By Sterling Anthony, CPP, expert witness in packaging, warnings, patent-infringement, cargo loading & securement, and insurance claims regarding cargo.
Synopsis of facts
A trio of inventors were granted a design patent of a type of food container. For years, the assignee company had been selling the container before becoming aware that another company was selling a container, which, according to the assignee, infringed on the design patent. Litigation resulted.
The Defendant claimed that Plaintiff’s design was not unique and was confusingly similar to the prior art cited in the prosecution file history.
I was retained by the attorney for the Plaintiff.
An expert is not allowed to opine on the ultimate question of whether there has been infringement; nonetheless, my services involved consulting, advising, and applying my expertise to the comparisons between the patented design and the cited prior art. I also wrote reports and testified at trial.
My opinions
The prior art cited in the prosecution file history contained no design that is confusingly similar to that of the design patent-at-issue. In a comparison of the two aforementioned, the containers that practiced the design patent-at-issue emerged as unique as to their decorative/ornamental (i.e. non-functional) features. Those features were described by the drawings/figures of the design patent-at-issue; however, I provided a detailed comparison feature-by-feature.
The prior art cited by the defense contains no design that is confusingly similar to the design patent-at-issue. The same type of comparison of decorative/ornamental features referenced above was performed
Prior art known to me before I was retained for the case-at-issue contained no design that was confusingly similar to the design patent-at-issue. Again, I performed a detailed comparison of decorative/ornamental features.
Lastly, prior art, contained no design that was confusingly similar to the accused design, such determined by the same detailed comparison cited variously above.
My conclusions were: the patent design-at-issue was unique and that any comparisons between it and the prior art reveals differences in decorative/ornamental features, such that an ordinary observer would not confuse the patent design-at-issue with the prior art; and, nor would an ordinary observer confuse the accused design with the prior art.
Result:
Verdict for Plaintiff
Sterling Anthony, CPP, is a consultant to the industrial, institutional, and government sectors and an expert who provides services to the legal community. He is a former manager at Fortune 100 companies and a former instructor at two major universities. His contact information is: 100 Renaissance Center-Box 43176, Detroit, MI 48243; (office) 313-531-1875; (cell) 313-623-0522; (fax) 313-531-1972; thepackagingexpertwitness@gmail; www.thepackagingexpertwitness.com