Certain Electric Power Tools, Battery Cartridges, and ... - USITC

unprotectable.However, when considered with other factors discussedbelow, this utility patent plays some part in my finding that the design ofthe battery cartridge is de functional.2. ~.Complainants in their advertising have focused primarily on thefunctionality of their tools, rather than on any aesthetic, non-functionaldesign features. (FF 221-25, 238). They have also not focused on, norcalled attention to, the blue color of their tools in their advertising,except to the extent the tools were shown therein in color. (FF 230-38).However, the general nature of the emphasis on utility in complainants'advertising is insufficient, in and of itself, to establish the marksclaimed herein as being dr: jVre functional. (FF 221-38).3. m e r C-tives . As noted by the Federal Circuitin re Bose Co-, 772 F.2d 866, 872 (Fed. Cir. 19851, "If the featureasserted to give a product distinctiveness is the best, or at least one ofa few superior designs for its de facto purpose, it follows that..competition is hindered" if use of such feature is restricted.Theevidence herein reveals that for almost every tool at issue hereinalternative designs are available. (FF 204-20). In reaching thisconclusion, I have weighed the testimony of complainants' expert Mr.Bartlett against that of respondents' expert Dr. Jones and found Mr.Bartlett's testimony to be generally more persuasive, because of his moreintimate knowledge with the power tool industry, and specifically with thedesign process and costs within that industry. (FF 204-10). However, Ihave also considered the fact that the more prominent features of the toolsin issue are dictated, in large part, by the need to conform to the204