Anderson v. Kimberly-Clark - Appellee Brief

February 24, 2014

No. 14-1117

IN THE

United States Court of Appeals FOR THE FEDERAL CIRCUIT

MUFFIN FAYE ANDERSON,

Plaintiff-Appellant, v.

KIMBERLY-CLARK CORPORATION,

Defendant-Appellee,

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON IN

CASE NO. 12-CV-1979, JUDGE RICHARD A. JONES

KIMBERLY-CLARK CORPORATION’S

APPELLEE BRIEF

STEVEN J. NATAUPSKY Counsel of Record BORIS ZELKIND COLIN B. HEIDEMAN KNOBBE, MARTENS, OLSON & BEAR, LLP 2040 Main Street, 14th Floor Irvine, CA 92614 (949) 760-0404 Attorneys for Defendant-Appellee Kimberly-Clark Corporation

Case: 14-1117 CASE PARTICIPANTS ONLY Document: 16 Page: 1 Filed: 02/24/2014

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CERTIFICATE OF INTEREST

Counsel for Defendant-Appellee Kimberly-Clark Corporation certifies:

1. The full name of every party or amicus represented by me is:

Kimberly-Clark Corporation

2. The name of the real party in interest (if the party named in the caption is not

the real party in interest) represented by me is:

Not applicable.

3. All parent corporations and any publicly held companies that own 10 percent

or more of the stock of the party represented by me are:

None.

4. The names of all law firms and the partners or associates that appeared for

the party or amicus now represented by me in the trial court or agency or are

expected to appear in this court are:

Steven J. Nataupsky, Boris Zelkind, Colin B. Heideman

(KNOBBE MARTENS OLSON & BEAR LLP).

KNOBBE, MARTENS, OLSON & BEAR, LLP

Dated: February 24, 2014 By: /s/ Colin B. Heideman Steven J. Nataupsky Boris Zelkind Colin B. Heideman Attorneys for Defendant-Appellee, KIMBERLY-CLARK CORPORATION


TABLE OF CONTENTS

Page No.

- ii -

I. STATEMENT OF RELATED CASES ........................................................... 1

II. JURISDICTIONAL STATEMENT ................................................................ 1

III. STATEMENT OF THE ISSUES .................................................................... 1

IV. STATEMENT OF THE CASE ....................................................................... 1

V. STATEMENT OF THE FACTS ..................................................................... 4

A. Appellant’s ’328 Patent And Design Patent Infringement Claims .................................................................................................... 4

B. Kimberly-Clark Has Designed Absorbent Undergarments For Over 40 Years ....................................................... 6

C. Kimberly-Clark’s Allegedly Infringing Products ................................. 8

D. Kimberly-Clark’s Competitors’ Products ............................................. 8

E. The District Court’s Judgment .............................................................. 9

VI. SUMMARY OF ARGUMENT ..................................................................... 11

VII. ARGUMENT ................................................................................................. 11

A. Standard Of Review ............................................................................ 12

B. The Legal Standard ............................................................................. 12

C. The District Court Did Not Commit Any Procedural Errors ................................................................................................... 14

1. The District Court Relied On Evidence Available To It On A Rule 12(c) Motion .................................................. 14

a. The Court Properly Considered the Asserted ’328 Patent ...................................................................... 14

b. The Court Properly Considered Photographs Of The Accused Products ............................................... 15

i. The Appearance of Defendant’s Accused Products Is Central To Plaintiffs’ Claim And The Authenticity Of The Photographs Is Not Disputed ......................................................... 15


TABLE OF CONTENTS (cont’d)

Page No.

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ii. The Court Can Take Judicial Notice Of The Appearance Of Kimberly-Clark’s Products ................................................... 16

c. The District Court Properly Considered The Prior Art ’950 Publication .............................................. 17

2. The Timing Of The Rule 26(f) Conference Is Irrelevant ................................................................................... 18

3. The District Court Properly Granted Appellant’s Motion To File An Amended Complaint .................................. 18

D. The District Court’s Judgment Of Noninfringement Should Be Affirmed ............................................................................ 19

1. The District Court Correctly Concluded That The Five Accused Kimberly-Clark Products Do Not Infringe The ’328 Patent ........................................................... 19

a. Kimberly-Clark’s Depend® Products Do Not Infringe The ’328 Patent ................................................. 21

b. Kimberly-Clark’s GoodNites® Product Does Not Infringe The ’328 Patent .......................................... 22

c. The Court Correctly Found That, If Appellant’s Allegations Are Accepted As True, The ’328 Patent Is Invalid ..................................... 24

2. The Court Properly Concluded That Kimberly-Clark Could Not Be Liable For Allegedly Infringing Products Made and Sold By Its Competitors ............................................................................... 25

VIII. CONCLUSION and STATEMENT OF RELIEF ......................................... 27


TABLE OF AUTHORITIES

Page No(s).

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Ashcroft v. Iqbal, 556 U.S. 662 (2009)....................................................................................... 13

Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)....................................................................................... 13

Cafasso v. Gen. Dynamics C4 Sys., 637 F.3d 1047 (9th Cir. 2011) ....................................................................... 13

Colida v. Nokia, Inc., 347 Fed. Appx. 568 (Fed. Cir. 2009) ............................................................ 24

Datel Holdings, Ltd. v. Microsoft Corp., 712 F. Supp. 2d 974 (N.D. Cal. 2010) ........................................................... 26

Dvora v. Gen. Mills, Inc., No. CV 11-1074-GW (PLAx), 2011 U.S. Dist. LEXIS 55513, (C.D. Cal. May 16, 2011) .............................................................................. 26

Egyptian Goddess, Inc. v. Swisa, Inc., 543 F.3d 665 (Fed. Cir. 2008) ..................................................... 10, 19, 20, 22

Hoganas AB v. Dresser Indus., Inc., 9 F.3d 948 (Fed. Cir. 1993) ..................................................................... 15, 17

Imation Corp. v. Koninklijke Philips Elecs. N.V., 586 F.3d 980 (Fed. Cir. 2009) ....................................................................... 12

Int’l Seaway Trading Corp. v. Walgreens Corp., 589 F.3d 1233 (Fed. Cir. 2009) ..................................................................... 25

Mack v. S. Bay Beer Distribs., Inc., 798 F.2d 1279 (9th Cir. 1986), overruled on other grounds by Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104 (1991) ........ 15, 17

Marder v. Lopez, 450 F.3d 445 (9th Cir. 2006) ........................................................................... 9


TABLE OF AUTHORITIES (cont’d)

Page No(s).

