N OTE : This disposition is nonprecedential. 

# United States **Court of Appeals**  **for the Federal Circuit**

______________________

ALLYSON WALLACE
, Plaintiff

- Appellant

v.

IDEAVILLAGE PRODUCTS CORP ORATION
, Defendant

- Appellee

______________________

201 5- 1077

______________________ Appeal from the United States District Court for the District of New Jersey in N o. 2:06

- cv

- 05673

- JAD

, Magi strate Judge Joseph A. Dickson

.

______________________

Decided: March 3 , 2016

______________________

A LLYSON W ALLACE , Newark

, NJ

, pro se

.

K EVIN J OSEPH O’C ONNOR , Lum, Drasco & Positan LLC, Roseland, NJ, for defendant -appellee.

______________________

Before N EWMAN , D YK , and W ALLACH , Circuit Judges.

N EWMAN , Circuit Judge.WALLACE v. IDEAVILLAGE PRODUCTS CORP

. 2

Ms. Allyson Wallace owns U.S. Design Patent No. D485,990 (the D’ 990 patent), for an “ornamental design for a body washing brush, as shown and described” in six drawings . Ms. Wallace, proceeding pro se, sued Idea vi llage Products Corporation for patent infringement in the United States District Court for the District of New Jersey , based on the Ideavillage product called the “Spin Spa

. ” Ideav illage moved for summary judgment of non

infringement

. Ms. Wallace, acting through appointed counsel, submitted a brief and expert report in opposition

. The district court

, reviewing the record and receiving argument, granted summary judgment to Idea v illage. For the reasons set forth below, we affirm the district
court ’s judgme nt.

D ISCUSSION
We review issues not unique to patent law under the law of the regional circuit, here the Third Circuit. Cla ssen Immunotherapies, Inc. v. Elan Pharm., Inc. , 786 F.3d 892, 896 (Fed. Cir. 2015). Summary judgment may be granted “only if ‘draw ing all reasonable inferences in favor of the nonmoving party, there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law ’” Young v. Martin , 801 F.3d 172, 177 (3d Cir. 2015) (internal citations and mod ific ations omitted). In the Third Circuit, the court reviews the grant of summary judgment de novo. See Al

– Sharif v. U.S. Citizenship & Immigration Servs. , 734 F.3d 207, 210 n. 2 (3d Cir. 2013) (en banc).
We review issues unique to patent law under the law of our circuit. The standard for design patent infring ement is summarized in Egyptian Goddess, Inc. v. Swisa, Inc. , 543 F.3d 665 (Fed. Cir. 2008) ( en banc ) , applying the “ordinary observer” test of Gorha m Manufacturing Co. v. White , 81 U.S. 511 (1871):
[T] he “ordinary observer” test should be the sole test for determining whether a design patent hasWALLACE v. IDEAVILLAGE PRODUCTS CORP

. 3

been infringed. Under that test, as this court has sometimes described it, infringement will not be found unless the accused article “embod[ies] the patented design or any colorable imitation ther eof.”
Egyptian Goddess , 543 F.3d at 678 . The ordinary obser ver test proceeds in two stages. “ In some instances, the claimed design and the accused design will be su fficiently distinct that it will be clear without more that the paten tee has not met its burden of proving the two designs would appear ‘ substantially the same ’ to the ordinary observer . . . . ” Id. “ In other instances, when the claimed and accused designs are not plainly dissimilar, resolution of the question whether the ordinary observer would consider the two designs to be substantially the same will benefit from a comparison of the claimed and accused designs with the prior art . . . .” Id.

T he district court applied both stages and determined under both tests that an ordinary observer would not consider Ms. Wallace’s patented design and the Ideavi llage design to be substantially the same.

