LKQ v. GM - Professors Brief

Case: 21-2348 Document: 66-2 Page: 1 Filed: 04/06/2023
CASE NO. 2021-2348
UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT
LKQ CORP. & KEYSTONE AUTOMOTIVE INDUSTRIES,

INC.
Appellants,
v.
GM GLOBAL TECHNOLOGY OPERATIONS LLC,
Appellee.
Appeal from the United States Patent and Trademark Office Patent
Trial and Appeal Board in PGR2020-00055 (JJ. Ken B. Barrett, Scott
A. Daniels, and Robert L. Kinder)
BRIEF OF AMICI CURIAE INTELLECTUAL PROPERTY LAW

PROFESSORS IN SUPPORT OF APPELLANTS’ REQUEST FOR
REHEARING EN BANC
Phillip R. Malone
JUELSGAARD INTELLECTUAL
PROPERTY AND INNOVATION
CLINIC
Mills Legal Clinic at Stanford Law School
559 Nathan Abbott Way
Stanford, California 94305-8610
Tel: (650) 724.1900
[email protected]
Counsel for Amici Curiae

CERTIFICATE AS TO PARTIES, CONSENT TO FILE, RULINGS,

RELATED CASES, AND SEPARATE BRIEFING
Pursuant to Federal Circuit Rules 29(a) and 47.4, counsel for amici curiae
certifies that:
1. The full names of the amici I represent are: Intellectual Property Law
Professors (See Attachment A).
2. The name of the real party in interest (if the party named in the caption
is not the real party in interest) I represent is: N/A.
3. All parent corporations and any publicly held companies that own 10
percent or more of the stock of the amici curiae I represent are: None.
4. The names of all law firms and the partners or associates that appeared
for the amici I represent or are expected to appear in this Court (and who have not
or will not enter an appearance in this case) are: None.
5. The title and number of any case known to counsel to be pending in this
or any other court or agency that will directly affect or be directly affected by this
court’s decision in the pending appeal: LKQ Corp., et al. v. GM Global Technology
Operations LLC, Fed. Cir. Case No. 2022-1253.
i
6. All information required by Federal Rule of Appellate Procedure 26.1(b)
and (c) that identifies organizational victims in criminal cases and debtors and
trustees in bankruptcy cases is: None.
April 6, 2023 /s/ Phillip R. Malone

Phillip R. Malone
JUELSGAARD INTELLECTUAL PROPERTY AND
INNOVATION CLINIC
ii
ATTACHMENT A TO CERTIFICATE OF INTEREST
Professor Mark Bartholomew

University at Buffalo School of Law
The State University of New York
Professor Amy Landers

Thomas R. Kline School of Law
Drexel University
Professor Ana Santos Rutschman

Charles Widger School of Law
Villanova University
Professor Sharon K. Sandeen

Mitchell Hamline School of Law
Professor Joshua D. Sarnoff

DePaul University College of Law
iii
TABLE OF CONTENTS
CERTIFICATE AS TO PARTIES, CONSENT TO FILE,

RULINGS, RELATED CASES, AND SEPARATE
BRIEFING ................................................................................................................. i
ATTACHMENT A TO CERTIFICATE OF INTEREST ....................................... iii
TABLE OF AUTHORITIES .................................................................................... v
INTEREST OF AMICI CURIAE ............................................................................. 1
I. Congress Foreclosed Design Patent Doctrinal

Exceptionalism. .............................................................................................. 1
II. This Court Should Conform Its Design Patent

Doctrines to the PHOSITA’s (DOSA’s) Perspective. .................................... 3
III. This Court Should Conform Its Design Patent

Obviousness Doctrine to KSR’s Treatment of the
PHOSITA’s Creativity. ................................................................................... 7
CONCLUSION......................................................................................................... 9
ATTACHMENT A – LIST OF AMICI
CERTIFICATE OF SERVICE
CERTIFICATE OF COMPLIANCE WITH TYPE-

VOLUME LIMITATIONS
iv
TABLE OF AUTHORITIES
Page(s)
Cases
Atl. Thermplastics Co. v. Faytex Corp.,

974 F.2d 1279 (Fed. Cir. 1992) (en banc) (Rich, J., dissenting from
the denial of rehearing en banc) .......................................................................... 6
In re Clay,
966 F.2d 656 (Fed. Cir. 1992) ............................................................................. 8
Durling v. Spectrum Furniture Co.,

