Keurig, Inc. v. JBR, Inc.

Infringement of design patents is analyzed under the ordinary observer test, which considers whether the ordinary observer, giving the usual attention of a purchaser, would be deceived into purchasing the accused design believing it to be the patented design.

Opinion (Saylor): Keurig, Inc. ("Keurig") sued JBR, Inc. ("JBR") alleging infringement of three patents related to its brewing system and JBR moved for summary judgment. Keurig claimed that JBR indirectly infringed two patents. To succeed on a claim for indirect infringement the claimant must show that there is underlying direct infringement. Accordingly, Keurig needed to show that end users of its brewers infringed its patents when they used JBR cartridges. However, “the doctrine of patent exhaustion provides that the initial authorized sale of a patented item terminates all patent rights in that item.” Because the sale of Keurig's brewers to end users exhausted its patent rights, Keurig could not assert claims of direct infringement against consumers and, consequently, could not assert claims of indirect infringement against JBR for the remaining patents. Another patent considered by the court was a design patent. Design patent infringement claims are analyzed under the ordinary observer test, which asks whether the accused design and the patented design are substantially the same, such that the ordinary observer, giving the attention a purchaser would normally give, would be deceived and induced to buy the accused design believing it to be the patented one. When the test is applied on a motion for summary judgment, the movant must show that the designs are sufficient distinct, such that reasonable jurors viewing the designs would not disagree that the designs are plainly dissimilar. Design patents only protect the ornamental design of the article protected. Accordingly, the ordinary observer test is not applied to functional elements of the design. After the court determined which elements of the patented design were ornamental, it compared those elements with their analogs in the accused design and found them sufficiently distinct. Accordingly, the court GRANTED JBR's motion for summary judgment on the design patent.