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Mayfield v. Sara Lee Corp., No. C 04-1588 CW, 2005 U.S. Dist. LEXIS 42458 (N.D. Cal. Jan. 13, 2005) ............................................................................... 26

McGlinchy v. Shell Chem. Co., 845 F.2d 802 (9th Cir. 1988) ......................................................................... 12

McZeal v. Sprint Nextel Corp., 501 F.3d 1354 (Fed. Cir. 2007) ..................................................................... 12

Miller v. Ghirardelli Chocolate Co., 912 F. Supp. 2d 861 (N.D. Cal. 2012) ........................................................... 26

Or. Natural Desert Ass’n v. United States Forest Serv., 550 F.3d 778 (9th Cir. 2008) ......................................................................... 12

Parrino v. FHP, Inc., 146 F.3d 699 (9th Cir. 1998) ............................................................. 14, 15, 16

Spreewell v. Golden State Warriors, 266 F.3d 979 (9th Cir. 2001) ......................................................................... 13

Swartz v. KPMG LLP, 476 F.3d 756 (9th Cir. 2007) ................................................................... 14, 15

Vigil v. Walt Disney Co., 2000 U.S. App. LEXIS 32071 (Fed. Cir. Apr. 5, 2000) .......................... 16, 17

Vigil v. Walt Disney Co., No. C-97-4147-MHP, 1998 U.S. Dist. LEXIS 22853 (N.D. Cal. Dec. 1, 1998), aff’d in relevant part without published opinion, 2000 U.S. App. LEXIS 32071 (Fed. Cir. Apr. 5, 2000) ........................................... 16, 17

OTHER AUTHORITIES

28 U.S.C. § 1295 .................................................................................................... 1, 2

Fed. Cir. R. 30 ............................................................................................................ 2

Fed. R. Civ. P. 8 ....................................................................................................... 12


TABLE OF AUTHORITIES (cont’d)

Page No(s).

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Fed. R. Civ. P. 12 ......................................................................................... 12, 13, 14

Fed. R. Civ. P. 26 ............................................................................................... 11, 18

Fed. R. Evid. 201 ..................................................................................................... 16


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Appellee Kimberly-Clark Corporation (“Kimberly-Clark”) hereby submits

this brief in response to the Informal Brief of Appellant, Muffin Faye Anderson

(“Appellant”).

I. STATEMENT OF RELATED CASES

Kimberly-Clark is not aware of any related cases.

II. JURISDICTIONAL STATEMENT

The United States District Court for the Western District of Washington

granted Kimberly-Clark’s motion for judgment on the pleadings, dismissed the

action with prejudice, and entered final judgment, finding that Kimberly-Clark has

not infringed Appellant’s design patent. Since this case arises under the United

States patent laws, this Court has jurisdiction over this appeal pursuant to 28

U.S.C. § 1295(a)(1).

III. STATEMENT OF THE ISSUES

Whether the trial court properly granted Kimberly-Clark’s motion for

judgment on the pleadings.

IV. STATEMENT OF THE CASE

The district court properly recognized the baseless nature of Appellant’s

design patent infringement claim. In doing so, the district court undertook a

detailed infringement analysis and provided a thorough and well-reasoned opinion.


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(A2-A7.)1 The district court concluded that the accused products do not infringe

Appellant’s design patent and that Appellant’s conduct was suggestive of bad faith.

(A6 at n. 2.) Despite the district court’s guidance that Appellant “reconsider her

approach if she continues to assert the ’328 patent” (id.), Appellant now appeals

the district court’s decision.

On November 19, 2012, Appellant filed a complaint (captioned “First

Amended Complaint”) for design patent infringement, alleging that nine different

products2 infringed now-expired U.S. Patent No. Des. 401,328 (“the ’328 patent”).3

(A25-A28.) Kimberly-Clark timely filed its Answer and Counterclaims on

December 11, 2012. (A29-A42.) Appellant filed an Answer to the Counterclaims

on December 26, 2012. (A43-A55.)

1 Because Appellant is pro se and did not submit an appendix, Kimberly-

Clark is filing an appendix herewith pursuant to Federal Circuit Rule 30(e).

2 The nine allegedly infringing products are identified in the complaint as: (1) “Boys and Girls Overnighter Boxer and Good-Nites Boxers for nighttime” (2) “Depend-certainty”; (3) “Depend For Women Moderate Absorbency”; (4) “Silhouelle For Women”; (5) “Assurance Underwear For Men”; (6) “Assurance Underwear For Men”; (7) “Depend Underwear For Men Maximum Absorbency”; (8) “Depend Real Fit For Men Briefs Maximum Absorbency”; and (9) “Assurance Casual Style ‘Boxers’ For Men Maximum Absorbency.” (A27 at ¶ 7.)

3 The ’328 patent expired on November 17, 2012. (A51.)


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On January 9, 2013, after being informed that Kimberly-Clark does not

manufacture four of the products identified in the complaint (i.e., products sold

under the Assurance® and Certainty® brands), Appellant filed a motion for leave to

file a second amended complaint. (A56-A59.) That motion included Appellant’s

proposed Second Amended Complaint, which deleted all allegations relating to the

Assurance® and Certainty® products. (A58 at ¶ 7.) The district court granted the

unopposed motion (A60), but Appellant never filed the proposed second amended

complaint.

On March 6, 2013, Kimberly-Clark moved for judgment on the pleadings

because Appellant’s complaint failed to state a plausible claim for relief. (A63-

A84.) Specifically, Kimberly-Clark sought judgment on the claims relating to the

five Kimberly-Clark products because those products are plainly dissimilar from

the patented design. (Id. at A73-A82.) Kimberly-Clark sought judgment on the

claims relating to the four allegedly infringing products made by Kimberly-Clark’s

competitors on the grounds that Kimberly-Clark could not be liable for such

products. (Id. at A82-A84.) In support of its motion, Kimberly-Clark submitted

photographs showing the allegedly infringing products, as well as publicly

available patents and patent applications. (A91-A216.)

Appellant opposed Kimberly-Clark’s motion for judgment on the pleadings

(see A217-A223), but did not dispute that the photographs of the products, as


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submitted by Kimberly-Clark, accurately represented the appearance of the

allegedly infringing products. (See id.) Appellant did not dispute that four of the

allegedly infringing products are made by Kimberly-Clark’s competitors. (Id.)

