Over one hundred and thirty-five years ago the U.S. Supreme Court, in Gorham v. White, laid down the test for design patent infringement called the “ordinary observer” test—one that is administered through the eyes of men generally. It has remained the test ever since. Recently, in Arminak & Assoc., Inc. v. Saint-Gobain Calmar, Inc and Egyptian Goddess, Inc. v. Swisa, Inc., the Federal Circuit has improperly replaced this “ordinary observer” test with an “extra-ordinary observer” test—one that uses persons who are versed in the trade. In order to bring design patent jurisprudence in line with the U.S. Supreme Court’s jurisprudence in Gorham, the Federal Circuit should restore the “ordinary” requirement in the “ordinary observer” test.
Christopher V. Carani, The New "Extra-Ordinary" Observer Test For Design Patent Infringement–On A Crash Course With The Supreme Court's Precedent in Gorham v. White, 8 J. Marshall Rev. Intell. Prop. L. 354 (2009)