![]() As a result, the present-day ordinary observer test requires a three-way analysis between the claimed design, the allegedly infringing product, and the closest comparative prior art.Īfter claim construction, the ordinary observer test proceeds in two stages. holding that the appropriate analysis occurs through the eyes of an observer “familiar with the prior art.” 543 F.3d 665, 677 (Fed. The Court of Appeals for the Federal Circuit (“CAFC”) further refined the ordinary observer test in Egyptian Goddess, Inc. White, and specifies that design patent infringement occurs “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.” 81 U.S. The court applied the ordinary observer test to determine whether there was infringement and discussed each of the four ornamental features in connection with the D’060 patent and the Flawless Legs product. The ordinary observer test was originally set forth in Gorham Co v. 5-7 below) and (4) a flat base (see FIGS. 5-7 below) (3) a collar beneath an elongated neck (see FIGS. 3 below) (2) an elongated neck separating the handle and the base (see FIGS. D853,645 (“the D’645 patent”).Īfter full briefing and a sufficiently complete evidentiary record, the court held that the Flawless Legs product is ornamentally dissimilar to, and therefore does not infringe, Skull Shaver’s design patent, and through claim construction identified at least four ornamental features within the scope of the patented design that, when considered together, contribute to the overall visual effect of the head shaver: (1) an egg-shaped handle with no corners (see FIG. D693,060 (“the D’060 patent”) for an electric head shaver, and the accused product is a Flawless Legs Shaver, which is itself covered by U.S. In its complaint, Skull Shaver claimed that Ideavillage’s leg shaver infringed its design patent on a head shaver. ![]() IdeaVillage Products Corp., No.18cv3836 (EP) (AME) (D.N.J. In a recent district court decision, a New Jersey federal judge granted summary judgment to an accused infringer of a patented design.
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