Anderson v. Kimberly-Clark Corporation , 570 F. App'x 927 ( 2014 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MUFFIN FAYE ANDERSON,
Plaintiff-Appellant,
v.
KIMBERLY-CLARK CORPORATION,
Defendant-Appellee.
______________________
2014-1117
______________________
Appeal from the United States District Court for the
Western District of Washington in No. 2:12-cv-01979-
RAJ, Judge Richard A. Jones.
______________________
Decided: July 10, 2014
______________________
MUFFIN FAYE ANDERSON, of Seattle, Washington, pro
se.
STEVEN J. NATAUPSKY, Knobbe, Martens, Olson &
Bear, LLP, of Irvine, California, for defendant-appellee.
With him on the brief were BORIS ZELKIND and COLIN B.
HEIDEMAN.
______________________
2 ANDERSON v. KIMBERLY-CLARK CORPORATION
Before PROST, Chief Judge, CLEVENGER and CHEN, Circuit
Judges.
PER CURIAM.
Ms. Muffin Faye Anderson appeals the judgment of
the United States District Court for the Western District
of Washington dismissing her compliant for failure to
state a claim of infringement of U.S. Patent No. D401,328
(the ’328 patent). Because Ms. Anderson identifies no
errors in the court’s decision, we affirm.
BACKGROUND
Ms. Anderson, acting pro se, sued Kimberly-Clark
Corporation for infringement of the ’328 patent. 1 Ms.
Anderson applied for the ’328 patent in September 1997.
It claims an “ornamental design for an absorbent disposa-
ble undergarment” as described in seven drawings, sever-
al of which are depicted below.
Front-Angle View Front View Rear View
1 Although she does not specify her exact damages,
Ms. Anderson indicates that she seeks “relief settlement
of [$]50,000,000,000, and all other fee[s].” Appellant’s
Informal Brief at 4.
ANDERSON v. KIMBERLY-CLARK CORPORATION 3
Kimberly-Clark manufactures a number of household
products, including absorbent undergarments, and has
applied for many of its own patents for these designs. For
example, in July 1994, Kimberly-Clark filed a patent
application for an absorbent swimming garment, which
published in 1996 as WO 96/03950 (the WO ’950 publica-
tion). A figure from the WO ’950 publication is illustrated
below.
WO ’950 Publication
Ms. Anderson accused nine products of infringing the
’328 patent. Of the nine products, Kimberly-Clark main-
tains that it only manufactures and sells five: four of
those under the Depend® brand and one under the Good-
Nites® brand.
Kimberly-Clark claims that the four other products—
sold under the Assurance® and Certainty® brands—are
sold by Kimberly-Clark’s competitors (Wal-Mart Stores,
Inc. and Walgreen’s, respectively), as evidenced by the
packaging of those products. Accordingly, Kimberly-Clark
informed Ms. Anderson that it did not manufacture those
four products identified in the complaint. Ms. Anderson
thereafter filed a motion for leave to file a second amend-
ed complaint, which included a proposed Second Amended
Complaint that deleted all allegations to the Assurance®
and Certainty® brands. Although the court granted the
4 ANDERSON v. KIMBERLY-CLARK CORPORATION
motion, Ms. Anderson never filed the proposed Second
Amended Complaint.
Kimberly-Clark moved for judgment on the pleadings
under Fed. R. Civ. P. 12(c), alleging that Ms. Anderson’s
complaint failed to state a plausible claim for relief.
Specifically, it argued that the five Kimberly-Clark prod-
ucts were plainly dissimilar from the patented design,
and that Kimberly-Clark could not be liable for the As-
surance® and Certainty® products made and sold by
third parties. In support of its motion, Kimberly-Clark
submitted photographs of the allegedly infringing prod-
ucts and publicly available patents and patent applica-
tions.
