[00:00:02] Speaker 03:
The next case for argument this morning is 141772, both Star Technology versus Amazon.

[00:00:10] Speaker 03:
I'll give you as much time as you need to settle in.

[00:00:53] Speaker 03:
Mr. Rothman, good morning.

[00:00:58] Speaker 04:
Good morning, Honors.

[00:00:59] Speaker 04:
May it please the Court.

[00:01:02] Speaker 04:
Volstar thought a trial of fact would get a charge out of this case.

[00:01:09] Speaker 04:
Instead, Volstar received a jolt when the District Court ordered summary judgment briefing with no discovery.

[00:01:18] Speaker 04:
And then, if you bear with me, when we read the District Court's opinion,

[00:01:22] Speaker 04:
We found it shocking.

[00:01:24] Speaker 04:
In light of Section 289, this court's precedent in Egyptian goddess, and especially the Supreme Court's decision in Gorham.

[00:01:34] Speaker 02:
And you're adapting your argument to the facts.

[00:01:38] Speaker 04:
I am.

[00:01:41] Speaker 04:
Excellent observation, Judge Laurie, trying to perhaps show you awake this Tuesday morning.

[00:01:51] Speaker 01:
Thank you for your electrifying presentation.

[00:01:54] Speaker 04:
You are most welcome, Judge Gilstrap.

[00:01:58] Speaker 04:
There were two fundamental errors that this court should correct by reversal, vacation, and reversal of the summary judgment.

[00:02:05] Speaker 04:
The first one Amazon concedes, and that is the comparison of Old Star's design patent drawings, not with the accused product, but relying on a misreading of the Payless case with

[00:02:21] Speaker 04:
The Amazon design patent drawings violated section 289.

[00:02:28] Speaker 03:
Well, I understand your point.

[00:02:31] Speaker 03:
But if we conclude, having read the entire record and gone through all the arguments, that the design, Amazon's design and its accused product are materially identical, why isn't that a sufficient basis for us to affirm?

[00:02:46] Speaker 04:
To affirm, Your Honor?

[00:02:49] Speaker 04:
Because if you were relying upon the district court's findings of fact and making no findings of fact of your own, then you will find

[00:03:00] Speaker 04:
No findings at all with respect to who the ordinary observer is in this case.

[00:03:05] Speaker 03:
That's not my question.

[00:03:06] Speaker 03:
We're not a ordinary observer yet.

[00:03:08] Speaker 03:
I'm talking about the alleged error you point out, which is that the district court was comparing the design patent to Amazon's patent and not to Amazon's product.

[00:03:20] Speaker 03:
We can get to the ordinary observer later if you'd like.

[00:03:23] Speaker 03:
But my question is, if everything in the record indicates that there's no difference, there's no daylight between Amazon's product and its patent, why isn't what the district court did just fine?

[00:03:37] Speaker 02:
In other words, isn't it harmless error?

[00:03:40] Speaker 04:
Your Honor, it can't be harmless error for a number of reasons.

[00:03:44] Speaker 04:
First of all, it's clear that this court in its

[00:03:49] Speaker 04:
Decisions and Section 289 require a comparison of the patent with the actual three-dimensional product.

[00:04:01] Speaker 04:
That wasn't done at all.

[00:04:05] Speaker 04:
There are a number of important reasons that distinguish the design patent of Amazon's, a two-dimensional drawing,

[00:04:15] Speaker 04:
with the actual product.

[00:04:17] Speaker 02:
For one thing... But these drawings in the patent are very clear.

[00:04:22] Speaker 02:
And we can see that there are substantial differences between the drawings and the patent.

[00:04:27] Speaker 02:
As you know, that's what is claimed, namely what the drawings show.

[00:04:34] Speaker 02:
Yes.

[00:04:34] Speaker 02:
There's a substantial difference in several respects between the patent drawings and the accused product.

[00:04:41] Speaker 04:
So if you recognize that there are differences between Amazon's drawings and Amazon's product.

