Full opinion text
ENTRY ON DEPENDANT’S MOTION FOR PRELIMINARY INJUNCTION HAMILTON, District Judge. I. Introduction Defendant Honeywell International, Inc. has moved for a preliminary injunction barring plaintiff Eco Manufacturing LLC from manufacturing and selling a round thermostat. ' Honeywell contends that Eco’s round thermostat violates Honeywell’s trademark rights. The court heard evidence and argument on May 19 through 21, 2003, and now states its findings of fact and conclusions of law pursuant to Rules 52 and 65 of the Federal Rules of Civil Procedure. All findings of fact and conclusions of law are based on the limited record established in the preliminary injunction proceeding and are subject to reconsideration on a more complete record. Honeywell seeks to protect its product configuration- — the round shape of a thermostat — as a trademark. Trademarks can include “any word, name, symbol, or device, dr any combination thereof.” 15 U.S.C. § 1127. The protection of trademark law can reach “trade dress” and product configurations that serve to identify the source of a product. E.g., Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 774, 112 S.Ct. 2753, 120 L.Ed.2d 615 (1992) (decorations and other features to evoke Mexican theme of restaurant could be protected as trade dress). The Supreme Court has cautioned, however, against “misuse or overextension of trade dress,” noting that “product design almost invariably selves purposes other than source identification.” TrafFix Devices, Inc. v. Marketing Displays, Inc., 532 U.S. 23, 29, 121 S.Ct. 1255, 149 L.Ed.2d 164 (2001), quoting Wal-Mart Stores, Inc. v. Samara Brothers, Inc., 529 U.S. 205, 213, 120 S.Ct. 1339, 146 L.Ed.2d 182 (2000) (also stating that “almost invariably, even the most unusual of product designs — such as a cocktail shaker shaped like a penguin — is intended not to identify the source, but to render the product itself more useful or more appealing”). Honeywell’s motion requires the court to address the trademark doctrine of functionality and the relationship between trademark law and patent law. Trademark law protects for an unlimited time a company’s non-functional trademarks designating the source of a product. Patent law gives an inventor exclusive use for a limited time of novel, useful, and non-obvious inventions. After the patent expires, though, the American public has a right to practice the invention. Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23, 123 S.Ct. 2041, 2048, 156 L.Ed.2d 18 (2003), citing Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 230, 84 S.Ct. 784, 11 L.Ed.2d 661 (1964), and Kellogg Co. v. National Biscuit Co., 305 U.S. 111, 121-22, 59 S.Ct. 109, 83 L.Ed. 73 (1938). Especially in product configuration cases, the doctrine of “functionality” plays a critical role in maintaining the boundary between these two fields of law. The boundary is important because it should prevent a business from first obtaining legitimate but temporary patent protection for a useful invention, and then obtaining a trademark on the configuration to extend its rights improperly so as to obtain exclusive and perpetual rights to a useful product design. See TrafFix Devices, 532 U.S. at 29, 121 S.Ct. 1255; Valu Engineering, Inc. v. Rexnord Corp., 278 F.3d 1268, 1273 (Fed.Cir.2002) (affirming rejection of trademark application based on functionality doctrine), quoting Qualitex Co. v. Jacobson Products Co., 514 U.S. 159, 165,115 S.Ct. 1300, 131 L.Ed.2d 248 (1995); see also Dastar Corp., 539 U.S. at -, 123 S.Ct. at 2048-50 (holding that trademark law could not be used to trump copyright law to give perpetual protection to use of materials in public domain, and explaining decision in terms of the “bargain” that both copyright and patent holders make with the public to allow public use after exclusive rights expire). As explained below, the court denies Honeywell’s motion for a preliminary injunction because Honeywell is unlikely to succeed on the merits of its claims. The court bases its decision primarily upon the reasoning and holding in TrafFix Devices, which taught that a utility patent is “strong evidence that the features therein claimed are functional,” and therefore cannot be protected by a trademark. 532 U.S. at 29, 121 S.Ct. 1255. Honeywell’s round thermostat configuration was the subject of a utility patent that was issued in 1946 and expired in 1963. TrafFix Devices left open a narrow exception to allow for the possibility that trademark law could protect “arbitrary, incidental, or ornamental aspects of features of a product found in the patent claims.” Id. at 34, 121 S.Ct. 1255. That exception does not apply here. The record here shows that Honeywell obtained its expired utility patent by persuading the Patent Office that the circular, convex shape of its thermostat was indeed novel and useful when the patent was issued in 1946. The record as a whole further shows that giving Honeywell exclusive rights to the circular, convex shape puts Honeywell’s competitors at “a significant, non-reputation-related disadvantage.” . See id. at 33, 121 S.Ct. 1255. When Honeywell’s utility patent expired, the public received the benefit of the patent bargain — the right to practice the claimed invention, “including the right to make it in precisely the shape it carried when patented.” Dastar Corp., 539 U.S. at -, 123 S.Ct. at 2048, quoting Sears, Roebuck, 376 U.S. at 230, 84 S.Ct. 784. Thus, the public has the right to use the circular, convex shape of the Honeywell thermostat. Plaintiff Eco is entitled to do so, using its own trademark and without suggesting that its product is made by or associated with Honeywell. Eco’s evidence shows that the circular, convex shape is functional and that the Trademark Trial and Appeal Board (“TTAB”) erred in 1988 when it issued Honeywell a registered trademark on that shape. The TTAB made its decision in an ex parte proceeding with an incomplete record, and it applied a standard of functionality that was much more favorable to Honeywell than the correct legal standard later adopted by the Supreme Court in TrafFix Devices. II. The Parties and Their Products Defendant Honeywell is the largest seller of thermostats in the United States. In the 1940s, when the company was known as the Minneapolis-Honeywell Regulator Company, Honeywell engineers invented a new design for an electro-mechanical thermostat. The design has a circular base with a round, convex cover and a round dial in the center of the cover. Over the past 50 years, Honeywell has sold more than 85 million round thermostats. Honeywell estimates that it has spent about $70 million over the years to advertise and promote “The Round,” the current version of which is known in the industry as the T87 model. For at least the past 15 years, Honeywell has been the only company selling round thermostats in the United States. As discussed in more detail below, the evidence shows that Honeywell’s round design is widely recognized in the industry. Many HVAC (heating, ventilation and air-conditioning) contractors and others in the industry even say that, in this business, “round means Honeywell.” Plaintiff Eco Manufacturing LLC is a new company that is developing a new thermostat. Eco intends to sell thermostats that do not use mercury to determine room temperature. Eco has developed a design for a thermostat that looks similar to the round thermostats manufactured and sold by defendant Honeywell, Inc. The Eco design is circular when viewed from head-on. In profile, however, it is not perfectly round, as Honeywell’s design is, but it has a conical shape that appears similar to Honeywell’s design. Eco plans to market the new product as “Eco Stat.” Eco introduced its planned product to the industry at a trade show in January 2003. After Honeywell learned of Eco’s plan, it threatened to sue Eco for trademark infringement and related wrongs. Eco then filed this action for a declaratory judgment stating that its product would not infringe any of Honeywell’s trademarks. Honeywell responded with a motion for preliminary injunction to block Eco from selling its new round thermostats.