The photographs of the Depend® products are depict-
ed below:
Depend® Depend® Depend® Depend®
For Women Silhouette Real Fit For Underwear
Moderate For Women Men Briefs for Men
Absorbency Maximum Maximum
Absorbency Absorbency
ANDERSON v. KIMBERLY-CLARK CORPORATION 5
And the photographs of the GoodNites® product,
showing a boxer-shorts-style layer over a briefs-style
undergarment:
Front View Top View Bottom View
Ms. Anderson opposed the motion but did not dispute
that the photographs of the products accurately repre-
sented the appearance of the allegedly infringing products
nor that the Assurance® and Certainty® products were
made by third parties.
The court granted Kimberly-Clark’s motion for all ac-
cused products. It took judicial notice of the uncontested
fact that Kimberly-Clark was not “responsible” for the
Assurance® and Certainty® products and dismissed those
products accordingly. Anderson v. Kimberly-Clark Corp.,
No. C12-1979RAJ, slip op. at 3 n.1 (W.D. Wash. Sept. 25,
2013) (hereinafter, Slip Op.). Alternatively, it interpreted
Ms. Anderson’s proposed Second Amended Complaint as
an admission that Kimberly-Clark was not responsible for
those products. Id.
As for the five Kimberly-Clark products, the court
concluded that Ms. Anderson did not state a plausible
claim of infringement. In doing so, it compared the as-
serted ’328 patent to the photographs of the accused
products, submitted by Kimberly-Clark, because they
were “central” to Ms. Anderson’s allegations and because
she did “not contend that Kimberly-Clark’s photographs
6 ANDERSON v. KIMBERLY-CLARK CORPORATION
are anything other than true depictions of its accused
products.” Slip Op. at 4 (citing Marder v. Lopez, 450 F.3d
445, 448 (9th Cir. 2006)). The court concluded that “[i]n
this case, a side-by-side comparison of the drawings of the
’328 Patent to the accused products suffices to demon-
strate that there is no infringement.” Slip Op. at 5. The
court recognized that Ms. Anderson was appearing pro se,
but “[e]ven construing her opposition and her complaint
with the utmost liberality, she has fallen well short of a
viable infringement claim.” Id. at 6 n.2.
As an alternative basis for its decision, the court took
judicial notice of the WO ’950 publication and concluded
that, if it accepted Ms. Anderson’s infringement allega-
tions as true, then the ’328 patent was invalid in light of
the WO ’950 publication. Id. at 6.
Ms. Anderson appealed, and we have jurisdiction un-
der 28 U.S.C. § 1295(a)(1).
DISCUSSION
When reviewing a district court’s judgment on the
pleadings, we apply regional circuit law. Imation Corp. v.
Koninklijke Philips Elecs. N.V., 586 F.3d 980, 984–85
(Fed. Cir. 2009). In the Ninth Circuit, a grant of judg-
ment on the pleadings is reviewed de novo. Or. Natural
Desert Ass’n v. U.S. Forest Serv., 550 F.3d 778, 782 (9th
Cir. 2008).
A party may move for judgment on the pleadings as
soon as the pleadings are closed. Fed. R. Civ. P. 12(c). A
Rule 12(c) motion may be based on the plaintiff’s failure
to state a claim upon which relief can be granted. Fed. R.
Civ. P. 12(h)(2)(B), (i). A Rule 12(c) motion “faces the
same test as a motion under Rule 12(b)(6).” McGlinchy v.
Shell Chem. Co., 845 F.2d 802, 810 (9th Cir. 1988).
A complaint must contain a “short and plain state-
ment of the claim showing the pleader is entitled to
relief.” Fed. R. Civ. P. 8(a)(2). To survive a motion to
ANDERSON v. KIMBERLY-CLARK CORPORATION 7
dismiss, a complaint must contain sufficient factual
matter to state a claim for relief that is plausible on its
face. Ashcroft v. Iqbal, 556 U.S. 662 (2009) (citing Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also
Cafasso v. Gen. Dynamics C4 Sys., 637 F.3d 1047, 1054
n.4 (9th Cir. 2011) (applying Iqbal to Rule 12(c) motions
because Rule 12(b)(6) and Rule 12(c) motions are func-
tionally equivalent). This “plausibility requirement”
requires the allegations in the complaint to “be enough to
raise a right to relief above the speculative level.”