Nor did Appellant dispute that each of the five allegedly infringing Kimberly-Clark

products is “plainly dissimilar” from the patented design. (Id.) Kimberly-Clark

submitted a reply brief (A224-A231), and the district court granted Kimberly-

Clark’s motion (A2-A7). Appellant now appeals.

V. STATEMENT OF THE FACTS

A. Appellant’s ’328 Patent And Design Patent Infringement Claims

The ’328 patent issued in 1998 and claims the appearance of an “absorbent

disposable undergarment.” (A50-A55.) Figures 1, 2 and 3 of the ’328 patent are

shown below:

Front-Angle View Front View Rear View

(A52-A53.) As is immediately apparent from these figures, the claimed design has

numerous prominent ornamental features, including:


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(1) A bloomers-style shape with extended tubular leg portions;

(2) A first material that covers only the outer leg and the upper area in the

front of the garment, and is not used in the crotch area;

(3) A second, different material that covers the crotch area and also

extends to the top of the garment in the rear;

(4) An inverted U-shaped border on the front of the garment separating

the first and second materials;

(5) Two vertical borders on the rear of the garment separating the first

and second materials and extending from the leg openings to the waistband;

(6) A band, similar to the waistband, around each of the leg openings;

(7) Ruffles around each of the leg openings;

(8) An arched crotch area;

(9) Bunching of the second material in the crotch area to form a billowy

appearance;

(10) The garment is wider at the leg openings than at the waistband; and

(11) The leg openings are substantially parallel to the waist opening.

Notably, the second material forms a portion of the outer layer of the garment and

is visible from the exterior of the garment. The claimed design is not a design in

which a second material is attached to the interior of the garment.


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Appellant’s complaint alleged that nine different products infringe the ’328

patent. (A27 at ¶ 7.) Appellant attached the ’328 patent, as well as a receipt

showing Appellant’s purchase of the allegedly infringing products, to the

pleadings. (A49-A55.) Appellant did not attach pictures or samples of the

products to the pleadings. (See id.).

B. Kimberly-Clark Has Designed Absorbent Undergarments For Over 40 Years

Kimberly-Clark has been an innovative leader of household products for

over 140 years and its brands include Kleenex®, Cottonelle®, Scott®, Huggies®,

Kotex®, Depend®, Poise®, Pull-Ups®, Viva®, and GoodNites®. Kimberly-Clark

has a long history of designing and manufacturing undergarments, including

absorbent undergarments. For example, over 40 years ago, Kimberly-Clark filed a

patent application for an undergarment having an “improved crotch construction

[in] which at least one auxiliary layer of absorbent material is disposed over the

crotch area on the inner surface thereof[.]” (A106, U.S. Pat. No. 3,599,638 (“the

’638 patent”) at Abstract.) That application disclosed the following design:


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(Id.) Since the issuance of the ’638 patent in 1971, Kimberly-Clark has obtained

numerous additional patents relating to absorbent undergarments, and those patents

disclose a wide variety of potential product configurations and designs. Some of

those designs are reproduced below, with the patent numbers and filing year:

Pat. No. 4,690,681 (1986) Pat. No. 4,940,464 (1989) Pat. No. 4,938,757 (1989)

(A110-A163.) In July, 1994, more than three years before Appellant filed her

application for the ’328 patent, Kimberly-Clark filed a patent application

containing a design for an absorbent swimming garment having a conventional

boxer-short design, as shown below:

Int’l Pat. Publ. No.

WO 96/03950 (1994)

(A165-A193 (claiming priority to U.S. Application No. 08/283,101).) That

application published in 1996 as WO 96/03950 (“the WO ’950 publication”). (Id.)


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C. Kimberly-Clark’s Allegedly Infringing Products

Of the nine allegedly infringing products, only five are manufactured or sold

by Kimberly-Clark. Four of those products are sold under the Depend® brand and

one is sold under the GoodNites® brand. (A27 at ¶ 7.) As shown below, the

Depend® products are all shaped like briefs, and the GoodNites® boxers have a

boxer-short appearance that is virtually identical to the design shown in the WO

’950 publication.

(A195-A204.) D. Kimberly-Clark’s Competitors’ Products

Appellant’s complaint also asserts that Kimberly-Clark is liable for

infringement because three products sold under the Assurance® brand, and a

product sold under the Certainty® brand, infringe the ’328 patent. (A27 at ¶ 7.)

The packaging of those products, however, clearly indicates that the products are

not Kimberly-Clark’s, but in fact are sold by Kimberly-Clark’s competitors.

Accused Kimberly-Clark Products

Depend® For Women Moderate

Absorbency

Depend® Silhouette For Women

Depend® Real Fit For Men Briefs

Maximum Absorbency

Depend® Underwear for Men

Maximum Absorbency

GoodNites® Boxers


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(A205-A216.) The Assurance® brand products are sold by Wal-Mart Stores, Inc.

(A212-A213) and the Certainty® brand product is sold by Walgreen’s (A215-

A216).

E. The District Court’s Judgment

The district court granted Kimberly-Clark’s motion for judgment on the

pleadings. The district court first concluded that Kimberly-Clark could not be

liable for products sold by its competitors. (A3 at n. 1.) In doing so, the Court

indicated that it could take judicial notice of the uncontested fact that Kimberly-

Clark is not “responsible” for those products. (Id.) Alternatively, the court took

Appellant’s proposed second amended complaint, in which Appellant deleted all

allegations relating to the Assurance® and Certainty® products, as an admission

that Kimberly-Clark was not responsible for those products. (Id.)

The district court also concluded that the five accused Kimberly-Clark

products do not infringe the ’328 patent. (A3-A6.) The district court relied only

on the asserted ’328 patent and photographs of the accused products submitted by

Kimberly-Clark. Consistent with Ninth Circuit precedent, the court considered the

photographs of the accused products because “they are central to the allegations of

[Appellant’s] complaint” and because Appellant did “not contend that Kimberly-

Clark’s photographs are anything other than true depictions of its accused

products.” (A4 (citing Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006)).)