[00:04:49] Speaker 03:
No, I think I may be wrong.

[00:04:51] Speaker 03:
I thought Judge Louie was talking about the differences between your patent, the design of your patent, and the Amazon patent.

[00:05:01] Speaker 03:
That's right.

[00:05:01] Speaker 04:
Right.

[00:05:02] Speaker 04:
OK.

[00:05:02] Speaker 04:
So if you're comparing patent to patent, then just like the district court, you're

[00:05:10] Speaker 04:
violating 289, which requires that in order to find infringement, that anyone who applies the patented design or any colorable limitation thereof to any article of manufacture, not to any patent showing a drawing

[00:05:29] Speaker 04:
that looks like an article of manufacture.

[00:05:32] Speaker 03:
The assumption here is that, and you put on no evidence, there was no argument in your brief that, or in your submission, that there's a distinct, what the distinction is between the Amazon patent and the Amazon product.

[00:05:44] Speaker 03:
Why couldn't one necessarily infer that the two can be used interchangeably?

[00:05:51] Speaker 03:
In other words, you look at the Amazon product, you look at the Amazon patent, no difference in it.

[00:05:56] Speaker 03:
Saying, as Judge Louis said, harmless error.

[00:05:58] Speaker 04:
Actually, there was argument in our briefs, for example, that relate to the CAD lines.

[00:06:04] Speaker 04:
So Amazon filed this motion for summary judgment and said that these CAD lines that are found on both paths represent facets or bevels.

[00:06:18] Speaker 04:
And that isn't true.

[00:06:19] Speaker 04:
Amazon receded from that subsequently, that they represent a change in the surface

[00:06:27] Speaker 04:
Now, those CAD lines exist in both the patent and Amazon's design patent, right?

[00:06:35] Speaker 02:
Except... But you were talking about your patent and Amazon's product, right?

[00:06:41] Speaker 02:
That's what we should talk about.

[00:06:43] Speaker 02:
Exactly right.

[00:06:43] Speaker 02:
And we can see the difference.

[00:06:45] Speaker 02:
Yes.

[00:06:45] Speaker 02:
In several respects.

[00:06:47] Speaker 02:
You certainly can.

[00:06:49] Speaker 02:
Right.

[00:06:49] Speaker 02:
Now, and when you see... Therefore, the finding of non-infringement was correct.

[00:06:54] Speaker 04:
Your Honor, you need to see the difference from the lens of the ordinary observer, though.

[00:07:00] Speaker 04:
That's what this court's decision in Egyptian goddess says.

[00:07:03] Speaker 04:
That's what the Gorham decision says.

[00:07:05] Speaker 04:
And there isn't anything in the record to demonstrate who that ordinary observer, that hypothetical ordinary observer is.

[00:07:13] Speaker 04:
Is it someone who takes very careful and studied attention to the handle of a spoon or a fork?

[00:07:21] Speaker 04:
because it's silver and it's expensive?

[00:07:23] Speaker 04:
Or is it someone who pays very little attention because they need a charger right away for their device and it's only $10 anyway and so they go and they grab it from the shelf?

[00:07:33] Speaker 04:
Is the ordinary observer being deceived under that circumstance or under the GORM circumstance?

[00:07:39] Speaker 04:
So there wasn't any factual determination whatsoever

[00:07:45] Speaker 04:
Nor is there anything in the district court's decision about who this ordinary observer, this hypothetical ordinary observer is.

[00:07:53] Speaker 03:
Well, I looked through the record for that.

[00:07:55] Speaker 03:
It didn't seem to me that either party, in other words, including you, really prompted the district court.

[00:08:01] Speaker 03:
I mean, was there a dispute?

[00:08:02] Speaker 03:
Did you say the ordinary observer is such and such, and your friends say no, it's such and such, and so the district court clearly has to decide it?

[00:08:09] Speaker 03:
I didn't see any of that in the record.

[00:08:11] Speaker 04:
Well, Your Honor, it is in the record.

