Wells v. Kessler Corp

I. Executive Summary and Procedural Information

• Parties & Counsel:
  • Plaintiff: Kerry S Wells (Missouri) (Pro Se)
  • Defendant: Charles C McCloskey, Lincoln Industrial Corp, et al. (Missouri)
  • Plaintiff’s Counsel: Pro Se
• Case Identification: 4:17-cv-02709, E.D. Mo., 03/12/2018
• Venue Allegations: Venue is predicated on the Missouri residency of the plaintiff and at least one key defendant.
• Core Dispute: Plaintiff, appearing pro se, alleges a range of claims including patent infringement, fraud, and legal malpractice, asserting improper inventorship and fraudulent assignment of a design patent for an illuminated sign.
• Technical Context: The dispute concerns the ornamental design of illuminated signs intended for outdoor display, such as in a yard.
• Key Procedural History: The complaint's allegations center on events during the patent's prosecution. Plaintiff alleges that her former patent attorney, a defendant, improperly added co-inventors, filed a terminal disclaimer, and assigned the patent to defendant Lincoln Industrial Corporation without authorization. These allegations of misconduct are foundational to the plaintiff’s claims of ownership and subsequent infringement.

Case Timeline

Date	Event
2009-04-17	'652 Patent Application Filing Date
2010-02-04	Alleged improper attempt to file terminal disclaimer by attorney
2010-07-16	Alleged unauthorized change of correspondence address
2010-07-27	Alleged improper notice of abandonment filed by attorney
2010-12-07	U.S. Design Patent D628,652 issues
2010-12-14	Patent allegedly assigned to Lincoln Industrial Corporation
2011-01-04	Plaintiff allegedly receives copy of patent from attorney
2018-03-12	Amended Complaint filed

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

U.S. Design Patent No. D628,652 - "ILLUMINATED SIGN," issued December 7, 2010.

The Invention Explained

• Problem Addressed: As is common for design patents, the '652 Patent does not articulate a specific technical problem to be solved. Instead, it presents a new, original, and ornamental design for an article of manufacture (D’652 Patent, Claim).
• The Patented Solution: The patent discloses the specific ornamental appearance of an illuminated sign. The design consists of a rectangular housing with a front face for displaying characters, supported by two stakes for ground insertion and featuring two hooks on its top edge (D’652 Patent, Figs. 1, 5-7). The overall visual impression created by this combination of features constitutes the patented design.
• Technical Importance: The complaint alleges that "the invention selling at home depot has numerals not letters," suggesting a perceived commercial market for such decorative signs (Compl. p. 4, Exhibit-14(b)).

Key Claims at a Glance

• The single claim asserted is for: "The ornamental design for a illuminated sign, as shown and described" (D’652 Patent, Claim).
• The scope of the claim is defined by the visual representations in the patent's drawings. The essential ornamental features depicted include:
  • A generally rectangular sign housing
  • Two downward-extending stakes for ground mounting
  • Two upward-extending hooks on the top surface
  • A front face configured to display illuminated characters

III. The Accused Instrumentality

Product Identification

The complaint identifies the accused instrumentality as an "Illuminated Address Sign" (Compl. p. 2) and "the invention selling at home depot" (Compl. p. 4, Exhibit-14(b)).

Functionality and Market Context

The complaint alleges the accused product is an illuminated sign that displays "numerals not letters," presumably for displaying a street address (Compl. p. 4, Exhibit-14(b)). The product is alleged to be sold at "home depot," indicating it is a consumer good (Compl. p. 4, Exhibit-14(b)). The complaint does not provide further technical detail on the product's construction or operation. No probative visual evidence provided in complaint.

IV. Analysis of Infringement Allegations

The complaint does not provide a claim chart or a structured technical comparison for infringement. The infringement theory is presented narratively and appears secondary to the plaintiff's allegations of fraudulent ownership and inventorship. The central infringement allegation is a request for damages and other relief for "infringements of plaintiff invention/patents" (Compl. p. 5, ¶5). The infringement test for a design patent is the "ordinary observer" test, which asks whether an ordinary observer, familiar with the prior art, would be deceived into believing the accused design is the same as the patented design. The complaint does not provide sufficient detail, such as images of the accused product, to allow for a direct comparison.