191 F.3d 100 (Fed. Cir. 1996) ................................................................... 6, 7, 10
Ecolochem, Inc. v. Southern California Edison Co.,

227 F.3d 1361 (Fed. Cir. 2000) ........................................................................... 8
Egyptian Goddess Inc. v. Swisa, Inc.,

543 F.3d 665 (Fed. Cir. 2008) (en banc) ......................................................... 4, 5
Gorham v. White,
81 U.S. (14 Wall.) 511 (1871) ......................................................................... 4, 5
Int’l Seaway Trading Corp. v. Walgreen’s Corp.,

589 F.3d 1233 (Fed. Cir. 2009) ........................................................................... 5
KSR International Co. v. Teleflex, Inc.,

550 U.S. 398 (2007) .................................................................................... 7, 8, 9
In Re Nalbandian,
661 F.2d 1214 (C.C.P.A. 1981) (en banc) ........................................................... 5
Phillips v. AWH Corp.,

415 F.3d 1303 (Fed. Cir. 2005) (en banc) ........................................................... 3
In re Rosen,
673 F.2d 388 (C.C.P.A. 1982) (en banc) ............................................... 6, 7, 8, 10
Smith v. Whitman Saddle,

148 U.S. 674 (1893) ........................................................................................ 4, 5
v
Warner-Jenkinson Co. v. Hilton Davis Chemical Co.,

520 U.S. 17 (1997) .............................................................................................. 4
Statutes
35 U.S.C. § 103..................................................................................................... 3, 5
35 U.S.C. § 112(a) .................................................................................................... 3
35 U.S.C. § 171(b) ................................................................................................ 2, 3
35 USC...................................................................................................................... 2
Act of Aug. 29, 1842, Ch. 263, § 3, 5 Stat. 543-44 (1842) ...................................... 2
Other Authorities
Howard T. Markey, Talk given April 26, 1983 (quoted in Ronald D.

Hantman, Why Not the Statute? Revisited, 83 J. Pat. & Trademark
Off. Soc’y 685 (2001) .......................................................................................... 2
Jason J. DuMont & Mark D. Janis, The Origins of American Design

Patent Protection, 88 IND. L.J. 837 (2013).......................................................... 1
Mark Bartholomew, Nonobvious Design, 108 IOWA L. REV. 601,

