Patent Federal Circuit Update

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Patent Federal Circuit Update

May 2002

KAYE SCHOLER

FEDERAL CIRCUIT REVIEW

Infringement of a Patented Design Must Be Based On the Substantial Similarity Between the Patented Features and Those of the Accused Product During the Entire Normal Use Lifetime of the Product

In Contessa Food Products, Inc. v. Conagra, Inc., No. 01-1157 (March 13, 2002), the Federal Circuit Court of Appeals held in a design patent infringement case that the "ordinary observer" test, in which a court determines whether an accused product is "substantially similar" to a patent-ed design, (1) must encompass the features of all of the figures of the design patent, and (2) must consider features visible at any time in the "normal use" lifetime of the accused product.

Contessa owns Design Patent No. 404,612, entitled "Serving Tray with Shrimp." The patent includes five figures showing the top, side, perspective, bottom, and cross-sectional views of a shrimp serving tray. Conagra sells prepackaged shrimp on a serving tray, generally wrapped in plastic. After view-ing photographs of the accused products in which the undersides of the trays were admittedly not actually visible because the undersides were covered by plastic wrapping and an opaque label displaying thawing instructions, ingredients, and nutritional information, and admitting that the photographs did not clearly convey the appearance of the accused products, the di...

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