A

With respect to the first stage, the district court highlighted six differences between the Ideavillage design and the claimed design:
(1) ’9 90 patent has a straight handle, while the I deavillage product has a bent or curved handle;
(2) ’ 990 patent has a finger grip with a hill and valley design, while the Ideavillage product has no such finger grip;
( 3) ’ 990 patent has a flat threaded opening at the base of the handle, while the Ideavillage product has a closed pointed end with an aperture where a rope can be attached;WALLACE v. IDEAVILLAGE PRODUCTS CORP

. 4

( 4) ’ 990 patent has a round head wit h a two tiered brush, while the Ideavillage product has an oblong head without a two tier brush;
( 5) ’ 990 patent has a protrusion at the back of the head, while I deavillage product has a smooth back witho ut any protrusion; and finally,
( 6) ’ 990 patent has no decoration on the back of the handle, while Ideavillage product has an oval at the neck of the handle and an oval group in the back of the handle.
Wallace v. Ideavillage Products Corp. , No. 06

- CV

- 5673

- JAD, 2014 WL 4637216, at *3 (D.N.J. Sept. 15, 2014) (“Dist. Ct. Op.”)

. In granting summary judgment, t he district court
acknowledge[d] manifest differences in the overall appearance of the ’ 990 patent and the [Ideavi llage] product. Indeed, a comparison supports a finding that these two designs are suffici ently di stinct and Ms. Wallace cannot, as a matter of law, prove that the designs appear substantially the

same. To the ordinary observer, in other words, the two designs do not look substantially the

same.

Id. at *4

. We have compared the D ’990 patent’s drawings to the photographs of the accused product in Ms. Wallace’s expert report and agree with the district c ourt that no reasonable fact

- finder would find them to be substantially the same under the first stage of the ordinary observer
test

. T he district court compared the following designs:WALLACE v. IDEAVILLAGE PRODUCTS CORP

. 5

D’990 Patent, Fig. 1 Ideavillage’s Accused Product

D’990 Patent, Fig. 2 Ideavillage’s Accused ProductWALLACE v. IDEAVILLAGE PRODUCTS CORP

. 6

D’990 Patent, Fig. 3 Ideavillage’s Accused Product

D’990 Patent, Fig. 5 Ideavillage’s Accused ProductWALLACE v. IDEAVILLAGE PRODUCTS CORP

. 7

The district court properly found that the D ’990 patent’s design and the accused product are plainly dissimilar. B ath brushes with a generally rounded head and roughly cylindrical handle were shown in the prior art, and the curved shape of the handle , the angled connection b etween the handle and brush, the ovoid design of the head

, and the surface details are such tha t an ordinary observer viewing both designs would not confuse one product for the other

. B

“ In an effort to assure a fair and complete decision on this record,” the district court proceeded to the second stage of the ordinary observer test. Dist. Ct. Op. at *4

. Comparing the claimed design with figures from the prior
art , U.S. Patent No. 4,417,826 (the ‘826 Patent), reinfor ces the district court’s finding s under the first stage of the
test : D’990 Patent, Fig. 6 Ideavillage’s Accused ProductWALLACE v. IDEAVILLAGE PRODUCTS CORP

. 8

D’990 Fig. 1

Prior Art ’826 Patent, Fig. 1

Ideavillage’s Accused ProductWALLACE v. IDEAVILLAGE PRODUCTS CORP

. 9

Other prior art views also show the known characte ristics of the design.

D’990 Patent, Fig. 5

Prior Art ’826 Patent, Fig. 3

Ideavillage’s Accused ProductWALLACE v. IDEAVILLAGE PRODUCTS CORP

. 11

’ 990 patent, . . . no reasonable ordinary observer, familiar with the prior art, would be deceived into believing the [Ideavillage] [p] roduct is the same as the design depicted in the ’ 990 patent.” Id . at 10.
The district court correctly applied the law, t hat “d i fferences between the claimed and accused designs that might not be noticeable in the abstract can become signi ficant to the hypothetical ordinary observer who is conve rsant with the prior art.” Egyptian Goddess , 543 F.3d at 678

. T he judgment of no n- infringement is affirmed. Each party shall bear its costs.

AFFIRMED