Twombly, 550 U.S. at 555. The plaintiff must plead
“factual content that allows the court to draw the reason-
able inference that the defendant is liable for the miscon-
duct alleged.” Iqbal, 556 U.S. at 678. Determining
whether a complaint states a plausible claim for relief is
“a context-specific task that requires the reviewing court
to draw on its judicial experience and common sense.” Id.
at 679.
Although “[a]ll allegations of material fact are taken
as true and construed in the light most favorable to the
nonmoving party,” a “court need not [] accept as true
allegations that contradict matters properly subject to
judicial notice or by exhibit.” Spreewell v. Golden State
Warriors, 266 F.3d 979, 988 (9th Cir. 2001). “Nor is the
court required to accept as true allegations that are
merely conclusory, unwarranted deductions of fact, or
unreasonable inferences.” Id.; see also Iqbal, 556 U.S. at
678–79. In evaluating a Rule 12(b)(6) motion, a court
may rely on documents outside the pleadings if they are
integral to the plaintiff’s claims and their authenticity is
not disputed. Parrino v. FHP, Inc., 146 F.3d 699, 705–06
(9th Cir. 1998), superseded on other grounds as stated in
Abrego Abrego v. The Dow Chem. Co., 443 F.3d 676, 681
(9th Cir. 2006). The court may also rely on matters
subject to judicial notice. Swartz v. KPMG LLP, 476 F.3d
756, 763 (9th Cir. 2007).
8 ANDERSON v. KIMBERLY-CLARK CORPORATION
Pro se plaintiffs, like Ms. Anderson, are given greater
leeway on procedural matters, such as pleading require-
ments. McZeal v. Sprint Nextel Corp., 501 F.3d 1354,
1356 (Fed. Cir. 2007). Even so, pleadings will not be
sufficient to state a claim if the allegations are merely
conclusory. Jones v. Cmty. Redevelopment Agency of City
of Los Angeles, 733 F.2d 646, 650 (9th Cir. 1984); see also
Sprewell, 266 F.3d at 988.
Ms. Anderson makes three primary arguments in her
appeal: (1) that in granting Kimberly-Clark’s motion, the
court improperly considered evidence not attached to the
pleadings, including the ’328 patent itself, the WO ’950
publication, and photographs attached to Kimberly-
Clark’s motion; (2) that the court failed to consider that a
Fed. R. Civ. Proc. R. 26(f) conference had not occurred;
and (3) that the court improperly granted Ms. Anderson’s
motion to file a second amended complaint. 2 We see no
error in the court’s decisions on each of these matters.
I
Ms. Anderson argues that in granting Kimberly-
Clark’s motion, the court improperly considered evidence
not attached to the pleadings, including the ’328 patent
itself, the WO ’950 publication, and photographs of the
accused products attached to Kimberly-Clark’s motion.
Appellant’s Informal Brief, Appeal No. 1, 4. We disagree.
The court properly relied on the ’328 patent in deter-
mining whether Ms. Anderson’s complaint stated a plau-
sible claim for relief. Because the asserted patent is
central to Ms. Anderson’s claim of infringement and its
2 Ms. Anderson does not appeal the court’s order
dismissing the Assurance® and Certainty® products.
Therefore, we need not and do not address this issue. See
SmithKline Beecham Corp. v. Apotex Corp., 439 F.3d
1312, 1319 (Fed. Cir. 2006).
