Development and Initial Validation of an Empirical Ordinary Observer Test for Design Patent Infringement

Abstract

Data-driven decision-making is ubiquitous in today’s society and modern neuroscience methodologies enable leveraging data-driven decision-making in design patent litigation. The empirical ordinary observer test (EOOT) utilizes neuroscience-based research methodologies to aid the finder of fact in design patent infringement determinations based on the ordinary observer test (OOT). The EOOT provides the finder of fact with robust data from a large sample of representative consumers regarding how an ordinary observer perceives a patented and accused infringing design according to the OOT. Such data enables the finder of fact to decide from the perspective of the ordinary observer with greater accuracy. The EOOT was designed to meet federal requirements for scientific evidence. This paper presents an initial validation of the EOOT based on the designs involved in the precedential Supreme Court of the United States (SCOTUS) design patent infringement case Gorham v. White. Four hundred respondents (N = 400) completed an online survey featuring tasks based on the core components of the OOT and the relevant Gorham v. White designs. The results of the online study supported the results of the Gorham v. White case, indicating initial validation of the EOOT.