DCT
5:11-cv-00149
Revision Military Inc v. Balboa Mfg Co
I. Executive Summary and Procedural Information
- Parties & Counsel:
- Plaintiff: Revision Military, Inc. (Canada) and Revision Military Ltd. (Delaware)
- Defendant: Balboa Manufacturing Company, LLC d/b/a Bobster Eyewear (California)
- Plaintiff’s Counsel: Gravel and Shea; Marshall, Gerstein & Borun LLP
- Case Identification: 5:11-cv-00149, D. Vt., 06/07/2011
- Venue Allegations: Venue is alleged based on Defendant’s nationwide business activities, including sales and offers for sale through retail outlets and the internet within the state and district of Vermont.
- Core Dispute: Plaintiff alleges that Defendant’s "Bravo" style ballistic goggles infringe two U.S. design patents protecting the ornamental designs of Plaintiff's "BULLET ANT" goggles.
- Technical Context: The dispute is in the field of protective eyewear, specifically ballistic goggles designed for military, law enforcement, and tactical markets.
- Key Procedural History: The complaint alleges that Plaintiff introduced an original goggle design in 2005 (covered by the ’098 Patent) and a new stylized version in early 2010 (covered by the ’039 Patent). Defendant is alleged to have entered the market with the accused products in late 2010.
Case Timeline
| Date | Event |
|---|---|
| 2005-01-01 | Plaintiff's "BULLET ANT" goggle (original design) introduced (approximate) |
| 2005-10-01 | U.S. Patent D537,098 priority date (filing date) |
| 2007-02-20 | U.S. Patent D537,098 issued |
| 2009-09-29 | U.S. Patent D620,039 priority date (filing date) |
| 2010-01-01 | Plaintiff's "BULLET ANT" goggle (new stylized design) introduced (approximate) |
| 2010-07-20 | U.S. Patent D620,039 issued |
| 2010-10-01 | Defendant's "Bobster Ballistics Tactical Eyewear line" introduced (approximate) |
| 2011-06-07 | Complaint filed |
II. Technology and Patent(s)-in-Suit Analysis
U.S. Design Patent D537,098, "Protective Goggles," issued February 20, 2007
The Invention Explained
- Problem Addressed: The complaint asserts that at the time of its introduction, "no other manufacturer of protective eyewear sold goggles having a stylized design resembling the BULLET ANT goggle," suggesting a desire to create a unique and original aesthetic in the military eyewear market (Compl. ¶7).
- The Patented Solution: The patent claims "the ornamental design for protective goggles, as shown and described" ('098 Patent, Claim). The design features a generally curved, wraparound frame with two distinct lens openings, a contoured nose bridge, and rows of circular ventilation holes along the upper and lower edges of the frame ('098 Patent, FIG. 2, FIG. 5). The complaint alleges this patent protects the design of the "original BULLET ANT goggle" (Compl. ¶9).
- Technical Importance: The design was embodied in a commercial product specifically created for "military, tactical, and S.W.A.T. operations" (Compl. ¶7).
Key Claims at a Glance
- The single claim covers the ornamental design for protective goggles as depicted in the patent's figures ('098 Patent, Claim).
- The overall visual impression of the design is defined by the combination of its constituent features, including:
- The overall curvilinear shape of the goggle frame.
- The specific contours of the front face and lens openings.
- The arrangement and circular shape of the ventilation ports on the top and bottom flanges of the frame.
U.S. Design Patent D620,039, "Goggles," issued July 20, 2010
The Invention Explained
- Problem Addressed: The patent is directed to a "new stylized design" for Plaintiff's "BULLET ANT" goggle, which replaced the original design in early 2010 (Compl. ¶¶ 8, 9).
- The Patented Solution: The patent claims "the ornamental design for goggles, as shown and described" ('039 Patent, Claim). This design is distinguished by more angular and geometric features compared to the '098 Patent. Key visual elements include the sharp-cornered lens openings, a prominent and geometrically-shaped central bridge piece, and rectangular ventilation patterns on the frame's top surface ('039 Patent, FIG. 1, FIG. 2).
- Technical Importance: This design was embodied in the "current BULLET ANT goggle" that Plaintiff began selling in early 2010 (Compl. ¶¶ 8, 9).
Key Claims at a Glance
- The single claim covers the ornamental design for goggles as depicted in the patent's figures ('039 Patent, Claim).
- The overall visual impression of the design is defined by its combination of features, including:
- The angular, almost hexagonal shape of the lens openings.
- The prominent, trapezoidal feature on the nose bridge.
- The distinct, non-circular shape and arrangement of the ventilation slots.
III. The Accused Instrumentality
Product Identification
The accused products are Defendant's "Bravo" style ballistic protective goggles (Compl. ¶¶ 16, 22).
Functionality and Market Context
The complaint identifies the "Bravo" goggle as part of the "Bobster Ballistics Tactical Eyewear line," which was commercially introduced in late 2010 (Compl. ¶10). The complaint alleges these products compete in the "military / law enforcement ballistic protective eyewear" market (Compl. ¶10). The complaint includes photographs of the "Bravo" goggle to illustrate its ornamental design (Compl. pp. 4, 6).
IV. Analysis of Infringement Allegations
The complaint alleges that the design of the accused "Bravo" goggle is substantially similar to the designs protected by both the '098 and '039 patents, such that an ordinary observer would be deceived (Compl. ¶¶ 18, 24).