- The parties conducted expedited discovery and then presented evidence. In its motion for preliminary injunction, Honeywell claims that Eco’s product will infringe Honeywell’s registered U.S. Trademark 1,622,108 (here, “the '108 trademark”), which has become “incontestable.” See 15 U.S.C. § 1114(l)(a). Honeywell also claims that Eco’s product will infringe its registered trademark No. 1,439,016 for the words “The Round,” as well as its common law trademark rights under 15 U.S.C. § 1125(a)(1)(A) and its rights under the Anti-Dilution Act, 15 U.S.C. § 1125(c). III. Legal Protection of Honeywell’s Round Design Because the critical issue here is functionality, based on the guidance in TrafFix Devices about the role of utility patents, the court must review in detail the history of Honeywell’s intellectual property protection for its round thermostat design. That history begins with a utility patent, followed by a design patent, and finally the '108 registered trademark issued after protracted proceedings before the Patent and Trademark Office (“PTO”). A. The Utility Patent TrafFix Devices shows that a utility patent’s claims, specifications, and prosecution history can all provide highly relevant evidence in determining the functionality of a product configuration or feature for which trademark protection is claimed. See 582 U.S. at 81-32, 34, 121 S.Ct. 1255. The story here begins with the 1946 issuance of U.S. Patent No. 2,394,920 (“the '920 patent”), which expired 17 years later in 1963. The inventor on the '920 patent was Carl G. Kronmiller, who worked for Honeywell and assigned his invention to it. Claim 23 of the '920 patent is the key claim here: 23. A unitary air condition responsive device comprising, in combination, a round base, air condition responsive means mounted upon said base, control means actuated by said air condition responsive means, a circular convex shaped cover for enclosing said responsive means having its center substantially coinciding with the center of said base, the cover comprising a stationary portion and a rotatable portion having a circular periphery, the axis of rotation of said rotatable portion coinciding with the center of said cover as a whole, means for mounting said cover on said base, and means actuated by said rotatable cover portion for adjusting the value of the condition at which said air condition responsive means actuates said control means. Eco Mot. Summ. J., Ex. K at 1-2. After penetrating the “patent-ese,” it is clear that Claim 23 protected the shape of the round thermostat. Apart from matters of shape, Claim 23 required the combination of “air condition responsive means” (i.e., a thermometer) with “control means actuated by said air condition responsive means” (ie., a switch to turn on or off a furnace and/or air-conditioner activated by the thermometer), and a means for adjusting the temperature that activates the switch. These three elements of the claim will be present in essentially any thermostat. The file history of the '920 patent shows also that these three elements were not new. Honeywell secured Claim 23 of the '920 patent by convincing the Patent Office that the shape elements of the claim were useful, novel, and not obvious from the prior art. Those elements include the round base, the “circular convex shaped cover” for enclosing the responsive means “having its center substantially coinciding with the center of said base,” with the “cover comprising a stationary portion and a rotatable portion coinciding with the center of said cover as a whole,” and with the “rotatable cover portion” being the mechanism for setting the desired temperature. Id. As part of the prosecution of the '920 patent, Honeywell had drafted proposed Claims 9 and 12, which were the predecessors of what ultimately became Claim 23 in the '920 patent. Proposed Claim 9 read: In a temperature responsive device, a round base, a thermostat on said base, control means actuated by said thermostat, a circular convexed [sic] shaped cover for enclosing said thermostat and control means, said cover being spaced apart from said base so as to provide an opening surrounding the thermostat for the circulation of air to the thermostat. Eco Mot. Summ. J., Ex. E. Proposed Claim 12 read: A unitary air condition responsive device comprising, in combination, a base, ail" condition responsive means mounted upon said base, control means actuated by said air condition responsive means, a circular convexed shaped cover for enclosing said air condition responsive means and said control means, means for mounting said cover on said base in spaced relation to said base whereby there is provided an opening surrounding said air condition responsive means for circulation of air to said air condition responsive means, an annular adjustment means rotatably mounted substantially concentric with the apex of said convexed shaped cover, and said annular adjustment means manually adjustable for the control of the condition value at which said air condition responsive means may actuate said control means. Id. The examiner disallowed proposed Claim 12, along with Claims 9, 10, 11, and 13, as unpatentable over Newman, U.S. Patent No. 2,225,080. The examiner wrote: “The cover 11 in Newman is held to be the patentable equivalent of applicant’s cover.” Eco Mot. Summ. J., Ex. F. The Newman reference described a thermostat with rotatable disc for adjusting the temperature and an overall cover with a rectangular shape with slightly rounded corners. See Ex. 651 (U.S. Patent No. 2,225,080). In response, Honeywell argued that the Newman patent should be distinguished based on the round shape of the Honeywell cover: Claim 12 recites an annular adjustment means rotatably mounted substantially concentric with the apex of said convex shaped cover. The cover is circular and convex shaped. The Newman cover is neither circular shaped nor does it have an annular portion concentric with the apex of said circular cover. Eco Mot. Summ. J., Ex. K at 4. Honeywell made the same point about Claim 9. The examiner was not convinced: Claims 9 and 12 are each rejected as being unpatentable over Newman for reasons pointed out in the last office action. To make the cover in Newman of the particular shape disclosed by applicant would not amount to invention. Attention is called to the fact that the cover in Newman encloses the thermostat and the control means. Eco Mot. Summ. J., Ex. H at 2. Honeywell responded with a detailed argument to distinguish Newman based on what it described as the novelty and utility of the round, convex base and cover for Claims 9 and 12. Because Honeywell’s argument is so important here, it is reproduced in full: Claim 9 has been amended to further distinguish from the prior art of record in the