Design Patent Litigation: Increasing the Probability of Success in Infringement Outcomes

This CLE course will guide design patent counsel in the application of the Gorham ordinary observer test in design patent litigation. The panel will review recent design patent decisions that result in undesirable subjective outcomes. The panel will also present validated large-sample consumer surveys and discuss the use of science-based, objective Empirical Ordinary Observer Test (EOOT) survey methodology. The panel will offer actual data from the recent application of the EOOT methodology and review the Daubert challenges asserted against the EOOT methodology.

The degree of subjectivity in applying the ordinary observer test in design patent litigation has become a massive problem for companies striving to protect their high-value design patent portfolios. Based on a review of recent cases, it is clear that judges and juries are delivering judgments based on subjective infringement evaluations that make little sense and produce outcomes that are creating a universe of case law that is highly unstable and unpredictable.

The persistent presence of high levels of subjective variability in design patent litigation now requires a serious move toward applying more rigorous, objective, and science-based methods, if this persistent trend is going to be reversed. It is a simple fact that how consumers process the shape of products is far more complex and subject to bias than previously thought. The finder of fact can and will benefit from science-based, objective consumer survey data that provides insights into how the actual consumer population rates product shape based on the application of the ordinary observer test. The value of design patents likely depends on more rigorous, science-based litigation and risk mitigation methods.