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Relying on the undisputedly accurate photographs of the accused products,

the district court undertook the design patent infringement analysis set forth in

Egyptian Goddess, Inc. v. Swisa, Inc., 543 F.3d 665 (Fed. Cir. 2008). The district

court found that, “[i]n this case, a side-by-side comparison of the drawings of the

’328 Patent to the accused products suffices to demonstrate that there is no

infringement.” (A5.) The Court expressly identified “the most striking”

differences between the accused products and the patented design, and noted that it

“could recount other differences” as well. (A6.) Given the numerous and obvious

differences, the district court granted Kimberly-Clark’s motion for judgment on the

pleadings.

As an alternative basis for its decision, the district court took judicial notice

of the WO ’950 publication and concluded that, if the court were to accept

Appellant’s infringement allegations as true, the court would have to declare the

’328 patent invalid. (A5-A6.)

The district court concluded by noting that, “[e]ven construing [Appellant’s]

opposition and her complaint with the utmost liberality, she has fallen well short of

a viable infringement claim.” (A6 at n. 2.) The district court further noted, sua

sponte, that Appellant’s conduct was suggestive of bad faith and arguably

warranted sanctions. (Id.)


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VI. SUMMARY OF ARGUMENT

The district court’s decision is grounded in well-established precedent and

should be affirmed. The Court properly relied on: (1) the asserted patent; (2)

undisputedly accurate photographs of the accused products; and optionally (3) a

published patent application. Each of these documents is either: (a) subject to

judicial notice, or (b) integral to Appellant’s complaint and the authenticity of the

document cannot be (and is not) disputed. Relying on such evidence, the district

court applied the law as set forth in this Court’s precedent and concluded that

Appellant’s complaint failed to state a plausible claim for design patent

infringement.

VII. ARGUMENT

Appellant does not dispute the Court’s finding that Kimberly-Clark does not

manufacture four of the nine allegedly infringing products. Nor does Appellant

dispute that, if the Court properly relied on the ’328 patent and the pictures of the

allegedly infringing products, the Court’s noninfringement determination was

correct. The only issues raised in Appellant’s informal brief(s) are procedural, i.e.,

whether the district court: (1) improperly considered evidence not attached to the

pleadings (Appeal Nos. 1 & 4); (2) failed to consider that a Rule 26(f) conference

had not occurred (Appeal No. 2); and (3) improperly granted Appellant’s motion to


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file a second amended complaint (Appeal No. 3). Because no error occurred, the

district court’s thorough decision should be affirmed.

A. Standard Of Review

When reviewing a district court’s judgment on the pleadings, this Court

applies the law of the regional circuit. Imation Corp. v. Koninklijke Philips Elecs.

N.V., 586 F.3d 980, 984-85 (Fed. Cir. 2009); see also McZeal v. Sprint Nextel

Corp., 501 F.3d 1354, 1355-56 (Fed. Cir. 2007) (the standards applicable to Rule

12 motions are not unique to patent law and are evaluated under the law of the

regional circuit). In the Ninth Circuit, a grant of judgment on the pleadings is

reviewed de novo. Or. Natural Desert Ass’n v. United States Forest Serv., 550

F.3d 778, 782 (9th Cir. 2008).

B. The Legal Standard

A party may move for judgment on the pleadings as soon as the pleadings

are closed. Fed. R. Civ. P. 12(c). A Rule 12(c) motion may be based on the

Plaintiff’s failure to state a claim upon which relief can be granted. Fed. R. Civ. P.

12(h)(2)(B), (i). Such a motion under Rule 12(c) “faces the same test as a motion

under Rule 12(b)(6).” McGlinchy v. Shell Chem. Co., 845 F.2d 802, 810 (9th Cir.

1988).

A complaint must contain a “short and plain statement of the claim showing

the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). To


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survive a motion to dismiss, a complaint must contain sufficient factual matter to

state a claim for relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662

(2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also

Cafasso v. Gen. Dynamics C4 Sys., 637 F.3d 1047, 1054 n. 4 (9th Cir. 2011) (Iqbal

applies to Rule 12(c) motions because Rule 12(b)(6) and Rule 12(c) motions are

functionally equivalent). This “plausibility requirement” requires the allegations

in the complaint to “be enough to raise a right to relief above the speculative

level.” Twombly, 550 U.S. at 555. The plaintiff must plead “factual content that

allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Iqbal, 556 U.S. at 678. Determining whether a complaint

states a plausible claim for relief is “a context-specific task that requires the

reviewing court to draw on its judicial experience and common sense.” Id. at 679.

Generally, in evaluating a motion for failure to state a claim upon which

relief can be granted, “[a]ll allegations of material fact are taken as true and

construed in the light most favorable to the nonmoving party.” Spreewell v.

Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). A “court need not,

however, accept as true allegations that contradict matters properly subject to

judicial notice or by exhibit.” Id. “Nor is the court required to accept as true

allegations that are merely conclusory, unwarranted deductions of fact, or

unreasonable inferences.” Id.; see also Iqbal, 556 U.S. at 678-679 (the modern


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pleading standard “does not unlock the doors of discovery for a plaintiff armed

with nothing more than conclusions”).

While a Rule 12(b)(6) motion is generally limited to the pleadings, a court

may rely on documents outside the pleadings if they are integral to the plaintiff’s

claims and their authenticity is not disputed. Parrino v. FHP, Inc., 146 F.3d 699,

705-06 (9th Cir. 1998) (superseded on other grounds). The court may also rely on

matters subject to judicial notice. Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th

Cir. 2007). This rule prevents plaintiffs from surviving a Rule 12(b)(6) motion by

deliberately omitting documents upon which their claims are based. Id.

C. The District Court Did Not Commit Any Procedural Errors

1. The District Court Relied On Evidence Available To It On A Rule 12(c) Motion

Appellant’s “Appeal No. 1” and “Appeal No. 4” assert that the district court

improperly relied on evidence outside the pleadings. However, the district court’s

decision was based only on: (1) the ’328 patent; (2) photographs of the allegedly

infringing products; and, as an alternative, (3) the WO ’950 publication, each of

which was properly before the court on this motion.

a. The Court Properly Considered The Asserted ’328 Patent

The district court properly relied on Appellant’s ’328 patent because

Appellant attached the patent to her pleadings. (A50-A55.) In addition, it is well

established that a court can take judicial notice of patents and published patent


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applications. Hoganas AB v. Dresser Indus., Inc., 9 F.3d 948, 954 n. 27 (Fed. Cir.

