Decision Date: August 31, 2011
Court: D. Vermont
Holding: Plaintiff’s motion for a preliminary injunction DENIED
Opinion: Plaintiff Revision Military, Inc. sued Balboa Manufacturing Company for infringement of U.S. Design Patents D537,098 and D620,039, entitled “protective goggles” and “goggles,” respectively. Revision makes military-style, protective goggles called Bullet Ant goggles. Balboa makes an allegedly similar pair of goggles called Bravo goggles. Revision filed a motion for a preliminary injunction, asking the court to prohibit Balboa from selling the Bravo goggles until the case could be decided. The court, however, denied Revision’s motion for a preliminary injunction because Revision did not show “clear” and “substantial” evidence of infringement.
In order for a court to grant a preliminary injunction, it must find that a ruling of infringement is likely and that the patents in question will remain valid and enforceable. In this case, since Balboa did not raise any doubt as to the validity or enforceability of the Revision patents, the court needed only to consider whether the Bravo goggles would likely be found to infringe Revision’s patents.
To aid in its comparison of the Bravo goggles to the patents, the court compared the Bravo goggles to the Bullet Ant goggles (since Revision’s patents claim a design that is substantially the same as its Bullet Ant goggles). After making both comparisons, the court found that the overall visual impression was not substantially the same. Specifically, the court noted three differences, that taken together, led to an overall difference in appearance: the shape and size of the lenses, the shape and arrangement of the air vents along the bridge of the nose, and the shape and arrangement of the air vents along the top and bottom of the goggles. Since the goggles did not “clearly reflect the same design,” the court denied Revision’s motion for a preliminary injunction.
With regard to the prior art, the court noted that evidence from both parties was “decidedly scant,” but recognized that it was Balboa’s burden to produce prior art that would aid in the infringement analysis. In the end, the court concluded that the accused and patented designs were not so close that the court needed prior art as a “frame of reference” to apply the ordinary observer test.
It appears the court made the correct decision in this case by not granting the preliminary injunction. While there are several similarities between the patented designs and the accused design, the designs, as a whole, are not so close that an ordinary observer would consider them to be substantially the same. However, if the case does not settle, the defendant, Balboa, may want to put effort into providing the court with additional prior art that makes it easier for the court to conclude that the accused design is closer to the prior art than it is to the patented designs.