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August 27, 2019 Nika Aldrich

Admitted to practice in Oregon,


Washington and New York
T: 503-796-2494
C: 206-778-9678
naldrich@schwabe.com

Peter R. Marksteiner
Clerk of the Court
United States Court of Appeals for the
Federal Circuit
717 Madison Place NW
Washington, DC 20439

Re: Columbia Sportswear North America, Inc. v.


Seirus Innovative Accessories, Inc.
USCA Fed. Cir. Nos. 18-1329, -1331, -1728
Our File No.: 106477-239332

Dear Mr. Marksteiner:

Columbia Sportswear submits this answer to Seirus’s letter dated August 23, 2019.
(Dkt. 87.) Seirus’s letter is both procedurally improper and substantively incorrect.

Seirus’s letter, purporting to provide citation to supplemental authority under Rule


28(j), identifies no new supplemental authority at all. Instead, Seirus seeks to
inject arguments made in a separate reexamination proceeding that it initiated after
trial in this case as part of its attempts to circumvent the jury’s damages verdict and
avoid issue preclusion from its consent judgment on the validity of the D’093
Patent. Contrary to the representations in Seirus’s letter, Columbia has maintained
consistent positions in all proceedings.

The tests for design-patent infringement and invalidity are similar, with both tests
considering the “overall effect” of the patented design in its entirety, rather than
certain features in isolation. In the reexamination, the examiner considered Throx,
a sock design called “zebra stripes,” that never was raised in this case. Notably,
Throx has nothing to do with heat-reflective materials, as claimed, nor does the art
look anything like the patented design. In arguing that the D’093 Patent is not

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Peter R. Marksteiner
August 27, 2019
Page 2

anticipated by Throx, Columbia explained that: “The visual differences between


Throx and the Patented ’093 Design lead to a different overall visual impression.”

Columbia identified several fundamental differences between the designs,


concluding: “In view of at least these visual differences, the overall appearance of
Throx cannot be said to be ‘basically the same’ as the overall appearance of the
Patented ‘093 Design.”

In contrast to Throx, Seirus’s design of “heat reflective material” has an overall


effect virtually identical to the patented design. Like the D’093 Patent, Seirus’s
design was meant to evoke the image of heat rising off the desert floor, (Dkt. 37,
pp. 4, 6), and the patented design in fact seamlessly overlays over Seirus’s
infringing design:

D’093 Patent Fig. 2

schwabe.com
Peter R. Marksteiner
August 27, 2019
Page 3

In both this case and the reexamination, Columbia has stated the correct standards
applicable to design patents. The minor differences cited by Seirus to argue
noninfringement are nothing like the substantial differences that, in the aggregate,
render the D’093 Patent valid over Throx.

Respectfully,

Nika Aldrich

NFA:sjb

cc: All Counsel of Record

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