MARKEY, Chief Judge.
In appeal No. 84-866, Pegasus Luggage, Inc. (Pegasus) appeals from the portion of the judgment of the United States District Court for the Southern District of Florida, Miami Division, holding it liable for infringement of claims 3-5 of United States Patent No. 3,730,308 (the ’308 patent), of Lark Luggage Corporation (Lark), a division of CPG Products Corporation (CPG), and further enjoining Pegasus from acts of unfair competition under the Lanham Act § 43(a), 15 U.S.C. § 1125(a) (1983). See 221 USPQ 766 (S.D.Fla.1983).
In appeal No. 84-880, Pegasus appeals from a denial of its Rule 60(b), Fed.R. Civ.P., motion for relief from final judgment.
In appeal No. 84-972, CPG cross-appeals from the portion of the judgment denying its claims for (a) increased patent infringement damages under 35 U.S.C. § 284, and (b) attorney fees under 35 U.S.C. § 285.
The foregoing appeals were consolidated in response to an April 18, 1984 motion of CPG.
We affirm in Appeal Nos. 84-866 and 84-880, and reverse and remand in Appeal No. 84-972.
ISSUE
Whether the district court erred in entering the decision and judgments appealed from.
OPINION
A. Appeal Nos. 84-866 and 84-880
The findings and conclusions entered by the district court respecting patent infringement form such a fully adequate and compelling basis for affirmance as to place on the borders of frivolity the appeals from the patent infringement portion of the judgment and the decision denying Pegasus’ Rule 60(b) motion.
Respecting patent infringement, Pegasus asserts that: (a) the named inventor (Pelavin) was not the true inventor; (b) the patent does not disclose the “best mode”; (c) claims 2 & 3 are anticipated by United States Patent No. 3,071,220 to O’Neil (O’Neil patent), and the other claims “are obvious thereover” [sic, “in view of the O’Neil patent”]; (d) its luggage does not infringe the claims in suit; and (e) the royalty rate is unsupported.
Respecting unfair competition under § 43(a), Pegasus argues (f) that Lark’s case was not proven.
(a) Inventorship
Pegasus raised this issue for the first time in its Rule 60(b) motion for relief from judgment, asserting that Pelavin received the suggestion to use Pellón in luggage from the Pellón Company, and that the district court confused “entrepreneurship with inventorship,” citing Morgan v. Hirsch, 728 F.2d 1449, 221 USPQ 193 (Fed.Cir.1984).
In its Rule 60(b) motion, Pegasus alleged “surprise”, “newly discovered evidence” and “misrepresentation or other misconduct of an adverse party.” It offered, however, nothing in support of those allegations save the naked assertions of counsel. Before us, Pegasus points to nothing in the record to indicate that the district court in any manner abused its discretion in denying the motion. See Smith International, [1010]*1010Inc. v. Hughes Tool Co., 759 F.2d 1572, 1579, 225 USPQ 889, 895-94 (Fed.Cir.1985). Pegasus’ present attempt to litigate an issue it failed to raise at trial is improper and unavailing.
(b) Best Mode
Similarly, Pegasus first raised this issue in its post-trial motions for new trial under Rule 59, Fed.R.Civ.P., the denials of which are not before us. In support of its notion that this court should hear and determine whether Pelavin disclosed the “best mode”, Pegasus asserts that the district court determined that issue on its merits in denying the Rule 59 motions. The assertion is groundless. The district court carefully considered Pegasus’ motion, CPG’s response, and counsel’s memoranda, in determining that a new trial was not required. That action does not constitute consideration and determination of the “best mode” issue on its merits sufficient to render it available to Pegasus on appeal. If the rule were otherwise, appellants could create “appealable” substantive issues by merely listing them in post-judgment motions for new trial.
Pegasus improperly asserts before us the very allegations — none made at trial— which formed the basis of its Rule 59 motions. In sum, there was and is no basis for Pegasus’ presentation of its “best mode” proposition to this court. Cf. Minnesota Mining & Mfg. Co. v. Eco Chemical, Inc., 757 F.2d 1256, 1265-66, 225 USPQ 350, 357 (Fed.Cir.1985).
