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

79 Pages Posted: 10 Jun 2020 Last revised: 24 Mar 2021

See all articles by Charles Mauro

Charles Mauro

Mauro Usability Science

Chris Morley

Mauro Usability Science

Paul Thurman

Columbia University - Mailman School of Public Health

Date Written: June 5, 2020

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.

Keywords: Ordinary Observer Test, Design Patent Infringement, Intellectual Property, Empirical Research, Gorham, White, Neuroaesthetics, Neuroscience

Suggested Citation

Mauro, Charles and Morley, Chris and Thurman, Paul, Development and Initial Validation of an Empirical Ordinary Observer Test for Design Patent Infringement (June 5, 2020). Available at SSRN: https://ssrn.com/abstract=3620088 or http://dx.doi.org/10.2139/ssrn.3620088

Charles Mauro (Contact Author)

Mauro Usability Science ( email )

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Chris Morley

Mauro Usability Science ( email )

23 East 73rd Street
Suite 5F
New York, NY 10021
United States

Paul Thurman

Columbia University - Mailman School of Public Health ( email )

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New York, NY 10032
United States

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