Case: 20-1167 Document: 66 Page: 1 Filed: 02/18/2021
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MOJAVE DESERT HOLDINGS, LLC,
Appellant
v.
CROCS, INC.,
Appellee
______________________
2020-1167
______________________
Appeal from the United States Patent and Trademark
Office, Patent Trial and Appeal Board in No. 95/002,100.
______________________
Decided: February 18, 2021
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MATT BERKOWITZ, Shearman & Sterling LLP, Menlo
Park, CA, argued for appellant. Also represented by YUE
WANG; PATRICK ROBERT COLSHER, MARK A. HANNEMANN,
THOMAS R. MAKIN, New York, NY; LAURA KIERAN
KIECKHEFER, San Francisco, CA.
MICHAEL BERTA, Arnold & Porter Kaye Scholer LLP,
San Francisco, CA, argued for appellee. Also represented
by SEAN MICHAEL CALLAGY; MARK CHRISTOPHER FLEMING,
Wilmer Cutler Pickering Hale and Dorr LLP, Boston, MA;
BENJAMIN S. FERNANDEZ, Denver, CO.
Case: 20-1167 Document: 66 Page: 2 Filed: 02/18/2021
2 MOJAVE DESERT HOLDINGS, LLC v. CROCS, INC.
______________________
Before NEWMAN, DYK, and O’MALLEY, Circuit Judges.
PER CURIAM.
Mojave Desert Holdings, LLC 1 appeals from a final
written decision of the Patent Trial and Appeal Board
(“Board”) following inter partes reexamination of U.S. Pa-
tent No. D517,789 (“’789 patent”). See U.S.A. Dawgs, Inc.
v. Crocs, Inc., 2019 Pat. App. LEXIS 6418 (P.T.A.B. Sept.
10, 2019) (“Board Decision”). Mojave argues that the Board
legally erred in its analysis of the prior art. Because we
discern no reversible error, we affirm.
I.
A.
The ’789 patent, a design patent titled “Footwear,” is-
sued on March 28, 2006. The patent claims “[t]he orna-
mental design for footwear, as shown and described” in the
patent’s seven figures. ’789 patent, claim 1. Figures 3, 4,
5, and 7, which collectively show the outside, front, bottom,
and rear of the shoe, provide a sufficient representation of
the claimed design:
1 On February 11, 2021, we granted Mojave’s motion
to substitute for U.S.A. Dawgs, Inc. (“Dawgs”). See Mojave
Desert Holdings, LLC v. Crocs, Inc., No. 2020-1167,
2021
WL 499576 (Fed. Cir. Feb. 11, 2021).
Case: 20-1167 Document: 66 Page: 3 Filed: 02/18/2021
MOJAVE DESERT HOLDINGS, LLC v. CROCS, INC. 3
’789 patent, Figure 3 (left side view).
’789 patent, Figure 4 (front view).
’789 patent, Figure 5 (rear view).
Case: 20-1167 Document: 66 Page: 4 Filed: 02/18/2021
4 MOJAVE DESERT HOLDINGS, LLC v. CROCS, INC.
’789 patent, Figure 7 (bottom view).
B.
On August 24, 2012, Dawgs filed a request for inter
partes reexamination of the ’789 patent, which the U.S. Pa-
tent and Trademark Office ordered on November 19, 2012.
Although Dawgs proposed rejections, the examiner did not
adopt them. Instead, the examiner issued a final rejection
on August 9, 2017, finding that the design claimed in the
’789 patent was anticipated by “the shoe shown in the Ex-
aminer’s Citation U,” which the examiner included in the
examiner’s appendix, UX. J.A. 1745.
Case: 20-1167 Document: 66 Page: 5 Filed: 02/18/2021
MOJAVE DESERT HOLDINGS, LLC v. CROCS, INC. 5
The examiner’s appendix contains a collection of web
pages acquired by the examiner using the Wayback Ma-
chine. 2 The examiner compiled the key images as Fig-
ure 11:
2 The Wayback Machine is an online digital archive
of web pages. It is run by the Internet Archive, a nonprofit
library in San Francisco, California.
Case: 20-1167 Document: 66 Page: 6 Filed: 02/18/2021
6 MOJAVE DESERT HOLDINGS, LLC v. CROCS, INC.
J.A. 2132 (Figure 11).
Crocs appealed the examiner’s final rejection to the
Board. On September 10, 2019, following an oral hearing,
the Board issued a Final Written Decision reversing the
examiner’s anticipation finding.
Dawgs timely appealed, and we have allowed Mojave
to substitute. We have jurisdiction to hear appeals of final
written decisions from the Board under
28 U.S.C.
§ 1295(a)(4)(A).
II.
We review the Board’s legal conclusions de novo and its
factual findings for substantial evidence. See In re Gart-
side,
203 F.3d 1305, 1316 (Fed. Cir. 2000). “A finding is
supported by substantial evidence if a reasonable mind
might accept the evidence to support the finding.” Q.I.
Press Controls, B.V. v. Lee,
752 F.3d 1371, 1378–79 (Fed.
Cir. 2014). Anticipation is a question of fact that we review
for substantial evidence. HTC Corp. v. Cellular Commc’ns
Equip., LLC,
877 F.3d 1361, 1368 (Fed. Cir. 2017).
Having reviewed the Board’s decision and the record,
we discern no reversible error. We therefore affirm.
AFFIRMED
COSTS
No costs.
