ALJ Rejects “Deceptive Similarity” Requirement for Design Patent Infringement

Following an evidentiary hearing, the ALJ found that Samsung infringed one of Apple’s phone design patents, and rejected Samsung’s argument that Apple was required to show "deceptive similarity." "I do not find deceptive similarity to be a prerequisite to a finding of infringement, but merely a consequence, or result, of the designs being substantially the same. . . . [T]he sole test for design patent infringement is whether the claimed design is 'substantially the same' as the accused design in the eye of the ordinary observer, giving such attention as a purchaser usually gives. . . . I have kept it in mind that a purchaser of the kind of devices at issue in this investigation will pay significant attention to what they are buying."

Electronic Digital Media Devices and Components Thereof, 337-TA-796 (ITC December 27, 2012, Order) (Pender, ALJ).