I have always enjoyed industrial design. The challenge of creating new and unique products is formidable. A successful design is a product of intense, multidisciplinary collaboration with professionals in engineering, production, and marketing. But on top of creating a product that is function, reliable, and cost-effective, a good design also needs to be desirable. Every line, surface, shape and detail must work together to become a distinctive expression of the company which produced it, and the culture which accepts it. It is easy to see why good design is in every way Intellectual Property which has tremendous intrinsic value which deserves protection.

The design patent gives its owner the right to keep others from producing, or distributing a product that resembles the patented design so that a consumer might be confused by the infringing article, purchasing the infringing article thinking it was the patented design. The test for determining infringement in design patent cases is the “ordinary observer” test, from the decision of the Supreme Court in Gorham Co. v. White in 1871. This test has been confirmed (with some significant modifications) by the Federal Circuit in Egyptian Goddess v. Swisa in 2008. On March 9, 2010, the United States Court of Appeals for the Federal Circuit issued its opinion in Richardson v. Stanley Works, Inc. and confirmed the “ordinary observer” test was the sole test for design patent infringement; saying, “the patentee must establish that an ordinary observer, familiar with the prior art designs, would not be deceived into believing that the accused product is the same as the claimed design.”

With Egyptian Goddess, Richardson, OddzOn, Seaway, and Crocs, the role of the design expert witness is constantly evolving. The challenge of protecting and defending industrial design rights has become more visual and relies even more on compelling expert witness testimony. An expert needs the education and experience, but also the ability to explain verbally and visually exactly how an “ordinary observer” sees, understands, and reacts to an artifact.

I have prepared myself for this challenge with 2 degrees in industrial design, 37 years as a practicing design professional, and 30 years as a design educator. I have presented papers at international design conferences, and been an invited speaker at national and international venues. Currently a Professor of Industrial Design at the University of Kansas, I am tasked on a daily basis to articulate design principles and concepts in ways that are accessible and useful. As a practitioner I am creating new design concepts and utilizing the sketching, computer modeling and visual communication tools I often call upon to construct exhibits for design reports. I have conducted research, written reports, and I’ve been deposed in working for both plaintiff and defendant as an expert witness. In June, 2008, I was qualified to serve as an expert design witness by the Industrial Designers Society of America.