But Do They Look Alike To Phelps?

Posted on | August 10, 2008 | No Comments

2008-1498 Sofpool v. Intex Recreation
ED/TX 07-cv-097
Mag. Judge Charles Everingham

Sofpool appeals from the orders and judgment of Mag. Judge Charles Everingham confirming the jury’s verdict of non-infringement of design patents D408,817 and D408,546.  Michael Smith previously reported the verdict here.

The ’817 was construed by the court–and the jury instructed–as follows:

(1) An ovular, above-ground swimming pool with a generally tubular collar at the top of the pool, (2) an ovular base that forms a portion of the floor of the pool, and (3) a plurality of panels that form a portion of the floor of the pool as well as the pool’s sidewall. (4) The panels are connected to each
other by a plurality of seams that are spaced around the periphery of the pool. (5) Between each of these seams, the sidewall forms a prominent bulge that is defined by a lower sloping portion and an upper sloping portion. (6) This bulge extends around and defines the pool’s ovular outer periphery. (7) The bulge is located above the ground but lower than the mid-point of the sides of the pool. (8) Throughout each of the curved ends, the lower sloping portion is uplifted and extends from the bulge to the floor of the pool at a somewhat sharp pace. (9) Throughout each straight side of the pool, the lower sloping portion extends from the bulge to the floor of the pool at a somewhat sharp, curved pace. (10) The upper sloping portion gradually extends from the bulge to the collar at a somewhat steep aesthetically pleasing angle. (11) The pool has one generally U-shaped strut within each panel that forms the straight side of the pool. (12) The top of the generally U-shaped strut is bounded by a horizontal bar. (13) The base of each strut is connected to a rectangular strap that extends to a location beneath the floor of the pool. (14) The width of the strap is substantially the same as the length of the bottom portion of the generally U-shaped strut. (15) The pool does not have struts within each panel forming the curved ends of the pool.

The accused product (right) were claimed by plaintiff to appropriate the following points of novelty:

1. An ovular above-ground swimming pool with a tubular collar at the top of the pool and a prominent bulge that extends around the pool and defines the pool’s outer periphery.
2. An ovular above-ground swimming pool that has one or more U-shaped struts on the straight sides of the pool, but none on the curved sides of the pool.

The court also construed the ’546:

(1) A round, above-ground swimming pool (2) with a generally tubular collar at the top of the pool, (3) a circular base that forms a portion of the floor of the pool, and (4) a plurality of panels that form a portion of the floor of the pool, as well as the pool’s sidewall. (5) The panels are connected to each other by a plurality of outwardly protruding seams that are spaced circumferentially around the periphery of the pool. (6) Between each of these seams, the
sidewall forms a prominent bulge that is defined by a lower uplifted portion and an upper sloping portion. (7) This bulge extends circumferentially around the pool and gives the outer periphery of the pool a generally circular shape. (8) The bulge is located above the ground but lower than the mid-point of the sides of the pool. (9) The lower uplifted portion extends from the bulge to the floor of the pool at a somewhat sharp pace, and (10) the upper sloping portion extends from the bulge to the collar at a more gradual, aesthetically pleasing pace.

Sofpool claimed the following points of novelty:

1. A round above-ground pool with a raised prominent bulge defined by a lower uplifted portion and an upper sloping portion between the seams that extends circumferentially around the pool.
2. A round above-ground pool with outwardly protruding seams.

The jury found the patents not infringed and not invalid.  The court summarily denied Sofpool’s motion for a new trial.

Besides arguing that the verdict was against the great weight of the evidence, Sofpool also argued that the entire claim construction process (its claim construction was not adopted)–along with the points of novelty–will be contrary to Egyptian Goddess.  Sofpool acknowledged that the court applied the law as it currently stands, but raised  Egyptian Goddess to preserve the matter for appeal.

More reading:

Motion for New Trial

Counsel:

Sofpool: Gordon & Rees (Eric Michael Jaegers, George Byron Jamison, II, Jack L Slobodin, Matthew Daniel Murphey, Tracy Graves Wolf) and Rickey L. Faulkner, P.C.(Rickey L. Faulkner).

Intex: Baker & Daniels (Brandon S Judkins, R Trevor Carter, Stacy L Prall) and Ireland Carroll & Kelley (Jack Wesley Hill, Otis W Carroll, Jr).

Comments