The "ordinary observer" test would be key in the design patent portion of Apple's suit against Samsung.

In his post linking to Ina Fried's article on the new Apple v. Samsung case, DaringFireball's John Gruber asks:

That their products are shameless copies is hard to deny. But has anyone ever won a lawsuit based on copying stuff like this?

Apple's case is multi-pronged, with utility patent infringement, design patent infringement, trade dress, and trademark claims.  Regarding Gruber's question on "shameless copying," I think it is most interesting to first look at the design patent portion of the case.

Apple is reportedly asserting three design patents:

• U.S. Design Patent No. D618,677, "Electronic device"
• U.S. Design Patent No. D627,790, "Graphical user interface for a display screen or portion thereof"
• U.S. Design Patent No. D602,016, "Electronic device"

Each appears to relate to the iPhone 3G/3GS style phone.

(image from Complaint, page 18)

To determine whether a design patent is infringed, we need to look to the decision in the Federal Circuit's en banc rehearing of Egyptian Goddess, Inc. v. Swisa, Inc. (Fed. Cir. Sept. 22, 2008).  In this decision, the CAFC rejected the "point of novelty" test (i.e., "the accused device must appropriate the novelty in the patented device which distinguishes it from the prior art") and re-established the "ordinary observer" test as the exclusive test for determining infringement of a design patent:

“if, in the eye of the ordinary observer, giving such attention as a purchaser usually gives, 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, the first one patented is infringed by the other.” (Gorham Co. v. White, 81 U.S. 511, 528 (1871))

As a patent attorney and close follower of all things Apple, I do not consider myself an "ordinary observer." However, I am quite sure that a Samsung Galaxy placed in front of someone like my mother would be quickly perceived as "an iPhone."  Anecdotal reports of pre-Verizon-iPhone sales people selling these Samsung devices as "just like an iPhone," if verifiable, also might not be helpful relative to the "purchase" prong of the test.

The odds are that this case will not reach a jury and we will not find out whether a jury thinks these design patents are infringed.  Apple's complaint, however, paints a compelling picture.

 

Other coverage:

• Apple v. Samsung: The Multi-touch Patent
• Flashback: Macworld 2007: "...and boy, have we patented it."
• Apple v. Samsung: Design Patents & Egyptian Goddess
• WSJ: Apple Files Patent Suit Against Samsung Over Galaxy Line of Phones and Tablets