(c) Anticipation/Obviousness
The district court found that the O’Neil patent “does not contain any disclosure of the use of Pellón or Pellon-like materials as an interlining or stiffening layer in the walls of a luggage construction.” Pegasus points to no error in that finding. Nor has it shown error in the district court’s view that the O’Neil patent “reinforces the conclusion of patentability reached by the Examiner”. Utterly unconvincing is Pegasus’ argument that the “resilient tips” disclosed in the O’Neil patent either anticipate or would have rendered obvious the construction set forth in any of the claims in suit.
(d) Infringement
Pegasus says its use of adhesive precludes a finding of literal infringement. It argues that because the ’308 patent issued following Pelavin’s assertion that he did not use adhesive to secure the multilayer construction of the luggage wall, infringement is avoided if any adhesive be used for any purpose. Pegasus invokes the recognized rule of law that a prosecution history estoppel precludes a patentee’s claiming in litigation what it voluntarily gave up in prosecution. That rule is not applicable to the present facts, where no such prosecution history estoppel exists.
The district court found that Pegasus also does not use adhesive to secure its multi-layer construction; it uses adhesive only in its manufacturing process (to align the layers until it secures them, as Lark does, by mechanical stitching). The district court said that such use was “of such minor consequence and inconsequential effect,” as not to preclude its finding that literal infringement had been properly shown. Pegasus has shown no error in that finding; nor has it even attempted to controvert the district court’s alternative finding of infringement under the doctrine of equivalents.
(e) Reasonable Royalty
Pegasus says that the district court’s ruling on a royalty rate was “premature” because Pegasus "was not prepared to, and made no attempt to, deal with the issue of damages” at trial. But CPG did “deal with the issue” at trial, presenting evidence that it would not voluntarily grant a license for less than a 20% royalty. CPG’s evidence cannot be “undealt” by Pegasus’ omission, however bitterly that omission may now be rued. It is not among the purposes of the appellate process to re-write the scenario produced by an appellant at trial. Nor is it among the [1011]*1011roles of this court to entertain such efforts at re-writing.
Pegasus incorrectly says that “the facts of record are inadequate to support the determination of any royalty rate.” It is not, however, the royalty rate but Pegasus’ protestation that is unsupported by the record. Similarly, Pegasus has shown no basis for concluding that the district court abused its discretion in awarding pre-judgment interest.
(f) Unfair Competition
(i) Section 43(a)
Pegasus suggests that the district court should have entered findings and conclusions different from those it did enter in respect of the count for unfair competition under § 43(a).1 Whether we might, were we sitting at trial, have reached different findings and conclusions is not, however, the test.2 See The American Original Corp. v. Jenkins, 774 F.2d 459, 462 (Fed.Cir.1985), citing Anderson v. City of Bessemer City, - U.S. -, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985).
In deciding pendent § 43(a) matters, over which this court’s jurisdictional statute, 28 U.S.C. § 1295(a)(1), does not grant exclusive subject matter jurisdiction, we apply the discernable, established law of the regional circuit court of appeals (here the Eleventh), having a proper regard for the duty of the district court to follow that law in cases not appealable to this court. See Bandag, Inc. v. Al Bolser’s Tire Stores, 750 F.2d 903, 909, 223 USPQ 982, 986 (Fed.Cir.1984); Atari, Inc. v. JS & A Group, Inc., 747 F.2d 1422, 1439-40, 223 USPQ 1074, 1086-87 (Fed.Cir.1984).
Under the substantive law of the Eleventh Circuit, analysis of trade dress infringement under § 43(a) of the Lanham Act involves a close, factual evaluation of “the total image of a product and may include features such as size, shape, color or color combinations, texture, graphics, or even particular sales techniques.” John H. Harland Co. v. Clarke Checks, Inc., 711 F.2d 966, 980, 219 USPQ 515, 528 (11th Cir.1983), citing Original Appalachian Artworks, Inc. v. Toy Loft, Inc., 684 F.2d 821, 831, 215 USPQ 745 (11th Cir.1982). As is evident from the total record, the district court considered the total image of the Lark luggage in light of the legal principles ennunciated in Harland and Original Appalachian Artworks.
The Eleventh Circuit in Harland did not require that a plaintiff establish non-functionality of all features in common relied on; it required plaintiff to establish that the features of the trade dress are “primarily non-functional”. (Emphasis added.) 711 F.2d at 982, 219 USPQ at 529. As stated in Harland, “[i]f ... all of the features of Harland’s Memory Stub product are functional, then Clarke was free to copy those features in the absence of any trademark or copyright protection.” Id. However, “[i]f ... Clarke copied features of Harland’s trade dress which are primarily non-functional, then Clarke is liable for [1012]*1012infringement under § 43(a).” Id. There, as here, trade dress consisted of utilitarian features and ornamental features found by the district court to have been “distinctive and memorable”. Finding J.3.
