Crocs had a design U.S. Patent No. D517789; rejected by USPTO as it failed to attend the re-examination of the appeal and hence loses its inter partes patent registration and has to wait until September 11, 2017 for Patent Examiner’s Decision for its new approval or new registration for new application.

What are design patents ?

A design patent is a form of legal protection granted to the ornamental design of a functional item designated by US as in case of the USPTO. Design patents are a type of industrial design right. Ornamental designs of jewelry, furniture, beverage containers and computer icons are examples of objects that are covered by design patents.
Here, design patent is on the structure, features and shape of crocs which was registered as a design patent by the company under USPTO.

What is inter partes ?

The term inter partes is the Latin word for “between the parties.” It can be distinguished from in, referring to a legal action whose jurisdiction is based on the control of property, or ex parte referring to a legal action that is by a single party.

Rejection on inter partes for crocs

The rejection on Croc’s 789 design patent was given by USPTO on the basis of inter partes re-examination which was failed to attend by the company having a date of request on August 3, 2012 by USA Dawgs and it was followed by the granting on the due date of November 19, 2012 and technically Crocs has a deadline of September 11, 2012 by which it has to appeal for Patent Examiner’s decision.

Anticipation of pre-AIA 35 USC 102(b)

The rejection of 789 design patent was under pre-AIA 35 USC 102(b)The Crocs had a priority date of filing the application on December 13, 2004 but the company was unable to file until the due date of May 20, 2004 while in that case the examiner showed indulgence for priority claim for the previous filing of the same application on June 23, 2003 ; as he says their was no sufficient disclosure prior to May 28, 2004 for making an earlier priority date claim which will be next to impossible for its recognition. So if the grant of backing the priority date back to June 23, 2003 would not be a good rejection process as the rejection was based on the priority date of December 13, 2002 and hence the pre-AIA 35 USC 102(b) has to be prevailed.

Crocs appeal

Crocs has shown enormous efforts for its validation as well as its rights against infringement parties. According to Footwear News an official statement was made by Crocs that the Colorado Colorado shoemaker plans to appeal the decision through to the Court of Appeals for the Federal Circuit, if required. Crocs’ statement notes that the Federal Circuit previously upheld the validity of both the ‘858 and ‘789 patents, overturning a ruling of invalidity previously issued by the U.S. International Trade Commission (ITC).

Inter partes reexamination decision

The inter partes reexamination decision was thrown by the examiner. The inter disputes between the companies were in between the U.S.A Dawgs and Crocs . The company also filed an infringement and considered U.S.A Dawgs as a defendant in the first amendment complaint filed in the district of Colorado . The infringement was on the basis of the ‘789 design patent along with a utility patent, U.S. Patent No. 6993858, titled Breathable Footwear Pieces and assigned to Crocs in February 2006.

Litigation by Crocs on U.S.A Dawgs

The Crocs counter claimed on U.S.A Dawgs on series of 14 defenses which include invalidity of both the ‘789 and ‘858 patents under 35 U.S.C. § 102 for novelty and 35 U.S.C. § 103 for non-obviousness; inequitable conduct and fraud for Crocs’ failure to bring material prior art to the attention of the USPTO; and non-infringement of the ‘789 design patent or the ‘858 utility patent.
From this news report we come to the conclusion that there is an intimate revelry between the Crocs and the U.S,A Dawgs which is due to the infringement filing to each other or may be for working in the same product field of the shoe making so as a result the examiner comes to the conclusion that the patent filed against the priority claim for Crocs is not to be granted on the valid grounds of the inter partes reexamination process.