DCT

2:22-cv-06112

Gavrieli Brands LLC v. LOVIE Pearl GmbH

Key Events

Complaint

I. Executive Summary and Procedural Information

Parties & Counsel:
- Plaintiff: Gavrieli Brands, LLC (California)
- Defendant: Lovie Pearl GmbH (Germany)
- Plaintiff’s Counsel: Morgan, Lewis & Bockius LLP
Case Identification: 2:22-cv-06112, C.D. Cal., 08/26/2022
Venue Allegations: Venue is alleged as proper for a foreign defendant under 28 U.S.C. § 1391(c)(3), which permits suit in any judicial district.
Core Dispute: Plaintiff alleges that Defendant’s "Lovie Pearl" line of ballet flats infringes a portfolio of thirteen design patents and two utility patents related to split-sole, foldable footwear.
Technical Context: The technology relates to women's foldable ballet flats, a category of footwear designed to offer portability and convenience without sacrificing the style, durability, and comfort of traditional non-foldable shoes.
Key Procedural History: The complaint does not mention any prior litigation between the parties, Inter Partes Review (IPR) proceedings, or licensing history related to the patents-in-suit.

Case Timeline

Date	Event
2011-08-10	Priority Date for U.S. Patents 8,745,893 and 9,398,786
2012-11-15	Priority Date for U.S. Design Patents D686,812; D688,855; and D681,927
2013-05-14	U.S. Design Patent D681,927 Issued
2013-07-30	U.S. Design Patent D686,812 Issued
2013-09-03	U.S. Design Patent D688,855 Issued
2014-06-10	U.S. Patent 8,745,893 Issued
2016-07-26	U.S. Patent 9,398,786 Issued
2017-02-28	Priority Date for U.S. Design Patent D846,845
2017-03-22	Priority Date for U.S. Design Patent D844,951
2018-05-30	Priority Date for U.S. Design Patent D886,435
2018-08-28	Priority Date for U.S. Design Patent D888,380
2018-09-18	Priority Date for U.S. Design Patents D846,259 and D846,849
2018-09-24	Priority Date for U.S. Design Patent D885,018
2019-02-24	Priority Date for U.S. Design Patent D903,279
2019-04-09	U.S. Design Patent D844,951 Issued
2019-04-23	U.S. Design Patent D846,259 Issued
2019-04-30	U.S. Design Patents D846,845 and D846,849 Issued
2020-04-14	Priority Date for U.S. Design Patent D943,897
2020-05-06	Priority Date for U.S. Design Patent D943,252
2020-05-26	U.S. Design Patent D885,018 Issued
2020-06-09	U.S. Design Patent D886,435 Issued
2020-06-30	U.S. Design Patent D888,380 Issued
2020-12-01	U.S. Design Patent D903,279 Issued
2022-02-15	U.S. Design Patent D943,252 Issued
2022-02-22	U.S. Design Patent D943,897 Issued
2022-08-26	Complaint Filed

II. Technology and Patent(s)-in-Suit Analysis

U.S. Patent No. 8,745,893 - "Split-Sole Footwear"

Issued: June 10, 2014 (’893 Patent)

The Invention Explained

Problem Addressed: The patent describes a dilemma in women's footwear between stylish but uncomfortable or bulky shoes and portable, foldable shoes that lack durability, support, and protection for extended wear ('893 Patent, col. 1:10-34). Prior manufacturing methods, where the insole, midsole, and upper are stitched together, allegedly limited the thickness and placement of outsole patches, compromising durability ('893 Patent, col. 1:55-65).
The Patented Solution: The invention is a split-sole shoe designed to be foldable without sacrificing durability. The core concept involves a manufacturing process where the midsole is first stitched to the upper, and a separate insole is later affixed by glue ('893 Patent, col. 2:21-25). This method allows for thicker, more protective heel and toe outsole patches to be placed closer to the shoe's perimeter seam, which in turn better protects the seam and midsole from wear ('893 Patent, col. 6:13-27). The shoe is designed to fold at a specific spacing between the two outsole patches ('893 Patent, col. 1:50-57, Fig. 1).
Technical Importance: This manufacturing approach enables the creation of a foldable shoe with a higher spring constant, providing greater support and rigidity comparable to non-foldable footwear ('893 Patent, col. 2:41-47).