604-05 (2023) ...................................................................................................... 6
Walter Isaacson, Steve Jobs (2011) .......................................................................... 5
U.S. Const., Art. I, § 8, cl. 8 ..................................................................................... 3
vi
INTEREST OF AMICI CURIAE
Amici Curiae are the intellectual property law professors at law schools in the
United States listed in Attachment A. They regularly study, teach and write about
patent law, including design patent law. They have no personal interest in the
outcome of this case. But they do share a professional interest in assuring the
conceptual clarity and proper functioning of the patent laws so as to serve the public
interest. In particular, they are concerned about the over-extension of protection
based on conceptual mistakes, however made and however well-meaning.1
I. Congress Foreclosed Design Patent Doctrinal Exceptionalism.
Congress chose to place the protection of aesthetic advances for physically
useful articles of manufacture under the patent laws. Jason J. DuMont & Mark D.
Janis, The Origins of American Design Patent Protection, 88 IND. L.J. 837, 847-74
(2013). But Congress simultaneously made clear that all the same utility patent law
requirements were to apply to designs, except where Congress had explicitly
provided otherwise: “all the regulations and provisions which now apply to the
obtaining and protection of patents not inconsistent with the provisions of this act
1
All parties have received notice of the filing of this brief. Counsel for Appellants
indicated they consent to the filing of this brief; counsel for Appellee indicated
they do not oppose the motion. No party or party’s counsel authored this brief in
whole or in part or contributed money that was intended to fund preparing or
submitting this brief. No person other than amici or their counsel contributed
money that was intended to fund preparing or submitting this brief.
1
shall apply to [design patents].” Act of Aug. 29, 1842, Ch. 263, § 3, 5 Stat. 543-44
(1842).
Congress preserved this language essentially unmodified in every major
revision to the design patent law. The most recent formulation is even more explicit
in rejecting design patent exceptionalism: “The provisions of this title relating to
patents for inventions shall apply to patents for designs, except as otherwise
provided.” 35 U.S.C. § 171(b) (emphasis added).
Thus, except where Congress has explicitly specified otherwise, there should
be no “exceptional” approach to design patent law doctrines that render them
different from utility patent law doctrines. Congress, not the Supreme Court, has
imposed this requirement of consistency. As Professors DuMont and Janis have
explained, “[b]y retaining the incorporation clause as utility patent law diverged
from copyright law, Congress has forced blind obedience to a principle that even
[Patent Commissioner] Ellsworth might not have supported.” DuMont & Janis,
supra, at 874. Unfortunately, sometimes blind obedience is required. As the former
Chief Judge of this court used to say, “When all else fails, read the instructions….
When the patent statute (35 USC) is present, the advice has been far too often
ignored.” Howard T. Markey, Talk given April 26, 1983 (quoted in Ronald D.
Hantman, Why Not the Statute? Revisited, 83 J. Pat. & Trademark Off. Soc’y 685,
685 (2001).
2
II. This Court Should Conform Its Design Patent Doctrines to the
PHOSITA’s (DOSA’s) Perspective.
Utility patent law doctrines are to be determined by reference to the
hypothetical “person having ordinary skill in the art to which the claimed invention
pertains” (the “PHOSITA” or “POSA”). 35 U.S.C. § 103. See also, e.g., 35 U.S.C.
§ 112(a) (“any person skilled in the art to which it pertains, or with which it is most
nearly connected”); Phillips v. AWH Corp., 415 F.3d 1303, 1313 (Fed. Cir. 2005)
(en banc) (“the ordinary and customary meaning of a claim term is the meaning
that the term would have to a person of ordinary skill in the art”). Given Section
171(b), all design patent law doctrines should be determined by reference to the
“Designer of Ordinary Skill in the Art” (“DOSA”) – really to a PHOSITA in
designer’s clothing.
The reason to focus on the PHOSITA/DOSA, moreover, is because the
purpose of the patent laws is to “promote the Progress of … useful Arts.” U.S.
Const., Art. I, § 8, cl. 8. Cf. id. (“promote the Progress of Science”). Thus, patent
laws (even for designs) should focus on technological or aesthetic advancement, not
on protecting consumers or competitors from marketplace confusion. The latter is
the purpose and function of the trademark and unfair competition laws.
Yet, for design patent infringement and novelty doctrines, the Supreme Court
and this Court have improperly employed the perspective of the “ordinary observer,”
seeking to protect that person from “confusion.” This departs from Congress’
3
explicit statutory command to follow utility patent law principles. The Supreme
Court made this mistake in its first design patent case, Gorham v. White, 81 U.S. (14
Wall.) 511 (1871), when holding that design patent infringement is to be based on
the confusion of ordinary observers, rather than on factual identity with the patented
design (or, under the doctrine of equivalents, on sufficient factual similarity to the
patented design, see, e.g., Warner-Jenkinson Co. v. Hilton Davis Chemical Co., 520
U.S. 17, 24-30, 39-40 (1997)). As the Court held in Gorham, “identity of
appearance” or “sameness of effect upon the eye” to an “ordinary observer” is the
test for design patent infringement, since “human ingenuity has never yet produced
a design, in all its details, exactly like another, so like that an expert could not
distinguish them.” 81 U.S. (14 Wall.) at 527.
Based on Gorham, the Supreme Court in Smith v. Whitman Saddle, 148 U.S.
674 (1893), extended the ordinary observer perspective to the statutory novelty
requirement. “‘The true test of identity of design is sameness of appearance,-in other
words, sameness of effect upon the eye; that it is not necessary that the appearance
should be the same to the eye of an expert, and that the test is the eye of an ordinary
observer….’” Id. at 679-80 (citation omitted).
Similarly, this court has adopted an “ordinary observer” test for both
infringement and novelty. See Egyptian Goddess Inc. v. Swisa, Inc., 543 F.3d 665,
669-79 (Fed. Cir. 2008) (en banc) (rejecting the “non-trivial advance” “point of
4
novelty” test for assessing factual similarity for infringement in favor of the Gorham
“ordinary observer” test); Int’l Seaway Trading Corp. v. Walgreen’s Corp., 589 F.3d
1233, 1240 (Fed. Cir. 2009) (“In light of Supreme Court precedent and our precedent
holding that the same tests must be applied to infringement and anticipation, and our
holding in Egyptian Goddess . . . we now conclude that the ordinary observer test
must logically be the sole test for anticipation as well.”). But, given the express
language in Section 103, this court has retained the PHOSITA’s perspective for
nonobviousness. See In Re Nalbandian, 661 F.2d 1214, 1215-17 (C.C.P.A. 1981)
(en banc) (overruling In re Laverne, 356 F.2d 1003 (C.C.P.A. 1966)).
These mistakes fail to address the patent law nature of design patent doctrine,
and whether and when a design constitutes a creative advance in aesthetics that is
being appropriated by a third party. Whether or not they know of the neurobiological
bases for the aesthetic responses achieved in consumers or other viewers, DOSAs
(like other PHOSITAs) are invariably seeking to achieve particular (perceptual)
effects by employing different “shapes” that have different aesthetic “utility.”
Whitman Saddle, 148 U.S. at 681. See generally, e.g., WALTER ISAACSON, STEVE
JOBS (2011). In contrast, at least one opinion below incorrectly treated designs as
exceptional, by classifying design as fine art rather than as useful art.
[T]he considerations involved in determining obviousness are different

