CROCS, INC. v. INTERNATIONAL TRADE COM'N
598 F.3d 1294 (2010)
United States Court of Appeals, Federal Circuit.
February 24, 2010.
The Commission also held that choosing foam as the material for a strap for a shoe that is otherwise made of foam is a logical modification because it produces a shoe of uniform composition. To the contrary, a foam strap is not a logical modification because foam was known to be an unsuitable material that was prone to tearing. One of ordinary skill would have no reason to use foam straps in combination with a foam base portion. Thus, the new combination would not have been obvious at the time of the invention of the '858 patent.
Even if the '858 patent were a combination of known elements according to their established functions—which it is not as foam straps were not in the prior art—it yields more than predictable results; thus, it is non-obvious. See KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 417, 127 S.Ct. 1727, 167 L.Ed.2d 705 (2007). The "passive restraint system" employed by the '858 patent requires that: (1) the strap section is in direct contact with the base section, and (2) frictional forces developed by the contact between the strap section and the base section at the points of attachment are sufficient to maintain the strap section in place in an intermediary position after pivoting, whereby the strap section lends support to the Achilles portion of a human foot. '858 patent col.9 ll.42-53, col.10 ll.11-24. The specification further describes the "passive restraint system" of the invention:
[T]he strap serves the utilitarian purpose of lending support to the Achilles portion of the human foot, thus helping to maintain footwear piece 100 in position on the human foot. In some embodiments, a frictional force developed between strap 120 and upper 150 at the location of the rivets is sufficient to maintain strap 120 in place. This helps to assure that strap 120 remains in place even when the Achilles part of the foot is not pressing against strap 120. Without such friction, strap 120 would succumb to gravity and fall to a position where the foot would not be supported.
Id. at col.6 ll.17-29.
The inventor of the '858 patent, Scott Seamans, testified that the unique frictional forces that develop between the foam components keep the strap in place so that it can maintain the shoe in the correct position on the foot without constant contact with the wearer's Achilles. Instead of pushing the foot forward into the shoe— like prior art straps that are elastic or length adjustable—the '858 patent's passive restraint system allows the strap to "lend support" only when necessary to keep the shoe positioned correctly on the foot. See id. ("[T]he Achilles part of the foot is not [always] pressing against strap."). This feature facilitates a loose anatomical fit that makes the claimed invention more comfortable than prior art products.
The administrative judge recognized this distinction between the '858 invention and the Aguerre '249 patent:
Now, it is true that the strap disclosed in the Aguerre '249 patent was made of material other than foam and was adjustable and elastic so that it held the foot snugly in the shoe. By contrast, the '858 patent discloses a firm foam strap that acts as a passive restraint to the Achilles portion of the foot and can
be set in various fixed position[s] because of the friction created by the direct contact between the upper portion of the base and the strap.