Key Claims at a Glance

The complaint asserts independent claim 33 ('893 Patent, col. 20:5-45; Compl. ¶177).
The essential elements of claim 33 include:
- An upper forming an interior portion for a foot with a toe and heel cavity.
- A midsole with its perimeter stitched to the upper, forming a bottom to the interior portion bounded by a first seam.
- A heel outsole patch and a toe outsole patch stitched onto the midsole.
- An insole affixed by glue to the bottom of the interior portion.
- A spacing between the outsole patches that permits the shoe to fold.
- A configuration allowing the shoe to transition between an extended (coplanar) state and a folded state where the toe cavity tucks into the heel cavity.
- The insole is not stitched to the upper.
- A specified region of the shoe has a spring constant between 0.40 and 0.70 kilogram-force/inch.

U.S. Design Patent No. D686,812 - "Sole Assembly For a Split-Sole Shoe"

Issued: July 30, 2013 (’812 Patent)

The Invention Explained

Problem Addressed: Design patents protect ornamental appearance rather than solving a technical problem.
The Patented Solution: The '812 Patent claims the specific ornamental design for a sole assembly of a split-sole shoe, as depicted in its figures ('812 Patent, Claim). The claimed design features two distinct sole pads—a larger one for the toe area and a smaller one for the heel—separated by a visible gap, with a specific texture and border treatment ('812 Patent, Fig. 5). The complaint alleges this visible split-sole design, particularly when featuring a contrasting color, is a key brand identifier known as the "Peekaboo" outsole (Compl. ¶15, ¶23).
Technical Importance: The design's aesthetic distinction serves as a source identifier in the marketplace, according to the complaint (Compl. ¶25).

Key Claims at a Glance

Design patents contain a single claim for the ornamental design as shown in the drawings. The complaint alleges infringement of this claim ('812 Patent, Claim; Compl. ¶45).

U.S. Design Patent No. D688,855 - "Split-Sole Shoe With Blue Soles"

Issued: Sep. 3, 2013
Technology Synopsis: Claims the ornamental design of a complete split-sole shoe, including the upper and the two-part sole assembly. The figures show a specific texture on the sole and a particular shape for the upper (D688,855 Patent, Figs. 1-8).
Asserted Claims: The single design claim.
Accused Features: The overall design of the Lovie Pearl ballet flats, which is alleged to be "substantially similar" to the claimed design (Compl. ¶55).

U.S. Design Patent No. D943,897 - "Dual-Sole Shoe With Green Outsole Patch"

Issued: Feb. 22, 2022
Technology Synopsis: Claims the ornamental design for a dual-sole assembly, shown with color. The design features two distinct sole pads with specified shapes and proportions, separated by a defined gap (D943,897 Patent, Figs. 1-12).
Asserted Claims: The single design claim.
Accused Features: The split-sole design of the Lovie Pearl ballet flats (Compl. ¶65).

U.S. Design Patent No. D943,252 - "Ballet Shoe With Green Outsole Patch and Contrasting Upper"

Issued: Feb. 15, 2022
Technology Synopsis: Claims the ornamental design for a complete ballet shoe, including a contrasting upper and a colored, split outsole. The design combines the visual features of the shoe's upper with the two-part sole assembly (D943,252 Patent, Figs. 1-14).
Asserted Claims: The single design claim.
Accused Features: The overall design of the Lovie Pearl ballet flats, which are alleged to incorporate the claimed features (Compl. ¶75).

U.S. Design Patent No. D846,259 - "Ballet Shoe"

Issued: Apr. 23, 2019
Technology Synopsis: Claims the ornamental design of a complete split-sole ballet shoe. The figures depict the overall appearance, including the shape of the upper and the visible portion of the split sole when viewed from the side (D846,259 Patent, Figs. 1-21).
Asserted Claims: The single design claim.
Accused Features: The overall design of the Lovie Pearl ballet flats (Compl. ¶85).