1993); see also Mack v. S. Bay Beer Distribs., Inc., 798 F.2d 1279, 1282 (9th Cir.

1986) (court may take judicial notice of administrative records), overruled on other

grounds by Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104 (1991).

Therefore, even if Appellant had not attached the asserted patent to her pleadings,

it would have been proper for the court to take judicial notice of the ’328 patent.

b. The Court Properly Considered Photographs Of The Accused Products

i. The Appearance of Defendant’s Accused Products Is

Central To Plaintiffs’ Claim And The Authenticity Of The Photographs Is Not Disputed

The district court also properly considered photographs of the accused

products. In a design patent infringement case, the appearance of the accused

product is at the heart of a plaintiff’s infringement claim. (A4.) Appellant does

not dispute that the photographs accurately represent the appearance of the accused

products. (Id.) Because the appearance of the accused products is integral to

plaintiff’s infringement claim and the authenticity of the photographs is not

disputed, the district court properly relied on them. Parrino, 146 F.3d at 705-06;

Swartz, 476 F.3d at 763.

Moreover, Appellant purchased the accused products and attached a

receipt—but not pictures or samples—to Appellant’s pleadings. (A49.) Appellant

deliberately chose not to include in her pleadings the products themselves, or


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pictures showing the accused products. This is precisely the type of conduct that

the rule allowing the court to consider certain evidence outside the pleadings is

designed to prevent. Parrino, 146 F.3d at 706. Appellant cannot avoid a motion to

dismiss or a motion for judgment on the pleadings by intentionally omitting

evidence that is critical to Appellant’s claim, i.e., evidence of the actual appearance

of the allegedly infringing products. Id. Accordingly, the district court properly

considered the photographs of the accused products.

ii. The Court Can Take Judicial Notice Of The Appearance Of Kimberly-Clark’s Products

A court may take judicial notice of any fact that is not subject to reasonable

dispute because it can be accurately and readily determined from sources whose

accuracy cannot reasonably be questioned. Fed. R. Evid. 201(b); Vigil v. Walt

Disney Co., No. C-97-4147-MHP, 1998 U.S. Dist. LEXIS 22853, *5 (N.D. Cal.

Dec. 1, 1998), aff’d in relevant part without published opinion, 2000 U.S. App.

LEXIS 32071, *1 (Fed. Cir. Apr. 5, 2000) (see A232). In Vigil, the plaintiff

alleged that the defendant’s duck call and key chain infringed the plaintiff’s design

patent. Id. In granting the defendant’s motion to dismiss, the district court took

judicial notice of the appearance of the defendant’s duck call and key chain, as

submitted by the defendant with its motion to dismiss, because they were “beyond

reasonable dispute.” Id. at *6-*7. The district court conducted its infringement

analysis based on that evidence, concluded that no infringement exists, and


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dismissed the complaint. Id. at *7-*10. This Court affirmed. Vigil, 2000 U.S.

App. LEXIS 32071 (see A232).

Here, as in Vigil, there is no dispute about the appearance of the accused

products. The products are widely available at stores throughout the country and

online, and Appellant does not dispute that the photographs accurately depict the

accused products. (A4.) Thus, the district court may take judicial notice of the

appearance of the accused products, and properly relied on the photographs of the

products submitted by Kimberly-Clark in granting the motion for judgment on the

pleadings.

c. The District Court Properly Considered The Prior Art ’950 Publication

Although it was not necessary for the district court’s decision, the district

court relied on the WO ’950 publication as an alternative basis for granting

Kimberly-Clark’s motion for judgment on the pleadings. (A5-A6.) Contrary to

Appellant’s assertion, the district court properly took judicial notice of the WO

’950 publication, which is a publicly available government document. Hoganas, 9

F.3d at n. 27; Mack, 798 F.2d at 1282.

Thus, the district court did not err in considering the ’328 patent, the

photographs of the allegedly infringing products, and the WO ’950 publication in

deciding Kimberly-Clark’s motion for judgment on the pleadings.


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2. The Timing Of The Rule 26(f) Conference Is Irrelevant

Appellant’s “Appeal No. 2” argues that the district court “incorrectly fail[ed]

to take into account there was no meet and conference [sic] according to FRCP

#26(f).” (Appeal No. 2 at 1; see also Informal Opening Br. at 2 (referring to

Kimberly-Clark’s alleged failure to participate in a Rule 26(f) conference). The

timing of the Rule 26(f) conference is irrelevant to Kimberly-Clark’s motion,

which tests the sufficiency of the complaint. Moreover, Appellant’s assertion that

Kimberly-Clark failed to conduct the Rule 26(f) conference by February 4, 2013,

ignores that the district court vacated that deadline. (A61-A62.) Thus, Appellant’s

“Appeal No. 2” does not provide any basis for disturbing the district court’s

decision.

3. The District Court Properly Granted Appellant’s Motion To File An Amended Complaint

Appellant’s “Appeal No. 3” argues that the “trial court incorrectly decided

and made a mistake to give consent to the trial Clerks to sign, file and mailed [sic]

‘minute order’, doc. #24[,] which would force a third complaint.” (Appeal No. 3.)

To the extent Appellant argues that the district court erred in granting Appellant’s

own motion, this argument is meritless. Appellant filed an unopposed motion for

leave to file a second amended complaint and attached thereto the proposed second

amended complaint. (A56-A59.) The district court’s decision to grant Appellant’s


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own motion for leave to amend does not provide any basis for disturbing the

district court’s judgment of noninfringement.

In sum, Appellant has not identified any error in the district court’s analysis,

and the district court’s judgment should be affirmed.

D. The District Court’s Judgment Of Noninfringement Should Be Affirmed

Relying on the evidence properly before it, the district court conducted a

detailed infringement analysis and concluded that Appellant’s complaint does not

state a plausible claim for design patent infringement. Nowhere in Appellant’s

appeal briefs does Appellant argue that the district court erred in its substantive

infringement analysis. Nor could Appellant do so.

1. The District Court Correctly Concluded That The Five Accused Kimberly-Clark Products Do Not Infringe The ’328 Patent

A design patent is infringed only if the two designs are “substantially the

same,” i.e., an ordinary observer, familiar with the prior art, would be deceived

into thinking that the accused design was the same as the patented design.

Egyptian Goddess, 543 F.3d at 678. As this Court has recognized, 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. at 678.


