Ordinary Observer And Informed User Walk Into A Bar: A Transatlantic Conversation About Design Infringement

FADE IN

BRISK FALL DAY—MIDDAY

In a small local pub somewhere in the middle of the Atlantic Ocean, perhaps Bermuda, the Azores or Ascension Island ...

Olivia Owens: Iris, great to see you again! How's it going in London?

Iris Underwood: Well. Good to see you too Olivia. I'm glad you agreed to join me to discuss transatlantic design infringement. I'll be honest, I'm still not clear about your "ordinary observer."

OO: I'm happy to explain. In the United States, the "ordinary observer" is a hypothetical person whose perspective we use to assess whether a patented design is infringed by the accused product. As the U.S. Supreme Court explained in 1871, design patent infringement is determined from "the eye of an ordinary observer, giving such attention as a purchaser usually gives.¹ Infringement occurs when that ordinary observer deems that the accused design and claimed designs are substantially the same in light of the prior art.²