Intellectual Property Attorneys - IP Lawyers

September 2008 Archives

Federal Circuit loosens standard for design patent infringement

By Timothy J. Maier on September 24, 2008 3:31 PM | No Comments | No TrackBacks
On September 22, 2008, the Court of Appeals for the Federal Circuit released a unanimous en banc opinion that would increase the potential scope and protection of design patents by making it easier for a court to find infringement of a design patent. In Egyptian Goddess v. Swisa, the CAFC loosened the standard for design patent infringement by rejecting the "point of novelty" test as necessary to prove infringement of a design patent. Rather, the Court agreed that the "ordinary observer" test established in Gorham Co. v. White, 81 U.S. 511 (1871), is the "sole test for determining whether a design patent has been infringed." Infringement is determined via the Gorham test by looking for substantial similarity--from an ordinary observer's perspective--between the patented and the accused design.
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