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Judge Robinson grants motion for summary judgment of non-infringement of design claims.

Judge Sue L. Robinson recently granted a defendant’s motion for summary judgment of non-infringement of design patent claims.  Poly-America, L.P. v. API Indus., Inc., Civ. No. 13-693-SLR (D. Del. Nov. 25, 2014).  The decision hinged on the “normal use” of the products at issue – cardboard boxes with perforated openings through which plastic garbage bags can be removed.  As Judge Robinson noted, the Federal Circuit has defined “normal use” as the “period in the articles life, beginning after completion of manufacture or assembly and ending with the ultimate destruction, loss, or disappearance of the article.”  Id. at 4 (quoting In re Webb, 916 F.2d 1553, 1557-58 (Fed. Cir. 1990)).  Because the defendant introduced unrebutted evidence that the “normal use” of its product would include “flattening the box for recycling,” at which time its product’s distinct top flaps, tabs, and slots would be viewed by an ordinary observer, the Court found that summary judgment of non-infringement was required.  Id. at 15 (“Although Poly questioned the frequency with which an ordinary observer would view these features, it was unable to point to any evidence that would contradict API’s contention that the flaps, tabs and slots are visible at the point of disassembly, or that recycling was part of a box’s ‘normal use.’”) (emphasis in original).

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