Converse Inc. v. Steven Madden, Ltd. (D. Mass. 11032).

Converse sued Steve Madden Ltd., asserting infringement of two design patents covering portions of sneaker soles.  In response, Madden moved to dismiss one of the claims against one of the accused shoe designs. Madden argued that the tread of its shoe ran the full length of the sole, whereas the design patent had the tread covering only the rear portion of the sole, making it a facially invalid infringement claim. 

Judge Gorton, using the test for infringement of a design patent (whether an ordinary observer would be deceived into believing the accused product is the same as the patented design), determined that the Madden shoe and the claimed design were not plainly dissimilar such that no reasonable jury could find otherwise and denied the motion to dismiss.  He noted that the Madden shoe and the design were virtually identical in many ways, including the rear sole tread pattern, with the only real difference being the untreaded midsole, but noted that the accused design need not be identical, but merely “substantially the same.”

I believe this is the correct decision, but I would further note that, while the patent at issue, D874,106, depicts the sole of a sneaker having a space in the middle having no tread, the middle portion of the sole (and indeed the entirety of the shoe save the heel portion of the sole) are depicted in dashed lines, meaning they do not form a part of the claimed design and there is thus no requirement that the middle portion of the sole lack tread to infringe.