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United States Court of Appeals for the Federal Circuit
February 24, 2010; as amended February 26, 2010
CROCS, INC., APPELLANT,v.INTERNATIONAL TRADE COMMISSION, APPELLEE, AND DOUBLE DIAMOND DISTRIBUTION, LTD., INTERVENOR, AND HOLEY SOLES HOLDINGS, LTD., AND EFFERVESCENT, INC., INTERVENORS.
Appeal from the United States International Trade Commission in Investigation No. 337-TA-567.
Published opinion
Before LOURIE, RADER, and PROST, Circuit Judges.
The United States International Trade Commission ("ITC" or "Commission") found no violation of 19 U.S.C. § 337. Specifically the Commission determined that U.S. Patent No. 6,993,858 (the "'858 patent") would have been obvious at the time of invention and that none of the intervenors infringed U.S. Patent No. D517,789 (the "'789 patent"). The Commission also determined that Crocs, Inc. ("Crocs") had not satisfied the technical prong of the industry requirement under section 337 for the '789 patent. Because the Commission erred in finding that the prior art taught all of the claimed elements of the '858 patent and incorrectly weighed the secondary considerations, this court reverses the Commission's finding that the '858 patent would have been obvious. Because the Commission also erred in claim construction for the '789 patent, in applying the ordinary observer test for infringement, and in applying the technical prong of the section 337 domestic industry requirement, this court reverses the Commission's determination on the '789 patent.
Crocs is the assignee of the '858 and '789 patents. Crocs's '858 patent, entitled "Breathable Footwear Pieces," issued on February 7, 2006, based on a filing in 2003. The asserted claims of the '858 patent, independent claims 1 and 2, cover foam footwear having a foam base section-an upper portion ("upper") and a sole-and a foam strap. A pair of connectors ties the foam strap to the base section. This connection creates frictional forces that keep the strap in an ideal position at the rear of the base section.
Claim 1 of the '858 patent reads as follows (emphasis added): A footwear piece comprising:
[a] a base section including an upper and a sole formed as a single part manufactured from a moldable foam material; and
[b] a strap section formed of a moldable material that is attached at opposite ends thereof to the upper of the base section with plastic connectors such that the moldable foam material of the strap section is in direct contact with the moldable material of the base section and pivots relative to the base section at the connectors;
[c] wherein the upper includes an open rear region defined by an upper opening perimeter, and wherein frictional forces developed by the contact between the strap section and the base section at the plastic connectors are sufficient to maintain the strap section in place in an intermediary position after pivoting, whereby the strap section lends support to the Achilles portion of the human foot inserted in the open rear region; and
[d] wherein the upper includes a substantially horizontal portion and a substantially vertical portion forming a toe region that generally follows the contour of a human foot, wherein the toe region tapers from an inner area of the base section where the larger toes exist to an outer area of the base section where the smaller toes exist; and
[e] wherein the sole includes a bottom surface having front and rear tread patterns longitudinally connected by a flat section.
Claim 2 of the '858 patent reads as follows (emphasis added): A footwear piece comprising:
[b] a strap section formed of a molded foam material attached at opposite ends thereof to the base section such that the strap section is in direct contact with the base section and pivots relative to the base section; and
[c] wherein the upper includes an open rear region defined by an upper opening perimeter; and wherein the sole includes a rear perimeter; and wherein the strap section pivots between a first contact point on the upper opening perimeter and a second contact point on the rear perimeter, and wherein frictional forces developed by the contact between the strap section and the base section at the points of attachment are sufficient to maintain the strap section in place in an intermediary position after pivoting whereby the strap section lends support to the Achilles portion of a human foot inserted in the open rear region; and
[d] wherein the upper includes a substantially horizontal portion and a substantially vertical portion forming a toe region that generally follows the contour of a human foot, wherein the toe region tapers from the inner area of the base section where the larger toes exist to the outer area of the base section where the smaller toes exist; and
[e] wherein a decorative pattern of raised bumps is molded or otherwise created in the upper near to and extending the length of the upper opening perimeter; and
[f] wherein a plurality of ventilators are formed in both the substantially vertical portion and the substantially horizontal portion, and wherein the ventilators extend up a majority of the height of the vertical portion;
[g] wherein the vertical portion of the upper includes an upper strip, wherein the ventilators are formed in the upper strip, and wherein the upper strip extends from the toe region to the points of attachment for the strap section, and wherein the sole includes a lower strip that parallels the upper strip and is separated by a line that extends from the toe region to a heel of the footwear piece, and wherein the lower strip vertically rises in a direction toward the heel; and
[h] wherein the sole includes a bottom surface having front and rear tread patterns longitudinally connected by a flat section without tread patterns bounded by raised side portions; and
[i] wherein the sole further includes a top surface having a support base including a raised pattern where a foot contacts the support base.
The '789 patent, entitled "Footwear," issued on March 28, 2006, based on a filing in 2004. The '789 patent has one claim and seven figures. It claims an ornamental footwear design as depicted in the figures:
Figure 1
Figure 2 Figure 3
Figure 4 Figure 5
Figure 6 Figure 7
Crocs of Niwot, Colorado filed a complaint and an amended complaint on March 31, 2006 and April 27, 2006, respectively. Crocs's amended complaint alleged unfair competition under 19 U.S.C. § 337 by respondents due to importation into the United States of foam footwear. Crocs asserted that the imported footwear infringes claims 1 and 2 of the '858 patent, the design in the '789 patent, and Crocs's trade dress. Crocs later withdrew its trade dress complaint. The complaint named eleven respondents: (1) Collective Licensing International, LLC ("Collective") of Englewood, Colorado; (2) Double Diamond Distribution Ltd. ("Double Diamond") of Saskatoon, Saskatchewan; (3) Effervescent Inc. ("Effervescent") of Fitchburg, Massachusetts; (4) Gen-X Sports, Inc. ("Gen-X") of Toronto, Ontario; (5) Holey Soles Holding Ltd. ("Holey Soles") of Vancouver, British Columbia; (6) Australia Unlimited, Inc. of Seattle, Washington; (7) Cheng's Enterprises Inc. of Carlstadt, New Jersey; (8) D. Myer & Sons, Inc. of Baltimore, Maryland; (9) Inter-Pacific Trading Corp. of Los Angeles, California; (10) Pali Hawaii of Honolulu, Hawaii; and (11) Shaka Shoes of Kailua-Kona, Hawaii. Crocs added a twelfth respondent, Old Dominion Footwear, Inc. of Madison Heights, Virginia, on October 10, 2006. After some settlements and some determinations of non-infringement, five respondents remained in the investigation: (1) Collective; (2) Double Diamond; (3) Effervescent; (4) Gen-X; and (5) Holey Soles. They make accused products in Asia and import them into the United States.
On September 29, 2006, Crocs filed a motion for summary determination of infringement of the '789 patent. Respondents answered with motions for summary determination of non-infringement of the '789 patent. On November 7, 2006, the presiding administrative law judge granted respondents' motions for summary determination of non-infringement of the '789 patent. On review, the Commission issued an Order of Vacatur and Remand of Initial Determination on February 15, 2007. On remand, the administrative judge held an evidentiary hearing from September 7 through 14, 2007.
On April 11, 2008, the administrative judge concluded that the respondents did not violate section 337. Specifically, the administrative judge found that the '789 patent was not infringed and that Crocs's products, its Beach, Cayman, and Kids Cayman shoes, did not satisfy the technical prong of the domestic industry requirement. In reaching this latter decision, the administrative judge found that Crocs's own products did not practice the patent. Turning to the utility patent, the administrative judge found that claims 1 and 2 of the '858 patent would have been obvious under 35 U.S.C. § 103 in light of two pieces of prior art: (1) the Aqua Clog (the base section of claims 1 and 2 of the '858 patent); and (2) U.S. Patent No. 6,237,249 (the "Aguerre '249 patent").
With respect to the design patent, the '789 patent, the administrative judge provided a detailed verbal claim construction:
