Country: US
Tribunal: Court of Appeals for the Federal Circuit en banc
Date: 12/09/2007
Case No.: 2006-1561
Design: US D381581 and D377602
Citation: 501 F.3d 1314
Full text of decision
Comment on Patently-O Blog
Author: David Musker, R G C Jenkins & Co

An infringement action on a design patent concerning trigger sprayers, spray nozzles which were sold to bottle manufacturers, and never to end consumers. Held, that the ordinary observer in the case of components is the trade buyer of the component who integrates it into a product. Petitioned to the Supreme Court, according to Patently-O
  • "...a design patent is infringed by the unauthorized manufacture, use, or sale of the article embodying the patented design or any colorable imitation thereof." Goodyear Tire & Rubber Co. v. Hercules Tire & Rubber Co., 162 F.3d 1113, 1116-17 (Fed. Cir. 1998)."
"The scope of the claim of a patented design “encompasses ‘its visual appearance as a whole,’ and in particular ‘the visual impression it creates.’” Contessa Food Prods., Inc. v. Conagra, Inc., 282 F.3d 1370, 1376 (Fed. Cir. 2002) (quoting Durling v. Spectrum Furniture Co., 101 F.3d 100, 104-05 (Fed. Cir. 1996))."
"Infringement of a design patent occurs if the designs have the same general visual appearance, such that it is likely that the purchaser [(or the ordinary observer)] would be deceived into confusing the design of the accused article with the patented design." Goodyear, 162 F.3d at 1118.
"The 'ordinary observer' test was first enunciated by the United States Supreme Court in Gorham Manufacturing Co. v. White, 81 U.S. 511 (1871), which held that: '[I]f, in the eye of an ordinary observer, giving such attention as a purchaser usually gives, two designs are substantially the same, if the resemblance is such as to deceive such an observer, inducing him to purchase one supposing it to be the other, the first one patented is infringed by the other.' Id. at 528." Explicity rejected in Gorham was "“the observation of a person versed in designs in the particular trade in question—of a person engaged in the manufacturer or sale of articles containing such designs—of a person accustomed to compare such designs one with another, who sees and examines the articles containing them side by side,” id. at 527" Required was "“ordinary acuteness, bringing to the examination of the article upon which the design has been placed that degree of observation which men of ordinary intelligence give.” Id. at 528. "the principle purchasers of the articles to which designs have given novel appearances, and if they are misled, and induced to purchase what is not the article they supposed it to be . . . the patentees are injured"".
  • " the Goodyear case 162 F.3d at 1117 (which dealt with patented tire tread designs commercially embodied on Goodyear’s truck tires) ... we found that the ordinary observer of the patented tread designs was a truck driver and a truck fleet operator because the products containing the patented and accused designs were tires used on trucks, even though the design patent at issue was not limited to truck tires."
"The ordinary observer is not any observer, but one who, with less than the trained facilities of the expert, is “a purchaser of things of similar design,” or “one interested in the subject” . . . one who, though not an expert, has reasonable familiarity with such objects [as an automobile ash tray and cigar lighter], and is capable of forming a reasonable judgment when confronted with a design therefor as to whether it presents to his eye distinctiveness from or similarity with those which have preceded it." Applied Arts Corp. v. Grand Rapids Metalcraft Corp., 67 F.2d 428, 430 (6th Cir. 1933)."
"In Contessa, we stated: "for purposes of design patent infringement, the “ordinary observer” analysis is not limited to those features visible during only one phase or portion of the normal use lifetime of an accused product. Instead, the comparison must extend to all ornamental features visible during normal use of the product, i.e., “beginning after completion of manufacture or assembly and ending with the ultimate destruction, loss, or disappearance of the article.” 282 F.3d at 1380 (citations omitted) (emphases added)."
"The industrial purchaser of the trigger sprayer shrouds for manufacturing assembly does indeed “use” the shrouds—to cover trigger sprayer mechanisms that are assembled with the bottle, the bottle’s cap, the liquid contained in the bottle, and the label on the bottle, all of which assembled together create the retail product. Consequently, the purchaser of the patented and accused designs in this case is the purchaser of one of a retail product’s component parts that is thereafter assembled with other parts to make the retail product. 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."
  • "We agree, therefore, with the district court that the ordinary observer of the sprayer shroud designs at issue in this case is the industrial purchaser or contract buyer of sprayer shrouds for businesses that assemble the retail product from the component parts of the retail product bottle, the cap, the sprayer tube, the liquid, the label, and the trigger sprayer device atop the cap, so as to create a single product sold to the retail consumer."