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In International Seaway Trading Corp. v. Walgreens Corp., 2009-1237 (Fed. Cir. Dec. 17, 2009), the Federal Circuit affirmed-in-part, vacated-in-part and remanded a district court's summary judgment ruling that the design patents-in-suit were invalid as anticipated, holding that the district court correctly held that the “ordinary observer” test was the sole test of design patent invalidity under 35 U.S.C. ' 102, but that it erred in limiting application of that test to the “portions of the product that are visible during normal use.”

Plaintiff International Seaway Trading Corporation (“Seaway”) is an importer of footwear to mass merchandise retailers and sporting good stores. Seaway also creates its own shoe and boot designs and pursues design patents for them. On Feb. 15, 2008, Seaway brought suit against Walgreens Corporation and Touchsport Footweare USA, Inc. in the United States District Court for the Southern District of Florida, claiming infringement of three design patents: U.S. Design Patent Nos D529,263, D542,032 and D543,033 (collectively, “the patents-in-suit”). Each of the patents-in-suit is part of the same family and claim designs for casual, lightweight footwear, typically referred to as “clogs.”