubular leg portions; (2) a dual-material appearance; (3) two vertical

- 23 -
borders on the back; (4) a ruffled band around the leg openings that is similar to
the waist band; and (5) an arched crotch area, as shown below.

(A53, A203-A204.)

In sum, the district court thoroughly compared the claimed design to the
accused Kimberly-Clark products and properly concluded that plain differences
exist between the accused products and the claimed design. (A6.) Appellant has
never identified any purported similarities between the patented design and the
Kimberly-Clark products (id. at n. 2) and has never attempted to explain how or
why an ordinary observer would be deceived into thinking that the accused designs
are the same as the patented design. Accordingly, the district courts judgment of
noninfringement should be affirmed. See, e.g., Colida v. Nokia, Inc., 347 Fed.

GoodNites
Boxers (Front)

GoodNites
Boxers (Rear)

328 Patent (Front View)

328 Patent (Rear View

- 24 -
Appx. 568, 570 (Fed. Cir. 2009) (nonprecedential, see A18-A24) (affirming
dismissal of design patent infringement claim based on comparison between
patented design and depictions of the accused products design).
c. The Court Correctly Found That, If Appellants Allegations
Are Accepted As True, The 328 Patent Is Invalid

In addition to finding that the GoodNites
product does not infringe the 328

patent because the appearance is plainly dissimilar from the claimed design, the
district court also provided an alternative ground for its decision. As evidenced by
the side-by-side comparison below, the district court properly found that the
appearance of the GoodNites
product is indistinguishable from the design

shown in Kimberly-Clarks prior art WO 950 publication. (A5-A6.)
(A165, A203.)
Given the similarity between the accused GoodNites
product and the prior

art design, the district court properly concluded that, if the GoodNites
product

Intl Publ. No. WO 96/03950 GoodNites
Boxers

- 25 -
infringes the 328 patent as Appellant contends, the 328 patent would be invalid in
light of the prior art WO 950 publication. Intl Seaway Trading Corp. v.
Walgreens Corp., 589 F.3d 1233, 1239 (Fed. Cir. 2009) (a design that infringes if
later, anticipates if earlier). Appellant does not dispute this finding, which
provides an independent ground for affirming the district courts judgment.
2. The Court Properly Concluded That Kimberly-Clark Could Not
Be Liable For Allegedly Infringing Products Made and Sold By
Its Competitors

The district court also properly entered judgment of noninfringement on
Appellants infringement claim directed to the four products marketed by
Kimberly-Clarks competitors. The district court took judicial notice of the
uncontested fact that Kimberly-Clark is not responsible for those accused
products. (A3 at n. 1.) The Assurance
and Certainty
products are available

online and at retail stores throughout the country, and courts in the Ninth Circuit
regularly take judicial notice of product packaging. See, e.g., Miller v. Ghirardelli
Chocolate Co., 912 F. Supp. 2d 861, 865 n. 2 (N.D. Cal. 2012) (taking judicial
notice of products and labels on motion to dismiss); Datel Holdings, Ltd. v.
Microsoft Corp., 712 F. Supp. 2d 974, 983-85 (N.D. Cal. 2010) (taking judicial
notice of game console packaging in granting defendants motion to dismiss);
Dvora v. Gen. Mills, Inc., No. CV 11-1074-GW (PLAx), 2011 U.S. Dist. LEXIS
55513, *3 (C.D. Cal. May 16, 2011) (taking judicial notice of complete color copy

- 26 -
of cereal package in granting defendants motion to dismiss); Mayfield v. Sara Lee
Corp., No. C 04-1588 CW, 2005 U.S. Dist. LEXIS 42458, *9 (N.D. Cal. J an. 13,
2005) (taking judicial notice of photocopies of bread product packages).
The packaging of the Assurance
and Certainty
products clearly
establishand Appellant does not disputethat Kimberly-Clark does not make,
use, sell, offer to sell, or import those products. (A205-A216.) Accordingly, the
district court properly took judicial notice of those products and concluded that
Appellant could not state a plausible claim for infringement against Kimberly-
Clark.
The district court alternatively considered Appellants proposed second
amended complaintwhich deleted any reference to the Assurance
and
Certainty
productsto be an admission that Kimberly-Clark was not responsible

for those products. (A3 at n. 1.) Appellant does not dispute that she conceded this
fact during the parties meet and confer (see A86 at 2-3), and nowhere argues
that Kimberly-Clark manufactures those products. Accordingly, the district courts
judgment of noninfringement with respect to the four products made by Kimberly-
Clarks competitors should also be affirmed.