In summary, when the '789 patent is considered as a whole, the visual impression created by the claimed design includes: footwear having a foot opening with a strap that may or may not include any patterning, is attached to the body of the footwear by two round connectors, is of uniform width between the two round connectors, has a wrench-head like shape at the point of attachment, and extends to the heel of the shoe; with round holes on the roof of the upper placed in a systematic pattern; with trapezoid-shaped holes evenly spaced around the sidewall of the upper including the front portion; with a relatively flat sole (except for upward curvature in the toe and heel) that may or may not contain tread on the upper and lower portions of the sole, but if tread exists, does not cover the entire sole, and scalloped indentations that extend from the side of the sole in the middle portion that curve toward each other.
Initial Determination on Violation of Section 337 and Recommended Determination on Remedy and Bond, at 80 (April 11, 2008) (Inv. No. 337-TA-567). Based on this description, the administrative judge found the Holey Soles and Gen-X accused products did not infringe because their strap is not of uniform thickness and does not extend to the heel of the shoe. The same reasoning excused the Collective and Effervescent accused products from infringement but the administrative judge added the further explanation that these imports did not have round holes in the upper portion.
He found that the Double Diamond accused products did not infringe because each of the accused products has at least one of the following: a strap that does not have uniform thickness and does not extend to the heel of the shoe; holes in the upper that are not round; holes in the upper that are placed in a web-shaped, not systematic, pattern; or a tread pattern that covers the entire sole.
On April 24, 2008, Crocs, CLI, and the Commission investigative attorney ("IA") filed petitions for review with the Commission. On June 18, 2008, the Commission agreed to review the following issues: (1) the findings concerning non-infringement of the '789 patent and the lack of satisfaction of the technical prong of the domestic industry requirement; and (2) the finding of invalidity with respect to the '858 patent. The Commission did not review any other issues.
On July 25, 2008, the Commission affirmed the finding of no infringement and no domestic industry for the '789 patent, and obviousness for the '858 patent. The Commission augmented the discussion in the initial determination about non-infringement of the '789 patent and lack of satisfaction of the technical prong of the domestic industry requirement by finding that the accused shoes and Crocs's shoes lacked even spacing of ventilator holes around the front (toe) portion of the upper as shown in the '789 patent design.
For obviousness of the '858 patent, the Commission found that the administrative judge properly concluded that the principal remaining difference between the prior art and the claimed invention is the use of foam for the strap. The Commission upheld the administrative judge's finding that the prior art showed foam straps. Finally, on secondary considerations of non-obviousness, the Commission found that Crocs did not show a nexus between its claimed shoes and their commercial success. The Commission, unlike the administrative judge, did find that at least one respondent copied Crocs's commercially available shoe. The Commission held that the evidence of copying, however, did not disturb the prima facie case of obviousness.
Crocs appeals the Commission's final determination. Collective and Gen-X were dismissed as intervenors from the appeal. Double Diamond, Effervescent, and Holey Soles are the remaining intervenors.
This court reviews the Commission's legal determinations without deference and its factual findings for substantial evidence. Corning Glass Works v. U.S. Int'l Trade Comm'n, 799 F.2d 1559, 1565 (Fed. Cir. 1986). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951) (quoting Consol. Edison Col. v. NLRB, 305 U.S. 197, 229 (1938)).
This court has cautioned, and continues to caution, trial courts about excessive reliance on a detailed verbal description in a design infringement case. See, e.g., Egyptian Goddess, Inc. v. Swisa, Inc., 543 F.3d 665, 679 (Fed. Cir. 2008) (en banc). In Egyptian Goddess, this court warned that misplaced reliance on a detailed verbal description of the claimed design risks undue emphasis on particular features of the design rather than examination of the design as a whole. Id. at 679--80. In many cases, the considerable effort in fashioning a detailed verbal description does not contribute enough to the infringement analysis to justify the endeavor. See id. at 680. Depictions of the claimed design in words can easily distract from the proper infringement analysis of the ornamental patterns and drawings.
Design patents are typically claimed as shown in drawings, and claim construction must be adapted to a pictorial setting. See, e.g., Contessa Food Prods., Inc. v. Conagra, Inc., 282 F.3d 1370, 1377 (Fed. Cir. 2002) (construing a design patent claim as meaning "a tray of a certain design as shown in Figures 1--3"). Thus an illustration depicts a design better "than it could be by any description and a description would probably not be intelligible without the illustration." Dobson v. Dornan, 118 U.S. 10, 14 (1886). "[A]s a rule, the illustration in the drawing views is its own best description." Manual of Patent Examining Procedure § 1503.01 (8th ed. 2006).
This case shows the dangers of reliance on a detailed verbal claim construction. The claim construction focused on particular features of the '789 patent design and led the administrative judge and the Commission away from consideration of the design as a whole. This error is apparent in the Commission's explicit reference to two details required by the written claim construction but not by the '789 drawings: (1) a strap of uniform width, and (2) holes evenly spaced around the sidewall of the upper. As shown in Figure 1 of the '789 patent, the strap bulges to a greater width at the middle of the strap on the far left of the figure. Thus, the design figure does not require a strap of uniform width between the two round connectors. Also, as shown in Figure 4 of the '789 patent, the holes are not evenly spaced. Figure 4 shows a gap in the spacing (particularly towards the big toe). Nonetheless, the written claim description required uniform strap width and uniform hole spacing-contrary to the claimed invention. This error distorts the infringement analysis by the ordinary observer viewing the design as a whole. The administrative judge and the Commission needed to apply the ordinary observer test to "the design shown in Figures 1--7."
In determining whether an accused product infringes a patented design, this court applies the "ordinary observer" test, without any "point of novelty" perspective. Egyptian Goddess, 543 F.3d at 678. To show infringement under the proper test, 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. See id. at 681. When the differences between the claimed and accused designs are viewed in light of the prior art, the attention of the hypothetical ordinary observer may be drawn to those aspects of the claimed design that differ from the prior art. Id. If the claimed design is close to the prior art designs, small differences between the accused design and the claimed design assume more importance to the eye of the hypothetical ordinary observer. Id. The ordinary observer, however, will likely attach importance to those differences depending on the overall effect of those differences on the design. Id. Even if the claimed design simply combines old features in the prior art, it may still create an overall appearance deceptively similar to the accused design. In that case, this court will uphold a finding of infringement. Id. at 677--78. In other words, "the deception that arises is a result of the similarities in the overall design, not of similarities in ornamental features in isolation." Amini Innovation, 439 F.3d at 1371. The ordinary observer test applies to the patented design in its entirety, as it is claimed. See Braun, Inc. v. Dynamics Corp. of Am., 975 F.2d 815, 820 (Fed. Cir. 1992). "[M]inor differences between a patented design and an accused article's design cannot, and shall not, prevent a finding of infringement." Payless Shoesource, 998 F.2d at 991 (quoting Litton Sys. Inc. v. Whirlpool, 728 F.2d 1423, 1444 (Fed. Cir. 1984)).
Turning to this case, the Commission placed undue emphasis on particular details of its written description of the patented design. Those details became a mistaken checklist for infringement. Without a view to the design as a whole, the Commission used minor differences between the patented design and the accused products to prevent a finding of infringement. In other words, the concentration on small differences in isolation distracted from the overall impression of the claimed ornamental features.
The proper comparison requires a side-by-side view of the drawings of the '789 patent design and the accused products. The depiction below shows the '789 patent (on the left) and the Double Diamond Revised Beach DAWGSTM (on the right).
