part of the 2016 Max Airflow. With respect to the 2015 Max Airflow, Shock Doctor asserts that Active Brands’s allegations are deficient because they fail to specify when Shock Doctor made, used, sold, or imported an infringing product and do not permit this Court to infer that the 2015 Max Airflow infringes each element of at least one claim. Shock Doctor asserts Active Brands repeats the language of the utility patents but “fails to include sufficient description of how even the 2015 Max Airflow product satisfies that language.” Regarding the D’889 design patent, Shock Doctor contends the allegations do not set forth a claim that could satisfy the ordinary-observer test that applies to such claims. See Egyptian Goddess, Inc. v. Swisa, Inc., 543 F.3d 665, 678 (Fed. Cir. 2008) (en banc) (<HOLDING>). Under that test, a product infringes a design
holding admission of filmed experiment of test vehicle to show design defect was error when plaintiff failed to show test vehicle had same characteristics as plaintiffs car holding that the ordinary observer test should be the sole test for determining whether a design patent has been infringed holding petitioner has the burden of proof under the strickland test holding that jurisdiction exists if either the pluralitys test or kennedys test is met recognizing that other courts have found the type of test reliable but finding that this particular urinalysis test was unreliable since the lab did not perform a backup test or identify lab test results and state left questions about how probationers diabetes affected the results