Croc’s Design Patent To Be Invalidated?
Crocs are a popular beach shoe here in Florida, across the U.S., and outside our nation’s borders. Now, the design patent they hold may be in jeopardy according to a number of recent news stories, including one in the January 4, 2008 edition of Forbes online. Holey Soles Holdings in Vancouver, Canada and Crocs are waging war against each other, since Crocs began in 2005 to try and push Holey Soles out of the market. Most recently, The European Union declared Croc’s patent invalid, claiming that their Beach model shoes "lack individual character" versus other similar brands. (Perhaps in testament to the value of patents Crocs’ stock price dropped $5.00 or 13.2% this past Friday, January 4, 2008.)
The two companies make shoes that are very similar to one another; Crocs believes Holey Soles is violating their patent, while Holey Soles, of course, believe they are not infringing. The courts are in the process of reviewing the case further and the Forbes article comments that the dispute may "ultimately come down to a strap across the front of its Beach model design." If the strap is determined to be purely decorative, it is likely that Crocs will emerge the winner; whereas, if it is determined to be functional, their patent may very well be invalidated.
These possibilities reflect the fact that design patents are used to protect the look of an invention, while a utility patent is necessary to protect its function. In patent protection, it very often comes down to details and that is the lesson here: when you think you’ve finally scrutinized your idea and your patent application enough, scrutinize it at least eight more times.