Order (1) Granting Defendants’ Motion for Summary Judgment in Part (Dkt. No. Ill); (2) Denying Plaintiffs Motion for Summary Judgment in Part (Dkt. No. 103)

Before the Court is Plaintiff Grand General Accessories Manufacturing (“GGAM”)’s Motion for Summary Judgment as to patent validity, patent infringement, and trade dress infringement, and Defendants United Pacific Industries, Inc. (“UPI”) and Lucidity Enterprise Co. (“Lucidity”) (together “Defendants”)’ Motion for Summary Judgment on all claims.

Plaintiff owns a number of design patents related to automotive stop/tail/turn (“S/T/T”) lights. The feature uniting GGAM’s line of S/T/T lights is a light bulb reflector that the parties refer to as the “web comb design.” The design consists of multiple facets arranged in a grid-like manner on the inner surface of a parabolic reflector, with a light bulb resting in the center of the reflector. GGAM claimed the web comb design (displayed below) in U.S. Design Patent No. 463,590 (the “'590 Patent”), issued in 2002.

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According to GGAM, its entire series of S/T/T lights is an expansion of the basic design disclosed in the '590 Patent (described in the application as a “[r]ound decorative vehicle lighting reflector with segmented reflective surf ace.”) (Pl.’s Second Am. Compl. (“SAC”) ¶ 17.) The '590 Patent itself is not directly at issue in this case; Plaintiffs instead accuse Defendants of infringing seven separate S/T/T design patents that make use of the web comb design (and one additional non-S/T/T light design patent). Plaintiffs also allege trade dress infringement under the Lanham Act.

For the reasons explained below, the Court is persuaded that Defendants are entitled to summary judgment in their favor on the grounds of patent invalidity with respect to five of Plaintiffs design patents, and on Plaintiffs trade dress in fringement claim. Accordingly, the Court DENIES Plaintiffs Motion for Summary Judgment in part, and GRANTS Defendants’ Motion for Summary Judgment in part. In a separate, concurrently filed order, the Court directs the parties to file supplemental briefing addressing invalidity and infringement issues related to the three design patents-in-suit that the Court does not declare invalid in this order.

I. Background

Since 2002, Plaintiff has created a series of S/T/T lights incorporating the basic web comb design, and each design has a corresponding design patent. (SAC ¶ 16.) The disputed patents are listed below, along with the drawings submitted in the respective patent applications:

1)570,012 (“'012 Patent”) — “low profile round LED sealed light with spider design” — filed November 6, 2007; issued May 27, 2008 (Pl.’s Statement of Uncontroverted Facts (“SUF”) ¶ 13; Rozsa Decl. Ex. 7);

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2)570,013 (“'013 Patent”) — “low profile oval LED sealed light with spider design” — filed November 6, 2007; issued May, 27, 2008 (PL’s SUF ¶ 15; Rozsa Decl. Ex. 8);

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3)474,303 (“'303 Patent”) — “rectangular decorative reflector for vehicle light with multiple LEDs” — filed September 26, 2002; issued May 6, 2003, (PL’s SUF ¶ 7; Rozsa Decl. Ex. 3);

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4)474,559 (“'559 Patent”) — “oval decorative reflector for vehicle light with multiple LEDs” — filed September 24, 2002; issued May 13, 2003 (PL’s SUF ¶ 9; Rozsa Decl. Ex. 4);

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5)507,670 (“'670 Patent”) — “rectangle multi-LED spider marker light for vehiele” — filed November 22, 2004; issued July 19, 2005 (Pl.’s SUF ¶ 11; Rozsa Decl. Ex. 5);

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6)511,850 (“'850 Patent”) — “square multi-LED spider marker light for vehicle” — filed November 22, 2004; issued November 22, 2005 (Pl.’s SUF ¶ 17; Rozsa Decl. Ex. 9)

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7)470,970 (“'970 Patent”) — “round decorative vehicle reflector for vehicle light with multiple LEDs” — filed September 24, 2002; issued February 25, 2003 (Pl.’s SUF ¶ 5; Rozsa Decl. Ex. 8);

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8)548,038 (“'038 Patent”) — “screw-in knob with fanciful design” — filed June 3, 2006; issued August 7, 2007 (PL’s SUF ¶ 19; Rozsa Decl. Ex. 10);

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The first seven patents are vehicle S/T/T or marker lights that rely on a multiplicity of faceted reflectors and an LED light in each reflector set to create the web comb effect. The eighth patent (the '038 Patent) is an air valve knob with a diamond faceted jewel; the jewel being the sole ornamental aspect of the knob. (PL’s SUF ¶¶ 123-25.)

Plaintiff alleges that Lucidity copied Plaintiffs patented designs with the intention of duplicating its products. (SAC ¶ 37.) It alleges that it became aware that Lucidity and Defendant United Pacific Industries, Inc. (“UPI”) were selling decorative vehicle lights that infringed its design patents sometime in 2008. (SAC ¶¶46-47.) The patents and products related to those patents are too numerous to describe here (they comprise approximately fifty pages of Plaintiffs SAC).

In October 2008, GGAM filed suit against Defendants for patent infringement, trade dress infringement, and various other causes of action. In June and July of 2009, UPI and Lucidity counterclaimed against GGAM, raising various affirmative defenses. On May 28, 2010, GGAM moved for summary judgment as to patent validity, patent infringement, and trade dress infringement, and Defendants filed a cross-motion for summary judgment on all claims. The Court heard oral argument on August 6, 2010.

II. Legal Standard

Summary judgment, in patent as in other cases, is proper when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Hodosh v. Block Drug Co., Inc., 786 F.2d 1136, 1141 (Fed.Cir.1986). The moving party bears the burden of demonstrating the absence of any genuine issue of material fact, and all justifiable inferences must be resolved in the light most favorable to the nonmovant. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 , 106 S.Ct. 2548 , 91 L.Ed.2d 265 (1986). However, the moving party need not disprove matters on which the nonmovant will have the burden of proof at trial. Id. at 322 , 106 S.Ct. 2548 .

The movant can meet its burden by demonstrating “that there is an absence of evidence to support the nonmoving party’s case,” thus shifting the burden to the nonmovant to prove otherwise. Id. at 325 , 106 S.Ct. 2548 . However, “[t]o create a genuine issue of fact, the nonmovant must do more than present some evidence on an issue it asserts is disputed.” Avia Group Int’l, Inc. v. L.A. Gear Cal., Inc., 853 F.2d 1557, 1560 (Fed.Cir.1988). Rather, the nonmovant must provide “specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e). If, instead, the nonmovant’s evidence is “merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 , 106 S.Ct. 2505 , 91 L.Ed.2d 202 (1986).

It is not the Court’s task “to scour the record in search of a genuine issue of triable fact.” Keenan v. Allan, 91 F.3d 1275 , 1278 (9th Cir.1996). Counsel have an obligation to lay out their support clearly. Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026 , 1031 (9th Cir. 2001). The Court “need not examine the entire file for evidence establishing a genuine issue of fact, where the evidence is not set forth in the opposition papers with adequate references so that it could conveniently be found.” Id.

III. Discussion

A. Design Patent Infringement

“Whoever invents any new, original and ornamental design for an article of manufacture may obtain a patent therefor, subject to the conditions and requirements of this title.” 35 U.S.C. § 171 . “As the statute indicates, a design patent is directed to the appearance of an article of manufacture.” PHG Tech., LLC v. St. John Cos., 469 F.3d 1361, 1366 (Fed.Cir.2006). “If the patented design is primarily functional rather than ornamental, the patent is invalid.” Power Controls Corp. v. Hybrinetics, Inc., 806 F.2d 234, 238 (Fed.Cir.1986).

“The starting point for any discussion of the law of design patents is the Supreme Court’s decision in Gorham Co. v. White, 14 Wall. 511 , 81 U.S. 511 , 20 L.Ed. 731 (1871).” Egyptian Goddess, Inc. v. Swisa, Inc., 543 F.3d 665, 670 (Fed.Cir.2008). In Gorham, the Court explained that the test for design patent infringement “must be sameness of appearance, and mere difference of lines in the drawing or sketch ... or slight variances in configuration will not destroy the substantial identity.” 81 U.S. at 526-27 . “Identity of appearance, the [Gorham] Court explained, or ‘sameness of effect upon the eye, is the main test of substantial identity of design’; the two need not be the same ‘to the eye of an expert,’ because if that were the test, ‘[tjhere never could be piracy of a patented design, for human ingenuity has never yet produced a design, in all its details, exactly like another, so like, that an expert could not distinguish them.’ ” Id. (quoting Gorham, 81 U.S. at 527 ).

The Federal Circuit has made clear that the “ordinary observer” test is the sole test for determining whether a design patent has been infringed. Egyptian Goddess, 543 F.3d at 678 . “Under that test ... infringement will not be found unless the accused article ‘embodfies] the patented design or any colorable imitation thereof.’ ” Id. (quoting Goodyear Tire & Rubber Co. v. Hercules Tire & Rubber Co., 162 F.3d 1113, 1116-17 (Fed.Cir.1998)).

The Supreme Court has long held that a design is better represented by an illustration “than it could be by any description and a description would probably not be intelligible without the illustration.” Dobson v. Doman, 118 U.S. 10, 14 , 6 S.Ct. 946 , 30 L.Ed. 63 (1886). Accordingly, “[i]n many eases, the considerable effort in fashioning a detailed verbal description does not contribute enough to the infringement analysis to justify the endeavor.” Crocs, Inc. v. Int’l Trade Comm’n, 598 F.3d 1294, 1302 (Fed.Cir.2010).

1. Invalidity

The Court first takes up Defendants’ argument that Plaintiffs patents are invalid. “By direction of 35 U.S.C. § 282 , an issued patent is presumed valid.” KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 412 , 127 S.Ct. 1727 , 167 L.Ed.2d 705 (2007). Accordingly, “a moving party seeking to invalidate a patent at summary judgment must submit such clear and convincing evidence of facts underlying invalidity that no reasonable jury could find otherwise.” SRAM Corp. v. AD-II Eng’g, Inc., 465 F.3d 1351, 1357 (Fed.Cir.2006).

a. On sale bar

An inventor loses his or her right to a patent if the invention was “on sale in this country, more than one year prior to the date of the application for patent in the United States.” 35 U.S.C. § 102 (b). The party asserting the on sale bar must demonstrate by clear and convincing evidence that there was a definite sale or offer to sell more than one year before the patent application. Ferag AG v. Quipp, Inc., 45 F.3d 1562, 1566 (Fed.Cir.1995). “A single sale or offer is enough to bar patentability,” but mere preparation for sale is insuf ficient. Intel Corp. v. U.S. Int’l Trade Comm’n, 946 F.2d 821 , 830 (Fed.Cir.1991). Moreover, the overall appearance of the prior invention must be virtually identical to the design of the challenged patent. KeyStone Retaining Wall Sys. v. Westrock, Inc., 997 F.2d 1444 , 1451-52 (Fed. Cir.1993). Finally, the ultimate determination that a product was placed on sale, although based on the underlying facts, is a question of law. Id. at 1451.

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UPI produced a copy of their 2004 catalog, which shows a product in all relevant respects virtually identical to the one disclosed in the '038 design patent being offered for sale, along with an inventory history report stating that UPI had the cataloged item in their warehouse at that time. (Lin Decl. Ex. 3.) Accordingly, the '038 Patent is invalid pursuant to 35 U.S.C. § 102 (b).

The Court is persuaded that the '038, '012, and '013 Patents are invalid pursuant to the on sale bar.

'038 Patent

The '038 patent covers an air-valve knob with a faceted jewel. The jewel is the sole ornamental aspect of the product. Defendant UPI has been selling a knob strikingly similar to one disclosed in the '038 Patent (issued in 2008) since 2004.

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'012 Patent

The '012 Patent is also invalid under 35 U.S.C. § 102 (b). Plaintiff was offering the product displayed below for sale as far back as 2005 (the '012 Patent, issued in May 2008, is also displayed for comparison):

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The product that Plaintiff began offering for sale in 2005 is in all relevant respects virtually identical to the design disclosed in the '012 Patent. Accordingly, the patent is invalid pursuant to the on sale bar.

'013 Patent

Plaintiff was offering the product displayed below for sale as far back as

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The product that Plaintiff began offering for sale in 2005 is in all relevant respects virtually identical to the design disclosed in the '013 Patent. Accordingly, the patent is invalid pursuant to the on sale bar.

b. Obviousness

Defendants also contend that Plaintiffs design patents are invalid because 2005 (the '013 Patent, application filed in November 2007, is also displayed for comparison):

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“the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains.” 35 U.S.C. § 103 (a) (1995). The Supreme Court has summarized the obviousness bar as follows:

KSR Int’l Co. v. Teleflex, 550 U.S. 398, 417 , 127 S.Ct. 1727 , 167 L.Ed.2d 705 (2007).

The obviousness analysis requires the Court to determine: (1) the scope and content of the prior art; (2) the differences between the prior art and the claims at issue; and (3) the level of ordinary skill in the pertinent art. Graham v. John Deere Co., 383 U.S. 1, 17 , 86 S.Ct. 684 , 15 L.Ed.2d 545 (1966). In addition, secondary considerations such as commercial success, licensing to third parties, and unpermitted copying can provide evidence that a design was not obvious. Glaverbel Societe Anonyme v. Northlake Mktg. & Supply, 45 F.3d 1550 , 1555 (Fed.Cir.1995). In the end, however, the obviousness of a design is a conclusion of law, based upon factual underpinnings. Jurgens v. McKasy, 927 F.2d 1552, 1558 (Fed.Cir.1991).

The first step in the analysis is to determine “whether there is a reference to something in existence, the design characteristics of which are basically the same as the claimed design.” L.A. Gear, Inc. v. Thom McAn Shoe Co., 988 F.2d 1117, 1124 (Fed.Cir.1993) (internal citations omitted). These prior art references may take the form of other patents, printed publications, or actual items which were in public use more than one year prior to the contested patent application. In re Harvey, 12 F.3d 1061, 1065 (Fed.Cir.1993). Such references must have existed at the time of invention, and hindsight may not be used to determine that the challenged design was obvious. Id. Moreover, in conducting this analysis, the court must look at the design as a whole, rather than merely referencing its component parts. Id. If the prior art merely suggests “components of the [challenged] design, but not its overall appearance, an obviousness rejection is inappropriate.” Id. at 1063 .

For design patents, obviousness is determined from the vantage of the “designer of ordinary skill or capability in the field to which the design pertains.” L.A. Gear, 988 F.2d at 1124 . This hypothetical designer is presumed to have perfect knowledge of all pertinent prior art. The subjective knowledge of particular designers is not controlling. Tveter v. AB Turn-O-Matic, 633 F.2d 831, 834 (9th Cir. 1980). When analyzing this factor, courts may consider “opinion testimony by experts concluding that an invention would or would not have been obvious.” Petersen Mfg. Co. v. Central Purchasing, Inc., 740 F.2d 1541, 1548 (Fed.Cir.1984). However, such opinions do not necessarily preclude the grant of summary judgment against the offering party because the obviousness of a design is a question of law for the court to resolve. Id.

Finally, objective evidence such as commercial success, unpermitted copying, or licensing agreements with third parties is relevant to the question of a design’s obviousness and must be considered. Glaverbel, 45 F.3d at 1555 .

The Court is persuaded that the '850 and '670 Patents are invalid pursuant to the obviousness bar.

The '670 and '850 Patents combine well-known S/T/T housing templates with an array of LED bulbs, each situated in the center of a web comb reflector. In light of the '303 Patent, the later-in-time '670, '850, and Patents would be obvious to a designer of ordinary skill in the art; or indeed, to any ordinary observer:

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The '670 Patent is an obvious reformulation of the above design, tweaked to fit in a style of S/T/T housing that was indisputably a component of the prior art. The only discernable difference is the number of bulbs. The Court is persuaded, however, that a designer with ordinary skill would have found the addition of an additional row of four bulbs to be an obvious extension of the prior art.

'670 Patent U.S. Pa mt No. 6,095,663 (filed 1997)

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The '850 Patent is a similarly obvious application of the web comb design to a previously established style of S/T/T housing:

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Plaintiff relies on the testimony of its expert, Dr. Jianzhong Jiao, an engineer with extensive experience in the automotive lighting sphere, to rebut Defendants’ obviousness evidence. Dr. Jiao’s testimony is insufficient to create a genuine issue of material fact with respect to the '670 and '850 Patents. In defending the non-obviousness of Plaintiffs designs, Dr. Jiao offers only conclusory assertions regarding the overall visual impression that Plaintiffs products convey. The following is typical of his testimony:

(Jiao Opp’n Decl. ¶ 7.) As Dr. Ziao acknowledges, the web comb faceted reflector design and the various forms of S/T/T light housing are indisputable components of the prior art. As are, of course, LED light sources. Dr. Ziao contends, however, that the arrangement of the bulbs and reflectors into a “particular configuration” produces “unique visual characteristics.” (Id.) With respect to the '850 and '670 Patents, the Court is unpersuaded. The unique characteristics that Plaintiff stresses amount to obvious, straightforward arrangements of bulbs and reflectors into identical rows. By Plaintiffs logic, any number of LED bulbs and reflectors (e.g., twelve instead of fourteen, four rows of three instead of three rows of fours) would be non-obvious and thus patentable because of each arrangements unique visual characteristics. This is not the law. Accordingly, the Court concludes that the '670 and '850 Patents are invalid in light of the '303 Patent and the other prior art in the summary judgment record.

B. Trade Dress Infringement

Plaintiff filed suit for trade dress infringement under Section 43(a) the Lanham Act. See 15 U.S.C. § 1125 (a). The Act states, in relevant part:

15 U.S.C. § 1125 (a).

“Trade dress refers generally to the total image, design, and appearance of a product and may include features such as size, shape, color, color combinations, texture or graphics.” Clicks Billiards, Inc. v. Sixshooters, Inc., 251 F.3d 1252, 1258 (9th Cir.2001). “Distinctiveness is ... an explicit prerequisite for registration of trade dress .... ” Wal-Mart Stores, Inc. v. Samara Bros., Inc., 529 U.S. 205, 210 , 120 S.Ct. 1339 , 146 L.Ed.2d 182 (2000). The Lanham Act also “require[s] that a producer show that the allegedly infringing feature is not ‘functional’ ... and is likely to cause confusion.” Id.

For the reasons explained below, the Court is persuaded that Plaintiff has not produced competent evidence establishing the distinctiveness element of its trade dress infringement claim, and thus, that Defendants are entitled to summary judgment.

Distinctiveness is established by “any word, term, name, symbol, or device, or any combination thereof ... which ... is likely to cause confusion ... as to the origin, sponsorship, or approval of his or her goods____” Wal-Mart Stores, Inc. v. Samara Bros., Inc., 529 U.S. 205, 209 , 120 S.Ct. 1339 , 146 L.Ed.2d 182 (2000).

Trade dress protection was traditionally applied only to a product’s packaging, but the doctrine has been expanded to include the design of a given product as well. The standard for establishing distinctiveness, however, differs for the two types of trade dress. Product design trade dress is “protectible only upon a showing of secondary meaning,” WalMart, 529 U.S. at 216 , 120 S.Ct. 1339 , whereas, other forms of trade dress can be protected when they are inherently distinctive or if they acquire secondary meaning. Plaintiff, here, alleges product design trade dress, and thus it must establish secondary meaning.

Secondary meaning can be established through direct evidence (i.e., consumer surveys and testimony), or circumstantially through “exclusivity, manner, and length of use of a mark; amount and manner of advertising; amount of sales and number of customers; established place in the market; and proof of intentional copying by the defendant.” Filipino Yellow Pages, Inc. v. Asian Journal Publ’n, Inc., 198 F.3d 1143 , 1151 (9th Cir.1999).