application. The base is now recited as being round. The cover is now recited as comprising a stationary portion and a rotatable portion. The rotatable portion is adjustable for varying the condition value at which said thermostat may actuate the control means. The cover being of a circular convex shape and enclosing the thermostat and control means, presents a thermostat control means which is not only attractive in appearance but has great utility from a safety standpoint. The employment of the convex-shaped cover embodies a shape of structure which does not present any edges or points which might cause injury to occupants, especially children who are susceptible to injury. This cover is spaced from the base to provide for circulation of air to the thermostat. The patent to New-mann [sic] discloses in a room thermostat a base of substantially rectangular contour and cover of substantially the same shape. The adjustment means 20 of the Newmann [sic] structure is so located in the cover as to present projecting edges therefrom. The cover further has pointed edges and the like as at 40 and 41 on the casing. The patent to Evans has a cover, but this cover does not enclose the thermostat or the control device associated with the thermostat. This cover also presents pointed surfaces. It is believed that the applicant is entitled to the structure set forth in this claim as it is not shown in the prior art or suggested therein. Applicant had solved the problem of presenting an attractive control device and also one tvhich considered the safety angle. This claim is believed to be clearly allowable over the prior art. Claim 12 is again presented for consideration. This claim embodies the features of claim 9 but they are presented in more detail. The adjustment means of claim 12 is recited as an annular adjustment means rotatably mounted substantially concentric with an apex portion of the convex-shaped cover. The structures recited in claim 12 are limited to a circular convex-shaped cover for enclosing the air condition means and the control means. This claim recites a structure which considers the safety angle of the device. That is, the claim presents a structure which does not embody any sharp edges or points so that persons coming in contact with the device cannot be injured. The annular adjustment means provides means on the circular convex cover which permits efficient and easy adjustment of the device, but still does not include any sharp edges or surface whereby a person could be injured. None of the prior art presents structures which considered this problem or even suggested the same. It is believed in view of these facts that the applicant is clearly entitled to this claim. Eco Mot. Summ. J., Ex. I at 5-7 (emphases added). On October 23, 1944, the examiner again rejected Claims 9 and 12 as unpatentable over the Newman patent, with its rectangular design. Eco Mot. Summ. J., Ex. J. On April 2, 1945, Honeywell tried once more to distinguish the Newman patent. This time, Honeywell cancelled its proposed Claims 9 and 12 and submitted a new proposed Claim 33, which eventually was issued as Claim 23 of the '920 patent. Eco Mot. Summ. J., Ex. K. Honeywell explained: This claim has been specifically drawn to avoid the disclosure of the Newman reference. Claim 33 [later 23] specifically calls for a round base for mounting condition responsive means and a control means. A circular convex shaped cover encloses the responsive means. The Newman reference does not have a round base but has an oblong or substantially rectangular base and the cover therefor is of substantially the same shape as that of the base portion of the room thermostat. Recapitulating in regards to the novelty of this claim over the Newman reference: (1) — Applicant has a round type thermostat comprising a round base having a circular convex shaped covering portion for enclosing a responsive means while the Newman reference discloses a rectangular shaped base having a rectangular shaped covering portion therefor. (2) Claim 33 sets out that the cover comprises a stationary portion and a rotatable portion while in the Newman reference, the cover portion 11 is entirely stationary. (3) — Claim 33 sets out that the rotatable portion has a circular periphery and the axis of rotation of the rotatable portion coincides with the center of the cover as a whole, while the adjusting disk 20 is spaced at one end of the cover of the room thermostat of the Newman device and the axis of rotation of the adjusting disk 20 does not coincide with the center of the cover as a whole. Id. at 2-4. Honeywell concluded: Applicant has set forth a control device which has novel elements combined in a unique manner for accomplishing desirable results. The device is not only attractive in appearance but is useful and easily adjusted by anyone. It is thought that for the enumerated reasons set out above, this claim is clearly allowable over the references of record. Id. at 4-5. On the basis of that submission, in 1946 the Patent Office issued the '920 patent with its Claim 23. By law, the '920 patent expired 17 years later, in 1963. The American public then had the right to practice the inventions claimed in the patent, including Claim 23. B. The Design Patent In 1956, Honeywell obtained a design patent, D176,657 (“the '657 design patent”) on the appearance of the round thermostat. See Ex. 257. The design patent shows a circular thermostat with a convex, rounded cover. In the center is a rotatable disc used to control the desired temperature. The disc is knurled or serrated around its circumference to make it easy to turn. The simple and elegant design is quite similar to those shown in the '920 utility patent, but the design patent puts the. temperature control numbers inside the circumference of the serrated or knurled surface. The design patent had a term of 14 years and expired in 1970. C. Trademark Protection In 1968, as the '657 design patent was approaching expiration, Honeywell filed an application to register the shape of The Round thermostat. The application was denied by the examining attorney. Honeywell appealed to the TTAB, which affirmed the denial of registration. In re Honeywell Inc., 169 U.S.P.Q. 619, 1971 WL 16480 (1971). The TTAB raised the issue of functionality but did not address it at that time. The TTAB reasoned that allowing the registration would improperly extend the 14-year monopoly on the design that had been granted in the design patent: Apart from any consideration as to whether applicant’s configuration is essentially functional in character because it is formulated or designed to cover a round thermostat and is so arranged that the essential operating and temperature controlling and indicating mechanisms are visible to the operator thereof, registration must be refused on the ground that the registration sought by applicant would extend the monopoly which the applicant has enjoyed for a period of fourteen years from the issuance of the design patent on January 17, 1956. * * * Since applicant’s design patent expired in 1970, it is apparent that the issuance of a registration for the same subject matter, including the same mark and goods, would be inconsistent with the right of others under the terms of the patent grant to make fair use of the ornamental design for control instruments including thermostats after the expiration of the patent and that it would serve, in effect, to extend the protection accorded the patented design contrary to the purpose and intent of the patent law. See: In re Deister Concentrator Company, Inc., 48 C.C.P.A. 952, 289 F.2d 496, 129 USPQ 314 (CCPA, 1961); In re Shakespeare Company, 48 C.C.P.A. 969, 289 F.2d 506, 129 USPQ 323 (CCPA, 1961); In re Shenango Ceramics, Inc., 53 C.C.P.A. 1268, 362 F.2d 287, 150 USPQ 115 (CCPA, 1966); Best Lock Corporation v. Schlage Lock Company, 56 C.C.P.A. 1472, 413 F.2d 1195, 162 USPQ 552 (CCPA, 1969); and Kellogg Co. v. National Biscuit Co., 305 U.S. 111, 59 S.Ct. 109, 83 L.Ed. 73, 39 USPQ 296, 300-301. 