Harel v. K.K. Int'l Trading Corp.

The visual distinctions between the drawing in the design patent application and the allegedly infringing lighter design demonstrated that, as a matter of law, the challenged lighter design was non-infringing.

Opinion (Cogan): Yigal Cohen Harel ("Harel") sued K.K. International Trading Corp. ("K.K. International") alleging infringement of his design Pat. No. D501,274, which covers the design of a lighter. K.K. International moved for summary judgment of non-infringement. To determine whether or not an accused product infringes a design patent, a court conducted a two step inquiry: 1) The court construed the patent claims. Design patent claims are constrained to what is shown in the application drawing. 2) The court compared the claims to the accused device to determine whether or not they were substantially similar. An accused device is substantially similar when an ordinary observer, giving the attention an ordinary purchaser of the device would give, would buy the accused device believing it to be the patented device. Harel’s application drawing showed a lighter with five slits on the windguard and one burner, while K.K. International’s lighter featured 8 dimples on its windguard and featured two burners. Because the visual appearances of the patented design and K.K. International’s lighter were so distinct that no ordinary observer could confuse the two devices, the district court granted K.K. International’s motion for summary judgement of non-infringement, holding that K.K. International’s lighter did not infringe as a matter of law.