• Identified Points of Contention:
  • Ownership Dispute: A threshold issue for the court is the dispute over the patent's ownership. Plaintiff alleges the patent was fraudulently assigned and that other defendants were improperly named as co-inventors (Compl. p. 3, Exhibit-7). The infringement claim is predicated on the court first finding that the plaintiff is the rightful and sole owner of the '652 Patent.
  • Factual Question (Ordinary Observer Test): The complaint states that the accused product "has numerals not letters," while the patent drawings show signs with letters (e.g., "JESUS," "WWJD") (Compl. p. 4, Exhibit-14(b); D’652 Patent, Figs. 1, 7). This raises the core factual question for the infringement analysis: would an ordinary observer consider a sign displaying numerals to be substantially the same in overall ornamental appearance as the patented design depicting letters, or does this difference create a distinct visual impression?

V. Key Claim Terms for Construction

In design patent cases, formal claim construction is rare, as the claim scope is defined by the drawings. The analysis focuses on the overall visual impression rather than the definition of specific words.

• The Term: "ornamental design for a illuminated sign, as shown and described"
• Context and Importance: This phrase constitutes the entirety of the claim, and its scope is defined by the patent's figures. The central issue is not the meaning of the words but the visual scope of the drawings and whether the accused product's design falls within it.
• Intrinsic Evidence for Interpretation:
  • Evidence for a Broader Interpretation: A party arguing for broader scope might point to the fact that the patent shows two different sets of letters ("JESUS" and "WWJD") in its figures (D'652 Patent, Figs. 1, 7). This could suggest that the specific characters are merely illustrative of the sign's capabilities and that the core protected design is the overall configuration of the housing, stakes, and hooks, regardless of the specific characters displayed.
  • Evidence for a Narrower Interpretation: A party arguing for a narrower interpretation could focus on the explicit content of the drawings. Since all exemplars show letters, one could argue that the design is limited to signs displaying alphabetic characters. The plaintiff’s own complaint distinguishes the accused product by noting it "has numerals not letters," suggesting that the plaintiff may view this as a material difference in the design (Compl. p. 4, Exhibit-14(b)).

VI. Other Allegations

• Indirect Infringement: The complaint does not plead facts that specifically align with the legal requirements for induced infringement (§ 271(b)) or contributory infringement (§ 271(c)). The allegations focus on direct infringement by the defendants who are allegedly making, using, or selling the accused product.
• Willful Infringement: While the complaint does not use the term "willful," the factual allegations form the basis for such a claim. The entire case is premised on allegations of knowing and intentional fraudulent conduct by the defendants to appropriate the plaintiff's invention (Compl. pp. 3-4). The prayer for relief explicitly requests "enhance damages up to three times the amount of damages found" under 35 U.S.C. § 284 and § 289, which is the statutory remedy for willful infringement (Compl. p. 5, ¶5).

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

• A primary threshold issue will be one of ownership and inventorship: before any infringement analysis can proceed, the court must first resolve the plaintiff's allegations of fraud, improper addition of inventors, and unauthorized assignment of the '652 patent. The viability of the patent infringement claim is entirely dependent on the outcome of these predicate disputes.
• A central infringement question will be the application of the "ordinary observer" test: assuming the plaintiff establishes ownership, does the accused "Illuminated Address Sign," which allegedly displays numerals, possess an overall ornamental design substantially similar to the patented design, which depicts letters, such that an ordinary observer would be deceived?
• A key procedural question will concern the viability and structure of the complaint: given that the pro se complaint combines complex and disparate claims of patent infringement, legal malpractice, and fraud against numerous parties, the court will likely need to address whether these claims are properly joined and pleaded under federal rules.