Ordinary Observer is Commercial Purchase of Patented Part, Not Retail Purchaser of Assembly

Arminak and Associates, Inc., v. Saint-Gobain Calmar, Inc., [2006-1561](September 12, 2007)[HOLDERMAN, Michel, Gajarsa] The Federal Circuit affirmed summary judgment for Arminak that the design of Arminak trigger sprayers did not infringe U.S. Patent Nos. D381,581 and D377,602.
BRIEF: Arminak brought a declaratory judgment action to declare that Calmar's design patents were invalid and not infringed. The Federal Circuit first reviewed the law of design patents:
A design patent protects the nonfunctional aspects of an ornamental design as shown in the patent. The chief limitation on the patentability of designs is that they must be primarily ornamental in character. If the design is dictated by performance of the article, then it is judged to be functional and ineligible for design patent protection. The Federal Circuit said that infringement of a design patent is evaluated in a two-step process. First, the court must construe the claims of the design patent to determine their meaning and scope. Design patents are claimed as shown in drawings. Claim construction by a court is adapted accordingly. The scope of the claim of a patented design "encompasses ‘its visual appearance as a whole,’ and in particular ‘the visual impression it creates.’" Second, after construction of the patent’s claims, the court is to compare the construed claims to the accused design.
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. The patented and accused designs do not have to be identical in order for design patent infringement to be found. In determining infringement of a design patent, the court is not limited to the ornamental features of a subset of the drawings, but instead must encompass the claimed ornamental features of all figures of a design patent. The comparison of the patented and accused designs involves two separate tests, both of which must be satisfied to find infringement: the ordinary observer test and the point of novelty test. The ordinary observer test considers whether to an ordinary observer, giving such attention as a purchaser usually gives, the resemblance between the designs 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. The point of novelty test requires that the accused design appropriate the novelty which distinguishes the patented design from the prior art. LOF: The ordinary observer test and point of novelty test are factual inquiries. Calmar complained that the district court's claim construction was too detailed. The Federal Circuit responded that its case law does not prohibit detailed claim construction of design patent drawings. It merely disapproves claim construction that goes beyond the novel, nonfunctional ornamental features visually represented by the claimed drawings, or fails to encompass the claimed ornamental features of the design as a whole. A central issue was the identify of the "ordinary observer", the patentee argued that it was retail customers of products in packaging containing the spray head. The Federal Circuit considered the Supreme Court's decision in Gorham The Supreme Court’s Gorham opinion, which expressly excluded experts from the category of persons who are ordinary observers. The Federal Circuit said that the focus of the ordinary observer test is on the actual product that is presented for purchase, and the ordinary purchaser of that product. The Federal Circuit held that that the ordinary observer of the sprayer shroud designs at issue in the 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 Federal Circuit further agreed that this ordinary observer would not be confused by the two designs. Lastly, the Federal Circuit agreed that the two points of novelty identified by the patentee were not appropriated.