ANDERSON v. KIMBERLY-CLARK CORPORATION 9
authenticity has not been questioned, the court did not err
in relying on it. See Marder v. Lopez, 450 F.3d 445, 448
(9th Cir. 2006). 3
We also find no error in the court’s consideration of
the photographs of the accused Kimberly-Clark products.
As the court properly observed, Ms. Anderson “does not
contend that the photographs were anything other than
true depictions of its accused products.” Slip Op. at 4.
Determining infringement of a design patent requires
comparing the drawings of the patented design to the
appearance of the accused products, and the photographs
are visual representations of those products. Therefore,
as with the ’328 patent itself, the photographs are central
to Ms. Anderson’s complaint of design patent infringe-
ment, and their authenticity has not been called into
question. See Marder, 450 F.3d at 448. 4
To the extent that Ms. Anderson alleges that, based
on a comparison of the ’328 patented design with the
accused products, the court erred in granting judgment on
the pleadings of noninfringement, we also disagree.
In determining whether an accused product infringes
a patented design, we apply the “ordinary observer” test,
that is, whether “an ordinary observer, familiar with the
prior art designs, would be deceived into believing that
the accused product is the same as the patented design.”
3 It is also well-established that a court may take
judicial notice of patents or patent applications. Hoganas
AB v. Dresser Indus., Inc., 9 F.3d 948, 954 n.27 (Fed. Cir.
1993).
4 We need not address whether the district court
properly considered the WO ’950 publication, as discussed
infra in Part IV. But we note that the court may properly
take judicial notice of the WO ’950 publication as a patent
application. See Hoganas, 9 F.3d at 954 n.27.
10 ANDERSON v. KIMBERLY-CLARK CORPORATION
Crocs, Inc. v. Int’l Trade Comm’n, 598 F.3d 1294, 1303
(Fed. Cir. 2010) (citing Egyptian Goddess, Inc. v. Swisa,
Inc., 543 F.3d 665, 678 (Fed. Cir. 2008) (en banc)). “In
some instances, the claimed design and the accused
design will be sufficiently distinct that it will be clear
without more that the patentee has not met its burden of
proving the two designs would appear ‘substantially the
same’ to the ordinary observer.” Egyptian Goddess, 543
F.3d at 678.
The court applied the “ordinary observer” test and
identified three of the “most striking” differences between
the patented design and the accused Depend® products:
(1) the patented design contains a “bloomers-style” under-
garment that covers each upper leg versus the Depend®
“’briefs’-style” undergarment with no leg covering; (2) the
leg and waist openings of the patented design are parallel
to each other and the ground when standing upright and
not at “approximately 45-degree angles” as in the De-
pend® products; and (3) the patented design requires “an
inverted U-shaped section . . . made of different material
(or at least a different piece of the same material) than
the rest of the garment” (i.e., a dual-material appearance)
whereas the Depend® products did not. Slip Op. at 5–6.
These differences are markedly apparent, and the court
properly concluded that Ms. Anderson did not state a
plausible claim for why the ordinary observer would be
deceived into believing that the Depend® products were
the same as the patented design.