in design patents. Obviousness of utility patents requires considerations
such as unexpected properties, utility, and function. Design patents, on
the other hand, relate to considerations such as the overall appearance,
5
visual impressions, artistry, and style of ornamental subject matter.

Ornament is in the eyes of the beholder. Functional utility is objective.
Dkt. 45, ECF No. 18 (emphasis added). But see, e.g., Mark Bartholomew,
Nonobvious Design, 108 IOWA L. REV. 601, 604-05 (2023) (discussing the
neurobiology of aesthetics).
It would be highly controversial for this court to refuse to follow the Supreme
Court’s erroneous precedent in adopting the “ordinary observer” test for design
patent infringement and novelty, even if this court is authorized to do so because
those precedents are clearly contrary to superior statutory command. Cf., e.g., Atl.
Thermplastics Co. v. Faytex Corp., 974 F.2d 1279, 1281 (Fed. Cir. 1992) (en banc)
(Rich, J., dissenting from the denial of rehearing en banc) (“‘A[n earlier panel]
decision that fails to consider [superior] Supreme Court precedent does not control
if the court determines that the prior panel would have reached a different conclusion
if it had considered controlling precedent.’”) (citation omitted).
But this court can without hesitation reverse its own erroneous precedents for
nonobviousness, which misunderstand the nature of designs, of designing, and of the
DOSA’s creativity. This Court should avoid perpetuating conceptual errors that
result in exceptional treatment for designs, as Congress has foreclosed such
treatment and the Supreme Court has not required it.
It is particularly inappropriate to preserve the In re Rosen, 673 F.2d 388
(C.C.P.A. 1982) (en banc), and Durling v. Spectrum Furniture Co., 191 F.3d 100
(Fed. Cir. 1996), precedents (collectively, the Rosen approach). The Supreme Court
6
in KSR International Co. v. Teleflex, Inc., 550 U.S. 398 (2007), reversed precisely
the same kinds of erroneous approaches (as in Rosen and Durling) to a PHOSITA’s
(DOSA’s) skill and creativity that underlay this court’s pre-KSR approach to utility
patent nonobviousness doctrine.
III. This Court Should Conform Its Design Patent Obviousness Doctrine to
KSR’s Treatment of the PHOSITA’s Creativity.
This brief notes only two significant “exceptional” departures of the Rosen
approach to design patents from that of KSR for utility patents. The first is to require
starting with a single, prior art reference “the design characteristics of which are
basically the same as the claimed design.” Rosen, 673 F.2d at 391. The second is
that “secondary references may only be used to modify the primary reference if they
are ‘so related [to the primary reference] that the appearance of certain ornamental
features in one would suggest the application of those features to the other.’”
Durling, 191 F.3d at 103 (emphasis added and citation omitted).
First, KSR rejected precisely the same constricted “teaching, suggestion, or
motivation” (“TSM”) approach of this court in Durling, which had required a
“suggestion” in the prior art itself to find obviousness. “The obviousness analysis
cannot be confined by a formalistic conception of the words teaching, suggestion,
and motivation, or by overemphasis on the importance of published articles and the
explicit content of issued patents.” KSR, 550 U.S. at 419. Indeed, “[t]he diversity of
inventive pursuits and of modern technology counsels against limiting the analysis
7
in this way. In many fields . . . it often may be the case that market demand, rather
than scientific literature, will drive design trends.” Id. (emphasis added).
Further, the Supreme Court in KSR rejected any requirement that modification
(by combining disparate prior art elements) occur in any particular order, starting
with a “primary” reference. Prior to KSR, this court had decided Ecolochem, Inc. v.
Southern California Edison Co.,227 F.3d 1361 (Fed. Cir. 2000), in which it sought
to prevent “blueprinting” (combining multiple prior art elements) in an effort to
combat potential “hindsight bias.” But KSR instead found it “[c]ommon sense. . .
that familiar items may have obvious uses beyond their primary purposes, and in
many cases a person of ordinary skill will be able to fit the teachings of multiple
patents together like pieces of a puzzle.” 550 U.S. at 420-21. The Court concluded
that “[r]igid preventative rules that deny factfinders recourse to common sense” are
“neither necessary under our case law nor consistent with it.” Id.
Second, the “basically the same” design characteristics approach of Rosen
perpetuates the over-extended “analogous art” approach of In re Clay, 966 F.2d 656,
658-59 (Fed. Cir. 1992), which KSR also impliedly overturned. The Supreme Court
noted that a PHOSITA may start with any element in the prior art and may modify
it or combine it with other elements in the art to achieve the patented invention, even
by seeking to solve a different problem than that actually solved by the inventor.
“The question is not whether the combination was obvious to the patentee but
8
whether the combination was obvious to a person with ordinary skill in the art. Under
the correct analysis, any need or problem known in the field of endeavor at the time
of invention and addressed by the patent can provide a reason for combining the
elements in the manner claimed.” Id. at 420. The Court continued by noting that it
was an error to assume that a PHOSITA would “be led only to those elements of
prior art designed to solve the same problem . . . . The idea that a designer hoping to
make an adjustable electronic pedal would ignore Asano because Asano was
designed to solve the constant ratio problem makes little sense,” because a “person
of ordinary skill is also a person of ordinary creativity, not an automaton.” Id. at 425.
As a result, “[j]ust as it was possible to begin with the objective to upgrade Asano
to work with a computer-controlled throttle, so too was it possible to take an
adjustable electronic pedal like Rixon and seek an improvement that would avoid
the wire-chafing problem.” Id. at 420, 425 (emphasis added).
In other words, there is no requirement in utility patent law to start with a
“primary reference” in the same field having “basically the same” characteristics,
which then can only be modified by “secondary” references in order to prove
obviousness for inventions. And the statute requires that utility patent requirements
apply to design patents, especially for obviousness.
CONCLUSION
This court should rehear this case en banc and reverse Rosen and Durling.
9
April 6, 2023 Respectfully submitted,
By: /s/ Phillip R. Malone
Phillip R. Malone
JUELSGAARD INTELLECTUAL
PROPERTY AND INNOVATION CLINIC
Mills Legal Clinic at Stanford
Law School
Stanford, CA 94305-8610
Tel: (650) 725-6369
[email protected]
10
ATTACHMENT A – LIST OF AMICI
Professor Mark Bartholomew

