In Crocs v. ITC, the Federal Circuit overturned an ITC ruling on whether or not imitation shoes based on the Crocs design infringed both design and utility patents Crocs held. The ITC had originally ruled that there was no infringement due to the middle strap not being uniform and not having evenly spaced holes as claimed in Crocs design patent. However, on appeal, the Federal Circuit took a more holistic approach and used the "ordinary observer" test--whether or not an ordinary observer could be deceived into believing the infringing product is actually the same as the patented design--to make a determination regarding infringement.
The court found little difference between the patented design and the imitation: "If the claimed design and the accused designs were arrayed in matching colors and mixed up randomly, this court is not confident that an ordinary observer could properly restore them to their original order without very careful and prolonged effort. . ." The court further warned against using small differences "as a checklist for infringement" and instead stressed the importance of viewing the small differences in the context of the product as a whole.
The ITC also had alternatively rejected Crocs utility patent for obviousness. In holding the utility patent non-obvious, the court noted the commercial success of Crocs:
"[T]he Commission found, based on substantial evidence, that Crocs shoes practice the '858 patent and that the Crocs shoes were commercially successful"
Additionally, the court noted "industry praise" for the improvement of the utility patent:
"This court gives even more credit to the administrative judge's finding of substantial industry praise for the claimed invention and the products covered by the claimed invention."
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