In a recent design patent case, the Federal Circuit held that the “ordinary observer” is not always the end consumer of the ultimate product, but in the case of a smaller component of a larger product, it can be the industrial buyer of that component. This allows an accused infringer to argue that the products should be viewed from the perspective of a sophisticated purchaser, who is more attuned to differences between products and thus would not be confused by minor variations. If you have any questions about how this case might affect the ornamental designs of your products, please give us a call.
For Design Patent Infringement, “Ordinary Observer” Can Be the Industrial Buyer
