Industrial Buyer is Ordinary Observer of Spray Trigger Shrouds
The industrial purchaser of the trigger sprayer shrouds for manufacturing assembly does indeed "use" the shrouds—to cover trigger sprayer mechanisms that are assembled with the bottle, the bottle’s cap, the liquid contained in the bottle, and the label on the bottle, all of which assembled together create the retail product. Consequently, the purchaser of the patented and accused designs in this case is the purchaser of one of a retail product’s component parts that is thereafter assembled with other parts to make the retail product. To hold that such a purchaser is the appropriate hypothetical ordinary observer fits squarely with our precedent that the ordinary observer is a person who is either a purchaser of, or sufficiently interested in, the item that displays the patented designs and who has the capability of making a reasonably discerning decision when observing the accused item’s design whether the accused item is substantially the same as the item claimed in the design patent.
We agree, therefore, with the district court that the ordinary observer of the sprayer shroud designs at issue in this case is the industrial purchaser or contract buyer of sprayer shrouds for businesses that assemble the retail product from the component parts of the retail product bottle, the cap, the sprayer tube, the liquid, the label, and the trigger sprayer device atop the cap, so as to create a single product sold to the retail consumer. Here, the patented design is only the shroud of the sprayer device. The three physical exhibits submitted for examination on appeal are trigger sprayer devices attached to bottle caps with plastic tubes for insertion into contained liquid, not the bottles, not the liquid into which the sprayer tube is inserted during normal use, and not the label of the retail product.
The Federal Circuit also agreed with the district court that no reasonable jury could find that Calmar’s two points of novelty exist in Arminak’s AA Trigger shroud. With regard to the first point of novelty, the Federal Circuit affirmed that the prominent horizontal line extending along the shroud’s sides appears in both patented designs was not appropriated by Arminak’s AA Trigger shroud because the horizontal line on the AA Trigger is intersected by a slanted line defining a raised surface.
According to the Federal Circuit, "The raised surface and intersecting slanted line below Arminak’s AA Trigger shroud’s horizontal line results in a different overall design appearance than Calmar’s asserted first point of novelty of its patented designs."The Federal Circuit also affirmed that, for the second point of novelty, "based on the bulbous sides as depicted in the back views of Calmar’s patents’ drawings, no reasonable jury could find that the back of Arminak’s AA Trigger shroud, which is almost identical to the ’198 and ’222 prior art patents, appropriates Calmar’s second point of novelty. "
"Arguably, the bulbous bulge of the sides of the patented designs are novel when compared to the prior art," wrote the appellate court. However, "We agree with the district court that based on the bulbous sides as depicted in the back views of Calmar’s patents’ drawings, no reasonable jury could find that the back of Arminak’s AA Trigger shroud, which is almost identical to the ’198 and ’222 prior art patents, appropriates Calmar’s second point of novelty."