This Is Our “17 Seconds” Newsletter #126: 17 Seconds = Useful Info Quickly.
Whether an accused product infringes a design patent is a matter of fact. To determine if a design patent is infringed, the trier of fact (judge or jury) compares the non-functional aspects of the patented design with the accused product. The trier of fact determines whether the patented design as a whole is substantially similar in appearance to the accused design. If, in the eye of the ordinary observer, giving such attention as a purchaser usually gives, the two designs are substantially the same, and if the resemblance is such as to deceive such an observer, inducing him to purchase one supposing it to be the other, then the accused product infringes the patented design.
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