- 27 -
VIII. CONCLUSION AND STATEMENT OF RELIEF
For the reasons set forth above and in the district courts Order, Kimberly-
Clark respectfully requests that this Court affirm the district courts judgment.


Boris Zelkind
Colin B. Heideman


- 28 -
CERTIFICATE OF COMPLIANCE
1. This brief complies with the type-volume limitation of Federal Rule of
Appellate Procedure 32(a)(7)(B)(iii). This brief contains 5,100 words,
excluding the parts of the brief exempt by Federal Rule of Appellate
Procedure 32(a)(7)(B)(iii).
2. This brief complies with the typeface requirements of Federal Rule of
Appellate Procedure 32(a)(5) and the type style requirements of Federal
Rule of Appellate Procedure 32(a)(6). This Brief has been prepared in a
proportionally spaced typeface using Microsoft Word 2010 in 14 point font
Times New Roman.


Boris Zelkind
Colin B. Heideman



ADDENDUM
AO 450 (Rev. 5/85) Judgment in a Civil Case U

United States District Court
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
Plaintiff,
v.
Defendant.
JUDGMENT IN A CIVIL CASE
CASE NUMBER: C12-1979RAJ
Jury Verdict. This action came before the Court for a trial by jury. The issues have been tried and the
jury has rendered its verdict.
X Decision by Court. This action came to consideration before the Court. The issues have been
considered and a decision has been rendered.
THE COURT HAS ORDERED THAT:
Defendants accused products do not infringe Plaintiffs design patent, as stated in the courts September
25, 2013 order.
Dated this 25th day of September, 2013.
WILLIAM M. MCCOOL
Clerk
/s Consuelo Ledesma
Deputy Clerk