The court in Harland noted that “many features of Harland’s Memory Stub product — such as the concept and location of the carry-around stub, the lines for recording information on the stub, the vertical size of the stub, and perhaps the horizontal size of the stub as well — clearly are functional.” Id. at 983-84, 219 USPQ at 530-31. The court held, nonetheless, that the district court’s determination that other features were “primarily non-functional” could not be overturned on review, and that that determination supported a finding of unfair competition under § 43(a). Id. at 987, 219 USPQ at 531.
Pegasus argues that the district court failed to find “secondary meaning” with respect to PERMAMATIC’s non-functional features. The Eleventh Circuit had not, at the time of the district court’s decision, addressed whether secondary meaning must always be shown, see Harland, supra, 711 F.2d at 981 n. 25, 219 USPQ at 529 n. 25., but found “merit” in the view “that plaintiff in a trade dress infringement action need not prove secondary meaning when the product’s trade dress is inherently distinctive.” See Chevron Chemical Co. v. Voluntary Purchasing Groups, Inc., 659 F.2d 695, 212 USPQ 904 (5th Cir.1981), cert. denied, 457 U.S. 1126, 102 S.Ct. 2947, 73 L.Ed.2d 1342 (1982). In the recent case of University of Georgia Athletic Ass’n v. Laite, 756 F.2d 1535, 1540, 225 USPQ 1122, 1126 (11th Cir.1985), the Eleventh Circuit limited the need to establish secondary meaning to § 43(a) actions involving descriptive marks.
Here, the district court found that the ornamental embellishments of Lark’s PERMAMATIC are “distinctive and memorable”. Finding J.3., infra. Evidence of deliberate imitation and copying in this case also supports a determination of secondary meaning. See Harlequin Enterprises Ltd. v. Gulf & Western Corp., 644 F.2d 946, 950, 210 USPQ 1, 3 (2d Cir.1981). Moreover, as noted in Chevron Chemical, the principal question in a § 43(a) analysis “is whether or not the public is likely to be confused, rather than whether the first comer’s trade dress has acquired secondary meaning.” 659 F.2d at 703, 212 USPQ at 911.
As stated in Original Appalachian, “[t]he essential element of an action under § 43(a) is proof by the plaintiff that the alleged infringement by the defendant creates a likelihood of confusion on the part of consumers as to the source of the goods.” 684 F.2d at 831, 215 USPQ at 753. A finding of likelihood of confusion “rests on an evaluation of a variety of factors including the defendant’s intent, the similarity of design, the similarity of product, the similarity of retail outlets and purchasers, the similarity of advertising media, and actual confusion. Chevron Chemical, supra, 659 F.2d at 703.” Id. at 832, 215 USPQ at 754. The Original Appalachian court affirmed that that finding “is factual and must be upheld unless clearly erroneous. Dallas Cap & Emblem, supra, 510 F.2d at 1012.” Id., at 832, 215 USPQ at 754.
The district court here found that, with the exception of Lark’s stripe, “each and, every distinctive design feature of the PERMAMATIC luggage has been adopted in the PEGASUS 1700 Series,” citing “col- or”, “trim” and “shape of trim” as three such features. Finding J.l. The list is not exhaustive, nor need it be. As above indicated, the Eleventh Circuit looks to “the total image” of the luggage, not to a catalogue of separated particulars.
In its Finding J.3, the district court found:
The ornamental embellishments of LARK’S PERMAMATIC are “distinctive and memorable”, are not functional and have clearly been adopted by PEGASUS with an intent to cause a likelihood of confusion to the purchasing public.
In the present case, the district court observed physical comparisons by both parties of the actual Pegasus (Exhibit 12) and [1013]*1013Lark (Exhibit 5) luggage (a demonstration not conducted before this court). It heard testimony subject to cross examination and had the opportunity to observe the demean- or of the witnesses. In affirming the district court in a similar case, the Eleventh Circuit stated, “Intent [to confuse customers], as the district court noted, must often be proved by circumstantial evidence”. Jellibeans, Inc. v. Skating Clubs of Georgia, Inc., 716 F.2d 833, 843, 222 USPQ 10, 19 (1983).