The depiction below compares the '789 patent (on the left), the Groovy DAWGSTM shoes (in the center), and Big DAWGSTM shoes (on the right).
The comparison below shows the '789 patent (on the left) and the Double Diamond Original Beach DAWGSTM shoes (on the right).
The depiction below compares the '789 patent (on the left), the Holey Soles Explorer shoes (in the center), and Holey Soles Cricket shoes (on the right).
A final comparison places the '789 patent on the left and the Effervescent Waldies AT shoe on the right.
These side-by-side comparisons of the '789 patent design and the accused products suggest that an ordinary observer, familiar with the prior art designs, would be deceived into believing the accused products are the same as the patented design. In one comparison after another, the shoes appear nearly identical. If the claimed design and the accused designs were arrayed in matching colors and mixed up randomly, this court is not confident that an ordinary observer could properly restore them to their original order without very careful and prolonged effort.
One of the overall effects of the design is the interaction between the strap assembly portion and the base portion of the shoes where the strap is attached to the base. Multiple major design lines and curves converge at that point creating a focal point attracting the eye of the ordinary observer when viewing the overall effect of the design. Another overall effect of the design is a visual theme of rounded curves and ellipses throughout the design, including the strap forming a sort of continuation of the sidewall of the base to create a visually continuous ring encircling the entire shoe. Other examples of rounded curves or ellipses in the design are the ellipses formed by the strap and the foot opening in the base. Both the claimed design and the accused designs have these overall effects.
In any event, this court perceives that the accused products embody the overall effect of the '789 design in sufficient detail and clarity to cause market confusion. Thus, the accused products infringe the '789 design.
One requirement of a patent-based section 337 action is that a domestic industry "relating to the articles protected by the patent . . . exists or is in the process of being established." 19 U.S.C. § 1337(a)(2) (2006). To determine the relationship between a domestic industry and protected articles (the "technical prong" of the domestic industry requirement), the Commission determines whether the industry produces articles covered by the asserted claims. The test for the technical prong of the industry requirement "is essentially the same as that for infringement, i.e., a comparison of domestic products to the asserted claims." Alloc, Inc. v. Int'l Trade Comm'n, 342 F.3d 1361, 1375 (Fed. Cir. 2003). In other words, the technical prong requires proof that the patent claims cover the articles of manufacture that establish the domestic industry. Put simply, the complainant must practice its own patent.
Because the test for the technical prong is essentially the same as for infringement, this court uses the ordinary observer test to compare Crocs's own shoe products to the '789 patent design. This court has stated that test above. Once again, the test applies best in a side-by-side comparison of the drawings of the '789 patent design and the Crocs products.
The depiction below places the '789 patent on the left and the Crocs Beach shoe on the right. The Crocs Cayman and Kids Cayman shoes are practically identical to the Crocs Beach shoe, so this court uses only that product for comparison.
As illustrated by the side-by-side comparison of the '789 patent design and the Crocs Beach shoe, an ordinary observer, familiar with the prior art designs, would consider the Crocs shoes the same as the patented design. The overall effects of the design in the '789 patent and the Crocs shoes are the same. One of the overall effects of the design present in both the '789 patent and Crocs shoes is the focal point where multiple major design lines and curves converge at the point where the strap is attached to the base. Another is the visual theme of rounded curves and ellipses throughout both designs. Crocs's shoes embody the overall effect of the '789 design in light of the prior art; they "infringe" the '789 design. Thus, Crocs satisfies the technical prong of the domestic industry requirement.
Obviousness is a question of law based on underlying factual inquiries including:
(1) the scope and content of the prior art; (2) the level of ordinary skill in the art; (3) the differences between the prior art and the claimed invention; and (4) the extent of any objective indicia of non-obviousness. Monarch Knitting Mach. Corp. v. Sulzer Morat GMBH, 139 F.3d 877, 881 (Fed. Cir. 1998). This court reviews the Commission's legal determinations without deference and its factual findings for substantial evidence. Corning Glass Works v. U.S. Int'l Trade Comm'n, 799 F.2d 1559, 1565 (Fed. Cir. 1986). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951) (quoting Consol. Edison Col. v. NLRB, 305 U.S. 197, 229 (1938)).
The Commission relied on two prior art references to find the '858 patent obvious: (1) the Aqua Clog (the base of the '858 shoe); and (2) the Aguerre '249 patent. The '858 patent, however, is not simply a combination of elements found in the prior art. The '858 invention includes a foam strap riveted to a foam base with direct contact-an important part of the combination not in the prior art.
The record shows that the prior art would actually discourage and teach away from the use of foam straps. An ordinary artisan in this field would not add a foam strap to the foam Aqua Clog because foam was likely to stretch and deform, in addition to causing discomfort for a wearer. The prior art depicts foam as unsuitable for straps. The nature of the problem-attaching footwear to the foot-required under the prior art a material with enough elasticity around the Achilles tendon to allow "give and take" as the foot moved in the shoe. A firm inelastic material like foam was likely to cause abrasions at the back of the foot. In addition, foam had another deficient property.
Foam, according to the prior art, did not have a good memory, meaning that the stretching of normal use would likely cause the material to elongate or compress. These deformations would defeat the strap long before the normal life span of the footwear combination. Thus, the prior art only used a non-elastic material for attaching footwear in combination with a buckle or another mechanism that could adjust the length of the strap for a comfortable fit and for a reduction in stretching and deformation.
Despite the prior art warnings against inelastic and non-adjustable foam straps, the '858 patent employed foam without a buckle or some other similar adjustment mechanism. Moreover the '858 patent riveted the inelastic foam directly to the base of the footwear. This claimed feature defied the prior art's caution against the poor characteristics of a foam strap. Indeed no prior art reference disclosed a foam strap riveted to a shoe. The Aguerre '249 patent taught elastic straps or straps made of other flexible materials. In Aguerre, these flexible straps attached a light sandal to the foot. Aguerre '249 patent col.7 ll.53--57.
The record shows that Crocs's expert testified that artisans of ordinary skill in this art thought that foam shoe components connected through perforations such as by stitching or riveting were excessively prone to tearing. To minimize this record evidence, the Commission relied on In re Gurley, in which this court stated that a "known or obvious composition does not become patentable simply because it has been described as somewhat inferior to some other product for the same use." 27 F.3d 551, 553 (Fed. Cir. 1994). In this case, however, foam straps were not simply "somewhat inferior." Rather the prior art showed that foam was an unsuitable material for shoe straps. Although known in the art, foam was known as unsuitable. The Commission unreasonably determined that foam straps were known in the art without acknowledging that those prior art references rendered the material out of place for use as a strap. Thus, the Commission could not properly conclude that a person of ordinary skill would use foam to attach a foam base portion to a wearer.
The Commission also held that choosing foam as the material for a strap for a shoe that is otherwise made of foam is a logical modification because it produces a shoe of uniform composition. To the contrary, a foam strap is not a logical modification because foam was known to be an unsuitable material that was prone to tearing. One of ordinary skill would have no reason to use foam straps in combination with a foam base portion. Thus, the new combination would not have been obvious at the time of the invention of the '858 patent.