U.S. Design Patent No. D903,279 - "Ballet Shoe"

Issued: Dec. 1, 2020
Technology Synopsis: Claims the ornamental design of a complete ballet shoe, including the upper and split-sole assembly. The design shows specific proportions and curvatures for the shoe's components (D903,279 Patent, Figs. 1-84).
Asserted Claims: The single design claim.
Accused Features: The overall design of the Lovie Pearl ballet flats (Compl. ¶95).

U.S. Design Patent No. D846,845 - "Shoe With Color Outpatch Soles"

Issued: Apr. 30, 2019
Technology Synopsis: Claims the ornamental design for a split-sole shoe, with figures showing various color applications to the outsole patches. This patent protects the specific visual appearance created by the colored split sole in combination with the shoe upper (D846,845 Patent, Figs. 1-154).
Asserted Claims: The single design claim.
Accused Features: The split-sole design with a colored outsole on the Lovie Pearl ballet flats (Compl. ¶105).

U.S. Design Patent No. D885,018 - "Ballet Shoe With Yellow Outpatch Sole and Contrasting Upper"

Issued: May 26, 2020
Technology Synopsis: Claims the ornamental design for a complete ballet shoe, specifically showing a yellow outsole and a contrasting upper. The claim is for the overall visual impression created by this specific combination of features (D885,018 Patent, Figs. 1-14).
Asserted Claims: The single design claim.
Accused Features: The overall design of certain Lovie Pearl ballet flats, which allegedly feature a similar color and design combination (Compl. ¶115).

U.S. Design Patent No. D886,435 - "Shoe With Dual Outpatch Sole"

Issued: June 9, 2020
Technology Synopsis: Claims the ornamental design of a shoe with a dual outpatch sole. The figures illustrate various color combinations and the overall shape of the shoe and its distinct sole components (D886,435 Patent, Figs. 1-35).
Asserted Claims: The single design claim.
Accused Features: The split-sole design of the Lovie Pearl ballet flats (Compl. ¶125).

U.S. Design Patent No. D846,849 - "Ballet Shoe"

Issued: Apr. 30, 2019
Technology Synopsis: Claims the ornamental design for a complete ballet shoe, showing a specific profile, top view, and sole configuration. The design captures the overall aesthetic of the shoe as an article of manufacture (D846,849 Patent, Figs. 1-91).
Asserted Claims: The single design claim.
Accused Features: The overall design of the Lovie Pearl ballet flats (Compl. ¶135).

U.S. Design Patent No. D681,927 - "Split-Sole Shoe"

Issued: May 14, 2013
Technology Synopsis: Claims the ornamental design for a split-sole shoe, including views of the shoe in both an extended and a folded configuration. This protects the appearance of the shoe in its functional, folded state (D681,927 Patent, Figs. 1-8).
Asserted Claims: The single design claim.
Accused Features: The overall design of the Lovie Pearl ballet flats, which are also foldable (Compl. ¶145).

U.S. Design Patent No. D888,380 - "Ballet Shoe"

Issued: June 30, 2020
Technology Synopsis: Claims the ornamental design for a complete ballet shoe. The figures depict the overall appearance from multiple angles, defining its specific shape and proportions (D888,380 Patent, Figs. 1-7).
Asserted Claims: The single design claim.
Accused Features: The overall design of the Lovie Pearl ballet flats (Compl. ¶155).

U.S. Design Patent No. D844,951 - "Shoe with Dual-Outpatch Sole"

Issued: Apr. 9, 2019
Technology Synopsis: Claims the ornamental design for a shoe with a dual outpatch sole, focusing on the visual appearance of the sole in conjunction with the upper. The broken lines indicate that the back portion of the upper is not part of the claimed design (D844,951 Patent, Description).
Asserted Claims: The single design claim.
Accused Features: The split-sole design of the Lovie Pearl ballet flats (Compl. ¶165).