[00:08:13] Speaker 04:
You need to look at the opinion of Cooper Woodring, our expert, both in opposition

[00:08:20] Speaker 04:
to Amazon's motion for summary judgment, and it was also submitted in support of our motion.

[00:08:25] Speaker 04:
And Mr. Woodring, who designed products just like this, including... Do you have a site to the appendix for that?

[00:08:32] Speaker 04:
Yes, I do.

[00:08:39] Speaker 04:
His declaration was submitted at docket 37 in the joint

[00:08:49] Speaker 04:
Appendix, you can find it on page JA 172.

[00:09:01] Speaker 04:
And Mr. Woodring, who designed one of the items in the prior art and worked for JCPenney, described how the ordinary observer, the hypothetical ordinary observer of this product,

[00:09:17] Speaker 04:
would view this under what circumstances they would view it.

[00:09:21] Speaker 04:
And there was nothing submitted by Amazon on this point.

[00:09:25] Speaker 04:
And we had no discovery.

[00:09:28] Speaker 04:
That's the other problem.

[00:09:29] Speaker 04:
So when your honor asks me, well, what's in the record about who the ordinary observer is, neither plaintiff nor defendant had any opportunity to take a deposition from Amazon and say, who's the typical purchaser of this product?

[00:09:44] Speaker 04:
Or to depose purchasers and say,

[00:09:47] Speaker 04:
How much of attention did you give when you purchased this product?

[00:09:53] Speaker 04:
So that isn't there.

[00:09:56] Speaker 04:
The district court went immediately to summary judgment without allowing any discovery.

[00:10:03] Speaker 04:
And the opinion of Mr. Woodring was disregarded in this case.

[00:10:11] Speaker 01:
Did either side ask for oral argument before the district court, or did neither side ask for oral argument?

[00:10:16] Speaker 04:
You know what, Your Honor?

[00:10:18] Speaker 01:
I asked for it and the court said no.

[00:10:20] Speaker 04:
What happened?

[00:10:21] Speaker 04:
Your Honor, I don't know.

[00:10:22] Speaker 04:
My partner is admitted in the Northern District of Illinois and I am not.

[00:10:26] Speaker 04:
I'd need to go look at the record and let you let Your Honor know about that.

[00:10:30] Speaker 04:
I'm not sure how exactly it was determined that it went directly to submission without oral argument.

[00:10:39] Speaker 01:
So I wish... You don't know if you asked for it and didn't get it or never asked for it.

[00:10:43] Speaker 04:
I'm not sure whether we did or didn't ask for it or did or didn't ask for it and not get it.

[00:10:50] Speaker 04:
So there was no factual inquiry at all.

[00:10:58] Speaker 04:
And as I was saying, Amazon concedes that the test that was employed was the wrong test.

[00:11:08] Speaker 04:
And the second point

[00:11:11] Speaker 04:
the failure to determine the ordinary observer, an indispensable factual determination, didn't occur.

[00:11:20] Speaker 04:
And Amazon asks this court to affirm based upon your de novo review, which we discussed a moment ago.

[00:11:28] Speaker 03:
Are you suggesting if your complaint about the ordinary observer that the district court didn't identify who that ordinary observer is, or that he didn't use those words in his analysis?

[00:11:39] Speaker 04:
Well, we don't know who the ordinary observer is, because as Your Honor indicated, the district court didn't identify.

[00:11:44] Speaker 03:
And who did your expert say the ordinary observer was?

[00:11:48] Speaker 04:
The ordinary observer would be someone who would be buying a $10 charger product.

[00:11:54] Speaker 04:
And because we had no discovery as to that, the expert's report is all that there is in terms of facts in the record.

[00:12:02] Speaker 03:
OK, so there's no evidence that there's a dispute between the sides as to who the ordinary observer is, someone who's buying this product, right?

[00:12:11] Speaker 04:
I don't think that there is a dispute factually that the ordinary observer is someone who is buying this product.