169 U.S.P.Q. at 621. Honeywell appealed the denial to the predecessor of the Federal Circuit, the Court of Customs and Patent Appeals, which remanded the case to the TTAB. In re Honeywell, Inc., 497 F.2d 1344 (C.C.P.A.1974). The court held that the existence of a design patent did not necessarily foreclose the possibility of trademark protection for a non-functional design feature. Id. at 1348^19. The court remanded the case so that the TTAB could consider the alternative ground for denial, that the shape in question was functional and thus could not be protected by trademark. On remand, the TTAB considered the issue and again denied registration, this time on the basis that the shape of the thermostat was functional. In re Honeywell Inc., 187 U.S.P.Q. 576, 579, 1975 WL 21267 (TTAB 1975). The TTAB explained: What applicant is seeking to register is essentially a protective cover for a round thermostat device which is so arranged that the essential operating and temperature controlling and indicating mechanism of the thermostat are visible to the operator. All of these characteristics are functional or utilitarian features of thermostat covers per se. The fact that both the cover and the thermostat are round does not detract from the functional characteristics thereof. In fact, it may add to the utilitarian aspects. There are only so many basic shapes in which a thermostat or its cover can be made [the cover usually would follow the shape of the thermostat for protective and aesthetic reasons] namely, squares, rectangles, or “rounds” with the latter probably being and [sic] most utilitarian configuration of them all since the curvature of the inner ring with the serrated edges provides an easier and more comfortable method of making any necessary temperature adjustments. This is demonstrated by the widespread use over the years of round-shaped control devices for appliances and similar equipment. The fact that thermostat covers may be produced in other forms or shapes does not and cannot detract from the functional character of the configuration here involved. In sum, the overall configuration of applicant’s thermostat cover, as presented for registration, is essentially functional in character and, as such, it does not possess the necessary attributes of a proprietary trademark necessary for registration. A registration thereof with the presumptions afforded under Section 7(b) of the Trademark Statute would be inconsistent with the avowed and desired purpose of preserving the freedom to copy functional features of a device long protected both under the common law and by statutory interpretation of what constitutes a registrable trademark. The most, therefore, that can be said of applicant’s evidence of distinctiveness is that the design in question may have acquired a de facto secondary meaning. That is, a significance or recognition due to a lack of competition or other happenstance, but which is insufficient to support a legally protectable right therein. The happenstance in this case is that applicant’s design patent was issued on January 17, 1956, the trademark application was filed on September 6, 1968, and the patent expired in 1970 during the pendency of the application and after the submission of the “evidence of distinctiveness.” 187 U.S.P.Q. at 579-80 (emphasis added). Honeywell appealed again, and the Court of Customs and Patent Appeals affirmed the denial of registration. In re Honeywell, Inc., 532 F.2d 180, 182-83 (C.C.P.A.1976). The , court quoted at length from the key passage of the TTAB decision (quoted above) and agreed with its analysis. Id. At that time, therefore, the shape of Honeywell’s round thermostat was not protected by utility patent, by design patent, or by registered trademark. In 1986, Honeywell tried again to register the shape as a trademark. The examining attorney denied .registration, finding that the shape was functional and that the doctrine of res judicata based on the prior denial barred registration. Honeywell appealed to the TTAB. This time the TTAB agreed with Honeywell and ordered what became the '108 registration. In re Honeywell Inc., 8 U.S.P.Q.2d 1600, 1988 WL 252417 (TTAB 1988). That decision is discussed below in detail. After the '108 registration was published for opposition, a major competitor filed to oppose the registration. Exs. 624; 627 at 010471-492. Emerson Electric makes the “White Rogers” line of thermostats. Emerson Electric told the TTAB that it would show that other competitors had in fact offered round thermostats for sale and that Honeywell had managed to use threats ;of litigation ■ to discourage most competitors - from selling round thermostats. Emerson Electric withdrew its opposition in 1990 as part of a larger settlement of patent and other intellectual property disputes with Honeywell. As a result, Emerson Electric’s arguments and evidence were never considered by the TTAB in an adversarial proceeding. In this action, Eco has come forward with some of the same evidence that Emerson Electric submitted in its abandoned opposition to the '108 registration. IV. Standard for Preliminary Injunction To obtain a preliminary injunction, the moving party must demonstrate that it is has a reasonable likelihood of ultimate success on the merits, that it has no adequate remedy at law, and that it will suffer irreparable harm if preliminary relief is denied. If the moving party passes that threshold, the court will then consider any irreparable harm an injunction would cause to the other -parties, as well as the public interest, meaning the effects the court’s decision will have on non-parties. See Eli Lilly & Co. v. Natural Answers, Inc., 233 F.3d 456, 461 (7th Cir.2000); Abbott Laboratories v. Mead Johnson & Co., 971 F.2d 6, 11-12 (7th Cir.1992). V. Likelihood of Success on the Merits: The '108 Trademark A. Functionality and “Incontestable” Trademarks Under the Lanham Act, Honeywell’s registration of the '108 mark became “incontestable.” 