LaFrance on Arminak & Assocs., Inc. v. Saint-Gobain Calmar, Inc.

Document Type

Response or Comment

Publication Date



In order to infringe a design patent, an accused design must be substantially similar to the patented design, as seen through the eyes of the hypothetical ordinary observer. But who is this person? While case law establishes that the ordinary observer is normally a purchaser of the product in question, the chain of commerce for a particular product may involve purchasers at several levels. In Arminak v. Saint-Gobain Calmar, the Federal Circuit addressed for the first time the question of who is the ordinary observer of a patented design that is used in packaging a product for retail sale is it the industry buyer who selects the packaging components, or the retail consumer who buys the packaged product? This commentary, written by law professor Mary LaFrance, explains how the Federal Circuit resolved this question, and what uncertainties remain.

Publication Citation

2008 Emerging Issues 1616 (2007).

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