                        NOTE: This disposition is nonprecedential.


  United States Court of Appeals for the Federal Circuit

                                         2008-1498

                                      SOFPOOL LLC,

                                                        Plaintiff-Appellant,

                                              v.

                               INTEX RECREATION CORP.,

                                                        Defendant-Appellee.


         Martin F. Majestic, Law Office of Martin F. Majestic, of Lafayette, California, argued
for plaintiff-appellant. On the brief was Joseph A. Hearst, of Berkeley, California.

      R. Trevor Carter, Baker & Daniels LLP, of Indianapolis, Indiana, argued for
defendant-appellee. With him on the brief was Stacy L. Prall.

Appealed from: United States District Court for the Eastern District of Texas

Magistrate Judge Charles Everingham
                         NOTE: This disposition is nonprecedential.


  United States Court of Appeals for the Federal Circuit
                                        2008-1498

                                      SOFPOOL LLC,

                                                             Plaintiff-Appellant,

                                            v.

                              INTEX RECREATION CORP.,

                                                             Defendant-Appellee.


Appeal from the United States District Court for the Eastern District of Texas in case no.
2:07-CV-97, Magistrate Judge Charles Everingham.


                             __________________________

                             DECIDED: May 11, 2009
                             __________________________


 Before MAYER, FRIEDMAN, and RADER, Circuit Judges.

 PER CURIAM.

          On March 22, 2007, Sofpool LLC (“Sofpool”) filed suit against Intex Recreation

 Corp. (“Intex”), alleging infringement of two design patents, D408,546 (the “’546 patent”)

 and D480,817 ( the “‘’817 patent”). The district court submitted the infringement issue

 to a jury, with instructions that “[t]he comparison of the accused product to the patented

 design includes two distinct tests, the ordinary observer test and the point of novelty

 test.”   The court further instructed the jury that it could find infringement only if it

 determined that both the ordinary observer and the point of novelty tests had been
satisfied. On April 17, 2008, the jury returned a verdict in Intex’s favor, finding no

infringement of either of Sofpool’s patents.

       On June 13, 2008, Sofpool timely appealed to this court.         Subsequently, on

September 22, 2008, this court issued its decision in Egyptian Goddess, Inc. v. Swisa,

Inc., 543 F.3d 665 (Fed. Cir. 2008) (en banc). We concluded “that the point of novelty

test, as a second and free-standing requirement for proof of design patent infringement,

is inconsistent with the ordinary observer test laid down in [Gorham Co. v. White, 81

U.S. 511 (1871)] . . . and is not needed to protect against unduly broad assertions of

design patent rights.” Id. at 672. Because the jury in the present case was instructed

based upon the point of novelty test eliminated by Egyptian Goddess, the judgment of

the district court is vacated and the case is remanded for reconsideration and further

proceedings as appropriate.

       Sofpool argues that it “is entitled to an instruction on remand that the ’817 patent

is infringed, because both Intex’s expert and its attorney conceded that the accused

design satisfied the ordinary observer test.”          We disagree.       Although Intex

acknowledged that its oval pool might infringe the ’817 patent under the ordinary

observer test as it existed prior to Egyptian Goddess, Intex has never conceded that its

oval pool infringes under this court’s newly articulated ordinary observer standard.

                                               COSTS

       Each party shall bear its own costs.



                                 VACATED AND REMANDED




2008-1498                                      2
