Anderson v. Kimberly-Clark Corporation
570 F. App'x 927
Fed. Cir.2014Background
- Pro se plaintiff Muffin Faye Anderson sued Kimberly‑Clark for infringement of U.S. Design Patent No. D401,328, alleging nine accused products (later narrowed to five made by Kimberly‑Clark).
- The ’328 patent claims an ornamental design for an absorbent disposable undergarment, shown in seven drawings.
- Kimberly‑Clark moved for judgment on the pleadings under Fed. R. Civ. P. 12(c), submitting photographs of the accused products and prior patent publications. Anderson did not dispute the photographs’ accuracy.
- The district court dismissed all claims: it ruled Kimberly‑Clark was not responsible for two third‑party products and found, via side‑by‑side visual comparison, that the five Kimberly‑Clark products did not plausibly infringe the design patent.
- The court alternatively noted prior art (WO 96/03950) that could invalidate the ’328 patent if infringement were found; the Ninth Circuit affirmed the dismissal for noninfringement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Consideration of materials outside the complaint (patent, WO publication, photos) | Anderson: court improperly considered evidence not attached to complaint | Kimberly‑Clark: patent and photos are central to the claim and authentic; court may judicially notice patents/publications | Court: no error — patent and photos are central and authentic; judicial notice/permissible reliance upheld |
| Sufficiency of infringement pleading / ordinary observer comparison | Anderson: accused designs substantially the same; dismissal premature | Kimberly‑Clark: accused products plainly different in multiple visual respects; no plausible claim | Court: affirmed dismissal — side‑by‑side differences (style, openings, inverted U section, unitary construction, etc.) make noninfringement clear to ordinary observer |
| Failure to hold Rule 26(f) scheduling conference before ruling | Anderson: court should not have ruled before Rule 26(f) conference | Kimberly‑Clark: Rule 12(c) disposition may proceed on the pleadings; scheduling deadlines were vacated | Court: no merit — no requirement that Rule 26(f) occur before deciding a Rule 12(c) motion |
| Granting plaintiff’s motion for leave to file second amended complaint (procedural) | Anderson: court improperly granted her own motion and she did not serve the proposed amended complaint | Kimberly‑Clark: granting the motion was harmless and does not affect 12(c) ruling | Court: not reversible error; this argument provides no basis to disturb dismissal |
Key Cases Cited
- Marder v. Lopez, 450 F.3d 445 (9th Cir. 2006) (documents central to claim may be considered on Rule 12 motion)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (plausibility pleading standard)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (plausibility standard and raising claim above speculative level)
- Egyptian Goddess, Inc. v. Swisa, Inc., 543 F.3d 665 (Fed. Cir. 2008) (ordinary observer test for design‑patent infringement)
- Crocs, Inc. v. Int’l Trade Comm’n, 598 F.3d 1294 (Fed. Cir. 2010) (application of ordinary observer test considering prior art familiarity)
- Contessa Food Products, Inc. v. Conagra, Inc., 282 F.3d 1370 (Fed. Cir. 2002) (compare visible ornamental features during normal use)
- Hoganas AB v. Dresser Indus., Inc., 9 F.3d 948 (Fed. Cir. 1993) (judicial notice appropriate for patents and patent applications)