University at Buffalo School of Law
The State University of New York
Professor Amy Landers

Thomas R. Kline School of Law
Drexel University
Professor Ana Santos Rutschman

Charles Widger School of Law
Villanova University
Professor Sharon K. Sandeen

Mitchell Hamline School of Law
Professor Joshua D. Sarnoff

DePaul University College of Law
CERTIFICATE OF SERVICE
I hereby certify that on April 6, 2023, I caused the foregoing BRIEF OF
AMICI CURIAE INTELLECTUAL PROPERTY LAW PROFESSORS IN
SUPPORT OF APPELLANT to be served by electronic means via the Court’s
CM/ECF system on all counsel registered to receive electronic notices.
Phillip R. Malone
JUELSGAARD INTELLECTUAL PROPERTY
AND INNOVATION CLINIC
Stanford, CA 94305-8610
Tel: (650) 725-6369
[email protected]

CERTIFICATE OF COMPLIANCE WITH
TYPE-VOLUME LIMITATIONS
I hereby certify as follows:
1. The foregoing BRIEF OF AMICI CURIAE INTELLECTUAL
PROPERTY LAW PROFESSORS IN SUPPORT OF APPELLANT complies
with the type-volume limitation of Fed. R. App. P. 27(d)(2)(A), as in effect of this
case’s docketing date. The brief is printed in proportionally spaced 14-point type,
and the brief has 2278 words according to the word count of the word-processing
system used to prepare the brief (excluding the parts of the motion exempted by
Fed. R. App. P. 32(f) and Fed. Cir. R. 32(b)).
2. The brief complies with the typeface and type style requirements of
Federal Rule of Appellate Procedure 27(d)(1)(E), 32(a)(5), and 32(a)(6). The brief
has been prepared in a proportionally spaced typeface using Microsoft Word for
Mac in 14-point Times New Roman font.

