Over the past year, our research group has been focused on the development and validation of several advanced intellectual property (IP) litigation research methodologies designed to provide demanding litigation teams with robust and validated testing expertise. Our formal research and development effort has focused on the following 3 areas:
1 Updates to our Empirical Ordinary Observer Test (EOOT) Based on Acceptance by the Court.
2 Migration of EOOT Methodology to Cover Trade Dress and Copyright Litigation Cases.
3 Formal Research on the Problems Related to the Use of Design Experts in Design Patent Litigation.
The genesis for these methodologies flows from legal client requests for specialized research needs focused on complex IP litigation research problems in new and developing technology domains. Below are summaries of the new methods under each major research category. All three methodologies have been validated in large-scale client projects.
Detailed Development Descriptions
1 Updates to the Empirical Ordinary Observer Test (EOOT) Developed by MUS and Acceptance by the Court in Major Design Patent Litigation.
The Problem: For those colleagues who may not have been following our development of a science-based EOOT methodology, we are proud to announce that the EOOT has now been formally accepted by the court and has withstood numerous aggressive Daubert challenges. We currently have several EOOT studies in process for leading design patent litigation matters. As part of our ongoing commitment to continuous updates, we have undertaken additional refinement of the EOOT methodology. Below is a brief description of important updates to the EOOT.
Our Solution: Based on feedback from our leading legal clients, our research team has updated critical aspects of the EOOT methodology to produce even more robust scientific results in shorter study lead times and at a relatively lower cost. We have been specifically focusing on how to improve the process of capturing and creating valid visual references for use in the prior art section of EOOT studies. We have also updated the EOOT to capture data on issues related to 101 defense and anticipation. This new application of the EOOT is being executed for defendants in current design patent litigation. Overall, the EOOT has been continuously updated and optimized for improved scientific rigor, always with the overall objective of meeting research guidelines from both Daubert and Federal Judicial Center specifications. We are currently fielding 6 major studies in the consumer and professional markets space. It is important to note that we have also updated aspects of the EOOT to take into account recent court decisions related to design patent infringement analysis. Since the initial launch of the EOOT methodology, the methodology has been published in several top-tier legal proceedings, including the Berkeley Technology Law Journal and the Research Handbook on Design Law published by Edward Elgar Publishing. The EOOT has also been accepted for CLE and presented at ABA, IPO, and AIPLA conferences.
2 Migration of Advanced EOOT Research Methodology to the Development of Trade Dress and Copyright Survey Platforms.
The Problem: Based on the success and adoption of the EOOT methodology by the court, MUS has developed and validated a robust version of the EOOT for specific legal matters involving both copyright and trade dress litigation. These advanced research survey methodologies are designed to provide legal teams with scientifically valid and properly designed tools for understanding the special problems associated with copyright and trade dress legal questions. Our survey methodology is based on an in-depth understanding of the legal frameworks underlying these forms of IP litigation, strict adherence to all required regulatory and professional guidance provided by the current legal system, and our extensive experience with the neuroscience of shape perception. In addition to meeting all required scientific and legal standards, these survey methods offer legal teams additional insights into the core issue of how consumers view similarity and difference among designs. Our methodologies in these IP domains exceed all other standard copyright and trade dress survey offerings by other experts.
Our Solution: Based on our understanding of the special needs of leading litigation teams, we have developed our copyright and trade dress survey methods to meet the following 6 core requirements of complex litigation. How we manage the following requirements sets us apart from all other survey experts who work in the copyright and trade dress litigation space. We provide the following benefits to legal teams seeking research expertise and insight: 1) Rapid response to critical legal questions. We have designed our survey methods to provide early and detailed insights into the directional nature of core legal questions. In this regard, we employ an AGILE-based rapid response pilot study design. 2) Carefully determine the actual number of respondents required to provide statistical validity. This allows our team to reduce overall recruiting and respondent payment fees based on the use of a robust power analysis methodology put in place even before pilot studies are designed and put into the field. 3) Combining multiple study types into one master survey design. To the extent possible, we strive to reduce both cost and study execution time to accommodate the varying needs of each litigation team. 4) When possible, we produce simple streamlined expert reports that only provide the fact finder with the clearest and easiest-to-digest information. We minimize statistical analysis and provide detailed simplified definitions of all statistical tests and related reasoning. 5) Professional management and development of all required visual reference materials required for each survey type. As experts in the visual perception of products in the marketplace, we have a team of subject matter researchers, professional photographers, and illustrators trained and validated in the production of the highest quality visual reference materials possible for our surveys. 6) All MUS surveys are audited by an independent outside expert with an outstanding academic and professional background in survey design and related legal framework testing.
3 Advanced Research on the Use of Professional Designers as Design Experts in Design Patent Litigation and Why Science Suggests this is a Problem.
The Problem: Design patent litigation has become increasingly unpredictable and difficult to manage for even the most aggressive and well-funded clients. At the center of this major problem is the staggering level of variability between design patent experts proffering opinions in design patent litigation. MUS has explored, researched, and published in leading law reviews and journals the issue of variability in design expert witnesses. With the necessary background research in hand, MUS has developed the hypothesis that, given the specialized nature of the actual legal ordinary observer test, traditionally trained designers are not actually qualified to proffer testimony on how the ordinary observer (consumer) actually perceives products in the marketplace. This point of view comes from the realization that the ordinary observer test actually requires a detailed understanding of consumer behavior, human information processing, shape perception science, and research study design. None of these fields are taught in design schools nor are skills acquired by professional designers in the course of their careers.
Based on this important insight, traditionally educated industrial designers should not be allowed by the court to proffer opinions on the ordinary observer test…yet some courts allow such testimony, leading to large variability in the testimony of design experts. Our research team is not alone in our thinking. Several other research groups have written on this and have questioned the use of experts in copyright cases. These issues resulted in the question adopted by our research team: “Does actual research demonstrate in a scientifically valid manner that professional designers judge similarities and differences in products differently than ordinary observers? If professional designers and ordinary observers do judge products differently, in what way do their judgments differ?”
Our Solution: To examine this research question, we designed and executed a complex study utilizing the same structure as our EOOT validation study. The results will be published shortly on SSRN, as well as in a formal research publication. The findings were clear and convincing: Professional designers do in fact judge the similarities and differences of products differently when compared to a valid sample of ordinary observers. The case can now be made that professional designers should not be allowed by the court to proffer opinions on the ordinary observer test. These research findings support the use of the EOOT as a scientifically advanced methodology for aiding the fact finder in understanding how representative actual consumers (ordinary observers) rate the similarities and differences of products.
Please feel free to contact our research team for more information by emailing Charles Mauro directly at the address below.
Thank you.
Charles L. Mauro CHFP
President / Founder (1975-Present)
Cmauro@MauroUsabilityScience.Com