require such an express statement. See Hochberg v. Howlett, No.
92 Civ. 1822, 1992 WL 373631, at *4 (S.D.N.Y. Dec. 1, 1992).
Personal knowledge may be inferred from the affidavit itself.
See id. In this instance, Ms. Williams' position as Legal
Manager of Intellectual Property at Rockport appears to qualify
her to attest to the factual allegations contained in paragraphs
13-18 of the Williams Declaration. Moreover, Ms. Williams
submitted a Supplemental Declaration which clarifies that the
"declaration of November 30, 1998[was] based on [her] personal
knowledge of [the '594 patent]; the references considered during
the examination of the '594 patent; the pleadings and discovery
produced in this litigation; and my overall general experience as
an employee at Rockport since 1996." See Supp. Decl. of Jerri
A. Williams at ¶ 3. As the Hochberg Court noted, a
supplementary affidavit affirming that an original affidavit was
based on personal knowledge "is sufficient to cure any defects
that may have existed in the original affidavits." 1992 WL
373631, at *4. As a result, Deer Stags's motion to strike
paragraphs 13-18 of the Williams Declaration is denied.
Summary Judgment Standards
A motion for summary judgment may be granted under Fed.R.Civ.P.
56 if the entire record demonstrates that "there is no genuine
issue as to any material fact and the moving party is entitled to
judgment as a matter of law." Anderson v. Liberty Lobby,
477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); D'Amico v.
City of New York, 132 F.3d 145, 149 (2d Cir.), cert. denied,
___ U.S. ___, 118 S.Ct. 2075, 141 L.Ed.2d 151 (1998). In
considering a motion for summary judgment, a court "must view the
evidence in the light most favorable to the party against whom
summary judgment is sought and must draw all reasonable
inferences in [its] favor." See L.B. Foster Co. v. America
Piles, Inc., 138 F.3d 81, 87 (2d Cir. 1998) (citing Matsushita
Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587,
106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986)). Although the movant
initially bears the burden of showing that there are no genuine
issues of material fact, once such a showing is made, the
opposing party must "set forth specific facts showing that there
is a genuine issue for trial." Liberty Lobby, 477 U.S. at 256,
106 S.Ct. 2505. "The nonmoving party may not rely on mere
conclusory statements nor speculation, but instead must offer
some hard evidence showing that its version of the events is not
wholly fanciful." D'Amico, 132 F.3d at 149. To defeat a motion
for summary judgment, the party opposing the motion must produce
sufficient evidence to permit a reasonable jury to return a
verdict in its favor. See Scotto v. Almenas, 143 F.3d 105, 114
(2d Cir. 1998) (citing Liberty Lobby, 477 U.S. at 252, 106
S.Ct. at 2512).
The Federal Circuit has stated that "summary judgment is as
appropriate in a patent case as in any other." See Avia Group
Int'l, Inc. v. L.A. Gear California, Inc., 853 F.2d 1557, 1561
(Fed.Cir. 1988) (citations omitted). This applies to design
patent cases as well as to utility patent cases. See OddzOn
Prods., Inc. v. Just Toys, Inc., 122 F.3d 1396 (Fed.Cir. 1997);
Aerogroup Int'l Inc. v. Marlboro Footworks, Ltd., No. 96 Civ.
2717(DLC), 1997 WL 83395 (S.D.N.Y. February 27, 1997).
Design Patent Infringement
A design patent, issued pursuant to 35 U.S.C. § 171, "protects
the nonfunctional aspects of an ornamental design as shown in the
patent." Elmer v. ICC Fabricating, Inc., 67 F.3d 1571, 1577
(Fed. Cir. 1995). Design patents are narrow in scope. See In re
Mann, 861 F.2d 1581, 1582 (Fed.Cir. 1988); see also Elmer, 67
F.3d at 1577; In re Reid Harvey, 12 F.3d 1061, 1064 (Fed.Cir.
1993). A design patent's claim is limited to what is shown in the
application drawings. See In re Mann, 861 F.2d at 1582; see
also Elmer, 67 F.3d at 1577; In re Reid Harvey, 12 F.3d at
1064. Infringement is defined as
the "unauthorized manufacture or sale of `the patented design, or
any colorable imitation thereof.'" See L.A. Gear. Inc. v. Thom
McAn Shoe Company, 988 F.2d 1117, 1124 (Fed.Cir. 1993) (quoting
35 U.S.C. § 289). Determining whether a design patent claim has
been infringed requires a two-step analysis. First, the Court
must construe the patent claim to determine its meaning and scope
as a matter of law. See Markman v. Westview Instruments, Inc.,
52 F.3d 967, 976 (Fed. Cir. 1995) (in banc), aff'd,
517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996). Because a design
patent only protects the novel, ornamental features of the
patented design, "[w]here a design contains both functional and
non-functional elements, the scope of the claim must be construed
in order to identify the non-functional aspects of the design as
shown in the patent." See OddzOn, 122 F.3d at 1405 (citing Lee
v. Dayton-Hudson Corp., 838 F.2d 1186, 1188 (Fed.Cir. 1988)).
Second, the properly construed patent claim must be compared to
the accused design to determine whether there has been
infringement. See Markman, 52 F.3d at 976. In this second step,
the fact-finder must compare the patented and accused designs to
determine whether the accused design is substantially similar in
appearance to the patented design. The test for infringement does
not compare the commercial embodiments of the two products.
Rather, the allegedly infringing product is compared only to the
patented design. See Sun Hill Indus., Inc. v. Easter Unlimited,
Inc., 48 F.3d 1193, 1196 (Fed.Cir. 1995); Herbko Int'l Inc. v.
Gemmy Indus., Corp., 916 F. Supp. 322, 325 (S.D.N.Y. 1996). The
test for substantial similarity, as originally stated by the
Supreme Court in Gorham v. White, 81 U.S. (14 Wall.) 511, 20
L.Ed. 731 (1871), is as follows:
[I]f, in the eye of an ordinary observer, giving such
attention as a purchaser usually gives, two designs
are substantially the same, if the resemblance is
such as to deceive such an observer, inducing him to
purchase one supposing it to be the other, the first
one patented is infringed by the other.
81 U.S. at 528; see Elmer, 67 F.3d at 1577. In evaluating a
claim of design patent infringement, a fact-finder must consider
"the ornamental aspects of the design as a whole and not merely
isolated portions of the patented design." See Braun Inc. v.
Dynamics Corp. of America,