(dissenting):
I respectfully dissent. Summary judgment may be rendered, upon motion, only when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(e); see Consolidated Elec. Co. v. United States, 355 F.2d 437 (9th Cir. 1966). I cannot agree that the drastic remedy applied by the District Court was proper under any of the theories presented.
The crucial issue relied upon by the majority concerns whether the appellant’s design was dictated' primarily by functional considerations. See Payne Metal Enterprises, Ltd. v. McPhee, 382 F.2d 541 (9th Cir. 1967); Robert W. Brown & Co., Inc. v. De Bell, 243 F.2d 200 (9th Cir. 1957). As to this question, I am convinced that a genuine issue of fact existed. The District Court concluded that a number of specific elements of the design, such as the bevels on the doors of the cabinet, were each present in the design for a “functional purpose.” The majority writes that whether the design was primarily dictated by functional considerations “necessarily involves an analysis of the design as a whole. The only way to make such an analysis is to note the individual features and functions of the design, evaluate their relative importance, and observe how they each contribute to the overall conception for which the patent has been issued.” Basically, these inquiries are factual, and the evidentiary materials before the court in response to the motion created an issue which should have been resolved in plenary proceedings.
It should also be observed that the District Court did not specifically rely upon the same theory as that upon which the majority rests its decision. Finally, I think it significant that none of the cases cited by the majority as to this issue, nor any other case that I have been able to find, has involved, or has even considered, summary action based upon that principle.
I would reverse.