[00:12:18] Speaker 04:
But if you look at the court's analysis, the court's analysis gives such attention

[00:12:23] Speaker 04:
to detail that would not be the sort of attention that an ordinary observer who is buying a $10 accessory product would give.

[00:12:34] Speaker 04:
And so by failing to identify and describe the ordinary observer, the district court can only be assumed to have found an ordinary observer of its own choosing that we don't know.

[00:12:51] Speaker 04:
Perhaps a district court judge

[00:12:53] Speaker 04:
who isn't familiar with purchasing these products, we just don't know.

[00:12:57] Speaker 04:
There was no discovery.

[00:12:59] Speaker 04:
There was no factual determination of the hypothetical.

[00:13:02] Speaker 03:
I guess I'm a little unclear.

[00:13:04] Speaker 03:
We don't have that many design patent cases.

[00:13:06] Speaker 03:
Let's assume there's no dispute.

[00:13:07] Speaker 03:
Everybody agrees an ordinary observer is the person, the run-of-mill person that buys this product.

[00:13:12] Speaker 03:
Are you saying more than that, that there had to have been surveys or something of that kind with respect to, not just that the district court didn't identify the ordinary observer, but he didn't rely on any extrinsic evidence pointing to what that ordinary observer would have thought?

[00:13:30] Speaker 03:
I'm just trying to understand your argument.

[00:13:32] Speaker 04:
The argument is, Your Honor, that this court's precedent requires him to determine who the ordinary observer is and then

[00:13:39] Speaker 01:
view the infringing product the allegedly infringing product through the eyes of the ordinary server with knowledge of the prior art for purposes of argument, say that we agree with you that the district court made the wrong comparison for purposes of argument, let's say we agree with you that it should have identified the ordinary observer and didn't but at the end of the day if there's no real dispute

[00:14:06] Speaker 01:
that the accused products are nearly identical to Amazon's patent, and the accused products are clearly different than your patent, why is that not the right result?

[00:14:17] Speaker 01:
Despite all the other smoke and mirrors, why isn't that the right result that we shouldn't affirm?

[00:14:22] Speaker 01:
And end up where we started earlier in this discussion, saying that all those things that you're pointing at are, in effect, harmless.

[00:14:32] Speaker 04:
Well, because, Your Honor, they can't be harmless.

[00:14:34] Speaker 04:
Why can't they be harmless?

[00:14:35] Speaker 04:
Because we haven't had any factual determination whatsoever, as required by Gorham, as required by this court's precedent of who is making that decision.

[00:14:49] Speaker 04:
It isn't in the ordinary observer eyes of a judge.

[00:14:53] Speaker 04:
It's in the ordinary hypothetical purchaser of this product giving the attention that such a person would give with knowledge of the prior art, and you would need

[00:15:05] Speaker 04:
to define who that purchaser is, reference the prior art, and you'll find that the plaintiff's patent and the defendant's product or its design patent are very different from the prior art, such that Gorin suggests when that occurs, there is more likely infringement than not.

[00:15:29] Speaker 04:
When you have a design

[00:15:33] Speaker 04:
for in the patent that is more like the infringing product than the prior art, Gorham says, then you find that there will be more likely infringement under those circumstances.

[00:15:49] Speaker 04:
So if that's the case, then certainly it can't be harmless error.

[00:15:54] Speaker 04:
Because you have a situation where you've got two items, a design, whether it be the actual product, my time is up,

[00:16:04] Speaker 04:
I'll reserve for rebuttal.

[00:16:06] Speaker 03:
You can finish your sentence.

[00:16:07] Speaker 04:
You have a situation where you're comparing two things, and those two things are more alike than anything in the prior art, then it can't possibly be harmless.

[00:16:20] Speaker 03:
We'll restore two minutes of rebuttal if you need it.

[00:16:33] Speaker 03:
It is, Your Honor.

[00:16:35] Speaker 00:
Thank you.

[00:16:36] Speaker 00:
Good morning, and may it please the Court.

