Contessa Food Prods. v. Conagra, Inc.

Contessa Food Prods. v. Conagra, Inc.

Opinion

 [***1065]  [*1372]   LINN, Circuit Judge.

Conagra, Inc., Meridian Seafood Products, Inc., and Ocean Duke Corporation (collectively, "Conagra") appeal the district court's decision granting Contessa Food Products, Inc. ("Contessa")'s motion for partial summary judgment of infringement of Contessa's design patent of a serving tray with shrimp. Because the district court improperly applied the "ordinary observer" test by limiting its analysis of infringement to the time of sale and not fully considering the underside of the tray illustrated in Figure 4 of the '612 patent, we vacate and remand for further proceedings.

BACKGROUND

Contessa (previously known as ZB Industries, Inc.) is the assignee of U.S. Design Patent No. 404,612 [**2]  ("the 612 patent") entitled "Serving Tray with Shrimp." Contessa's original application for its design of a serving tray with shrimp was  [*1373]  submitted on September 18, 1996. Following a restriction requirement, Contessa filed a divisional application that matured into the 612 patent, issued January 26, 1999. The single claim of the 612 patent recites, "I claim the ornamental design for a serving tray with shrimp, as shown and described."

Figures 1-3 of the 612 patent illustrate top, side, and perspective views of a circular serving  [***1066]  tray with a circular receptacle in the center for cocktail sauce. On the tray are arranged two layers, or rows, of shrimp positioned so that each shrimp head is nearer the center, each tail is nearer the outer edge, the shrimp are lying "nested" on their sides, and the tails of the upper layer of shrimp overlap and rest upon the heads of the lower layer. The side view (Figure 3) shows that the profile of the arrangement of shrimp slopes upward toward the center of the tray, forming a "mound" of shrimp. Figures 1-3 are reproduced below.

 [*1374]  

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