Decision Date: August 12, 2011

Court: D. NJ  

Patents: D497,187 and D520,067  

Holding: Defendant’s motion for judgment on the pleadings GRANTED  

Opinion: Plaintiff, Moose Mountain Toymakers Ltd. sued Majik Ltd., LLC for infringement of U.S. Patents D497,187 and D520,067, both entitled Bowling Game. Moose Mountain Toymakers produces and sells the home bowling game Arcade Alley® Bowlercade®. Majik makes a competing product called Majik Bowl. The Court granted Majik’s motion for judgment on the pleadings with respect to patent infringement because of the “obvious and noticeable differences in overall appearance between [the accused product] and the patents”.  

According to the Court, while the overall function of the Majik Bowl game may be similar to the function of the Bowlercade® game, Moose Mountain’s design patents protect only the novel aesthetic features, not the functional features of its game. For example, the Moose Mountain patents picture side rails to constrain the ball to the alley; but since the side rails serve a functional purpose, only ornamental aspects of them (like their shape) are protected and considered relevant to the case of infringement.  

After identifying all the functional elements of the game, the court found that there were only four ornamental features left that were protected by the patents: the particular shape of the enclosure at the end of the alleyway, the round shape of the side rails, the spacing of the sleeves to hold the side rails, and the shape of the game control unit at the front of the game. The court determined that each of these protected elements was substantially different in the Majik Bowl game creating an overall visual impression that is different, and therefore ruled that Majik Ltd., LLC did not infringe on Moose Mountain’s patents.  

Thumbs down:  

Although the Court ultimately made the right decision (the accused product and the patented designs are not substantially similar), this case is troubling because it continues down the slippery slope started in Richardson v. Stanley Works where the Federal Circuit approved the “factoring out” of “functional” elements of the claimed design leaving precious little of the patented design to compare to the accused product. What the Federal Circuit was missing in Richardson, and what the NJ court is missing here, is that design patents are intended to protect articles of manufacture which by their nature perform some function. The functionality prohibition was created in the case law to prevent the patenting of designs which as a whole are dictated by function alone. In addition, this case is unusual in that the court found non-infringement on a Motion to Dismiss.