`
`
`
`
`
`Case: 20-2344 Page:1_Filed: 08/19/2021Document:40
`
`
`
`Gnited States Court of Appeals
`for the Federal Circuit
`
`CAMPBELL SOUP COMPANY, CAMPBELL SALES
`COMPANY, TRINITY MANUFACTURING, LLC,
`Appellants
`
`Vv.
`
`GAMON PLUS, INC.,
`Appellee
`
`2020-2344, 2021-1019
`
`Appeals from the United States Patent and Trademark
`Office, Patent Trial and Appeal Board in Nos. IPR2017-
`00091, IPR2017-00094.
`
`
`Decided: August 19, 2021
`
`
`TRACY ZURZOLO QUINN, Holland & Knight LLP, Phila-
`delphia, PA, argued for all appellants. Appellants Camp-
`bell Soup Company, Campbell Sales Company also
`represented by STEVEN E. JEDLINSKI, Chicago, IL.
`
`MARTIN B. PAVANE, The Davis Firm, Longview, TX, for
`appellant Trinity Manufacturing, LLC.
`
`ANDREW L. TIAJOLOFF, Tiajoloff & Kelly LLP, New
`York, NY, arguedfor appellee.
`
`
`
`
`
`
`Case: 20-2344 Page:13_Filed: 08/19/2021Document:40
`
`
`
`CAMPBELL SOUP COMPANY v. GAMON PLUS,INC.
`
`13
`
`found that distinguished the claimed designs from the
`prior art Linz design were: (1) a larger cylindrical object,
`(2) a resting point of the cylindrical object that is partially
`forward of the label area,(8) a taller label area that mimics
`the proportions of the cylindrical object; and (4) spacing
`equal to one label length between the label and thecylin-
`
`drical object. J.A. 61-62; J.A. 65.
`
`J.A. 1118; J.A. 1686 (annotations added). Thus, to estab-
`lish nexus, Gamon needed to present evidence that the
`commercial success and praise of the iQ Maximizer derived
`from those “unique characteristics.” Fox Factory, 944 F.3d
`at 1373-74.
`It failed to do so.
`Instead, it presented evi-
`dence that merely ties commercial success and praise to as-
`pects of the label area that were already present in the
`prior art. The cited industry publication, for example,
`highlights only that the label area displays “soup labels
`printed at twice their normal size.” J.A. 1881. Likewise,
`the internal Campbell marketing study just notes that the
`label area is “210% larger” than the product
`label.
`
`J.A. 2268.
`iS
`1
`
`Moreover,
`ti
`
`
`
`
`
`Case: 20-2344 Page: 14_Filed: 08/19/2021Document:40
`
`
`
`14
`
`CAMPBELL SOUP COMPANY v. GAMON PLUS,INC.
`
`
`label
`the label
`
`area
`646 patent at Figure;
`645 patent at Figure.
`
`Gamonrelies on the testimony of the named inventor,
`Terry Johnson, who asserted that the iQ Maximizer’s com-
`mercial success wasdue specifically to its label area having
`“the same proportions as the can.” J.A. 1815:3-17. But
`there is no evidence in the record supporting that self-serv-
`ing assertion. And again, the size of the label area is not
`claimed. Accordingly, given the absence of evidence tying
`any commercial success or praise to the claimed unique
`characteristics of the iQ Maximizer, substantial evidence
`does not support a nexus between those objective indicia
`and the claims.
`
`Wereject the Board’s view that, in design patent cases,
`objective indicia need not be linked to the claimed design’s
`unique characteristics. J.A. 58 (“[W]e do not believe that
`to establish commercial success for a design patent, a pa-
`tent owner should have to differentiate design features
`‘that were already known’from those that are purportedly
`novel.”). The Board reasoned that “the invalidity analysis
`[in design patent cases] focuses on the ornamental design
`as a whole.” Jd. But the same holds true in utility patent
`cases, WBIP, 829 F.3d at 1331-32 ([T]he obviousness
`analysis involves determining whether‘the claimed inven-
`tion as a whole would have been obvious.” (quoting
`35 U.S.C. § 103)), and yet we still require a link to the
`claimed invention’s unique characteristics in that context.
`Wetherefore hold that, as in the utility patent context, ob-
`jective indicia must be linked to a design patent claim’s
`unique characteristics.
`
`C. The Evidence of Copying Does Not Overcome Linz
`
`For purposesof this appeal, we assume substantial ev-
`idence supports the Board’s finding that Trinity copied the
`unique characteristics of the claimed designs. Even accept-
`ing the evidence of copying, we conclude that this alone
`
`
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