NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

ALLYSON WALLACE,

Plaintiff-Appellant

v.

IDEAVILLAGE PRODUCTS CORPORATION,

Defendant-Appellee

______________________ 

2015-1077

______________________ 

Appeal from the United States District Court for the 

District of New Jersey in No. 2:06-cv-05673-JAD, Magistrate Judge Joseph A. Dickson. 

______________________ 

Decided: March 3, 2016

______________________ 

 

ALLYSON WALLACE, Newark, NJ, pro se. 

KEVIN JOSEPH O’CONNOR, Lum, Drasco & Positan 

LLC, Roseland, NJ, for defendant-appellee. 

______________________ 

Before NEWMAN, DYK, and WALLACH, Circuit Judges.

NEWMAN, Circuit Judge.
2 WALLACE v. IDEAVILLAGE PRODUCTS CORP. 

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 Ideavillage 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.” Ideavillage moved for summary judgment of noninfringement. 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 Ideavillage. 

For the reasons set forth below, we affirm the district 

court’s judgment.

DISCUSSION

We review issues not unique to patent law under the 

law of the regional circuit, here the Third Circuit. Classen Immunotherapies, Inc. v. Elan Pharm., Inc., 786 F.3d 

892, 896 (Fed. Cir. 2015). Summary judgment may be 

granted “only if ‘drawing 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 modifications 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 infringement is summarized in Egyptian Goddess, Inc. v. Swisa, 

Inc., 543 F.3d 665 (Fed. Cir. 2008) (en banc), applying the 

“ordinary observer” test of Gorham 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 has 
WALLACE 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 thereof.”

Egyptian Goddess, 543 F.3d at 678. The ordinary observer test proceeds in two stages. “In some instances, the 

claimed design and the accused design will be sufficiently 

distinct that it will be clear without more that the patentee 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.

The district court applied both stages and determined 

under both tests that an ordinary observer would not 

consider Ms. Wallace’s patented design and the Ideavillage 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) ’990 patent has a straight handle, while the 

Ideavillage 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; 
4 WALLACE v. IDEAVILLAGE PRODUCTS CORP. 

(4) ’990 patent has a round head with 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 Ideavillage product has a smooth back 

without 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, the 

district court

acknowledge[d] manifest differences in the overall 

appearance of the ’990 patent and the [Ideavillage] product. Indeed, a comparison supports a 

finding that these two designs are sufficiently distinct 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 court that no 

reasonable fact-finder would find them to be substantially 

the same under the first stage of the ordinary observer 

test. The 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

Product
6 WALLACE v. IDEAVILLAGE PRODUCTS CORP. 

D’990 Patent,

Fig. 3

Ideavillage’s

Accused

Product

D’990 Patent,

Fig. 5

Ideavillage’s

Accused

Product
WALLACE v. IDEAVILLAGE PRODUCTS CORP. 7

The district court properly found that the D’990 patent’s

design and the accused product are plainly dissimilar. 

Bath 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 between the handle and brush, the ovoid design of the head, 

and the surface details are such that 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), reinforces the district court’s findings under the first stage of the 

test: 

D’990 Patent,

Fig. 6

Ideavillage’s

Accused

Product
8 WALLACE v. IDEAVILLAGE PRODUCTS CORP. 

D’990 

Fig. 1

Prior Art

’826 Patent,

Fig. 1

Ideavillage’s

Accused

Product
WALLACE v. IDEAVILLAGE PRODUCTS CORP. 9

Other prior art views also show the known characteristics of the design.

D’990 Patent,

Fig. 5

Prior Art

’826 Patent,

Fig. 3

Ideavillage’s

Accused

Product

WALLACE 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, that “differences between the claimed and accused designs that 

might not be noticeable in the abstract can become significant to the hypothetical ordinary observer who is conversant with the prior art.” Egyptian Goddess, 543 F.3d at

678. 

The judgment of non-infringement is affirmed. Each 

party shall bear its costs.

AFFIRMED