15 U.S.C. §§ 1065, 1115. When a mark is “incontestable,” the available defenses to an infringement claim are more limited than they would be otherwise. “Incontestable” is something of a misnomer, though, for the statute authorizes a number of defenses, including fraud, abandonment, license, antitrust violations, laches, estoppel, and acquiescence. Id., § 1115(b). Most important for this case, the statute expressly provides as a defense: “That the mark is functional.” Id., § 1115(b)(8). For these purposes, a mark is functional if it protects a product feature that either is “essential to the use or purpose of the device” or “affects the cost or quality of the device.” TrafFix Devices, Inc. v. Marketing Displays, Inc., 532 U.S. 23, 33, 121 S.Ct. 1255, 149 L.Ed.2d 164 (2001). In terms of cost or quality, especially in a case involving so-called “aesthetic functionality,” the question is whether giving one seller exclusive rights to a product feature would put competitors at a “significant non-reputation-related disadvantage.” Id. B. Deference to the TTAB’s Decision in the Ex Parte Proceeding ? Honeywell has urged the court not to look too closely at the issue of functionality. Honeywell relies heavily on the fact that it persuaded the Trademark Trial and Appeal Board to find that its circular convex shape was not functional and to issue the '108 registration. Honeywell argues that the TTAB’s decision is entitled to substantial deference, especially in light of its expertise in the area. Such deference is not warranted in this case for four reasons. First, the TTAB made its decision in an ex parte proceeding, without the benefit of a true adversary who had a strong incentive to present — and the ability to find— evidence that would have undermined Honeywell’s arguments. Although the examining attorney argued her views to the TTAB, she did not have the resources, or the same capitalist incentive that competitors would have, to develop the case showing that the circular, convex shape is functional. The TTAB itself cautioned that its decision “would not preclude a different result, on a different record, in any subsequent inter partes proceeding which might arise as the result of the publication or registration of applicant’s mark.” In re Honeywell Inc., 8 U.S.P.Q.2d 1600, 1604 n. 6,1988 WL 252417 (TTAB 1988). Second, the TTAB applied the wrong legal standard to determine functionality. The TTAB asked whether the thermostat cover was “so utilitarian as to constitute a superior design which others in the field need to be able to copy in order to compete effectively.” Id. at 1603 (emphasis added), quoting In re Weber-Stephen Products Co., 3 U.S.P.Q.2d 1659, 1664, 1987 WL 124298 (TTAB 1987). In Traf-Fix Devices, the Supreme Court expressly rejected the “competitive need” standard adopted by the Federal Circuit and the TTAB, and by the Sixth Circuit in the case under review: “This was incorrect as a comprehensive definition. As explained in Qualitex, supra, and Inwood [Laboratories, Inc. v. Ives Laboratories, Inc.], supra, [456 U.S. 844, 102 S.Ct. 2182, 72 L.Ed.2d 606 (1982)] a feature is also functional when it is essential to the use or purpose of the device or when it affects the cost or quality of the device.... It is proper to inquire into a ‘significant non-reputation-related disadvantage’ in cases of esthetic functionality.’ ” TrafFix Devices, Inc., 532 U.S. at 33, 121 S.Ct. 1255. Also, the TTAB treated the existence of a utility patent that discloses utilitarian advantages of the design as merely one of four factors to be applied. In re Honeywell Inc., 8 U.S.P.Q.2d at 1603, citing In re Morton-Norwich Products, Inc., 671 F.2d 1332 (C.C.P.A.1982). TrafFix Devices teaches, however, that such a utility patent is “strong evidence that the features therein claimed are functional,” and that a party claiming trademark protection of such features “must carry the heavy burden of showing that the feature is not functional, for instance by showing that it is merely an ornamental, incidental, or arbitrary aspect of the device.” 532 U.S. at 29-30, 121 S.Ct. 1255. Third, the TTAB did not have before it significant evidence of competitors’ use of circular, convex thermostat designs, and it misread the little evidence it did have. The TTAB did not know that from 1969 to 1979, approximately, a company called Penn Controls, Inc. manufactured and sold a thermostat with a round cover. See Exs. 54 and 61. The cover of the Penn Controls thermostat was circular and convex, and was generally quite similar to Honeywell’s round design — certainly similar enough to infringe the later '108 registered mark. The Penn Controls model had a baseplate that was essentially rectangular, but with curved sides that suggested a more circular shape. The Penn Controls thermostats were sold under several different labels. Tr. 363 (Daniels). The TTAB also did not know that in June 1986, just after Honeywell applied for what became the '108 mark, Honeywell learned that a major competitor, the Hunter Fan Company, was introducing a thermostat with a round design. See Ex. 132. Honeywell’s lawyers sent Hunter Fan a cease-and-desist letter claiming that Honeywell already had (unregistered) trademark rights in the round shape for thermostats. Ex. 113. Over the next year and a half, while Honeywell’s application was being decided, lawyers for Honeywell and Hunter Fan sparred with threats and arguments over trademark and antitrust law. See Exs. 114-27. Honeywell insisted that “the overall circular' appearance be avoided.” Ex. 121 at 3. Eventually, Hunter Fan agreed to drop its circular design, though the record in this case does not show a final written settlement agreement. The TTAB apparently misunderstood evidence from which it could have realized that in 1985, a competitor called Quad Six, Inc. was manufacturing and selling a round thermostat that was, in Honeywell’s words, “designed to replace Honeywell’s Round T87F on a standard Honeywell Q539 subbase, with no revising required.” Ex. 110 at 005971 (internal Honeywell analysis of Quad Six products). Honeywell described this and other Quad Six thermostats as “reliable and highly featured, and ... well accepted in the marketplace.” Id. In early contacts between Honeywell and Quad Six, Honeywell claimed that it had unregistered trademark rights in the circular design, notwithstanding the TTAB’s earlier refusal to register the mark. See Ex. Ill at 2. Honeywell also told Quad Six that it was preparing to apply again for a registered trademark on the round configuration. Id. Honeywell and Quad Six then entered into negotiations that resulted in Honeywell’s acquisition of Quad Six in late 1985. That purchase by Honeywell effectively removed the competing round thermostat from the market. Honeywell never told the TTAB in so many words that Quad Six had been selling its round thermostat in competition with Honeywell. The TTAB apparently viewed Quad Six only as an affiliate of Honeywell. Honeywell did submit evidence that could have enabled a very careful reader (but not a casual reader) to infer that Quad Six had been selling a competing round thermostat in 1985 for a few months before Honeywell acquired it. Ex. 627 at 010275-77 (Ruminsky Declaration ¶¶ 11-12). In approving the '108 registration, the TTAB relied heavily on what it believed was the complete absence of competing round thermostats: Despite the apparent availability of the rounded thermostat cover since [1976], an availability that provided more than the usual degree of certainty that the design did not enjoy either patent or trademark protection, the Examining Attorney has been unable to provide evidence of the use of a rounded circular cover configuration by any party other than applicant [Honeywell] and its related companies. On the contrary, applicant has provided extensive evidence of its competitors’ various thermostat designs, and in none of the various cata-logues and other literature are there any thermostats having a circular cover. 