ADVANTEK MFG., INC. v. SHANGHAI WALK-LONG TOOLS CO., decided Aug. 1, 2018 – Estoppel

U.S. Design Patent No. D715,006 is directed to a portable animal kennel without a roof.  The original application was restricted between drawings showing the kennel with a roof and drawings showing the kennel without the roof (pages 3-6).  The roofless drawings were elected (page 6).  The accused product is the kennel of the design with a roof (page 7).  The design patent may be for a component (page 9).  Electing the broader component claims does not result in estoppel for a kennel with a roof (page 10). 

Hindsight: When electing in response to a restriction, electing a narrower claim may leave opportunity for creative argument about estoppel.  This holding is directed to a design patent ability to claim a component, allowing for no estoppel where the elected claims are to a part of a whole and the non-elected claims are to the whole in a design.  Where the election is not to obtain allowance, there may not be estoppel as there is no amendment to narrow for allowance.  However, the Federal Circuit did not deal with this argument.