Even if the '858 patent were a combination of known elements according to their established functions-which it is not as foam straps were not in the prior art-it yields more than predictable results; thus, it is non-obvious. See KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007). The "passive restraint system" employed by the '858 patent requires that: (1) the strap section is in direct contact with the base section, and (2) frictional forces developed by the contact between the strap section and the base section at the points of attachment are sufficient to maintain the strap section in place in an intermediary position after pivoting, whereby the strap section lends support to the Achilles portion of a human foot. '858 patent col.9 ll.42--53, col.10 ll.11--24. The specification further describes the "passive restraint system" of the invention:
[T]he strap serves the utilitarian purpose of lending support to the Achilles portion of the human foot, thus helping to maintain footwear piece 100 in position on the human foot. In some embodiments, a frictional force developed between strap 120 and upper 150 at the location of the rivets is sufficient to maintain strap 120 in place. This helps to assure that strap 120 remains in place even when the Achilles part of the foot is not pressing against strap 120. Without such friction, strap 120 would succumb to gravity and fall to a position where the foot would not be supported.
Id. at col.6 ll.17--29.
The inventor of the '858 patent, Scott Seamans, testified that the unique frictional forces that develop between the foam components keep the strap in place so that it can maintain the shoe in the correct position on the foot without constant contact with the wearer's Achilles. Instead of pushing the foot forward into the shoe-like prior art straps that are elastic or length adjustable-the '858 patent's passive restraint system allows the strap to "lend support" only when necessary to keep the shoe positioned correctly on the foot. See id. ("[T]he Achilles part of the foot is not [always] pressing against strap."). This feature facilitates a loose anatomical fit that makes the claimed invention more comfortable than prior art products.
The administrative judge recognized this distinction between the '858 invention and the Aguerre '249 patent:
Now, it is true that the strap disclosed in the Aguerre '249 patent was made of material other than foam and was adjustable and elastic so that it held the foot snugly in the shoe. By contrast, the '858 patent discloses a firm foam strap that acts as a passive restraint to the Achilles portion of the foot and can be set in various fixed position[s] because of the friction created by the direct contact between the upper portion of the base and the strap.
Initial Determination on Violation of Section 337 and Recommended Determination on Remedy and Bond, at 62 (Apr. 11, 2008) (Inv. No. 337-TA-567). Thus, the administrative judge found that the Aguerre '249 patent did not teacha strap system that passively restrains the Achilles portion of the foot. The Aguerre '249 patent lacks a foam base or strap, so it cannot have foam-to-foam frictional contact that is essential to maintain the strap in proper passive restraint position on the wearer's foot. Rather, Aguerre repeatedly teaches that the "rear heel strap" is made of an "elastic or other flexible material" to secure the sandal to the foot. Aguerre '249 patent col.2 ll.37--39, col.8 ll.22--27. Not only was it impossible for the Aguerre shoe to have foam-to-foam frictional contact, the Aguerre '249 patent actually taught that friction was a problem, not a benefit. See id. at col.9 ll.15--34. The prior art even suggested that nylon washer separators would help ensure free rotation of the strap without friction. Id. Thus, the prior art did not include any hint or suggestion or even common sense reason to include the passive restraint system of the '858 patent at the time of the invention. The prior art, in fact, taught away from the passive restraint system. Because this claimed feature of the invention yielded more than predictable results, the '858 patent for this reason also would not have been obvious at the time of invention.
Secondary considerations "can be the most probative evidence of non-obviousness in the record, and enables the . . . court to avert the trap of hindsight." Custom Accessories, Inc. v. Jeffrey-Allan Indus., Inc., 807 F.2d 955, 960 (Fed. Cir. 1986). Judge Learned Hand appreciated the importance of secondary considerations:
In appraising an inventor's contribution to the art, as we have often said, the most reliable test is to look at the situation before and after it appears. . . . Courts, made up of laymen as they must be, are likely either to underrate, or to overrate, the difficulties in making new and profitable discoveries in fields with which they cannot be familiar; and, so far as it is available, they had best appraise the originality involved by the circumstances which preceded, attended and succeeded the appearance of the invention . . . . We have repeatedly declared that in our judgment this analysis [evidence of secondary considerations] is more reliable than prior conclusions drawn from vaporous, and almost inevitably self-dependent, general propositions.
Safety Car Heating & Lighting Co. v. Gen. Elec. Co., 155 F.2d 937, 939 (2d Cir. 1946). Secondary considerations "may often establish that an invention appearing to have been obvious in light of the prior art was not." Stratoflex, Inc. v. Aeroquip Corp., 713 F.2d 1530, 1538 (Fed. Cir. 1983). Indeed this court has recently reiterated: "This evidence is not just a cumulative or confirmatory part of the obviousness calculus but constitutes independent evidence of nonobviousness." Ortho-McNeil Pharm., Inc. v. Mylan Labs., Inc., 520 F.3d 1358, 1365 (Fed. Cir. 2008) (citing Catalina Lighting, Inc. v. Lamps Plus, Inc., 295 F.3d 1277, 1288 (Fed. Cir. 2002) ("Objective indicia may often be the most probative and cogent evidence of nonobviousness in the record.") (internal citation omitted)).
The Commission found that three models of Crocs shoes practice claims 1 and 2 of the '858 patent: the Beach, Cayman, and Kids Cayman shoes. It found that those three models of Crocs shoes have enjoyed a great deal of commercial success. A prima facie case of nexus is made when the patentee shows both that there is commercial success, and that the product that is commercially successful is the invention disclosed and claimed in the patent. See In re GPAC Inc., 57 F.3d 1573, 1580 (Fed. Cir. 1995). Once the patentee demonstrates a prima facie nexus, the burden of coming forward with evidence in rebuttal shifts to the challenger. See Demaco Corp. v. F. Von Lansgdorff Licensing Ltd., 851 F.2d 1387 (Fed. Cir. 1988).
Because the Commission found, based on substantial evidence, that Crocs shoes practice the '858 patent and that the Crocs shoes were commercially successful, Crocs established a prima facie case of nexus. The record discloses little or no evidence to rebut this prima facie case of nexus. This court is aware that many market forces unrelated to the inventiveness of the patent may influence commercial success, but the intervenors must make a convincing case that those market forces indeed were the likely cause of the success. This record does not show any effort to make that rebuttal case. In the absence of a rebuttal, Crocs may add its commercial success to its proofs of non-obviousness. This court gives even more credit to the administrative judge's finding of substantial industry praise for the claimed invention and the products covered by the claimed invention. Still another objective measure tips the scale farther in the direction of non-obviousness, namely the Commission's finding of copying. Copying may indeed be another form of flattering praise for inventive features. In the absence of any record evidence attributing these secondary considerations to causes other than the claimed invention, Crocs may rely on this added support for non-obviousness.
In light of the prior art teaching away from the claimed invention and the claimed features that do not appear in the prior art, this court detects several reasons at the time of the invention that an ordinary artisan would not have been motivated even to try, let alone make, this inventive combination. In addition, the secondary considerations supply additional evidence of non-obviousness. Thus, this court reverses the Commission's holding that the '858 patent would have been obvious and easily attainable at the time of invention.
For the foregoing reasons, this court reverses the Commission's determination that the '789 patent was not infringed, that Crocs did not satisfy the technical prong of the domestic industry requirement of section 337 relating to the '789 patent, and that the '858 patent would have been obvious. This court remands the investigation to the Commission for a determination of infringement of the '858 patent and any appropriate remedies.
Each party shall bear its own costs.
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text:
Seksy 4851 Elegance Stone Set Bracelet Watch - W3306
A dazzling and elegant ladies watch from Seksy, aptly named 'Elegance'. Set with rows and rows of sparkling crystals, it looks really good on the wrist. With a 28 x 9mm case, an adjustable bracelet stap with nail friendly clasp plus a complimenting mother of pearl dial, this watch is as seen on TV. A dressy watch for glamorous occasions but also suitable for everyday wear.
As Seen On TV
Our Price £99.99RRP £109.99

