Omaha man loses patent lawsuit against Nike

Gerald Kellogg sued the Beaverton, Ore.-based athletic shoe and apparel company in 2007, claiming Nike had stolen his design for a vented cap. Kellogg sought between $2 million and $8 million.

Kellogg had applied for a patent on his design, which included four slits at the top of a baseball cap covered with mesh, in 1997. His lawsuit says he presented the design to Nike, which said it was not interested.

But in 2004, Kellogg was watching a televised sporting event when he spotted the players wearing what appeared to be his cap design.

The lawsuit said that in 2002, a Nike employee applied for a patent on a nearly identical vented cap design and began selling the caps in 2004 or sooner.

But earlier this week, a federal jury in Omaha found in favor of Nike, deeming that Kellogg's and Nike's hat designs were not enough alike to constitute patent infringement.

"We were shocked," said Mark Peterson, an attorney for Kellogg. "We thought it was open-and-shut."

Peterson said that the Nike employee who applied for the vented cap patent in 2002 failed to disclose the existence of Kellogg's patent for a vented cap design.

"We believe that creates a willfulness" on the part of Nike to steal Kellogg's design, Peterson said.

Even if the Nike employee was unaware of Kellogg's patent, Peterson said, the test of patent infringement is whether an ordinary observer would see striking similarities in the two designs.