Patent infringement is not the unfair competition envisaged in § 43(a), and utilitarian features attributable to a patented structure cannot in themselves and alone create trademark distinctiveness. The district court did not in this particular case gainsay those fundamental legal principles when it noted that the presence of such features “when coupled with nonfunctional features,” Finding J.2, intentionally created a distinct total image intended to confuse the public, i.e., to create a false designation of origin as to the source of Pegasus’ luggage. Cf. Finding J.4.
The district court concluded, following a physical comparison of the respective luggage lines, that Pegasus had copied “not only the utilitarian features” (which Pegasus was perfectly free to do absent Lark’s patent protection, see Harland, 711 F.2d at 982, 219 USPQ at 529), “but also the non-functional features of the PERMA-MATIC construction.” Conclusion E.l. The district court then went on, saying “[s]uch copying is likely to confuse the public about the origin of the PEGASUS luggage construction by adopting all of the design embellishments of LARK’s PERMAMATIC luggage.” (Emphasis added) Conclusion E.l.
The language of Conclusion E.l (“such copying”) may have been inartful. Read in full context, however, it is clear that the district court considered Lark’s design embellishments to be primarily non-functional, and viewed Pegasus’ copying of those features as “likely to confuse the public”. Findings and conclusions must be viewed as a whole, and it is not necessary to read Conclusion E.l as being in conflict with Finding J.3, supra, i.e., as though it was based on the view that copying of utilitarian or functional features alone is sufficient to support a finding that likelihood of confusion was present and intended. Nor, assuming arguendo that the district court did not consider all relevant factors, would that circumstance constitute an independent basis for reversing its deicsion. University of Georgia Athletic Ass’n, supra, 756 F.2d at 1542-43, 225 USPQ at 1128.
As noted in Harland, trade dress is “a complex composite of features” which must “be considered together, not separately.” 711 F.2d at 980, 219 USPQ at 528. The district court here followed that guidance in finding that Pegasus used features such as color, trim, and shape of trim to create a “medium for confusion”. Finding J.4. If the district court included a reference to “Lark’s unique functional concept”, Finding J.4, because it saw a presence of that concept in the total image of the luggage, such inclusion was not in this case a substitution of patent law for that of unfair competition.
In this case, the district court found Lark’s ornamental embellishments “memorable and distinctive”, and that those features had been “clearly adopted by Pegasus with an intent to cause a likelihood of confusion of the purchasing public.” That finding has not been shown to have been clearly erroneous.
(ii) The Injunction
On the present record, and under the appropriate appellate standards, there is no basis for holding either that the district court’s judgment on the unfair competition count was the result of reversible error, or that the district court abused its discretion in granting injunctive relief against continuance of that unfair competition. The district court’s injunction did not preclude fair competition and did not undermine the laws governing the right generally to compete and to copy the products of others (absent patent infringement or [1014]*1014false indication of origin). On the contrary, it tailored its injunction, prohibiting Pegasus only from selling “the 1700 series of luggage or any luggage which looks similar thereto”. Thus Pegasus remains in the luggage business and can use any col- or, trim, shape of trim, or other design embellishment it chooses, except such combination and design of those elements as may result in luggage that looks similar to the 1700 series it employed as its means of confusing the public.3
In arguing that it must remain free to use black and tan colors used by others, and that the shape of its present trim is slightly different from Lark’s, Pegasus argues a different case and attacks an injunction never issued. Pegasus’ designers are not precluded from using black as a color, or tan leather trim, or a wide variety of shapes of trim, in creating luggage that will not lead to the likelihood of confusion that resulted from the 1700 series. Indeed, compliance with the injunction against patent infringement may itself remove part of the designer’s problem, to the extent that the patented construction contributed to the total image of the 1700 series luggage.
Pegasus thus remains fully free to compete, so long as purchasers are not likely to be deceived as to the origin of its goods. The district court found, and no error has been shown in that finding, that with the “total image” of its 1700 series Pegasus intended to and did create a likelihood of confusion of purchasers. The injunction against unfair competition merely requires that Pegasus cease that course of conduct. Properly interpreted, that injunction was on the total record in this case eminently fair and proper.4
Pegasus urges us to look, inappropriately, at individual features separately and to review the judgment and the injunction against unfair competition in a vacuum, i.e., as though there had never been a trial in which the district court heard witnesses, evaluated credibility, and compared in their entireties the respective lines of luggage before making its findings, reaching its conclusions, and issuing its injunction. We have no such authority.