8 U.S.P.Q.2d at 1604 (footnotes omitted). Thus, the record before this court shows that the TTAB simply was not aware of critical evidence of competing round products, and that the TTAB misunderstood the evidence about Quad Six by overlooking the fact that Quad Six was selling a competing round product before Honeywell bought the company to eliminate that competing product. The evidence before this court also shows that whenever Honeywell learned that a competitor was selling or planned to sell a round thermostat, it responded with threats of expensive litigation, and it managed to eliminate the competing design either by settlements or by buying the competitor outright. In short, the absence of competing round thermostats' — which was the sine qua non of the TTAB’s decision to reverse its prior decision and allow the '108 registration — was wrong as a matter of fact. Also, the actual small number of competing round thermostats, which the TTAB failed to acknowledge, was itself at best merely an artifact of aggressive lawyering and the intimidating power of Honeywell in the market. The absence certainly did not reflect a lack of interest by competí-tors or an ability to compete fully without using the round shape. The fourth reason that the TTAB’s decision deserves no deference here is that the TTAB also misread the most important evidence before it: the '920 utility patent from 1946. The TTAB wrote about the '920 patent: The claims relate to the inner workings of the thermostat and, while applicant’s cover configuration is designed to fit the shape of the inner workings, there is nothing of inherent utilitarian value about the circular, rounded shape of the cover. [fn2] [fn2] We note that the patents make references to the casing, and that one of the objectives of the invention was to avoid projecting parts and sharp edges. However, these references appear to be ancillary to the real claims of the invention, which involve the inner workings. 8 U.S.P.Qüd at 1603 & n. 2. When the analysis focuses specifically on Claim 23, the TTAB’s description of the shape as “ancillary to the real claims of the invention” simply does not hold water. As explained above, Claim 23 says nothing new about inner workings: it claims a thermostat with a thermometer, a switch, and a mechanism for setting the desired temperature. Claim 23 was allowed only because Honeywell convinced the patent examiner that the circular, convex shape was a new and useful improvement over the prior art. See Part III-A, supra. Because the TTAB made its decision to issue the '108 registration in ex parte proceedings that applied the wrong legal standard to a factual record that was both incomplete and misinterpreted on critical issues, concerning both competition and the expired utility patent, the TTAB’s decision is not entitled to substantial deference by this court. C. Ego’s Functionality Defense 1. The Standard for Functionality and TrafFix Devices The functionality doctrine has marked the critical boundary between patent law and trademark law since at least Justice Brandéis’ opinion in Kellogg Co. v. National Biscuit Co., 305 U.S. 111, 59 S.Ct. 109, 83 L.Ed. 73 (1938). The Court held in Kellogg that the National Biscuit Company did not have exclusive rights to use the name “shredded wheat” or — in what we would now call the product configuration part of the case — to sell shredded wheat cereal in the distinctive pillow-shaped biscuit that had become so well known to the public. National Biscuit’s utility patent on machines to produce shredded wheat had expired long before. The pillow shape had been produced by the patented machines and had also been the subject of an expired design patent. The Court reasoned that the public had a right to practice the expired utility patent, which included the use of the shape that was produced by practicing the patented invention: The plaintiff has not the exclusive right to sell shredded wheat in the form of a pillow-shaped biscuit — the form in which the article became known to the public. That is the form in which shredded wheat was made under the basic patent. The patented machines used were designed to produce only the pillow-shaped biscuits. And a design patent was taken out to cover the pillow-shaped form. Hence, upon expiration of the patents the form, as well as the name, was dedicated to the public. Kellogg Co., 305 U.S. at 119-20, 59 S.Ct. 109. Kellogg followed the reasoning of Singer Mfg. Co. v. June Mfg. Co., 163 U.S. 169, 16 S.Ct. 1002, 41 L.Ed. 118 (1896), which held that competitors could practice the invention of an expired patent for sewing machines, including the form or shape of the machines, so long as they marked the source of their machines. The Court explained in Singer: It is self-evident that on the expiration of a patent the monopoly created by it ceases to exist, and the right to make the thing formerly covered by the patent becomes public property. It is upon this condition that the patent is granted. It follows, as a matter of course, that on the termination of the patent there passes to the public the right to make the machine in the form in which it was constructed during the patent. 163 U.S. at 185, 16 S.Ct. 1002; accord, Coats v. Mertick Thread, 149 U.S. 562, 572, 13 S.Ct. 966, 37 L.Ed. 847 (1893) (competitor could practice expired patent despite some potential for confusion as to source). The Supreme Court addressed this old problem most recently in TrafFix Devices, Inc. v. Marketing Displays, Inc., 532 U.S. 23, 121 S.Ct. 1255, 149 L.Ed.2d 164 (2001). The Court affirmed a district court’s grant of summary judgment finding that the claimed trademark covered supposed “trade dress” that was actually functional. The claimed mark was a product configuration that had been the subject of an expired utility patent. The product in question was a frame to hold highway signs, with two springs attaching the sign to its base to allow the sign to flex in high winds. After the patent expired, the patentee claimed that it had trade dress rights in the distinctive two-spring design, which customers had come to associate with the patentee. The Supreme Court summarized its reasons for affirming the district court’s grant of summary judgment on grounds of functionality: The principal question in this case is the effect of an expired patent on a claim of trade dress infringement. A prior patent, we conclude, has vital significance in resolving the trade dress claim. A utility patent is strong evidence that the features therein claimed are functional. If trade dress protection is sought for those features the strong evidence of functionality based on the previous patent adds great weight to the statutory presumption that features are deemed functional until proved otherwise by the party seeking trade dress protection. Where the expired patent claimed the features in question, one who seeks to establish trade dress protection must carry the heavy burden of showing that the feature is not functional, for instance by showing that it is merely an ornamental, incidental, or arbitrary aspect of the device. 