subset: commoncrawl


text:
- Top Quality Landscaping Belpre, OH Services
- Local Professional Belpre Landscaping Contractors
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Landscaping in Belpre, OH
Caring for your home's appearance, curbside appeal, and property value begins with high quality, professionally performed landscaping Belpre, OH services. These Belpre landscaping services cater to nearly every facet of your property's exterior look from tree care and shrub trimming to lawn maintenance, gardening, and specialized features including things as customized as lake installation and arbor or gazebo installation. All of these distinct landscaping Belpre, OH services have been shown to significantly improve the look, feel, and value of a home when performed by professional Belpre landscaping contractors like those here at Help You Services.
Avg Costs for Landscaping
Min Cost
Max Cost
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$3,146.09 - $4,521.21
Find the Best Quality Landscaping - Belpre, OH
The Help You Services team of local Belpre landscaping contractors is composed of some of the most highly trained, experienced, and professional landscaping Belpre, OH specialists in the greater Belpre area. This ensures that no matter what Belpre landscaping services are needed to make your home look and feel its absolute best, you can count on the Help You Services Belpre landscaping contractors to perform them all with the quality and dedication to excellence you deserve. If you're interested in learning more about the wide variety of specially designed Belpre landscaping services which are available for your own personal paradise property take a moment to call our friendly and knowledgeable specialists at (888) 441-9939. They'll help you to schedule a completely free consultation and estimate for the precise Belpre landscaping services that you're interested in.
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Landscaping Companies
Lamp Termite & Pest Control
905 Grand Central Ave
Vienna, WV 26105
Davisville, WV 26142
Crites Landscaping
3948 Lost Pavement Rd
Parkersburg, WV 26101
Lucas Well Services Inc
1604 Race St
Parkersburg, WV 26104
Mayle Enterprises Inc
1568 Gene St
Belpre, OH 45714
Garys Masonry
993 Lake Washington Road
Washington, WV 26181


text:
Trick and Treat Oreo Cheesecake Flower Pots
|For crumb base
|Nice biscuit
|250 Gram (or any sweet biscuit, 150-250 grams)
|Ground cinnamon
|2 Tablespoon (1-2)
|Melted butter
|60 Gram (50-60 grams)
|For centre
|Cream cheese
|250 Gram
|Vanilla extract
|1 Tablespoon
|2 Tablespoon
|8 Tablespoon (6-8)
|Thick cream
|350 Gram
|For top
|Melted butter
|30 Gram (20-30)
1. For crumb base, put biscuits in a plastic bag and crush until nice and crumbly.
2. In a large bowl, put crushed biscuits and add cinnamon to it.
3. Pour butter in the bowl, and mix well.
4. Take three small new flower pot holders. Drop mixture evenly into it. Press it well at the bottom.
Pop it in fridge for 20-30 minutes.
5. Meanwhile, for center, in a large mixing bowl, add cream cheese, vanilla, milk, and sugar. Blend until creamy.
6. In a separate bowl, pour thick cream and whisk until soft peaks form.
7. Transfer half of the cream cheese mixture into the bowl and fold it in.
8. Add the remaining half, and fold to spread evenly.
9. Take flower pots out of the fridge and put creamy mixture evenly into it. Pop it back into the refrigerator for 15 minutes.
10. Crush Oreo until nice and fine. Transfer it to a bowl.
11. Add melted butter into the bowl. Mix well.
12. Place a straw in each pot to look like stem.
13. Fill the pot with Oreo crumb, and place it in fridge for 20 minutes.
14. Take flowers from your garden and place them on the straw.
15. Serve cheesecake flower pots immediately.
Recipe Summary
Rate It
Nutrition Rank
Nutrition Facts
Serving size
Calories 2781 Calories from Fat 1586
% Daily Value*
Total Fat 179 g275.9%
Saturated Fat 83 g415%
Trans Fat 0 g
Cholesterol 317 mg105.7%
Sodium 1199.3 mg50%
Total Carbohydrates 296 g98.8%
Dietary Fiber 16.4 g65.5%
Sugars 187.7 g
Protein 22 g43.9%
Vitamin A 71.2% Vitamin C 1.8%
Calcium 27.7% Iron 49.1%
*Based on a 2000 Calorie diet


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text:
On Second Thought is a one-hour, daily news talk show that airs at 9 a.m. ET weekdays.
Celebrate the groundbreaking band's musical milestones with special guests Vince Gill, Alison Krauss and more. Saturday, December 3 at 7 PM
High School Football is Back, and so is Football Fridays on GPB!
The long wait is finally over. Yes, I went to some spring practices. Sure I checked out some 7 on 7 action this summer. Of course I... MORE
GPB Passport is the new member benefit that provides you with extended access to an on-demand library of quality local and national public television programming, including tens of thousands of hours of your favorite programs.
Tue., December 24, 2013 7:16am
Affordable Care Act: Enrollment Ends At Midnight, Sort Of
If you missed the deadline, the extended deadline and even the grace period to sign up for health insurance under the Affordable Care Act, you may be surprised to learn that you still have time to enroll in coverage. The federal government extended the original enrollment deadline from Dec. 15 to Dec. 23 and then even added an extra 24 hour window for consumers to sign up on Dec. 24.
Full Story
Mon., December 2, 2013 12:58pm
'Healthcare Navigators' Relieved To Have A Working Website
People can now enroll in health insurance on Healthcare.gov. The federal government unveiled upgrades to the site Sunday. "You don't get these error messages that say you've put in your user name incorrectly. You don't get all these messages that say, 'Page Cannot Be Found,'" said Karla Johnson, a licensed healthcare navigator and director of community education for the consumer advocacy group Georgia Watch.
Fri., September 27, 2013 9:00am
How Will ObamaCare Impact Insurance Agents?
On October 1, the Affordable Care Act's online exchange will open to consumers seeking health insurance. People will be able to go to Healthcare.gov and select the plan they feel is best for them. However, that is what some insurance agents are worried about. "As agents we now have competition," explained Dan Fleming, a long-time agent in Dekalb County.