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The district court undertook the comparative analysis required by Egyptian

Goddess and found “striking” differences between the patented design and the

appearance of the accused products. (A6.) The district court properly recognized

that the ’328 patent claims a bloomers-style undergarment that “extends to cover

each leg substantially below the crotch, with a hem or gather at the leg and waist

openings that are designed to fit the leg and waist closely.” (A5.) The district

court further stated that the “leg and waist openings [of the patented design] are

parallel to each other, and would also be parallel to the ground if the person

wearing the undergarment was standing upright.” (Id.) The claimed design also

requires “an inverted U-shaped section of the undergarment . . . made of different

material (or at least a different piece of the same material) than the rest of the

garment.” (A6.) These prominent features are readily apparent from even a

cursory review of the patented design:

Front-Angle View Front View Rear View


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(A52-A53.)

a. Kimberly-Clark’s Depend® Products Do Not Infringe The ’328 Patent

As shown below, the four accused Depend® products bear no resemblance to

the design claimed in the ’328 patent:

Accused Depend® Products Manufactured by Kimberly-Clark

Depend® For Women Moderate Absorbency

Depend® Silhouette For Women

Depend® Real Fit For Men Briefs Maximum

Absorbency

Depend® Underwear for Men Maximum

Absorbency

(A194-A201.)

The district court properly found that, in contrast to the bloomers-style

design claimed in the ’328 patent, each of Kimberly-Clark’s Depend® products “is

a ‘briefs’-style undergarment, which is to say an undergarment with no leg

covering at all.” (A5.) Unlike the patented design, “[t]he leg opening of

[Kimberly-Clark’s Depend®] undergarments are at or above the crotch, and they

run at approximately 45-degree angles to the waist opening.” (Id.) The district

court further found that these products did not incorporate the inverted U-shaped

section required by the patented design. (A6.)


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Importantly, the district court recognized that it “could recount other

differences, but the ones it has mentioned are the most striking” and that those

differences “suffice to demonstrate that the accused products do not infringe the

’328 patent.” (Id.) The district court’s detailed analysis and finding of

noninfringement should be affirmed.

b. Kimberly-Clark’s GoodNites® Product Does Not Infringe The ’328 Patent

The district court found that the appearance of the accused Kimberly-Clark

GoodNites® product is “different still” because it consists of “a briefs-style

undergarment not unlike the ‘Depend’ products, but with a separate (or loosely

attached) boxer-short-style layer over it. GoodNites appear, on an external view,

to resemble boxer shorts, but their interior is a briefs-style undergarment.” (A5.)

Thus, the district court further distinguished the appearance of the GoodNites®

product from the “unitary undergarment” claimed in the ’328 patent. (Id.) The

district court also recognized that the GoodNites® product does not have an

“inverted-U-shaped section” claimed in the ’328 patent. (A6.)

Although the district court identified several differences between the

GoodNites® product and the claimed design, many more would be readily apparent

to any ordinary observer. Among other things, the GoodNites® product lacks: (1)

extended tubular leg portions; (2) a dual-material appearance; (3) two vertical


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borders on the back; (4) a ruffled band around the leg openings that is similar to

the waist band; and (5) an arched crotch area, as shown below.

(A53, A203-A204.)

In sum, the district court thoroughly compared the claimed design to the

accused Kimberly-Clark products and properly concluded that “plain differences”

exist between the accused products and the claimed design. (A6.) Appellant has

never identified any purported similarities between the patented design and the

Kimberly-Clark products (id. at n. 2) and has never attempted to explain how or

why an ordinary observer would be deceived into thinking that the accused designs

are the same as the patented design. Accordingly, the district court’s judgment of

noninfringement should be affirmed. See, e.g., Colida v. Nokia, Inc., 347 Fed.

GoodNites® Boxers (Front)

GoodNites® Boxers (Rear)

’328 Patent (Front View)

’328 Patent (Rear View


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Appx. 568, 570 (Fed. Cir. 2009) (nonprecedential, see A18-A24) (affirming

dismissal of design patent infringement claim based on comparison between

patented design and depictions of the accused product’s design).

c. The Court Correctly Found That, If Appellant’s Allegations Are Accepted As True, The ’328 Patent Is Invalid

In addition to finding that the GoodNites® product does not infringe the ’328

patent because the appearance is plainly dissimilar from the claimed design, the

district court also provided an alternative ground for its decision. As evidenced by

the side-by-side comparison below, the district court properly found that the

appearance of the GoodNites® product is “indistinguishable” from the design

shown in Kimberly-Clark’s prior art WO ’950 publication. (A5-A6.)

(A165, A203.)

Given the similarity between the accused GoodNites® product and the prior

art design, the district court properly concluded that, if the GoodNites® product

Int’l Publ. No. WO 96/03950 GoodNites® Boxers


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infringes the ’328 patent as Appellant contends, the ’328 patent would be invalid in

light of the prior art WO ’950 publication. Int’l Seaway Trading Corp. v.

Walgreens Corp., 589 F.3d 1233, 1239 (Fed. Cir. 2009) (a design that infringes if

later, anticipates if earlier). Appellant does not dispute this finding, which

provides an independent ground for affirming the district court’s judgment.

2. The Court Properly Concluded That Kimberly-Clark Could Not Be Liable For Allegedly Infringing Products Made and Sold By Its Competitors

The district court also properly entered judgment of noninfringement on

Appellant’s infringement claim directed to the four products marketed by

Kimberly-Clark’s competitors. The district court took judicial notice of the

“uncontested fact that Kimberly-Clark is not responsible for” those accused

products. (A3 at n. 1.) The Assurance® and Certainty® products are available

online and at retail stores throughout the country, and courts in the Ninth Circuit

regularly take judicial notice of product packaging. See, e.g., Miller v. Ghirardelli

Chocolate Co., 912 F. Supp. 2d 861, 865 n. 2 (N.D. Cal. 2012) (taking judicial

notice of products and labels on motion to dismiss); Datel Holdings, Ltd. v.

Microsoft Corp., 712 F. Supp. 2d 974, 983-85 (N.D. Cal. 2010) (taking judicial

notice of game console packaging in granting defendant’s motion to dismiss);

Dvora v. Gen. Mills, Inc., No. CV 11-1074-GW (PLAx), 2011 U.S. Dist. LEXIS

55513, *3 (C.D. Cal. May 16, 2011) (taking judicial notice of complete color copy


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of cereal package in granting defendant’s motion to dismiss); Mayfield v. Sara Lee

Corp., No. C 04-1588 CW, 2005 U.S. Dist. LEXIS 42458, *9 (N.D. Cal. Jan. 13,

2005) (taking judicial notice of photocopies of bread product packages).