532 U.S. at 29-30, 121 S.Ct. 1255. Applying this principle, the Court explained that the dual-spring design had been the central advance claimed by the expired utility patents and was “the essential feature” of the claimed trade dress. The patentee could not overcome “the strong evidentiary inference of functionality based on the disclosure of the dual-spring design in the claims of the expired patents.” Id. at 30, 121 S.Ct. 1255. The Court further explained that the Sixth Circuit, which had reversed the district court on the trade dress claim, had applied an erroneous standard in deciding functionality. Like some other circuits, the Sixth Circuit had apparently thought that the test for functionality was “whether the particular product configuration is a competitive necessity.” Id. at 32,121 S.Ct. 1255. That test, the Supreme Court said, was too narrow, although competitive necessity would certainly prove functionality. But “a feature is also functional when it is essential to the use or purpose of the device or when it affects the cost or quality of the device.” Id. at 33, 121 S.Ct. 1255. Because the dual-spring design was not “an arbitrary flourish” but was the reason the device worked, the design was functional and could not be protected as trade dress. Id. at 34, 121 S.Ct. 1255. TrafFix Devices guides this ease. It treated the expired utility patent as “strong evidence” of functionality, and it shows that a feature can be functional if it “affects the cost or quality of the device.” Id. at 33, 121 S.Ct. 1255. In cases of aesthetic functionality, if exclusive use by one competitor of the feature would put others at a “significant non-reputation-related disadvantage.” Id., quoting Qualitex Co. v. Jacobson Products Co., 514 U.S. 159, 165, 115 S.Ct. 1300, 131 L.Ed.2d 248 (1995). 2. Evidence Regarding Functionality a. The Utility Patent The strongest evidence of functionality in this case is Claim 23 of the long-expired '920 patent, further bolstered by its prosecution history. As explained above in Part III-A, Claim 23 protects a thermostat design for which the round, convex shape was the novel, useful, and non-obvious invention. Honeywell obtained issuance of Claim 23 by focusing on the round shape as safe, compact, and attractive. The Patent Office ultimately agreed with those arguments and approved the claim, thus treating that shape as a useful invention and not as, in the words of TrafFix Devices, an “arbitrary flourish” in the design. After the '920 patent expired, the public had a right to practice the disclosed invention. That right included the right to use the round base, the circular, convex cover, and the rotatable control dial in the center of the cover. Granting Honeywell’s motion for a preliminary injunction would recognize broad trademark rights that would effectively prohibit the public from practicing the invention of Claim 23. Honeywell’s evidence shows that many customers associate the round shape with Honeywell. Honeywell is claiming in essence that the '108 trademark should bar competitors from selling virtually any round thermostat because any round thermostat would be seen as a Honeywell product. Where recognizing a trademark right in a product configuration would prevent the public from practicing a useful invention that was the subject of an expired utility patent, the trademark is not valid because what it protects is a functional design or feature of the product. The trademark claim must give way to the public’s rights under the patent bargain with inventor: exclusive rights for a limited period of time, followed by a public right to practice the invention. See Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23, 123 S.Ct. 2041, 2048, 156 L.Ed.2d 18 (2003) (recognizing right to copy after patents or copyrights expire); Qualitex Co. v. Jacobson Products Co., 514 U.S. at 165, 115 S.Ct. 1300 (even if customers had come to identify special useful shape of light bulb with a particular manufacturer, the manufacturer may not use the shape as a trademark after the patent expired); Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 231, 84 S.Ct. 784, 11 L.Ed.2d 661 (1964) (recognizing right to copy after patent expires); Kellogg Co. v. National Biscuit Co., 305 U.S. at 119-20, 59 S.Ct. 109 (same). b. Aesthetic Functionality Even without Claim 23 of the '920 patent, Honeywell’s round design would still satisfy the Supreme Court’s and the Seventh Circuit’s standard for aesthetic functionality. On this issue, the Supreme Court’s decision in Qualitex is most instructive. Qualitex Co. v. Jacobson Products Co., Inc., 514 U.S. 159, 115 S.Ct. 1300, 131 L.Ed.2d 248 (1995). The Court held there that a manufacturer of dry cleaning press pads could register a particular color as a trademark for its products where the color served no purpose other than to identify the source of the product. Id. at 174, 115 S.Ct. 1300. The fact that the color served no purpose other than identification was critical. The Qualitex Court recognized that color sometimes plays an important role in making a product more desirable. The Supreme Court noted, for example, that competitors may be free to copy the color of a medical pill where the pill serves to identify the type of medication. The Court also noted that lower courts had permitted competitors to copy the green color of farm machinery because customers wanted their farm equipment to match, and had barred the use of black as a trademark on outboard motor boat motors because black decreases apparent size and ensures compatibility with many different boat colors. Id. at 169-70, 115 S.Ct. 1300 (citing cases). Most important for present purposes, the Court in Qualitex emphasized that col- or could be functional even if the only function was to make the product more attractive to customers: The upshot is that, where a color serves a significant non-trademark function— whether to distinguish a heart pill from a digestive medicine or to satisfy the “noble instinct for giving the right touch of beauty to common and necessary things,” G. Chesterton, Simplicity and Tolstoy 61 (1912) — courts will examine whether its use as a mark would permit one competitor (or a group) to interfere with legitimate (nontrademark-related) competition through actual or potential exclusive use of an important product ingredient. Id. at 170, 115 S.Ct. 1300; accord, Publications Int’l, Ltd. v. Landoll, Inc., 164 F.3d 337, 339 (7th Cir.1998) (recognizing aesthetic functionality and stating: “A producer cannot in the name of trade dress prevent his competitors from making their products as visually entrancing as his own.”); W.T. Rogers Co. v. Keene, 778 F.2d 334, 388-40 (7th Cir.1985) (recognizing aesthetic functionality). This analysis also applies to shape. Thermostats work equally well to control temperature regardless of shape, but the evidence shows that shape and overall appearance are important features in selling thermostats. A thermostat is a utilitarian device, one of those “common and necessary things,” in Chesterton’s words, but it is also part of an interior decor. See Qualitex Co., 514 U.S. at 170, 115 S.Ct. 1300, quoting G. Chesterton, Simplicity and Tolstoy 61 (1912). Consumers prefer attractive designs over ugly ones. Tr. 272-76 (Tisthammer). The aesthetic dimension of thermostats is well recognized in the business, of course. Honeywell and other manufacturers tout their residential products as attractive and as suitable for any decor. See, e.g., Ex. 623 at 000930 (Honeywell market research showing that overall appearance, including shape, plays a critical role in consumers’ initial response to products); Ex. 638 at col. 1, ll. 22-24 (U.S. Patent No. 5,943,917 issued to Honeywell for thermostat: “One shape or the other may be preferred for no other reason than personal choice or greater compatibility with the decor of the room.... ”); Ex. 187 (Honeywell advertisement emphasizing aesthetic appeal of round design); Ex. 193 at 009620, 009631 (other manufacturers’ advertisements emphasizing aesthetic appeal). At trial, Honeywell tried to avoid a finding of aesthetic functionality by showing that consumers find the round design less attractive than