B. Appeal No. 84-972
(a) Willful Patent Infringement
As found by the district court, Pelavin in the spring of 1980 spoke with Seymour Friedman (Friedman), President of Pegasus, at the Dealers’ Luggage Show in New York City, New York, and told Friedman he was infringing the ’308 patent. Friedman said he was unaware of even where to obtain a copy of a United States patent. Friedman also said he would not have continued infringing if the patent was owned only by the old Lark Luggage Corporation, but, now that Lark was a subsidiary of General Mills (i.e., CPG) it did not bother . him to continue. After receiving a copy of the ’308 patent from Pelavin, Friedman, though not a lawyer and admittedly having little knowledge of patent law, decided that the patent was not valid or not infringed and, without advice of counsel, continued [1015]*1015manufacturing Pegasus’ 1700 series of luggage.5
The district court said that “[although Defendant made and sold, and continued to make and sell, the accused luggage construction his action is not construed as clearly deliberate____ The record is clear that Defendant made no inquiry into the validity of LARK’s claim of infringement and simply ignored same. Having made no effort to ascertain the scope of the patent, or its validity, [sic] However, this court finds that his disregard does not reach the level of deliberate indifference or wanton infringement.” The district court thereupon denied CPG’s claims for treble damages and attorney fees.
It appears likely that the district court had neither seen nor had called to its attention Underwater Devices, Inc. v. Morrison-Knudsen Co., Inc., 717 F.2d 1380, 1389-90, 219 USPQ 569, 576 (Fed.Cir.), decided September 23, 1983. In that case, this court said:
Where, as here, a potential infringer has actual notice of another’s patent rights, he has an affirmative duty to exercise due care to determine whether or not he is infringing. [Citations omitted.] Such an affirmative duty includes, inter alia, the duty to seek and obtain competent legal advice from counsel before the initiation of any possible infringing activity. [Citations omitted.]
A district court’s finding in respect of willful infringement is a finding of fact, reviewable under the clearly erroneous standard of Rule 52(a), Fed.R.Civ.P. Underwater Devices, supra, 717 F.2d at 1389, 219 USPQ at 576.6
The district court’s ultimate finding of no deliberate or willful infringement is incompatible with the applicable findings it clearly articulated. Pegasus has shown no error in the findings that: (1) Friedman was informed of Pelavin’s specific allegation of infringement and was given a copy of the ’308 patent; (2) Friedman took no affirmative steps — through consultation with counsel or otherwise — to ascertain whether Pegasus’ 1700 luggage series infringed the ’308 patent; and (3) Pegasus deliberately continued infringing because Lark was a subsidiary of General Mills. Each of those findings is not merely supported but is compelled by the record. The district court’s finding that Pegasus’ behavior on this record failed to constitute willful and deliberate infringement is on those facts anomalous and thus clearly erroneous.
We therefore remand the issue of increased damages under 35 U.S.C. § 284 to the district court for reconsideration in light of our present holding on this appeal that Pegasus’ infringement was willful. See generally The American Original Corp. v. Jenkins, 774 F.2d 459, 464-466 (Fed.Cir.1985); King Instrument Corp. v. Otari, 767 F.2d 853, 226 USPQ 402 (Fed.Cir.1985); Rosemount, Inc. v. Beckman Industries, Inc., 727 F.2d 1540, 221 USPQ 1 (Fed.Cir.1984); Underwater Devices, supra, 717 F.2d 1380, 219 USPQ 569.
(b) Attorney Fees
The district court made no determination of whether the case sub judice is an “exceptional case” warranting an award of attorney fees under 35 U.S.C. § 285. We therefore include that question in our remand.
Conclusion
The portion of the judgment and the injunction appealed from in appeal No. 84-866 is affirmed.
[1016]*1016The denial of the Rule 60(b) motion appealed from in appeal No. 84-880 is affirmed.
The judgment appealed from in appeal No. 84-972 is reversed and the issues of increased damages and attorney fees are remanded.
AFFIRMED-IN-PART, REVERSED AND REMANDED-IN-PART.