As for the GoodNites® products, the court again found
dissimilarities apparent to the ordinary observer. The
GoodNites® product consists of a “briefs-style undergar-
ment not unlike the ‘Depend’ products,” but GoodNites®
is not a “unitary undergarment,” as claimed in the ’328
patent. Id. at 5. Rather, the GoodNites® product has a
“separate (or loosely attached) boxer-short-style layer over
it.” Id. Consequently, the GoodNites® product appears
externally to resemble boxer shorts, but has an interior
ANDERSON v. KIMBERLY-CLARK CORPORATION 11
briefs-style undergarment, unlike the ’328 patented
design. See Contessa Food Products, Inc. v. Conagra, Inc.,
282 F.3d 1370, 1380 (Fed. Cir. 2002) (“One must compare
the ornamental features of the patented design, as shown
in all of the drawings, to the features of the alleged in-
fringing product visible at any time during normal use of
the product.”), abrogated in part on other grounds by
Egyptian Goddess, 543 F.3d at 678. And like the De-
pend® products, the GoodNites® product lacks the
claimed “inverted-U-shaped section” of the patented
design. Slip Op. at 6. Although these two differences are
sufficient to affirm the court’s holding, the GoodNites®
product has even further differences from the claimed
design because it lacks, from the claimed design, (1) the
dual-material appearance, (2) two vertical borders on the
back side of the undergarment, (3) a ruffled band around
the leg opening similar to the waist band, and (4) an
arched crotch area. 5
The court, therefore, properly concluded that “plain
differences” exist between the accused products and the
patented design. Id. at 6. Ms. Anderson has never ex-
plained how or why an ordinary observer would be de-
ceived into thinking that the accused products are the
same as the patented design, and her complaint for design
patent infringement cannot survive on merely conclusory
allegations. Accordingly, we see no error in the court’s
dismissal for noninfringement. See Colida v. Nokia, Inc.,
5 Although the court relied upon only the lack of a
“unitary undergarment” and an “inverted-U-shaped
section” in the GoodNites® product, these additional four
differences are “sufficiently distinct” that, without more,
Ms. Anderson cannot meet her burden to prove that the
two designs would appear “substantially the same” to the
ordinary observer. See Egyptian Goddess, 543 F.3d at
678.
12 ANDERSON v. KIMBERLY-CLARK CORPORATION
347 Fed. App’x 568, 570 (Fed. Cir. 2009) (affirming dis-
missal of design patent infringement claim against pro se
plaintiff on a Rule 12(b)(6) motion to dismiss for failure to
state a claim).
II
Ms. Anderson also contends that the court failed to
take into account the fact that the parties had not con-
ducted a scheduling conference according to Fed. R. Civ.
Proc. 26(f). Appellant’s Informal Brief, Appeal No. 2.
According to Ms. Anderson, the parties should have
conducted a Rule 26(f) conference by February 4, 2013,
based on the court’s scheduling order. But the court
vacated that deadline. J.A. 61–62. And there is no re-
quirement that the parties must conduct a Rule 26(f)
conference before a court may rule on a Rule 12(c) motion,
as the Rule 12(c) motion is predicated on the plaintiff’s
complaint, as filed. See Iqbal, 556 U.S. at 678. Ms.
Anderson’s demand that the parties conduct a Rule 26(f)
conference provides no basis for disturbing the court’s
dismissal of her complaint on the pleadings.
III
Finally, Ms. Anderson argues that the court improper-
ly granted her motion to file a second amended complaint.
Specifically, she complains that the court incorrectly
decided to grant her unopposed motion to file her pro-
posed Second Amended Complaint and that she did not
serve that complaint upon Kimberly-Clark. See Appel-
lant’s Informal Brief, Appeal No. 3; Appellant’s Informal
Reply Brief at 8. To the extent that Ms. Anderson argues
that the court erred in granting her own motion, this
argument lacks merit and provides no basis for disturbing
the court’s grant of Kimberly-Clark’s motion for judgment
on the pleadings.
ANDERSON v. KIMBERLY-CLARK CORPORATION 13
IV
In the alternative to granting judgment of nonin-
fringement, the court concluded that the GoodNites®
product was “indistinguishable” from the design claimed
in the WO ’950 publication, which is prior art to the ’328
patent. As a result, the court found that if the Good-
Nites® product infringes the ’328 patent, the ’328 patent
would be invalid in light of the prior art WO ’950 publica-
tion. See Int’l Seaway Trading Corp. v. Walgreens Corp.,
589 F.3d 1233, 1239 (Fed. Cir. 2009) (finding that a
design that infringes if later, anticipates if earlier).
Because we affirm the court’s judgment of noninfringe-
ment on the pleadings, we need not address this issue.
We have considered Ms. Anderson’s remaining argu-
ments and find them unpersuasive.
AFFIRMED