The packaging of the Assurance® and Certainty® products clearly

establish—and Appellant does not dispute—that Kimberly-Clark does not make,

use, sell, offer to sell, or import those products. (A205-A216.) Accordingly, the

district court properly took judicial notice of those products and concluded that

Appellant could not state a plausible claim for infringement against Kimberly-

Clark.

The district court alternatively considered Appellant’s proposed second

amended complaint—which deleted any reference to the Assurance® and

Certainty® products—to be an admission that Kimberly-Clark was not responsible

for those products. (A3 at n. 1.) Appellant does not dispute that she conceded this

fact during the parties’ meet and confer (see A86 at ¶¶ 2-3), and nowhere argues

that Kimberly-Clark manufactures those products. Accordingly, the district court’s

judgment of noninfringement with respect to the four products made by Kimberly-

Clark’s competitors should also be affirmed.


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VIII. CONCLUSION AND STATEMENT OF RELIEF

For the reasons set forth above and in the district court’s Order, Kimberly-

Clark respectfully requests that this Court affirm the district court’s judgment.




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CERTIFICATE OF COMPLIANCE

1. This brief complies with the type-volume limitation of Federal Rule of

Appellate Procedure 32(a)(7)(B)(iii). This brief contains 5,100 words,

excluding the parts of the brief exempt by Federal Rule of Appellate

Procedure 32(a)(7)(B)(iii).

2. This brief complies with the typeface requirements of Federal Rule of

Appellate Procedure 32(a)(5) and the type style requirements of Federal

Rule of Appellate Procedure 32(a)(6). This Brief has been prepared in a

proportionally spaced typeface using Microsoft Word 2010 in 14 point font

Times New Roman.




ADDENDUM


AO 450 (Rev. 5/85) Judgment in a Civil Case �

United States District CourtWESTERN DISTRICT OF WASHINGTON

AT SEATTLE


Plaintiff,

v.


Defendant.

JUDGMENT IN A CIVIL CASE

CASE NUMBER: C12-1979RAJ

Jury Verdict. This action came before the Court for a trial by jury. The issues have been tried and the jury has rendered its verdict.

X Decision by Court. This action came to consideration before the Court. The issues have been considered and a decision has been rendered.

THE COURT HAS ORDERED THAT:

Defendant’s accused products do not infringe Plaintiff’s design patent, as stated in the court’s September 25, 2013 order.

Dated this 25th day of September, 2013.

WILLIAM M. MCCOOL Clerk

/s Consuelo LedesmaDeputy Clerk

Case 2:12-cv-01979-RAJ Document 35 Filed 09/25/13 Page 1 of 1

A1


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HONORABLE RICHARD A. JONES

UNITED STATES DISTRICT COURTWESTERN DISTRICT OF WASHINGTON

AT SEATTLE


Plaintiff,

v.


Defendant.

CASE NO. C12-1979RAJ

ORDER

I. INTRODUCTION

This matter comes before the court on Defendant’s motion for judgment on the

pleadings. Although the parties requested oral argument, the court finds oral argument

unnecessary. For the reasons stated herein, the court GRANTS the motion (Dkt. # 28)

and DISMISSES this action with prejudice. The clerk shall enter judgment for Defendant

that its accused products do not infringe the patent-in-suit.

II. BACKGROUND

Muffin Anderson is the named inventor of United States Design Patent No.

401,328 (the “‘328 Patent”). The ‘328 Patent contains a single claim to an “ornamental

design for an absorbent disposable undergarment” as described in seven drawings. Ms.

Anderson applied for the ‘328 Patent in September 1997.

Defendant Kimberly-Clark Corporation sells a host of absorbent disposable

undergarments, including several products that Ms. Anderson accuses of infringing her


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patent. Kimberly-Clark reviewed the list of accused products in Ms. Anderson’s first

amended complaint (Dkt. # 4) and identified five products that it sells or sold within the

past several years.1 Those products are four varieties of adult disposable undergarments

sold under Kimberly-Clark’s “Depend” brand in addition to a no-longer-on-the-market

disposable undergarment for children known as “GoodNites,” which Kimberly-Clark sold

under its “Pull-Ups” brand. In July 1994, Kimberly-Clark submitted a patent application

to the World Intellectual Property Organization (“WIPO”) for the design embodied in its

GoodNites product. WIPO issued Kimberly-Clark a patent in February 1996, with

international publication number WO 96/03950 (the “‘950 WIPO Patent”).

Ms. Anderson asserts that each of the accused products infringes the ‘328 Patent.

Kimberly-Clark denies infringement, and has also filed counterclaims for a declaratory

judgment that it does not infringe as well as a declaratory judgment that the ‘328 Patent is

invalid.

III. ANALYSIS

This dispute comes before the court on Kimberly-Clark’s motion for judgment on

the pleadings. That motion, which Federal Rule of Civil Procedure 12(c) authorizes, is

“functionally equivalent” to a Rule 12(b)(6) motion to dismiss for failure to state a claim.

Harris v. County of Orange, 682 F.3d 1126, 1131 (9th Cir. 2012). Rule 12(b)(6) requires

the court to assume the truth of the complaint’s factual allegations and credit all

reasonable inferences arising from its allegations. Sanders v. Brown, 504 F.3d 903, 910

(9th Cir. 2007). The plaintiff must point to factual allegations that “state a claim to relief

1 After reviewing Ms. Anderson’s first amended complaint, counsel for Kimberly-Clark notified her that its competitors manufactured four of the products she accused of infringement. Ms. Anderson then proposed a second amended complaint (Dkt. # 18-1) that deleted references to those products. The court granted her leave to file that amended complaint no later than February 5. Ms. Anderson declined to do so. It would make no difference to the outcome of this motion if the court relied on the proposed second amended complaint. The court can likely take judicial notice of the uncontested fact that Kimberly-Clark is not responsible for several of the accused products in the first amended complaint. Even if the court cannot take judicial notice, the court takes Ms. Anderson’s proposed second amended complaint as an admission that Kimberly-Clark does not manufacture the products that she deleted from that document.


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that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 568 (2007). If

the plaintiff succeeds, the complaint avoids dismissal if there is “any set of facts

consistent with the allegations in the complaint” that would entitle the plaintiff to relief.

Id. at 563; Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (“When there are well-pleaded

factual allegations, a court should assume their veracity and then determine whether they

plausibly give rise to an entitlement to relief.”). The court typically cannot consider

evidence beyond the four corners of the complaint, although it may rely on a document to

which the complaint refers if the document is central to the party’s claims and its

authenticity is not in question. Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006). The

court may also consider evidence subject to judicial notice. United States v. Ritchie, 342

F.3d 903, 908 (9th Cir. 2003).

Kimberly-Clark’s motion requires the court to consider photographs of its accused

products along with the ‘950 WIPO Patent. The court takes judicial notice of the ‘950

WIPO Patent. As to the photographs of the accused products, the court finds that they are

central to the allegations of Ms. Anderson’s complaint. As the court will soon discuss, a

determination of design patent infringement is a visual exercise, one that requires

comparison of the drawings embodying the patented design to the appearance of the

accused product. Although Ms. Anderson insists that the court should permit her to take

discovery, she does not contend that Kimberly-Clark’s photographs are anything other

than true depictions of its accused products. For that reason, the court will consider the

photographs.

A product infringes a design patent if the design embodied in the patent and the

design of the product would appear to the ordinary observer to be substantially similar.

Egyptian Goddess, Inc. v. Swisa, Inc., 543 F.3d 665, 678 (Fed. Cir. 2008). In contrast to

the court’s task in resolving claims of utility patent infringement, design patent

infringement does not require claim construction. Id. at 679. It suffices to provide a


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description of the claimed design that illuminates its comparison to the accused product.

Id. at 680. Although the court’s analysis may become detailed, involving comparisons of

prior art and discussions of design patent conventions, id. at 678, 681, a detailed analysis

is not always necessary:

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. at 678 (quoting Gorham Co. v. White, 81 U.S. 511, 528 (1871)). In any event, a court

considers only the ornamental aspects of a design patent, because design patents cannot

cover purely functional aspects of a product. Id. at 681.

In this case, a side-by-side comparison of the drawings of the ‘328 Patent to the

accused products suffices to demonstrate that there is no infringement. The drawings

reveal a “bloomers”-style undergarment, which is to say an undergarment that extends to

cover each leg substantially below the crotch, with a hem or gather at the leg and waist

openings that are designed to fit the leg and waist closely. The leg and waist openings

are parallel to each other, and would also be parallel to the ground if the person wearing

the undergarment was standing upright. Each of the four accused “Depend” products, by

contrast, is a “briefs”-style undergarment, which is to say an undergarment with no leg

covering at all. The leg openings of these undergarments are at or above the crotch, and

they run at approximately 45-degree angles to the waist opening.

The GoodNites products are different still. Unlike the drawings in the ‘328 Patent,

which depict an unitary undergarment, the GoodNites products consist of a briefs-style

undergarment not unlike the “Depend” products, but with a separate (or loosely attached)

boxer-short-style layer over it. GoodNites appear, on an external view, to resemble boxer

shorts, but their interior is a briefs-style undergarment.

Kimberly-Clark also correctly observes that its ‘950 WIPO Patent (which issued in

1996) is prior art with respect to the ‘328 Patent. The ‘950 WIPO Patent depicts a


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disposable undergarment that is indistinguishable from the GoodNites products. Thus, if

the court were to accept Ms. Anderson’s view that the GoodNites products infringe the

‘328 Patent, it would also have to declare the ‘328 Patent invalid in light of the ‘950

Patent.

There are other differences between the accused products and the ‘328 Patent. For

example, the ‘328 Patent depicts an inverted-U-shaped section of the undergarment (with

a wearer’s crotch situated at the vertex of the inverted “U”) made of different material (or

at least a different piece of the same material) than the rest of the garment. None of the

accused products incorporate this design. The court could recount other differences, but

the ones it has mentioned are the most striking. They suffice to demonstrate that the

accused products do not infringe the ‘328 Patent. Indeed, the only apparent similarity

between the claimed design and the accused products are that both serve as disposable

barriers to protect the wearer from incontinence. This purely functional consideration is

no basis for a finding of design patent infringement.

IV. CONCLUSION

For the reasons previously stated, the court GRANTS Kimberly-Clark’s motion

for judgment on the pleadings. Dkt. # 28. Ms. Anderson did not expressly request leave

to amend, but the court would not grant it in any event. No amendment of Ms.

Anderson’s complaint could overcome the plain differences between her claimed design

and the accused products.2

2 Ms. Anderson has pursued this action pro se. Her opposition to Kimberly-Clark’s motion for judgment on the pleadings contains no discussion at all of the differences or similarities between her patented design and the products she accuses of infringing. Even construing her opposition and her complaint with the utmost liberality, she has fallen well short of a viable infringement claim. Worse, her choice to accuse Kimberly-Clark of infringement without verifying that Kimberly-Clark actually sells the accused products, coupled with her failure to provide any comparison of the accused products to her design, is suggestive of bad faith. Rule 11 of the Federal Rules of Civil Procedure requires a reasonable investigation before filing a complaint, and permits a court to impose sanctions. Fed. R. Civ. P. 11(b)(3)-(4), (c). No one has requested Rule 11 sanctions in this case, but some of Ms. Anderson’s actions in pursuing this lawsuit arguably merit sanctions. The court urges Ms. Anderson to reconsider her approach if she continues to assert the ‘328 Patent.


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Kimberly-Clark’s motion requests only that the court dismiss Ms. Anderson’s

complaint with prejudice and enter judgment in its favor. It does not request relief on its

declaratory judgment counterclaims. This order constitutes a declaratory judgment that

none of the accused products infringe the ‘328 Patent. Because Kimberly-Clark did not

request a declaratory judgment of invalidity in its motion, but requested that the court

dismiss the case in its entirety, the court deems its counterclaim for a declaratory

judgment to have been abandoned. This ruling is without prejudice to Kimberly-Clark

raising a claim (or defense) that the ‘328 Patent is invalid in another case.

The court DISMISSES Plaintiff’s complaint with prejudice and directs the court to

enter judgment for Defendant.

DATED this 25th day of September, 2013.

A The Honorable Richard A. JonesUnited States District Court Judge


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Anderson v. Kimberly-Clark - Appellee Brief

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