ORDER

LAWRENCE K. KARLTON, Senior District Judge.

For the reasons stated below, the hearing in this matter, currently scheduled for May 21, 2012, will be vacated.

I. BACKGROUND

In its First Amended Complaint, plaintiff Sofpool, LLC, alleges that defendants Kmart Corp. and Big Lot Stores, Inc., infringed its design patent1 for an oval, above-ground swimming pool, U.S. Patent No. D480,817 S (the `817 claimed patent).2 Specifically, plaintiff alleges that the "Summer Escapes" pool, sold by defendants, infringes the patent. In its Answer and Counterclaim, Kmart denies that it infringed the `817 claimed patent. It also asserts that the `817 claimed patent is invalid under 35 U.S.C. §§ 102 ("novelty"), 103 ("non-obvious subject matter"),3 and 112 ("specification").

Plaintiff has now moved for summary judgment that defendants have infringed its patent, and that the patent itself is "non-obvious." Defendants have cross-moved for summary judgment that they have not infringed the patent, and that the patent itself is invalid because it was "obvious" in light of the prior art.

II. THE `817 DESIGN PATENT

Plaintiff's Claim for the `817 claimed patent is as follows, in its entirety: "The design for an above-ground swimming pool, as shown and described," followed by eleven (11) drawings which depict three "embodiments" of the patent. Complaint (Dkt. No 1) Exh. A.4

III. ANALYSIS

The court is aware that "design patents are typically claimed according to their drawings." Richardson v. Stanley Works, Inc., 597 F.3d 1288, 1294 (Fed. Cir. 2010). However, it is also the case that "trial courts have a duty to conduct claim construction in design patent cases, as in utility patent cases." Egyptian Goddess, Inc. v. Swisa, Inc., 543 F.3d 665, 679 (Fed. Cir. 2008) (en banc). In a design patent case, the "claim construction must be adapted to a pictorial setting." Richardson, 597 F.3d at 1294.

It is the court's understanding that the design patent covers only the ornamental aspects of the design, not the functional aspects. See Richardson, 597 F.3d at 1294 ("we have made clear that a design patent, unlike a utility patent, limits protection to the ornamental design of the article"). Accordingly, in construing the `817 claimed patent, this court is required to factor out the "functional aspects" of the design. See Richardson, 597 F.3d at 1293 ("The district court here properly factored out the functional aspects of Richardson's design as part of its claim construction").

However, neither side in this case has offered a construction of the `817 claimed patent to assist the court in determining how to construe the patent. Such assistance would help the court understand which aspects of the `817 claimed patent are ornamental, and which are functional. In this regard, the ornamental versus functional issues that come immediately to mind are the oval shape, the struts along the sides, the bulges along the sides, the sidewall angles, the tubular top, and the segmented appearance of the claimed design. This assistance would also help the court understand what appear to be technical aspects of the drawings, such as the meaning, if any, of the lines or hatch-marks that ring the inside and outside of the design (as well as whether they depict functional or ornamental aspects of the design).5 As it stands, the parties have, in essence, invited the court to guess at these matters, but the court declines the invitation.

IV. CONCLUSION

For the foregoing reasons:

IT IS SO ORDERED.