[00:16:40] Speaker 00:
Let me begin by addressing this question of discovery.

[00:16:43] Speaker 00:
And with apologies to the Court, this is not in the joint appendix.

[00:16:47] Speaker 00:
But on the date where Judge Lee granted leave to us to file an early summary judgment motion, he admonished Bolstar's counsel in court that if Bolstar thought it needed discovery, it could under

[00:17:01] Speaker 00:
one of the normal application rule fifty-six submitted declaration asking for the additional discovery he would allow even set a date for them to set uh... uh... part of the uh... submitted an affidavit asking for discovery under rule fifty-six and when that they came did not submit uh... uh... a declaration seeking discovery rule fifty-six in fact what they did was they filed eventually filed a cross-motion for summary judgment

[00:17:29] Speaker 00:
which seems to me would constitute a concession that there was no need for discovery because there was no materially, sorry, no genuinely disputed material issue of fact with respect to the ordinary observer would be, or on any other potential factors.

[00:17:46] Speaker 00:
dispute.

[00:17:48] Speaker 03:
OK, so you know you've got sort of a hurdle in this case, right?

[00:17:51] Speaker 03:
And that is that the district court arguably did the wrong comparison between the patent and the accused Amazon's patent as opposed to Amazon's product.

[00:18:03] Speaker 03:
How do we get around that without doing findings of fact in the first instance here, that there's no daylight between your patent and the product?

[00:18:13] Speaker 00:
Well, I think the answer is, Your Honor, that the review here is de novo.

[00:18:16] Speaker 00:
And this court can look at the pictures of the accused product, not the figures from Amazon's patent.

[00:18:24] Speaker 00:
Those pictures appear in our brief at pages 19 through 24 and page 28.

[00:18:30] Speaker 00:
And one can clearly see that the accused Amazon charger is plainly dissimilar from the design that is claimed in Bothstar's patent.

[00:18:41] Speaker 00:
It doesn't require, I think,

[00:18:43] Speaker 00:
it doesn't require anything more than the court to agree with that simple proposition and the court here should uh... from uh... the judgment below does de novo review mean that this court should effectively become a fact finder i don't think so your honor because you're you're not going outside the record you're making a decision based on the record being a fact finder you're asking us to determine commonality or similarity between the product and the patent

[00:19:10] Speaker 00:
well i'm not asking the court to do that i think the court has been given the responsibility to do that under egyptian goddess the question at the outset the threshold question in design patent cases is whether uh... the accused device is plainly dissimilar in its ornamental design from the ornamental design that's claimed in the patent are you saying there's no genuine issue uh... that they're quite different

[00:19:39] Speaker 03:
i'm saying there's no genuine issue of fact and that subject your honor judge lee got it right even though his methodology was incorrect which i concede but this morning we hear never never blame the district court for getting it wrong because we always assume that the parties were the district court astray do you know where this came from?

[00:19:57] Speaker 00:
your honor we don't know where it came from we with our moving papers we submitted photographs of the accused charger and we pointed to the photographs and we thought that Judge Lee one of our

[00:20:09] Speaker 00:
terrific judges in chicago uh... we thought that we would make the right comparison we were surprised when he didn't but we thought quickly it didn't make a difference because the figures from the patent that depict the charger are uh... others to show the same thing that are shown in the pictures of the chart and so when one makes the correct comparison the outcome is the same other than this

[00:20:31] Speaker 00:
what I will call a confusing argument about the conventions and the CAD drawings possibly having confused the district court.

[00:20:40] Speaker 00:
Other than that, Boldstar's pointed to nothing that would result in a different outcome if the judge had made the correct comparison in the first place.

[00:20:48] Speaker 00:
And I think this argument about the CAD drawings, which comes up for the first time really in the reply brief, I think that's just wrong.

[00:20:55] Speaker 00:
It's contrary to what they said in the court below.

[00:20:58] Speaker 00:
In the court below, they conceded, and this is in the joint appendix of page 160, paragraph 133, Volt Star conceded, quote, Amazon's 409 design patent uses the exact same CAD drawing convention as Volt Star's 192 design patent.