text:
""My model for business is the Beatles. They were four guys who kept each other's kind of negative tendencies in check. They balanced each other, and the total was greater than the sum of the parts. That's how I see business: great things in business are never done by one person, they're done by a team." "
Charter Service Debuts in India
Thursday, March 1, 2012 - 3:00pm
Invision Air has launched a charter service in India, using a pair of Embraer Phenom 100 very light jets. The company says it has four more Phenom 100s on order as well as six Phenom 300 light jets, the first of which is to be delivered in the middle of this year. The company bills itself as an "entry-level" business jet service and claims its flights cost "only two to four times last-minute business-class fares." Invision Air–which plans to offer jet cards and a program for aircraft owners in addition to charter–is part of the 17-year-old Invision Group, which is active in the telecom and marine and aviation safety industries in India.
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This is your resource to discuss support topics with your peers, and learn from each other.
03-09-2013 06:34 PM - edited 03-09-2013 06:37 PM
Swiched on, connected, Blackberry World, Featured
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I have never used Netfilx but have seen comments from a lot of members requesting Netflix. Is this the fix they, you, want?
Hope this helps.
I'm rockin the BlackBerry DTEK60, Passport, Z30, Z10, Q10, BlackBerry Mini Stereo Speaker, 64 gig PlayBook,BT Headset HS-700
it uses your PC to watch it which might be ok for some, but many want direct access to it
Click here to Backup the data on your BlackBerry Device! It's important, and FREE!
BESAdmin's, please make a signature with your BES environment info.
SIM Free BlackBerry Unlocking FAQ
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BES 12 and BES 5.0.4 with Exchange 2010 and SQL 2012 Hyper V


text: I keep on getting the "slide to power off" screen every few minutes. It is really annoying. I put it to charge overnight, and it went from 95% battery to 87% due to the damn nag screen. I had the same problem a while ago before the ipod was even jailbroken. I turned it off, rebooted, reset all settings, reset network settings, turned off wifi, ssh, etc. Nothing works. Now that I look at it, it flickers a few times before the "slide to power off" screen appears. Does anyone have any fix for this? Thanks,


text:
"Katja was excellent. Very professional. I received some lovely photos and I could see that my dogs..."
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"Jess was wonderful and genuinely cared for my beautiful girl I would happily recommend her to..."
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"Late on arrival. Instructions not followed."
"Alexis was beautiful. Diesel was very spoilt and loved all week. Would definitely adk her again if..."
"Rachel is a wonderfull carer. Couldn't be more happier with how she looked after Cooper. Would..."


text:
Advanced Search
Moodle HQ has released minor updates to the open source learning management system Moodle. The latest updates (available for the 2.2, 2.3, 2.4, and 2.5 branches) fix security flaws and bugs and also include minor functionality enhancements.
Moodle HQ has released Moodle 2.5, a major update to the widely distributed open source learning management system.
Moodle HQ has released an all-new HTML5-based mobile app for both Android and iOS.
Red Hat has elevated its Red Hat OpenStack distribution from a preview version to an Early Adopter Program.
Moodle HQ has released Moodle 2.4.3 one week after the release of version 2.4.2. The update addresses a regression that accidentally made its way into 2.4.2, preventing teachers from accessing server files in some circumstances.
Moodle HQ has released updates to the Moodle open source learning management system. The new Moodle 2.3.2 and 2.2.5, available now, incorporate several minor fixes and enhancements and resolve a number of security-related issues.
Razuna, the maker of the free, open source digital asset management (DAM) solution of the same name, has released its latest version, Razuna 1.5.
Moodle HQ is ending development of native My Moodle mobile apps for iOS and Android.
Moodle's developers have released Moodle 2.3.1 just two weeks after the last major (2.3) update. The new version (along with updates to four other development branches) addresses minor bugs and also corrects some as-yet-unspecified security vulnerabilities.
Moodle's developers have formally released version 2.3 of the open source learning management system Moodle. The latest release includes about 50 new features for end users, including major enhancements to the course interface and file management.
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Students need a broad set of skills to be successful in today's world. To better help them prepare, K-12 districts throughout the country are taking a blended approach to achieve personalized learning. Making that transition successfully starts with envisioning what learning should look like and how to create authentic learning experiences. Download this white paper to learn how two school districts, Cabarrus County Schools in North Carolina and Lake Travis Independent School District in Texas are currently making that transition.
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text:
S0682 - WallDrive
Supplier: Jack Sealey Ltd | Brand: SEALEY | Product: S0682
Share this product
Details of S0682
o Cold-forged Chrome Vanadium steel socket.
o Hardened and tempered for added strength.
o Chrome plated and mirror finished.
o WallDriveŽ socket configuration.
Barcode: 5024209833110
Warranty: Life
0.421 Kg
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text:
Browse SpecializationsAre you thinking about earning your master's degree in psychology? Earning a graduate degree in this growing field will provide you with many exciting career options.
As you are considering which university to attend, you should start to think about which specialization you want to pursue. There are many possible specializations to focus on, which will have a major influence on your career direction. Remember that different universities have different specializations available, so you will want to select your school with a specialization in mind.
Some of the most popular specializations for a master's in psychology include the following:
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text:
This laid-back hamlet is all about the beach, and folks come from all over the Bay Area to walk its sandy, often windswept shore. Ideal day trip: a morning Mt. Tam hike followed by lunch at one of Stinson's unassuming eateries and leisurely beach stroll.
Looking back on eight decades on making travel history.More


text:
Located in Jung-gu, HOTEL SKYPARK Myeongdong II places you next to Lotte Department Store. The 120 rooms at this 3-star hotel include refrigerators, TVs, and premium bedding. Located centrally in Seoul, it's also close to Gyeongbok Palace and Dongdaemun Market.
All 120 air-conditioned rooms provide refrigerators, free bottled water, and safes. TVs come with satellite channels, and guests can stay connected with free WiFi and wired Internet. Beds sport premium bedding and bathrooms offer hair dryers and slippers. Rooms also include phones.
Property features
HOTEL SKYPARK Myeongdong II features free WiFi in public areas, a 24-hour business center, and coffee in a common area. You can take advantage of free offsite parking, along with limo/town car service. Front-desk staff can answer questions 24/7, and assist with dry cleaning/laundry, luggage storage, and securing valuables.
- Free WiFi and wired Internet in rooms and public areas
- 24-hour business center
- 24-hour front desk
HOTEL SKYPARK Myeongdong II
Check-in time starts at 2 PM
Check-out time is noon
Room Amenities
HOTEL SKYPARK Myeongdong II offers 120 air-conditioned accommodations with safes and complimentary bottled water. Beds feature premium bedding. Televisions come with satellite channels.
Bathrooms include shower/tub combinations, slippers, bidets, and hair dryers. This Seoul hotel provides complimentary wired and wireless high-speed Internet access. Housekeeping is offered daily and irons/ironing boards can be requested.
- Premium bedding
- In-room climate control (air conditioning)
- Air conditioning
- Phone
- Refrigerator
- Free bottled water
- Daily housekeeping
- Private bathroom
- Bidet
- Slippers
- Shower/tub combination
- Iron/ironing board (on request)
- Television
- In-room safe
- Free WiFi
- Free wired high-speed Internet
- Hair dryer
- Satellite TV service
Hotel Amenities
High-speed wired and wireless Internet access is complimentary. This 3-star property offers access to a 24-hour business center and limo/town car service. This Seoul hotel also offers coffee/tea in a common area, dry cleaning/laundry services, and a safe deposit box at the front desk.
HOTEL SKYPARK Myeongdong II has designated areas for smoking.
- 24-hour front desk
- Total number of rooms - 120
- Number of floors - 13
- Coffee/tea in common areas
- Designated smoking areas
- Free WiFi
- Free wired high-speed Internet
- Limo or Town Car service available
- Luggage storage
- Safe-deposit box at front desk
- Free parking nearby
- Year Built 2011
- 24-hour business center
- Number of buildings/towers - 1
- Dry cleaning/laundry service
- Elevator/lift
Family Friendly Amenities
- Family Hotel
- Free Wi-Fi
- Refrigerator
Available in all rooms: Free WiFi , Free wired high-speed Internet
Available in some public areas: Free WiFi , Free wired high-speed Internet
Free parking nearby
If you have requests for specific accessibility needs, please note them at check-out when you book your room.
- Accessible bathroom
Payment types
Children and extra beds
- Children are welcome.
You need to know
Extra-person charges may apply and vary depending on property policy.
Government-issued photo identification and a credit card or cash deposit are required at check-in for incidental charges.
Special requests are subject to availability upon check-in and may incur additional charges. Special requests cannot be guaranteed.
No rollaway/extra beds available
No cribs (infant beds) available
Optional extras
- Breakfast fee: KRW 111000 per person (approximately)
- Late check-out fee: KRW 55000
Hotel Name
- HOTEL SKYPARK II Myeongdong
- HOTEL SKYPARK Myeongdong II
- Myeongdong SKYPARK
- SKYPARK HOTEL Myeongdong
- SKYPARK II Myeongdong
- SKYPARK Myeongdong II
- Pets not allowed
National Rating
For the benefit of our customers, we have provided a rating based on our rating system.