Case 2:12-cv-01979-RAJ Document 35 Filed 09/25/13 Page 1 of 1
A1
ORDER 1
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HONORABLE RICHARD A. JONES
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
Plaintiff,
v.
Defendant.
CASE NO. C12-1979RAJ
ORDER
I. INTRODUCTION
This matter comes before the court on Defendants motion for judgment on the
pleadings. Although the parties requested oral argument, the court finds oral argument
unnecessary. For the reasons stated herein, the court GRANTS the motion (Dkt. # 28)
and DISMISSES this action with prejudice. The clerk shall enter judgment for Defendant
that its accused products do not infringe the patent-in-suit.
II. BACKGROUND
Muffin Anderson is the named inventor of United States Design Patent No.
401,328 (the 328 Patent). The 328 Patent contains a single claim to an ornamental
design for an absorbent disposable undergarment as described in seven drawings. Ms.
Anderson applied for the 328 Patent in September 1997.
Defendant Kimberly-Clark Corporation sells a host of absorbent disposable
undergarments, including several products that Ms. Anderson accuses of infringing her
A2
ORDER 2
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patent. Kimberly-Clark reviewed the list of accused products in Ms. Andersons first
amended complaint (Dkt. # 4) and identified five products that it sells or sold within the
past several years.
1
Those products are four varieties of adult disposable undergarments
sold under Kimberly-Clarks Depend brand in addition to a no-longer-on-the-market
disposable undergarment for children known as GoodNites, which Kimberly-Clark sold
under its Pull-Ups brand. In July 1994, Kimberly-Clark submitted a patent application
to the World Intellectual Property Organization (WIPO) for the design embodied in its
GoodNites product. WIPO issued Kimberly-Clark a patent in February 1996, with
international publication number WO 96/03950 (the 950 WIPO Patent).
Ms. Anderson asserts that each of the accused products infringes the 328 Patent.
Kimberly-Clark denies infringement, and has also filed counterclaims for a declaratory
judgment that it does not infringe as well as a declaratory judgment that the 328 Patent is
invalid.
III. ANALYSIS
This dispute comes before the court on Kimberly-Clarks motion for judgment on
the pleadings. That motion, which Federal Rule of Civil Procedure 12(c) authorizes, is
functionally equivalent to a Rule 12(b)(6) motion to dismiss for failure to state a claim.
Harris v. County of Orange, 682 F.3d 1126, 1131 (9th Cir. 2012). Rule 12(b)(6) requires
the court to assume the truth of the complaints factual allegations and credit all
reasonable inferences arising from its allegations. Sanders v. Brown, 504 F.3d 903, 910
(9th Cir. 2007). The plaintiff must point to factual allegations that state a claim to relief
1
After reviewing Ms. Andersons first amended complaint, counsel for Kimberly-Clark notified
her that its competitors manufactured four of the products she accused of infringement. Ms.
Anderson then proposed a second amended complaint (Dkt. # 18-1) that deleted references to
those products. The court granted her leave to file that amended complaint no later than
February 5. Ms. Anderson declined to do so. It would make no difference to the outcome of this
motion if the court relied on the proposed second amended complaint. The court can likely take
judicial notice of the uncontested fact that Kimberly-Clark is not responsible for several of the
accused products in the first amended complaint. Even if the court cannot take judicial notice,
the court takes Ms. Andersons proposed second amended complaint as an admission that
Kimberly-Clark does not manufacture the products that she deleted from that document.
A3
ORDER 3
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that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 568 (2007). If
the plaintiff succeeds, the complaint avoids dismissal if there is any set of facts
consistent with the allegations in the complaint that would entitle the plaintiff to relief.
Id. at 563; Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (When there are well-pleaded
factual allegations, a court should assume their veracity and then determine whether they
plausibly give rise to an entitlement to relief.). The court typically cannot consider
evidence beyond the four corners of the complaint, although it may rely on a document to
which the complaint refers if the document is central to the partys claims and its
authenticity is not in question. Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006). The
court may also consider evidence subject to judicial notice. United States v. Ritchie, 342
F.3d 903, 908 (9th Cir. 2003).
Kimberly-Clarks motion requires the court to consider photographs of its accused
products along with the 950 WIPO Patent. The court takes judicial notice of the 950
WIPO Patent. As to the photographs of the accused products, the court finds that they are
central to the allegations of Ms. Andersons complaint. As the court will soon discuss, a
determination of design patent infringement is a visual exercise, one that requires
comparison of the drawings embodying the patented design to the appearance of the
accused product. Although Ms. Anderson insists that the court should permit her to take
discovery, she does not contend that Kimberly-Clarks photographs are anything other
than true depictions of its accused products. For that reason, the court will consider the
photographs.
A product infringes a design patent if the design embodied in the patent and the
design of the product would appear to the ordinary observer to be substantially similar.
Egyptian Goddess, Inc. v. Swisa, Inc., 543 F.3d 665, 678 (Fed. Cir. 2008). In contrast to
the courts task in resolving claims of utility patent infringement, design patent
infringement does not require claim construction. Id. at 679. It suffices to provide a
A4
ORDER 4
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description of the claimed design that illuminates its comparison to the accused product.
Id. at 680. Although the courts analysis may become detailed, involving comparisons of
prior art and discussions of design patent conventions, id. at 678, 681, a detailed analysis
is not always necessary:
In some instances, the claimed design and the accused design will be
