Nike, Inc. v. Wal-Mart Stores, Inc., No. 08 C 5840 (N.D. Ill.) (Hibbler, J.).
As I have said before, I generally do not discuss complaints, but Nike’s design patent suit against Wal-Mart last week has drawn significant blog coverage — click here for the complaint. And most of that coverage has missed the most interesting element of the complaint, from a legal procedure perspective (and yes, legal procedure is interesting, at least to me): Nike’s detailed pleadings. Instead of simply identifying its design patents (related to its Nike Shox product line) and Wal-Mart’s allegedly infringing shoes, Nike put detailed design patent claim charts in its complaint showing an accused product from the same angle as each figure in the design patent. Here is a portion of one of the charts:
Of course, claim charts for design patents are less detailed and time-intensive to create than utility patent charts. But claim charts in the body of a complaint are relatively rare for any type of patent case. This may suggest a recognition that the Supreme Court’s Twombly antitrust decision which required pleadings to meet a new "plausibility" standard coud be applied in patent cases — click here for more coverage of Twombly-related issues in the Blog’s archives. Of course, I just finished writing an article for John Marshall’s Review of Intellectual Property Law about how courts are dealing with the Twombly standards in patent cases, so I may just be seeing Twombly everywhere.I expect my article to be published next month, and I do not want to scoop it by describing my finding here. I can say, however, that my research suggests that Twombly is being applied (nationwide, not necessarily in the Northern District) in some interesting and uneven ways. More on that in a few weeks, after the article publishes.
For more coverage of this case, check out: