3D, Ltd. v. Spectratek Technologies, Inc.

MEMORANDUM **

Summary judgment is appropriate under the “extrinsic test” if no reasonable jury could find substantial similarity of protectable expression. Kouf v. Walt Disney Pictures & Television, 16 F.3d 1042, 1045-46 (9th Cir.1994). Because 3D has presented evidence of Spectratek’s access to its pattern, we require less proof of substantial similarity. Smith v. Jackson, 84 F.3d 1213, 1218 (9th Cir.1996).

Each pattern consists of overlapping polygons. That similarity, however, is an unprotectable idea, not protectable expression. Cf. Data East USA, Inc. v. Epyx, Inc., 862 F.2d 204, 208-09 (9th Cir.1988); Herbert Rosenthal Jewelry Corp. v. Kalpakian, 446 F.2d 738, 742 (9th Cir.1971). The patterns are otherwise quite dissimilar. The 3D-24 pattern has a clearly visible repeating rectangular structure. Within each rectangle, the polygons are radially arrayed in wedge-shaped sections. The Crystals pattern, by contrast, has no observable repetitive geometry. The two patterns do have similar, though not identical, polygon size and density, but those similarities are dwarfed by the pronounced differences between the two designs. They therefore fail to raise a triable issue. Cf. Kouf…