Crocs Suffers Major Setback at the ITC

Because of my involvement in this case as counsel for local shoe designer, Australia Unlimited (maker of the NOTHINZ brand of foam clog), I'll limit my post to reporting the fact that Crocs has suffered a major blow in its case at the ITC. By way of background, Crocs filed a complaint at the ITC over two years ago claiming that a number of other providers of foam clogs were infringing its IP rights.

Earlier this week, Administrative Judge Charles E. Bullock issued an initial determination denying Crocs' request for an order barring importation of shoes Crocs says infringe its patents covering the popular BEACH model foam clog. Judge Bullock's decision also finds that Crocs' US Patent No. 8,993,858 is invalid. The entire ruling is not yet public, but these basic facts were released earlier this week. Crocs will likely seek review of this order by the Commission. If affirmed, the order will be highly persuasive, and potentially outcome determinative of any similar cases filed by the Colorado Shoe seller.

I've posted previously on this case here.

IP 360 reported as follows:

Tuesday, Apr 15, 2008 --- In a significant setback for footwear company
Crocs Inc., an administrative law judge for the U.S. International Trade
Commission has ruled that one of the company's key patents for its colorful
plastic shoes is invalid for obviousness.
In May 2006, Crocs filed a complaint before the ITC against several
competitors, claiming that their products infringed two of Crocs' patents, one
utility patent and one design patent.
In his ruling Friday, Judge Charles E. Bullock found that some of the
competitors had infringed the utility patent, but none had infringed the design
patent.
However, he found that the utility patent was invalid for obviousness, so the
infringement by the competitors is in effect meaningless. The judge found the
design patent valid but not infringed.
Judge Bullock's ruling is a preliminary determination, meaning that any party
can ask to have it reviewed, which Crocs is likely to do, said Glenn Bellamy,
an attorney for one of the defendants.
After a final determination is made, the case can be appealed to the U.S.
Court of Appeals for the Federal Circuit.
A representative for Crocs could not be reached for comment.
A representative for Holey Soles Holding Ltd., one of the defendants, said
that the company had maintained its innocence throughout the proceeding.
"While it's an interesting and useful outcome, it's really just business as usual
for us," he said of the ruling. He characterized the suit by Crocs as an
attempt to block competition.
Only three pages of Judge Bullock's 122-page ruling were made public, with
the rest sealed until the parties have a chance to submit redactions. The full
ruling is expected to be released within a few weeks, according to Bellamy.
The utility patent at issue is U.S. Patent Number 6,993,858, entitled
“Breathable footwear pieces” and issued in 2006. The design patent is
D517,789, entitled "Footwear" and issued in 2006.