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Advantek Marketing, Inc. v. Shanghai Walk-Long Tools Co., Ltd.

United States Court of Appeals, Federal Circuit

August 1, 2018

ADVANTEK MARKETING, INC., Plaintiff-Appellant
v.
SHANGHAI WALK-LONG TOOLS CO., LTD., NEOCRAFT TOOLS CO., LTD., Defendants-Appellees ORION FACTORY DIRECT, DOES 1-10, INCLUSIVE, Defendants

          Appeal from the United States District Court for the Central District of California in No. 2:16-cv-03061-R-FFM, Judge Manuel L. Real.

          Keith Joseph Wesley, Browne George Ross LLP, Los Angeles, CA, argued for plaintiff-appellant. Also represented by Brian Fitzgerald, Jaye Gerrard Heybl, Koppel Patrick Heybl & Philpott, Westlake Village, CA; K. Andrew Kent, Rincon Venture Law Group, Westlake Village, CA.

          Perry Goldberg, Progress LLP, Los Angeles, CA, argued for defendants-appellees.

          Before Newman, Clevenger, and Chen, Circuit Judges.

          Newman, Circuit Judge.

         Advantek Marketing, Inc. is the owner of design patent No. D715, 006 ("the D'006 patent") for a portable animal kennel that Advantek sells with the mark "Pet Gazebo." Advantek states that the Pet Gazebo is its "flagship product," that it has received awards and been successful commercially, for "[i]t provided a great solution for pet owners who wanted to take their pets with them, whether to a friend's house, on vacation, or simply out to the backyard." Appellant's Br. at 2.

         Advantek sued its former manufacturer, Shanghai Walk-Long Tools Co., together with Advantek's former vice president and others (collectively, "Walk-Long"), for patent infringement, breach of contract, and aiding and abetting breach of fiduciary duty. The complaint alleged that Walk-Long copied the Pet Gazebo and infringed the D'006 patent with their device called the "Pet Companion." The district court granted Walk-Long's motion for judgment on the pleadings under Federal Rule of Civil Procedure 12(c), holding that prosecution history estoppel bars Advantek from enforcing the D'006 patent against the Pet Companion. Final judgment was entered after the parties stipulated to dismissal of the non-patent counts.[1]

         We conclude that prosecution history estoppel does not preclude enforcement of the D'006 patent against the accused kennel. The judgment is reversed, and the case is remanded for further proceedings.

         Background

         The D'006 design application was filed with five photographs as figures. The examiner objected to the photographs as unclear, J.A. 186, and also issued a restriction requirement as between the first four figures (designated as Group I) and all five figures (designated as Group II). Following are Figures 1-4 as redrawn for Group I, and Figure 5 as the photograph in non-elected Group II:

         (Image Omitted)

         4 ADVANTEK MKTG., INC. v. SHANGHAI WALK-LONG TOOLS CO.

         (Image Omitted)

         (Image Omitted)

         The application described these Figures as follows:

Fig. 1 is a top perspective view showing our new kennel ...

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