When evaluating the significance of a declaration regarding the design/product, examiners need to consider whether the declarant’s views indicate those of a typical informed user. The declarant may be able to demonstrate that they are an informed user, but this does not mean that their views represent what has been determined as the appropriate standard of the informed user. They may be significantly more or significantly less familiar with the product than the hypothetical familiar person / informed user.

The following questions may help with deciding how much weight to attach to assertions about the standard of the familiar person / informed user:

How close is the declarant to representing the familiar person / informed user?
Is the declarant a user, as distinct from a manufacturer/supplier/designer?
If the declarant is an actual user, is the declarant’s use typical of all users or merely of a subset of users?
What is the basis for accepting any of the declarant’s assertions as relating to the typical familiar person / informed user rather than to their own particular views?
If the declarant lives in another country, what is the basis for accepting their views as relating to the familiar person / informed user in Australia?
How does the declarant justify their assertions, especially those that seem less credible?

Unconvincing declarations

A declaration serves as evidence, not proof. While we usually accept declaratory evidence at face value, it is not obligatory to do so.

In particular the following situations can arise:

The declaration makes relevant assertions but does not provide enough supporting information for the examiner to accept those assertions as indicating the standard of the familiar person / informed user rather than the personal views of the declarant. In this situation the examiner should request further information supporting the assertions.
The examiner disagrees with the declarant’s assertions. To come to this conclusion, the examiner must have a clear basis to make a contrary assertion. This cannot just be their own belief – it must be based on some evidence.

Relevance of the examiner’s experience

The examiner’s assessment of the familiar person / informed user standard will often be influenced by their personal experience. However, their personal experience should never define that standard. If the owner challenges the standard of the familiar person / informed user that the examiner has applied (by expressing a different standard, with supporting evidence), the examiner will need to provide evidence to substantiate their view.

Example

In Apple Computer Inc [2007] ADO 5 the IT manager of the attorney firm representing the owner submitted a declaration to establish the informed user standard. The delegate stated:

The USB port is clearly intended for use by the ‘ordinary’ computer user; it is not a port intended to be used primarily by IT experts. In my view the relevant informed user for the present design is a person who has general familiarity with computers and is comfortable with purchasing and attaching USB-based peripheral devices to achieve the use they desire of their computing system … it is not the IT expert who is familiar with all the intricacies of a computing system. Accordingly, while it is apparent that Mr Boorman is likely to be a person who is very knowledgeable about computers, in my view he is not representative of the informed user standard. And there is nothing in his declaration to indicate that his comments are otherwise reflective of the informed user standard (as distinct from his own specialist-based views). Accordingly, I consider the views Mr Boorman has expressed about the informed user standard are to be accorded low weight.

The delegate therefore based their decision on their own view of the standard of the informed user, noting:

In coming to these conclusions, I am very conscious that I do not have before me any declaratory evidence from people who fall into the category of informed user for this product. However, I am obligated to assess the design by applying the standard of an informed user.