[00:21:14] Speaker 00:
So if the CAD drawing conventions are the same, it shouldn't have confused the court.

[00:21:18] Speaker 00:
In fact, if anything, it may have made Amazon's accused charger look more similar to what's claimed in the Volt Star patent.

[00:21:26] Speaker 00:
in that lesson so it may have a little bit to work report and the deficiencies that your friend identified well uh... i think that uh... i agree that in a fundamental way with what mr rothman argued i don't think the court's precedent requires that uh... the ordinary observer be identified i think quite the opposite is true in fact uh... the court in egyptian goddess didn't spend time talking about who the ordinary

[00:21:56] Speaker 00:
observer would be, and I think that the correct way to understand the ordinary observer, and this again is based on the court in Egyptian goddess referring to the ordinary observer again and again, is a hypothetical.

[00:22:08] Speaker 00:
I think the correct way to think of the ordinary observer is that it's an objective, hypothetical standard, and it includes no standards of fact.

[00:22:15] Speaker 00:
It's much more like the reasonable person standard in negligence law than it's like the posita in a utility patent case.

[00:22:24] Speaker 00:
We do litigate who the proceeding is in utility patent cases, but we don't litigate who the reasonable person is in negligence cases.

[00:22:31] Speaker 03:
And it seems to me that the... Isn't there a difference?

[00:22:33] Speaker 03:
Aren't there circumstances?

[00:22:34] Speaker 03:
We're talking about something that sells for a penny in bulk, or we're talking about a product, you know, some car or watch that sells for $200,000.

[00:22:43] Speaker 03:
whether who the ordinary observer is, that factor, the purchaser does play into it in terms of the depth and detail in which one would look at the product and so forth.

[00:22:54] Speaker 03:
Isn't that a factor in design patent cases?

[00:22:56] Speaker 00:
Well, I think it must be.

[00:22:58] Speaker 00:
I'll read from the Gordon v. White case, which, of course, is the foundational case, even more so than Egyptian goddess.

[00:23:06] Speaker 00:
And what the Supreme Court said there.

[00:23:09] Speaker 00:
part of that uh... it was that there was a a pattern on on silverware with what they're going to be on the order observing or observer pardon me giving such attention as a percher usually gives which is the point relevant to Mr. Ruffman's point two designs are substantially the same if the resemblance is such as to deceive such an observer inducing him to purchase one supposing it to be the other than the first one patented is infringed by the other and so

[00:23:38] Speaker 00:
uh... it at the same time that the court announces this that the standard is deception we are to take into account this notion of giving such attention as a perjurer usually gets but that doesn't mean that this is a subject of dispute it doesn't mean and and and what this case and even theoretically it's possible to dispute to litigate the district court and so forth it wasn't disputed here but i think it's uh... i i don't think it's a proper subject for discovering anything with a discovery of the reasonable man

[00:24:08] Speaker 00:
and i don't think we're i don't think we're authorized to take discovery of the ordinary servers and i don't see anything in this court's jurisprudence suggesting that there's a requirement that the court inquire as to the characteristics of an ordinary observer was not done in the egyptian that's good and i think we don't see uh... being done in any other case that the other opinion that this court is written and that in the lower courts don't do it either it simply isn't a part of

[00:24:35] Speaker 00:
of design patent litigation and it shouldn't become a part of design patent litigation because imagine what would happen if that were true.

[00:24:43] Speaker 00:
If it became possible to avoid summary judgment just by raising a dispute about who the ordinary observer is, something that's always possible to dispute that, if that were enough to stop the district court from granting summary judgment where an accused product is plainly dissimilar to a patented design,

[00:25:01] Speaker 00:
Then imagine the consequences.

[00:25:04] Speaker 00:
We'd be litigating cases that are meritless cases that don't require further litigation just because there is a dispute about who the ordinary observer is.