text:
(Kia Soul or Similar)
($ 50.80 total)
(Toyota Prius or Similar)
($ 128.39 total)
(Toyota Yaris or Similar)
($ 105.17 total)
(Ford Focus or Similar)
($ 85.13 total)
(Mitsubishi Galant or Similar)
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($ 564.33 total)
Prices are based on bookings made during the previous 42 days. Price is dynamic and varies based on the date of the booking, length of rental and car class. There is no guarantee this price will be in effect at the time of your search.


text:
Grey & White Striped Baby Shortie
$27.36Only a few left!
Grey and white striped sleeveless Babidu shortie with popper fasteners between the legs for easier changing. Made in a fine cotton jersey, it has lace trim across the chest with a scalloped edge and pearly buttons for decoration. Soft and lightweight, it is the perfect all-in-one outfit for warm weather.
- Product number 129131
- 100% cotton (soft fine jersey)
- Machine wash (40*C)
- Popper fasteners between the legs
- Suitable for baby boys and girls
- Elasticated leg cuffs


text:
Salt-Powered Supercar
Build your own energy efficient toy car
Toys don't have to run on batteries all the time. This car, after assembly, can be activated by salt water and continuously operate for up to 7 hours. Two drops of water can make this toy car run for up to 200 meters and the fuel cell module can be rinsed with tap water to dry. Not only will this toy encourage patience and enjoyment through building your own toy, it will also teach your child about alternative energy and how it can power up certain machines. Order this educational toy kit for your child today!
Gender: Unisex
Age Range: 13 years old and up
Material: ABS + electronic components
Car Size: 7.5cm x 4cm (L x W).