The complaint provides a side-by-side visual comparison of the patented design's front view and a photograph of the accused Bravo goggle (Compl. p. 4). A second visual comparison shows the top view of the patented design next to a corresponding photo of the accused product (Compl. p. 4).
'098 Patent Infringement Allegations
| Claim Element (Visual Feature from '098 Patent) | Alleged Infringing Feature (from Accused "Bravo" Goggle) | Complaint Citation |
|---|---|---|
| The overall curved, wraparound frame shape as shown in FIG. 2. | The accused goggle is alleged to have a similar overall curved, wraparound frame shape. | ¶17; p. 4 |
| The distinct dual-lens openings with rounded corners as shown in FIG. 2. | The accused goggle is depicted with dual-lens openings with rounded corners that are alleged to be visually similar. | ¶17; p. 4 |
| The pattern of circular ventilation holes along the top edge of the frame as shown in FIG. 5. | The accused goggle is depicted with a pattern of ventilation holes along the top edge of its frame. | ¶17; p. 4 |
- Identified Points of Contention:
- Scope Questions: The primary question is whether the overall visual impression of the accused "Bravo" goggle is "substantially the same" as the claimed design in the '098 patent.
- Technical Questions: A factual question for the finder of fact will be whether any visual differences between the accused product and the patented design—such as potential variations in the exact curvature of the frame or the size and spacing of the ventilation holes—are sufficient to prevent an ordinary observer from being deceived.
The complaint presents another visual comparison between the '039 patent's front view (FIG. 1) and a photograph of the accused Bravo goggle (Compl. p. 6).
'039 Patent Infringement Allegations
| Claim Element (Visual Feature from '039 Patent) | Alleged Infringing Feature (from Accused "Bravo" Goggle) | Complaint Citation |
|---|---|---|
| The overall angular frame shape as shown in FIG. 1. | The accused goggle is alleged to have a frame shape that creates a substantially similar visual impression. | ¶23; p. 6 |
| The angular, nearly hexagonal shape of the lens openings as shown in FIG. 1. | The accused goggle is depicted with lens openings that the complaint alleges are visually similar. | ¶23; p. 6 |
| The prominent, geometrically-defined nose bridge element as shown in FIG. 1 and FIG. 3. | The accused goggle is depicted with a prominent nose bridge that the complaint alleges is visually similar. | ¶23; p. 6 |
- Identified Points of Contention:
- Scope Questions: This count raises the question of whether the same accused product can be confusingly similar to two distinct patented designs—the curved '098 design and the angular '039 design.
- Technical Questions: A key factual dispute may arise over the degree of angularity in the accused product. The '039 patent claims a design with sharp, defined angles, while the photographs of the accused product may suggest a design with softer corners, raising the question of whether its overall impression is closer to the '098 patent, the '039 patent, or neither.
V. Key Claim Terms for Construction
In design patent litigation, claim construction does not involve defining textual terms but rather describing the claimed ornamental design as a whole, as shown in the figures. The analysis focuses on the overall visual impression rather than a list of elements.
- The "Term": The overall visual appearance of the "protective goggles" ('098 Patent) and "goggles" ('039 Patent).
- Context and Importance: The central issue in a design patent case is the comparison between the overall visual appearance of the claimed design and that of the accused product. The description of the claimed design's scope—whether it is broad enough to encompass variations or narrow and limited to the exact depiction—is critical to the infringement analysis.
- Intrinsic Evidence for Interpretation:
- Evidence for a Broader Interpretation: A court could interpret the claims more broadly by focusing on the general gestalt or overall visual impression of the designs, such as the '098 patent's general "curved, ventilated goggle" look or the '039 patent's general "aggressive, angular goggle" aesthetic.
- Evidence for a Narrower Interpretation: A court could adopt a narrower interpretation by focusing on the precise details shown in the drawings. For the '098 patent, this would include the exact number and circular shape of the vents and the specific profile of the frame's curvature ('098 Patent, FIG. 5). For the '039 patent, this would include the specific angles of the lens perimeter and the exact trapezoidal geometry of the nose bridge ('039 Patent, FIG. 1).
VI. Other Allegations
- Indirect Infringement: The complaint does not allege indirect infringement.
- Willful Infringement: The complaint alleges that Defendant's infringement of both patents is "deliberate, willful" and that "Bobster copied Plaintiffs' Bullet Ant style goggles" based on the "substantial similarity" between the products (Compl. ¶¶ 19, 25). This allegation is based on a theory of pre-suit copying.
VII. Analyst’s Conclusion: Key Questions for the Case
- A core issue will be one of visual comparison: Applying the "ordinary observer" test, is the ornamental design of the accused "Bravo" goggle substantially the same as the claimed design of the '098 patent, the '039 patent, or both, when each design is viewed in its entirety?
- A related question will be one of design scope: The case presents the issue of a single accused product allegedly infringing two distinct designs from the same plaintiff—one generally curved ('098) and one generally angular ('039). The court will have to determine if the accused design is confusingly similar to one, both, or neither of the patented designs.
- A key evidentiary question will be one of intent: Can the plaintiff provide evidence beyond the alleged "substantial similarity" to support its claim that the defendant deliberately and willfully copied the patented designs, which is required for a finding of willful infringement?