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Posts Tagged: "ordinary observer test"

Why and When Design Patents are Useful

Simply said, the rights provided by one design patent will be extremely unsatisfactory. However, design patents must be considered because a design patent can in many instances be awarded in as few as six to nine months. If obtaining some protection is important for an overall marketing strategy, getting at least some protection quickly may be advantageous compared to waiting the two to three years it will likely take to obtain a utility patent. Design patents can also be an extremely useful tool for a variety of reasons.

Federal Circuit Finds District Court Correctly Applied Ordinary Observer Test

Last week, the U.S. Court of Appeals for the Federal Circuit (CAFC) affirmed a decision of the U.S. District Court for the Middle District of Florida in Lanard Toys Limited v. Dolgencorp LLC, Ja-Ru, Inc., Toys “R” Us-Delaware, Inc. The district court granted summary judgment in favor of Dolgencorp LLC, Ja-Ru, Inc., Toys “R” Us-Delaware, Inc. (the Appellees) on Lanard’s claims of design patent infringement, copyright infringement, trade dress infringement, and statutory and common law unfair competition. The CAFC, in an opinion authored by Judge Lourie, affirmed on all four claims.

Federal Circuit Finds District Court Did Not Err in Jury Instructions On ‘Ordinary Observer’ Standard

The U.S. Court of Appeals for the Federal Circuit (CAFC) affirmed a decision of the District Court for the Southern District of West Virginia finding that GMS Mine Repair and Maintenance, Inc. (GMS) infringed Hafco Foundry and Machine Company, Inc.’s (Hafco) design patent, U.S. Design Patent No. D681,684 (the ’684 patent), directed to a rock dust blower for distributing rock dust in areas such as coal mines.  The CAFC also affirmed the district court’s denial of GMS’ request for a new trial due to errors in the jury instructions. Judge Newman concurred with the majority’s decision but wrote separately to note that she would have resolved the matter of damages by accepting Hafco’s proposed remitter of $110,000, which was the total of Hafco’s lost profits.