rectangular designs. This effort was not persuasive. Shape is a matter of personal preference, as Honeywell itself has said. Also, Honeywell itself has made the round shape its flagship model, and it has repeatedly promoted the attractive appearance of its round thermostats from its patent application in the 1940s through its current advertising. That record is more credible than Honeywell’s new “spin” in litigation, trying to present the round design as the ugly duckling of the industry it leads. The evidence before the court does not show that a majority of consumers prefer round thermostats over rectangular or square ones. It does indicate, however, that a substantial minority of consumers have a preference for round. See Tr. 294-97 (Tisthammer); Ex. 197 at 003999. This preference can also be inferred from the fact that Honeywell has sold about 85 million of its round thermostats, and it still sells between 1.5 and 2.5 million units every year. Ex. 205 at 000323. Even stronger support for the aesthetic preference is the fact that Honeywell can sell its round model for a much higher price than its price for its equally functional and reliable — but rectangular — T834 model. See id.; Tr. 367-68 (Daniels). Also, when any of the millions of existing round Honeywell thermostats need to be replaced, a round thermostat of the same size has a competitive advantage over other shapes. When a thermostat has been on a wall for many years, there is a noticeable difference between the color of the wall paint or wallpaper under the thermostat and that next to the thermostat. The round replacement should avoid the need for trimming wallpaper or repainting. Honeywell has emphasized the fact that its round thermostats are slightly more expensive to manufacture than its comparable rectangular thermostats. Exs. 205, 213, Tr. 125-27 (Stoner), 339-40 (Tistham-mer) (T87 and base cost approximately 35 cents more to manufacture than the T834 rectangular model with identical functions). Thus, argues Honeywell, the round shape does not have a positive effect on cost or quality. The argument overlooks the fact that the price difference for the shapes is far greater than the manufacturing cost difference. Round thermostats cost five percent more to manufacture but the price difference between the two shapes is much greater than five percent. The round thermostats clearly have an advantageous quality that leads many customers to pay a premium for millions of them. In short, Honeywell’s round thermostat design is aesthetically appealing to a substantial portion of consumers. That feature therefore positively affects the “quality” of the product, independent of any association between the shape and the source of the product. If the court were to recognize exclusive rights to the round shape, which is no longer protected by the expired utility patent and design patent, those rights would put other competitors at a disadvantage not related to reputation. The shape meets the standards for aesthetic functionality and may not be trademarked. c. Estoppel to Deny Functionality A third and independent ground for finding that Honeywell’s round design is functional is estoppel, based on the assertions of utility that .Honeywell made to obtain the '920 patent. In Disc Golf Ass’n. Inc. v. Champion Discs, Inc., 158 F.3d 1002, 1008 (9th Cir.1998), the Ninth Circuit took that approach in affirming summary judgment, holding that a feature in an expired utility patent was functional and thus not protected trade dress. The court explained: “A trademark proponent cannot create an issue of material fact regarding a shape’s functionality, and thus survive summary judgment, by contradicting an earlier assertion contained in an expired utility patent that the same shape is functional.” Id. In support, the court cited 1 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition § 7.89, at 7-208 (4th ed.1998), and the more general principle from summary judgment practice that a party cannot create a genuine issue of material fact by submitting an affidavit that merely contradicts her earlier sworn deposition testimony. Accord, e.g., Sparklets Corp. v. Walter Kidde Sales Co., 26 C.C.P.A. 1342, 104 F.2d 396, 399 (C.C.P.A.1939) (affirming denial of trademark registration for product feature claimed in utility patent: “It is perfectly evident that the groove was at least believed by the patentee to have utility at the time of making application.... ”). The same reasoning applies here to the sworn claims of the round shape’s utility that Honeywell made to secure issuance of Claim 23 of the '920 patent. 3. Honeywell’s Effort to Distinguish TrafFix Devices Honeywell argues that TrafFix Devices is distinguishable on three grounds. First, TrafFix Devices put the burden of proof on the issue of functionality on the party claiming the trademark protection. 532 U.S. at 29, 121 S.Ct. 1255, citing 15 U.S.C. § 1125(a)(3). Honeywell contends that its “incontestable” registered trademark puts the burden of proof on Eco. For purposes of the present decision, the court has assumed that Honeywell is correct on this point. However, Eco has sustained its burden of proof on the issue of functionality, so this difference between the cases has no effect. Second, Honeywell points out that the utility patent in TrafFix Devices had expired only six years before the lawsuit began, while Honeywell’s utility design expired 40 years ago in 1963. Honeywell has not developed this argument in detail, and the passage of time does not undermine the weight of Eco’s evidence of functionality. After the expiration of the '920 patent, the public had a right to copy and practice the claimed invention,, including the round design of Claim 23. The Supreme Court rejected a very similar argument based on delay in Kellogg Co. v. National Biscuit Co., 305 U.S. 111, 59 S.Ct. 109, 83 L.Ed. 73 (1938). The plaintiff argued that Kellogg had not tried to make shredded wheat for many years after the plaintiffs utility patents expired, during which time plaintiff had spent a great deal of money advertising the product so as to identify itself as the source of “shredded wheat.” Justice Brandéis wrote for the Court: Those facts are without legal significance. Kellogg Company’s right was not one dependent upon diligent exercise. Like every other member of the public, it was, and remained, free to make shredded wheat when it chose to do so; and to call the product by its generic name. The only obligation resting upon Kellogg Company was to identify its own product lest it be mistaken for that of the plaintiff. Id. at 119, 59 S.Ct. 109. The same reasoning applies here. Third, Honeywell points out that Traf-Fix Devices dealt with a feature that was described as the “central advance” of the utility patent and as “necessary to the operation” of the product. See TrafFix Devices, 532 U.S. at 30, 121 S.Ct. 1255. In a colloquial sense, because one can make a thermostat in a different shape that controls temperature just as well as The Round, the circular, convex shape admittedly seems less important or useful than the two-spring design at issue in TrafFix Devices. The central point remains, however, that Claim 23 of the '920 patent issued only because Honeywell convinced the Patent Office that the circular, convex shape was both useful and novel as compared to the prior art. Honeywell argued that its design was safe, compact, and attractive. Its success in making those argume