U.S. Patent No. 9,398,786 - "Split-Sole Footwear"

Issued: July 26, 2016 (’786 Patent)
Technology Synopsis: A continuation of the application that led to the ’893 Patent, this patent also covers a split-sole, foldable shoe. Asserted claim 34 includes similar structural elements but adds a new limitation regarding the proximity of the toe outsole patch to the seam.
Asserted Claims: Independent claim 34.
Accused Features: The construction of the Lovie Pearl ballet flats, including the upper, midsole, outsole patches, and the placement of the toe outsole patch relative to the main seam (Compl. ¶¶196, 200-207).

III. The Accused Instrumentality

Product Identification

The accused products are "Lovie Pearl" ballet flats, sold under various style names including "Citron," "Aquatic Elf," "Coconut," and others (Compl. ¶¶3, 41).

Functionality and Market Context

The complaint alleges that the Accused Products are ballet flats sold online, including through an Amazon Web Store (Compl. ¶7, ¶39). The complaint provides photographic evidence showing the accused shoes are foldable ballet flats with a two-part, split-sole construction (Compl. ¶¶184, 185). The complaint characterizes the Accused Products as systematic copies of Plaintiff's "Tieks" footwear designed to "improperly exploit the goodwill Gavrieli has spent years building" (Compl. ¶38). A side-by-side photograph comparing an "Exemplary Tieks®" shoe with an "Exemplary Accused Product" is provided to illustrate the alleged similarity (Compl. p. 8).

IV. Analysis of Infringement Allegations

'893 Patent Infringement Allegations

Claim Element (from Independent Claim 33)	Alleged Infringing Functionality	Complaint Citation	Patent Citation
[a] an upper, the upper forming an interior portion for receiving a foot of a woman, the interior portion including a toe cavity and a heel cavity;	The Accused Products include an upper that forms an interior portion for a foot, with a toe and heel cavity. The complaint includes a photograph of the accused shoe's exterior with an arrow pointing to the upper (Compl. p. 34).	¶179	col. 4:35-37
[b] a midsole... wherein a perimeter of the midsole is stitched to the upper thereby forming a bottom to the interior portion that is bounded by a first seam;	The Accused Products allegedly include a midsole stitched to the upper, forming the bottom of the foot cavity. The complaint provides a view of the shoe's underside showing the two-part sole attached to the midsole (Compl. p. 35).	¶180	col. 5:35-42
[c] a heel outsole patch stitched onto a heel portion of a first face of the midsole;	The Accused Products include a heel outsole patch stitched to the midsole. A photograph of the sole shows an arrow pointing to the heel patch (Compl. p. 36).	¶181	col. 5:42-45
[d] a toe outsole patch stitched onto a toe portion of the first face of the midsole;	The Accused Products include a toe outsole patch stitched to the midsole. A photograph of the sole shows an arrow pointing to the toe patch (Compl. p. 36).	¶182	col. 5:42-45
[f] wherein there is a spacing between... the heel outsole patch... and... the toe outsole patch... thereby permitting the entire shoe to fold about an axis...	The Accused Products allegedly have a space between the heel and toe outsole patches that allows the shoe to fold. A side-view photograph shows an arrow pointing to this spacing (Compl. p. 37).	¶184	col. 5:46-54
[g] wherein the shoe is configured to fold between (i) an extended state wherein the heel outsole patch and the toe outsole patch are coplanar and (ii) a folded state in which... the toe cavity is tucked into the heel cavity...	The Accused Products are allegedly configured to fold from a coplanar, extended state to a folded state. The complaint includes photographs illustrating both the "Coplanar" and "folded" states of the accused shoe (Compl. p. 38).	¶185	col. 6:7-12
[i] ...a region of the shoe defined by the heel outsole patch and comprising a corresponding portion of the midsole and the insole has a spring constant of between 0.40 kilogram-force/inch and 0.70 kilogram-force/inch.	Based on "information and belief," the complaint alleges that the accused products contain a heel region with a corresponding portion of the midsole and insole that meets the claimed spring constant range.	¶187	col. 8:26-35

'812 Design Patent Infringement Allegations

Since design patent infringement is assessed from the perspective of an "ordinary observer," the allegations are primarily visual. The complaint presents a direct comparison in Table 1 (Compl. ¶46).