Plaintiff claims that the lamp’s web comb design has become associated with GGAM and has secondary meaning. (Pl.’s SUF ¶ 52.) Upon careful review of the record, the Court concludes that Plaintiff has provided no direct evidence (consumer testimony or surveys) regarding an established secondary meaning. Plaintiff has provided one article and declarations from its own employees. The testimony from Plaintiffs employees has very limited probative value. Filipino Yellow Pages, 198 F.3d at 1152 (explaining that self-serving statements from a litigant’s own employees carry little weight); see Self-Realization Fellowship Church v. Ananda Church of Self-Realization, 59 F.3d 902, 910 (9th Cir. 1995) (concluding that declarations from a trademark plaintiffs employees and wholesalers had “little probative value regarding the assessment of consumer perception” because “[tjrademark law is skeptical of the ability of an associate of a trademark holder to transcend personal biases to give an impartial account of the value of the holder’s mark”). The article Plaintiff relies on provides little information about consumer behavior beyond noting that Plaintiffs product is a hot seller, and it does not reference Plaintiffs design or its connection to the mark. Even if the article offered more in the way of substance, “[t]estimony from a single source is insufficient to demonstrate secondary meaning.” See Art Attacks Ink, LLC v. MGA Entm’t. Inc., 581 F.3d 1138, 1146 (9th Cir.2009).

Plaintiff also asserts that secondary meaning can be established through exclusivity, manner, and length of use because they were the first to introduce S/T/T lights into the market with the specific web comb design. (Huang Deck ¶ 21.) Defendants persuasively counter that as many as eight other companies are selling similar products (including two competing products that employ the specific web-comb design), there was no consistent manner because the lighting pattern is not the same throughout the product line, and even assuming Plaintiff has been selling web comb-based products for a significant period of time, secondary meaning was not established at any point.

Plaintiff states that it has spent over $500,000.00 in advertising their “Spyder” line of products, and that this advertising effort supports a finding of secondary meaning. (PL’s SUF ¶ 68.) Advertising is relevant, but “the true test of secondary meaning is the effectiveness of the advertising effort.” Art Attacks, 581 F.3d at 1146 (internal quotations omitted). Plaintiff has provided no evidence of the effectiveness of their advertising in creating a secondary meaning other than providing the dollar figure of their advertising budget, which has little meaning without context.

Amount of sales, customers, and an established place in the market can also be evidence of secondary meaning. The evidence that Plaintiff provides (raw sales figures), however, has limited value without further details regarding market and competitor sales figures.

Plaintiff also alleges that Defendant intentionally copied their designs by sending employees to trade shows to photograph Plaintiffs products, and to use the pictures to make duplicate products. (PL’s SUF ¶¶ 55, 65.) The incidents, however, are only recounted by Plaintiffs employees without any corroborating evidence, and are strongly disputed by Defendant. (Defs.’ SIMF 55, 65.) Regardless, the alleged incidents are not sufficient on their own to establish secondary meaning.

In sum, Plaintiff has failed to provide clear and convincing evidence of secondary meaning, and thus, their motion for summary judgment on their trade dress infringement claim must be denied. Defendants have shown that there is no triable issue regarding secondary meaning, and accordingly, the Court grants their motion for summary judgment on Plaintiffs trade dress infringement claim.

IV. Conclusion

For the reasons set forth above, the Court GRANTS Defendants’ Motion for Summary Judgment in part, and DENIES Plaintiffs Motion for Summary Judgment in part. The Court withholds ruling on the patent invalidity and patent infringement issues related to the '303, '970, and '559 Patents. In a separate, accompanying order, the Court directs the parties to file supplemental briefing addressing several issues related to the '303, '970, and '559 Patents.

IT IS SO ORDERED.

. Although Plaintiff acknowledges that each of its S/T/T light design patents incorporate the basic web comb design disclosed in the '590 Patent, its expert contends that the designs are distinguishable from the '590 Patent because "they are all associated with the use of multiple LED sources and multiple reflectors,” and the '590 Patent "discloses a single faceted reflector utilizing a single incandescent bulb.” (Jiao Opp’n Deck ¶ 4.) . Plaintiff does not address this evidence other than to submit that Defendants' evidence (the catalogues and product inventory logs) was not disclosed in a timely manner and therefore should not be considered. (Pl.’s Mem. of P. & A. in Opp'n, 5:11-17.) Plaintiff has not, however, filed a motion for discovery sanctions, which would be the appropriate course of action under Central District Local Rules. C.D. CAL. L.R. 37-4. . Plaintiff did not disclose the '303 Patent as prior art in its application for the '670 Patent. . Because the Court concludes that the '670, '850, '012, '013, and '038 Patents are invalid, it does not reach Defendants’ anticipation and inequitable conduct affirmative defenses, or their arguments regarding non-infringement.