sufficiently distinct that it will be clear without more that the patentee has
not met its burden of proving the two designs would appear substantially
the same to the ordinary observer . . . .
Id. at 678 (quoting Gorham Co. v. White, 81 U.S. 511, 528 (1871)). In any event, a court
considers only the ornamental aspects of a design patent, because design patents cannot
cover purely functional aspects of a product. Id. at 681.
In this case, a side-by-side comparison of the drawings of the 328 Patent to the
accused products suffices to demonstrate that there is no infringement. The drawings
reveal a bloomers-style undergarment, which is to say an undergarment that extends to
cover each leg substantially below the crotch, with a hem or gather at the leg and waist
openings that are designed to fit the leg and waist closely. The leg and waist openings
are parallel to each other, and would also be parallel to the ground if the person wearing
the undergarment was standing upright. Each of the four accused Depend products, by
contrast, is a briefs-style undergarment, which is to say an undergarment with no leg
covering at all. The leg openings of these undergarments are at or above the crotch, and
they run at approximately 45-degree angles to the waist opening.
The GoodNites products are different still. Unlike the drawings in the 328 Patent,
which depict an unitary undergarment, the GoodNites products consist of a briefs-style
undergarment not unlike the Depend products, but with a separate (or loosely attached)
boxer-short-style layer over it. GoodNites appear, on an external view, to resemble boxer
shorts, but their interior is a briefs-style undergarment.
Kimberly-Clark also correctly observes that its 950 WIPO Patent (which issued in
1996) is prior art with respect to the 328 Patent. The 950 WIPO Patent depicts a
A5
ORDER 5
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disposable undergarment that is indistinguishable from the GoodNites products. Thus, if
the court were to accept Ms. Andersons view that the GoodNites products infringe the
328 Patent, it would also have to declare the 328 Patent invalid in light of the 950
Patent.
There are other differences between the accused products and the 328 Patent. For
example, the 328 Patent depicts an inverted-U-shaped section of the undergarment (with
a wearers crotch situated at the vertex of the inverted U) made of different material (or
at least a different piece of the same material) than the rest of the garment. None of the
accused products incorporate this design. The court could recount other differences, but
the ones it has mentioned are the most striking. They suffice to demonstrate that the
accused products do not infringe the 328 Patent. Indeed, the only apparent similarity
between the claimed design and the accused products are that both serve as disposable
barriers to protect the wearer from incontinence. This purely functional consideration is
no basis for a finding of design patent infringement.
IV. CONCLUSION
For the reasons previously stated, the court GRANTS Kimberly-Clarks motion
for judgment on the pleadings. Dkt. # 28. Ms. Anderson did not expressly request leave
to amend, but the court would not grant it in any event. No amendment of Ms.
Andersons complaint could overcome the plain differences between her claimed design
and the accused products.
2
2
Ms. Anderson has pursued this action pro se. Her opposition to Kimberly-Clarks motion for
judgment on the pleadings contains no discussion at all of the differences or similarities between
her patented design and the products she accuses of infringing. Even construing her opposition
and her complaint with the utmost liberality, she has fallen well short of a viable infringement
claim. Worse, her choice to accuse Kimberly-Clark of infringement without verifying that
Kimberly-Clark actually sells the accused products, coupled with her failure to provide any
comparison of the accused products to her design, is suggestive of bad faith. Rule 11 of the
Federal Rules of Civil Procedure requires a reasonable investigation before filing a complaint,
and permits a court to impose sanctions. Fed. R. Civ. P. 11(b)(3)-(4), (c). No one has requested
Rule 11 sanctions in this case, but some of Ms. Andersons actions in pursuing this lawsuit
arguably merit sanctions. The court urges Ms. Anderson to reconsider her approach if she
continues to assert the 328 Patent.
A6
ORDER 6
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Kimberly-Clarks motion requests only that the court dismiss Ms. Andersons
complaint with prejudice and enter judgment in its favor. It does not request relief on its
declaratory judgment counterclaims. This order constitutes a declaratory judgment that
none of the accused products infringe the 328 Patent. Because Kimberly-Clark did not
request a declaratory judgment of invalidity in its motion, but requested that the court
dismiss the case in its entirety, the court deems its counterclaim for a declaratory
judgment to have been abandoned. This ruling is without prejudice to Kimberly-Clark
raising a claim (or defense) that the 328 Patent is invalid in another case.
The court DISMISSES Plaintiffs complaint with prejudice and directs the court to
enter judgment for Defendant.
DATED this 25th day of September, 2013.
A
The Honorable Richard A. Jones
United States District Court Judge
A7
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February 24, 2014

brands), Appellant filed a motion for leave to

products. (A58 at 7.) The district court granted the

brand. (A27 at 7.) As shown below, the

products are all shaped like briefs, and the GoodNites

brand, infringe the 328 patent. (A27 at 7.)

brand products are sold by Wal-Mart Stores, Inc.

brand product is sold by Walgreens (A215-

Products Do Not Infringe The

products bear no resemblance to

Products Manufactured by Kimberly-Clark

Real Fit For Men

] undergarments are at or above the crotch, and they

Product Does Not Infringe

product is different still because it consists of a briefs-style

product does not have an

product lacks: (1)

product does not infringe the 328

product is indistinguishable from the design

product and the prior

products are available

productsto be an admission that Kimberly-Clark was not responsible

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