Patented Design Feature ('812 Patent)	Alleged Infringing Feature (Accused Product)
The ornamental design for a sole assembly as shown in the patent figures.	A visually similar sole assembly on the accused "Lovie Pearl" ballet flats.

Identified Points of Contention:
- '893 Patent (Utility): The analysis may turn on highly technical and quantitative questions. A central issue may be whether the Accused Products meet the specific numerical range for the "spring constant" recited in claim 33[i]. This limitation requires empirical testing, and the methodology of that testing could itself become a point of dispute. Another question may be one of construction: how is the "first seam" that "bounded" the interior portion defined, and do the accused products meet that structural limitation?
- '812 Patent (Design): The dispute will likely focus on the "ordinary observer" test. The core question for the court will be whether the accused Lovie Pearl sole assembly design is "substantially the same" as the design claimed in the '812 Patent, considering the design as a whole. Defendant may argue that differences in the sole texture, border proportions, or overall shape are significant enough that an ordinary observer would not be deceived.

V. Key Claim Terms for Construction

The Term: "a spring constant of between 0.40 kilogram-force/inch and 0.70 kilogram-force/inch" ('893 Patent, Claim 33[i])
Context and Importance: This term is critical because it defines a specific, quantitative functional characteristic of the shoe. Infringement of this element cannot be determined by visual inspection alone and will require expert testing and testimony. Practitioners may focus on this term because its definiteness could be challenged if the method of measurement is not sufficiently disclosed, and infringement will depend entirely on empirical data that falls within this precise range.
Intrinsic Evidence for Interpretation:
- Evidence for a Broader Interpretation: The patent specification provides a clear methodology for measuring the spring constant: "with the shoe held in an upright position one end... is anchored and then the other end... is forced down a set distance (e.g., 1 inch) and the force exerted... is then measured" ('893 Patent, col. 8:36-44). This language provides an explicit basis for performing a test to determine if a product falls within the claimed range.
- Evidence for a Narrower Interpretation: A defendant might argue that the use of "e.g., 1 inch" introduces ambiguity into the testing protocol, potentially rendering the term indefinite under 35 U.S.C. § 112. The precise manner of anchoring and applying force is not specified, which could be argued to lead to inconsistent results, raising questions about whether the claim provides a person of ordinary skill in the art with reasonable certainty about its scope.

VI. Other Allegations

Indirect Infringement: The complaint does not contain specific counts for indirect infringement (inducement or contributory infringement). The infringement allegations are for direct infringement under 35 U.S.C. § 271.
Willful Infringement: For each of the fifteen asserted patents, the complaint alleges on "information and belief" that the infringement "is, has been, and continues to be undertaken knowingly, willfully, deliberately, maliciously, and in bad faith" (Compl. ¶¶48, 58, 68, etc.). The complaint does not plead specific facts, such as receipt of a notice letter, to support pre-suit knowledge of the patents.

VII. Analyst’s Conclusion: Key Questions for the Case

A central issue for the thirteen asserted design patents will be one of visual identity: are the Lovie Pearl ballet flats, when viewed as a whole by an ordinary observer, substantially the same in ornamental appearance as the various designs claimed by Gavrieli, or are there sufficient visual differences to distinguish them?
A key evidentiary question for the two asserted utility patents will be one of technical and quantitative equivalence: can Gavrieli demonstrate through expert analysis and testing that the accused shoes not only replicate the claimed multi-part construction (e.g., the specific relationship between the upper, midsole, and unstitched insole) but also meet the precise numerical "spring constant" range required by claim 33 of the '893 patent?
A broader question will be one of scope and multiplicity: with fifteen patents asserted, the case presents significant complexity. A key strategic question will be how the parties and the court manage the overlapping design claims and the distinct technical requirements of the utility claims throughout claim construction, discovery, and trial.