text:
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decided: April 19, 1966.
COLLINS, APPELLANT,v.ZEDIKER
Appeal from judgment of Court of Common Pleas of Butler County, Dec. T., 1962, No. 79, in case of Catharine Collins v. Raymond Ralph Zediker and Gerald L. Crawford.
Donald D. Doerr, for appellant.
Richard B. Kirkpatrick, with him Galbreath, Braham, Gregg, Kirkpatrick & Jaffe, for appellee.
Musmanno, Jones, Cohen, Eagen and O'Brien, JJ. Opinion by Mr. Justice Musmanno. Mr. Justice Cohen concurs in the result.
[ 421 Pa. Page 52]
How fast does a man walk? A woman? A child? An aged person? If in a hurry? If not in a hurry? The answer to these questions would inevitably be: It depends on the circumstances. That is what this case is about.
Mrs. Catharine Collins, while crossing from the western to the eastern side of a road 18 feet wide, was
[ 421 Pa. Page 53]
about two-thirds of the way to her goal when an automobile traveling in a northward direction struck her. The jury returned a verdict for the defendants and the plaintiff seeks a new trial, asserting that the trial court erred in allowing an expert witness to estimate the speed of a pedestrian's pace.
Wm. P. Greenough, an engineer, testified that a person walking at a slow rate would take 6 seconds to advance 18 feet, moving at a moderate rate of speed he would occupy 5 seconds to traverse that distance, and if he walked at a fast rate, 4 seconds would carry him to his destination. This same engineer had testified that if the defendant's automobile was moving at 50 miles per hour, it would take 13.3 seconds to cover the unobstructed clear vision south of the plaintiff.
It could well be that the jurors, having accepted as scientific fact, the engineer's testimony as to the time required for an automobile to travel a certain distance (a subject not necessarily within the general knowledge of the average layman), concluded that the engineer must have been equally expert on walking speed and that if he had worked it out mathematically and engineeringly that the plaintiff deliberately walked into a collision, they had no further responsibility in the case. On that basis of reasoning, if it occurred, and we cannot say by the record that it did not occur, since the verdict included the possibility of that conclusion, the plaintiff was done an injustice, since it was the jury's responsibility to determine the speed of the plaintiff's walking, not the engineer's.
Phenomena and situations which are matters of common knowledge, may not be made the subject for expert testimony. In Burton v. Horn & Hardart, 371 Pa. 60, this Court said: "Expert testimony is inadmissible when the matter can be described to the jury and the condition evaluated by them without the assistance
[ 421 Pa. Page 54]
of one claiming to possess special knowledge upon the subject."
No experience could be more ordinary and within the range of a jury's comprehension than the speed of a walker. Everybody walks. Every normal person has a pair of legs. Not every person, however, owns an automobile, and even if one does, he may not be able to calculate with accuracy the distance an automobile travels moving at a certain velocity.
The speed of a person in a one hundred yard dash, of a football player making a 90-yard run, of a pugilist rising from the resin to achieve perpendicularity to receive another fusillade of blows of the kind which had floored him before, may be a matter of stop-watch calculation, but determination of the time involved in a pedestrian's reaching a spot only 18 feet away not only does not require the services of a mechanical computer, an IBM machine or a graduate engineer, but the fact is that none of these can work out the correct answer as satisfactorily as a layman. The function of walking embraces imponderables and variables which a machine or an engineer does not compute, as for instance, agility of footwork, acuity of eyesight, surface of terrain underfoot, noises of distraction, intrusion of visual objects, nervous tension of the walker, state of his reflexes, vigor of concentration, the nature of the clothing worn, the weight of the shoes on his feet. Where fractions of seconds are involved, all these factors contribute to the speed with which a pedestrian moves between two points especially when those termini are not far apart.
The tangle of inaccuracy and unreliability into which testimony such as that given by Greenough may lead a jury is made additionally manifest in the fact that he testified to the speed of a pedestrian traveling 18 feet, the width of the road, whereas the evidence indicated that the plaintiff had gotten only two-thirds
[ 421 Pa. Page 55]
of the way across when she was struck, which of course would mean that she had not traveled 18 feet.
Moreover, there was no unanimity of view as to the gait the plaintiff employed in undertaking the passage of the road before her. The defendant testified that Mrs. Collins "came at a fast walk." The defendant's sister testified that the plaintiff "looked up and smiled and then sort of hurried across the road more than what she had done before." Did the expert witness take into consideration the smiling of the plaintiff? The plaintiff could not have smiled if the defendant's car was about to crush her beneath its wheels. The quoted testimony would suggest that the defendant's car was far enough away, when the plaintiff smiled, that she was assured she could negotiate the road in safety. It cannot be argued that she was smiling in anticipation of what was to happen to her because in the next few moments she was knocked unconscious, her hip smashed, her face and head bleeding from wounds.
We are convinced from the record that the engineer's formidable testimony of a pedestrian's speed in walking, presented in more or less of a professional and scientific fashion from the witness stand, could well have unduly influenced the jury in behalf of the side which had called him, regardless of inherent merit involved. Jurors are humans and are impressed by scientific talk even though, upon profound reflection, they could realize that in the particular field under discussion they are as much at home as the scientist. The jury should be insulated, to the extent that it is possible, from undue persuasion from the witness stand based upon externals removed from the intrinsic problem to be solved. The trial court here should have refused expert testimony on a situation so obviously within the jury's comprehension, its concluding potentialities, and the scope of its responsibilities as judges
[ 421 Pa. Page 56]
of the facts. Allowing expert testimony in the circumstances here related on the speed of walking was as much error as if the judge had allowed expert testimony on the speed with which the average person consumes a hamburger sandwich, wraps spaghetti around his fork or drinks a glass of California wine. As this Court said in Dooner v. Canal Co., 164 Pa. 17: "The jury still have some duties to perform; inferences drawn from the ordinary affairs of life ought not to be drawn for them, and turned over under oath from the witness stand."
Judgment reversed with a venire facias de novo.
Judgment reversed.
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Apartment in Bournemouth, Dorset, England - 5 Minutes Walk From The Beach And Located In The Heart Of Bournemouth
It is 5 minutes walk from the beach and close to shops, bars, restaurants and transport links and a short drive to Sandbanks and the ferry over to Swanage. Sandy beaches and Dorset's historical sites which allows you to live the dream life whether with friends or families.
This apartment can accommodate a large family of 6+ in single rooms or a group of 10 - 12 friends in twin rooms looking for a holiday in Bournemouth. It is equipped with flat screen tv in each room plus a big plasma TV in the lounge + FAST WI FI THROUGHOUT,washing machine, dryer, high chair on request, iron, ironing board. Linen and towels will be provided and cleaning service is included once a week. It is an open plan kitchen/dinner with a really nice feel for space and cleanliness.
About the Owner
I live in England with my husband, baby Jonathan and our 15 years old cats. My husband and I both work, but spend most of our holidays in Spain, where we have made many friends and have really fallen in love with the country. We also have family there as I come from Spain myself, we would like our boy to be bilingual.
1 Reviews
3 based on 1 holidaymaker reviews
Pros good location and good space. Cons in need of modernisation. New bathrooms & bed asap.
As above
From the Owner
"We love Bournemouth because it has everything to offer, from international environment, cafes, ,restaurants, shopping, night life, theatre, fantastic sandy beaches, fabulous facilities for families with children, etc.. There really is something for everyone here. Bournemouth is easily accessible from any European destination direct to Bournemouth Airport, at very competitive prices with low-cost airlines and trains every every to and from London"
Activity and Interests
Distance to the beach is 10 minutes walk
Bournemouth is a large coastal resort town on the south coast of England directly to the east of the Jurassic Coast, a 95-mile (153 km) World Heritage Site. According to the 2011 census, the town has a population of 187,503 [1] making it the largest settlement in Dorset. With Poole to the west and Christchurch in the east, Bournemouth forms the South East Dorset conurbation, which has a total population of over 400,000.
Bournemouth airport is just 15 minutes drive from the property
Rental rates
|Rental Period
|Minimum Price
|Additional Nights
|Weekend Night
|Monthly *
|Event Price
My Standard Rate
2 night minimum stay
for 2 nights
* Approximate monthly price. Actual pricing will depend on the days of the month you stay.
Additional pricing information
|No additional mandatory fees
Booking Notes:
Please contact owner
Changeover Day:
The change over day should always be on a Sunday.
Owner's Cancellation Policy
- 12
- Available arrival
- 12
- Available
- 12
- Unavailable
From the Owner
"The property is just two minutes walk from the fabulous beach and located right in the town centre. We provide beach towels and linen so you can travel light and make the most of the great coastline. For those who enjoy a more active holiday, you can take advantage of discounted rates at the nearby XYZ golf course. If you are looking for great food in the comfort of the apartment, we can also recommend local caterers who can provide delicious evening meals at reasonable prices. Or simply since there are cooking facilities and a local supermarket downstairs you can cook delicious meals and feel at home. Just ask for information when booking"
Property Type
- apartment
- Heating
- Internet
- Iron & Board
- Living Room ...
- Tumble Dryer
- Washing Machine
- Freezer
- Kitchen ...
- Microwave
- Oven
- Refrigerator
- Hob
- Child's Highchair
- Television
- children welcome
Location Type
- near the sea
- town
- waterfront
Leisure Activities
- horse riding
- walking
Sports & Adventure Activities
- fishing
- tennis
- Bathroom 1 - Toilet, Shower Enclosure
- Bathroom 2 - Toilet, Shower Enclosure
- There are 2 communal bathrooms to be shared by all guests in the apartment. One of them has a shower and the other one bath and shower over, wc, sink, mirror.
- 5 Bedrooms, Sleeps 14
- Bedroom 1 - 1 Cot
- Bedroom 2
- Bedroom 3
- Bedroom 4
- Bedroom 5
- Description of sleeping capacity: Sleeps 14 (5/6 Bedrooms) Notes on bedrooms: All bedrooms have two beds except for one that has bank beds
- Cleaning / Towels / Linen / Maid service: linen and towels are provided and the service includes cleaning once per week. Other: The apartment has fast WI-FI throughout and each bedroom is equipped with plasma TV on the wall + 2 bedside tables + wardrobe + desk and chair


text:
Distances are calculated in a straight line and may not reflect actual travel distance.
Let us help calculate the repayments on this property.Use our mortgage calculator
A first floor two bedroom apartment within a private Mews development. The accommodation consists of an entrance area and inner hallway with an airing cupboard. The living/dining room has French doors which open inwards and overlook the communal gardens. The kitchen has a range of fitted units with electric hob and oven together with a fridge and washing machine. The master bedroom has fitted wardrobes and an en-suite shower. The second bedroom has the use of the bathroom.
The village of Westergate is only a short distance away with a village shop and local facilities including a garage and public house. Barnham is a short distance away and offers a main line station on the London Victoria Line. Chichester with its famous Cathedral is about 5 miles to the west offering a good selection of facilities including multi screen cinema, superb shopping, art galleries and a theatre. Goodwood estate is close by and is renowned for the Festival of Speed , The Revival and also horse racing. In all a convenient location with access to all surrounding areas.
The private development has communal gardens and a block paved access road leading round to a parking area where the property has an allocated covered parking space. There are also designated vistors parking spaces.
Additional Information
The property is a share of the freehold with 95 years remaining of 125 years lease. The maintenance charge is £1,272 pa (paid in two installments).
There are electric storage heaters.
Living/Dining Room
Two Bedrooms
En Suite Shower Room
Covered Parking Space.
Contact branch for relevant Energy Performance Certificate


text:
- Published in issue 2/1999 on page 38
Precision current gauges:
with low-loss sense element and PWM output
The LM3812/LM3813 current gauges from National Semiconductor are suitable for application as battery charge/discharge gauge, motion control diagnostics, power supply load monitoring and management, and resettable smart fuse.
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