Phillip R. Malone

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Case: 21-2348 Document: 66-2 Page: 1 Filed: 04/06/2023

CASE NO. 2021-2348

UNITED STATES COURT OF APPEALS

LKQ CORP. & KEYSTONE AUTOMOTIVE INDUSTRIES,

BRIEF OF AMICI CURIAE INTELLECTUAL PROPERTY LAW

Counsel for Amici Curiae

CERTIFICATE AS TO PARTIES, CONSENT TO FILE, RULINGS,

Professors (See Attachment A).

is not the real party in interest) I represent is: N/A.

or will not enter an appearance in this case) are: None.

Operations LLC, Fed. Cir. Case No. 2022-1253.

6. All information required by Federal Rule of Appellate Procedure 26.1(b)

trustees in bankruptcy cases is: None.

April 6, 2023 /s/ Phillip R. Malone

ATTACHMENT A TO CERTIFICATE OF INTEREST

Professor Mark Bartholomew

Professor Amy Landers

Professor Ana Santos Rutschman

Professor Sharon K. Sandeen

Professor Joshua D. Sarnoff

CERTIFICATE AS TO PARTIES, CONSENT TO FILE,

ATTACHMENT A TO CERTIFICATE OF INTEREST ....................................... iii

TABLE OF AUTHORITIES .................................................................................... v

INTEREST OF AMICI CURIAE ............................................................................. 1

I. Congress Foreclosed Design Patent Doctrinal

II. This Court Should Conform Its Design Patent

III. This Court Should Conform Its Design Patent

ATTACHMENT A – LIST OF AMICI

CERTIFICATE OF COMPLIANCE WITH TYPE-

Atl. Thermplastics Co. v. Faytex Corp.,

Durling v. Spectrum Furniture Co.,

Ecolochem, Inc. v. Southern California Edison Co.,

Egyptian Goddess Inc. v. Swisa, Inc.,

Int’l Seaway Trading Corp. v. Walgreen’s Corp.,

KSR International Co. v. Teleflex, Inc.,

Phillips v. AWH Corp.,

Smith v. Whitman Saddle,

Warner-Jenkinson Co. v. Hilton Davis Chemical Co.,

35 U.S.C. § 112(a) .................................................................................................... 3

35 U.S.C. § 171(b) ................................................................................................ 2, 3

Howard T. Markey, Talk given April 26, 1983 (quoted in Ronald D.

Jason J. DuMont & Mark D. Janis, The Origins of American Design

Mark Bartholomew, Nonobvious Design, 108 IOWA L. REV. 601,

Walter Isaacson, Steve Jobs (2011) .......................................................................... 5

U.S. Const., Art. I, § 8, cl. 8 ..................................................................................... 3

INTEREST OF AMICI CURIAE

interest. In particular, they are concerned about the over-extension of protection

based on conceptual mistakes, however made and however well-meaning.1

I. Congress Foreclosed Design Patent Doctrinal Exceptionalism.

Congress chose to place the protection of aesthetic advances for physically

requirements were to apply to designs, except where Congress had explicitly

Congress preserved this language essentially unmodified in every major

in rejecting design patent exceptionalism: “The provisions of this title relating to

provided.” 35 U.S.C. § 171(b) (emphasis added).

be no “exceptional” approach to design patent law doctrines that render them

imposed this requirement of consistency. As Professors DuMont and Janis have

supra, at 874. Unfortunately, sometimes blind obedience is required. As the former

Utility patent law doctrines are to be determined by reference to the

“Designer of Ordinary Skill in the Art” (“DOSA”) – really to a PHOSITA in

The reason to focus on the PHOSITA/DOSA, moreover, is because the

on protecting consumers or competitors from marketplace confusion. The latter is

appearance” or “sameness of effect upon the eye” to an “ordinary observer” is the

distinguish them.” 81 U.S. (14 Wall.) at 527.

requirement. “‘The true test of identity of design is sameness of appearance,-in other