"Ordinary observer" can be commercial buyer when buyer uses designed item as part of retail product
September 13, 2007

In a recent decision, the Federal Circuit affirmed a district court’s order granting summary judgment of non-infringement of two design patents. Specifically, the court acknowledged that the Supreme Court's decision in Gorham Co. v. White held that an "ordinary observer" for purposes of design patent infringement cannot be an expert. Nevertheless, in this case, the "ordinary observer" was not the end-user of the product, but rather industrial buyers who used the designed items as component parts assembled into a final retail product.

Based on this determination of the "ordinary observer," the district court's determination of no infringement was affirmed, as it was undisputed that to these "industrial buyers," the designs were not substantially similar.

Appellant Saint-Gobain Calmar, Inc. ("Calmar") is the owner of two design patents for trigger sprayer shroud designs. Arminak & Associates ("Arminak") filed a declaratory judgment action against Calmar seeking a declaration of non-infringement of Calmar's two design patents after Calmar had informed one of Arminak's customers that it believed the shroud design on one of Arminak's trigger sprayers infringed Calmar's patents.The district court granted Arminak's motion for summary judgment of non-infringement, finding that the ordinary observer of the designs for the trigger sprayer shrouds was "not the retail consumer or purchaser of retail products sold in containers with trigger sprayer devices, but the buyer of trigger sprayers for a contract filler or an industrial purchaser up the stream of commerce from the retail purchaser" and the this ordinary observer would "not be deceived by the similarities between Arminak's AA Trigger shroud's design and Calmar's patented shroud designs." Further, the district court noted that the similarities between Arminak and Calmar's trigger shrouds do not stem from Calmar's asserted points of design novelty.The Federal Circuit first affirmed the district court's claim construction, stating it was not error to engage in a "meticulous and accurate description of Figures 1 through 5 of each of Calmar's patents-in-suit" in order to construe the claims of the patents.

The court next turned to the district court's identification of the ordinary observer, noting that:

If the ordinary observer is found to be the retail consumer that purchases the shroud of the trigger sprayer device as it is incorporated into a retail product, than it is much more likely that the ordinary observer would find substantial similarities between the patented and accused designs sufficient to be deceived into thinking that Arminak's AA Trigger shroud is one of the patented designs.

On the other hand, "[i]f the ordinary observer is the contract buyer or industrial purchaser of trigger sprayers, then the undisputed material facts in the record establish that such a purchaser would not find substantial similarity between the patented and accused shrouds." The Federal Circuit noted that the "ordinary observer test" was first described in the Supreme Court's decision in Gorham Manufacturing Co. v. White. There, the Court held that the observer cannot be an expert in the designs at issue, but must be, as the test implies, an ordinary observer. However, the Supreme Court left unanswered the question of whether an "ordinary observer" can be "commercial or industrial buyers of designed items that are used as component parts assembled into a retail product." The Federal Circuit noted that the purchaser in this instance purchases the patented or accused component parts, and then assembles them with other component parts to make the retail product. According to the court:

To hold that such a purchaser is the appropriate hypothetical ordinary observer fits squarely with our precedent that the ordinary observer is a person who is either a purchaser of, or sufficiently interested in, the item that displays the patented designs and who has the capability of making a reasonably discerning decision when observing the accused item's design whether the accused item is substantially the same as the item claimed in the design patent.

Accordingly, the Federal Circuit affirmed the district court's finding that the ordinary observer was the industrial purchaser or the contract buyer of sprayer shrouds for companies which then assembled the component parts into a retail product. The Federal Circuit additionally affirmed the district court's findings that the ordinary observer would not be deceived by the similarities between the patented and accused trigger shrouds and that that Arimak's accused devices and designs had not "appropriated" the points of novelty of the patented design. The Federal Circuit stated that the district court, in applying both the ordinary observer test and the point of novelty test, had "applied both judicially articulated design patent infringement test in the proper manner."To read the full decision in Arminak & Assocs., Inc. v. Saint-Gobain Calmar, Inc., click here.

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