The district court granted summary judgment for defendants, finding that the claims of the asserted patents were invalid under 35 U.S.C. § 102 as anticipated by a patent assigned to Crocs, Inc. ("Crocs"), U.S. Design Patent No. D517,789 ("the Crocs 789 patent"). Int'l Seaway Trading Corp. v. Walgreens Corp., 599 F.Supp.2d 1307, 1319 (S.D.Fla. 2009). On appeal, Seaway contends that the district court erred by basing its invalidity determination solely on the ordinary observer test and by failing to apply the point of novelty test.

The relevant inquiry is whether “an arrestee presents an identified and articulable threat to an individual or the community.” United States v. Salerno, 481 U.S. 739, 751 (1987). A party meets the “clear and convincing” standard only when it “place[s] in the ultimate factfinder an abiding conviction that the truth of its factual contentions are ‘highly probable'.” Colorado v. New Mexico, 467 U.S. 310, 316 (1984); Int'l Seaway Trading Corp. v. Walgreens Corp., 599 F.Supp.2d 1307, 1313 (S.D. Fla.) (J. Ryskamp), aff'd in part, vacated in part, 589 F.3d 1233 (Fed. Cir. 2009) (citations omitted)

"Clear and convincing evidence" is evidence that "place[s] in the ultimate factfinder an abiding conviction that the truth of its factual contentions are [sic] 'highly probable.'" Colorado v. New Mexico, 467 U.S. 310, 316, 104 S. Ct. 2433, 81 L. Ed. 2d 247 (1984); Int'l Seaway Trading Corp. v. Walgreens Corp., 599 F. Supp. 2d 1307, 1313 (S.D. Fla.) (J. Ryskamp), aff'd in part, vacated in part, 589 F.3d 1233 (Fed. Cir. 2009) (citations omitted); Powell v. Home Depot U.S.A., Inc., No. 07-80435-CIV, 2009 WL 1515073, at *8 (S.D. Fla. June 1, 2009) (J. Hurley), aff'd, 663 F.3d 1221 (Fed. Cir. 2011).

E.g. Escarra v. Regions Bank, 353 Fed.Appx. 401, 403 (11th Cir. 2009). “Clear and convincing evidence” is evidence that “place[s] in the ultimate factfinder an abiding conviction that the truth of its factual contentions are ‘highly probable'.” Colorado v. New Mexico, 467 U.S. 310, 316 (1984); Int'l Seaway Trading Corp. v. Walgreens Corp., 599 F.Supp.2d 1307, 1313 (S.D. Fla. 2009) (J. Ryskamp), aff'd in part, vacated in part, 589 F.3d 1233 (Fed. Cir. 2009) (citations omitted); Powell v. Home Depot U.S.A., 2009 WL 1515073 at *8 (S.D. Fla. June 1, 2009) (J. Hurley). Therefore, I must apply the clear and convincing evidence standard at the summary judgment phase.

In each case, the district court has noted that it was not under an obligation to present a verbal description as part of its claim-construction duty. See Int'l Seaway Trading Corp. v. Walgreens Corp., No. 08-80163-CIV, 2009 WL 159805, at *5-6 (S.D. Fla. Jan. 22, 2009) (noting that although "the Egyptian Goddess court did not extend the new relaxed construction requirements when a court determines patent invalidity," that case teaches that a trial court need not offer a detailed verbal description of a design "but may instead rely on the actual picture of the design instead" when validity is not the issue); Arc'teryx Equip., Inc. v. Westcomb Outerwear, Inc., No. 2:07-CV-59 TS, 2008 WL 4838141, at *2 (D. Utah Nov. 4, 2008) ("In light of the Federal Circuit's decision in Egyptian Goddess, it is unnecessary t construe the 715 patent by providing a detailed verbal description of the claimed design. Rather, the Court will rely upon the illustrations set out in the 715 Patent, as they better represent the claimed design.").