Patent Infringement
1/28/2008 4:49:14 PM EST
Mary LaFrance on Identifying the Ordinary Observer for Purposes of Determining Design Patent Infringement: Arminak & Assocs., Inc. v. Saint-Gobain Calmar, Inc., 501 F.3d 1314 (Fed. Cir. 2007)
Professor of Law, William S. Boyd School of Law, University of Nevada Las Vegas
In order to infringe a design patent, an accused design must be substantially similar to the patented design, as seen through the eyes of the hypothetical "ordinary observer." Case law establishes that the ordinary observer normally is a purchaser of the product in question, but the chain of commerce for a particular product may involve purchasers at several levels. Law Professor Mary LaFrance discusses the Federal Circuit’s decision in Arminak v. Saint-Gobain Calmar concerning whether the ordinary observer of a patented retail packaging design is the industry buyer who selects the packaging components, or the retail consumer who buys the packaged product. Professor LaFrance writes:
Although Arminak held that, on these facts, the ordinary observer of the patented and accused designs was the upstream purchaser of the shroud, the court’s refinement of the ‘ordinary observer’ definition still leaves room for uncertainty. In particular, the phrase ‘either a purchaser of, or sufficiently interested in, the item that displays the patented design’ is open to broad interpretation.
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