[00:25:14] Speaker 00:
And in fact, we don't let that happen even in utility patent cases.

[00:25:19] Speaker 00:
I don't remember ever seeing this court reversing a grant of summary judgment in a utility patent case just because there was a dispute about who the person of ordinary skill in the art would be.

[00:25:30] Speaker 00:
It simply doesn't make sense to place that kind of importance on the concept of ordinary observer in these design patent cases.

[00:25:38] Speaker 00:
When the court is authorized by the plain holding in Egyptian guts, the lower court is authorized to use its judgment through the lens of the ordinary observer to make a decision as to whether or not the accused device is plainly dissimilar.

[00:25:56] Speaker 00:
And that's what Judge Lee did here.

[00:25:58] Speaker 00:
He didn't do it exactly right, but it turns out

[00:26:00] Speaker 00:
He got it exactly right, even though his methodology was flawed.

[00:26:04] Speaker 00:
I think I will stop now unless the court has further questions for me.

[00:26:14] Speaker 00:
Thank you very much.

[00:26:24] Speaker 04:
Your Honours.

[00:26:28] Speaker 04:
First of all, with respect to the facts related to the ordinary observer.

[00:26:34] Speaker 04:
You will see on the record of JA 179, Mr. Woodring, at paragraph 11, discusses his experience in observing purchasers of consumer electronics and how he is qualified to testify as to how ordinary observers visually perceive and evaluate consumer electronics products, such as the products in this case.

[00:26:57] Speaker 04:
He says he conducted research into how ordinary observers evaluate, compare, and purchase ornamental products like the ones in this case.

[00:27:06] Speaker 04:
He studied and learned the habits and customs of ordinary observers in the purchasing environment, et cetera, et cetera.

[00:27:13] Speaker 04:
And he goes on to conclude that this ordinary observer is a less discerning observer because of a number of things, the cost of the product, the size of the product, et cetera.

[00:27:27] Speaker 04:
It is not true that this court has not ruled as to the identification of the ordinary observer.

[00:27:34] Speaker 04:
In fact, this court did exactly that in the Arminak and Sons, Arminak and Associates case, which was all about who should be the ordinary observer of the trigger sprayer.

[00:27:47] Speaker 04:
Should it be the wholesale purchaser who is looking at it in a commercial context?

[00:27:54] Speaker 04:
or the retail purchaser who is buying a bottle from the shelf and spraying it.

[00:28:01] Speaker 01:
So you're arguing a factual dispute now when your client sought summary judgment below, saying there were no material disputed issues of fact, and you're appealing the trial court's refusal to grant your summary judgment?

[00:28:12] Speaker 04:
Your Honor.

[00:28:13] Speaker 01:
And yet you're arguing that they're disputed facts now?

[00:28:15] Speaker 04:
Your Honor, what I am arguing is that there are facts in the record which are uncontroverted by Amazon.

[00:28:24] Speaker 04:
that show who the ordinary observer of this product is.

[00:28:28] Speaker 04:
And there is law from this court that says that in deciding a design patent infringement case, one must identify, at the very least, enunciate whose eyes the ordinary observer is looking through.

[00:28:47] Speaker 04:
Is it someone very sophisticated, or is it someone unsophisticated, et cetera?

[00:28:52] Speaker 04:
And your honors can make a de novo decision based upon what is in the record before you.

[00:28:59] Speaker 04:
You can look at Mr. Woodring's report.

[00:29:10] Speaker 04:
You can decide whether Mr. Woodring is someone who speaks of the ordinary observer.

[00:29:18] Speaker 04:
You can make a determination if that's the correct ordinary observer.

[00:29:21] Speaker 04:
And you could rule.

[00:29:23] Speaker 04:
for Volstor, but at the very least, Your Honors, must reverse, because otherwise Section 289 is meaningless.

[00:29:31] Speaker 03:
Thank you very much.

[00:29:32] Speaker 03:
Thank you.

[00:29:32] Speaker 03:
We thank both counsel and the cases submitted.