Industrial Purchaser, Not Retail Consumer, Is Ordinary Observer of Trigger Sprayer Shroud Design
September 12, 2007
Last Month at the Federal Circuit - October 2007
Judges: Michel, Gajarsa, Holderman (author, Chief District Judge sitting by designation)
[Appealed from: C.D. Cal., Judge Carney]
In Arminak & Associates, Inc. v. Saint-Gobain Calmar, Inc., No. 06-1561 (Fed. Cir. Sept. 12, 2007), the Federal Circuit affirmed the district court’s holding that the design of Arminak & Associates, Inc.’s (“Arminak”) “AA Trigger” shroud did not infringe Saint-Gobain Calmar, Inc.’s (“Calmar”) two design patents, U.S. Patent Nos. Des. 381,581 (“the ’581 patent”) and Des. 377,602 (“the ’602 patent”).
Calmar’s ’581 and ’602 patents are directed to two trigger sprayer shroud designs. A shroud is an outside cover of the top portion of a trigger sprayer device (e.g., for dispersing liquid household products as a spray), located behind the nozzle and above the trigger mechanism. After Arminak began selling its AA Trigger sprayer with the accused shroud design, Calmar notified an Arminak customer that Calmar believed the AA Trigger sprayer infringed the ’581 and ’602 patents. Arminak filed a DJ action against Calmar of noninfringement, and later added patent invalidity and state law claims against Calmar. The district court granted Arminak’s motion for SJ on its DJ claim, finding that the AA Trigger shroud design did not infringe the ’581 and ’602 patents, and dismissed Calmar’s infringement counterclaims.
On appeal, Calmar first argued that the district court erred by construing the ’581 and ’602 patent claims too narrowly and focusing on minute detail in the ornamental features rather than simply describing the drawings by words. The Federal Circuit disagreed, highlighting that the case law does not prohibit detailed claim construction of design patents. Instead, it “merely disapproves claim construction that goes beyond the novel, nonfunctional ornamental features visually represented by the claimed drawings . . . or that fails to encompass the claimed ornamental features of the design as a whole.” Slip op. at 7-8 (citation omitted). The Court further held that the “meticulous and accurate description” of the figures by the district court did not constitute error because the district court properly considered the claimed designs as a whole. Id. at 8.
Next, Calmar argued that the district court mistakenly designated the ordinary observer as the industrial purchaser of trigger sprayer mechanisms for assembly into the commercial product, rather than the retail consumer that purchases the final product with the trigger sprayer, including the shroud. The Federal Circuit noted that in Gorham Manufacturing Co. v. White, 81 U.S. 511 (1871), the Supreme Court expressly excluded experts from the category of persons who are ordinary observers. According to the Federal Circuit, however, Gorham left open the possibility that industrial purchasers could be “ordinary observers.”
Agreeing with the district court, the Federal Circuit held that designating the industrial purchaser as the hypothetical ordinary observer in this case “fits squarely with our precedent that the ordinary observer is a person who is either a purchaser of, or sufficiently interested in, the item that displays the patented designs and who has the capability of making a reasonably discerning decision when observing the accused item’s design whether the accused item is substantially the same as the item claimed in the design patent.” Slip op. at 12-13.
The Federal Circuit also upheld the district court’s finding that the accused device did not appropriate the two points of novelty for the ’581 and ’602 patents. The Court rejected Calmar’s argument that the district court committed legal error by merging the point of novelty test with the ordinary observer test. The Federal Circuit concluded that the district court properly confined its point of novelty analysis to determining whether Arminak’s AA Trigger shroud appropriated Calmar’s points of novelty. The Court also found that in conducting the point of novelty analysis, the district court was not required to limit its discussion of the points of novelty to only the exact words Calmar used to describe its two points of novelty. Instead, it was proper for the district court to compare the accused device to the points of novelty as they appeared in the figures of the patents.