Tests For Design Patent Infringement Post-Egyptian Goddess

Law360, New York (September 26, 2014, 10:08 AM EDT) -- In the seminal decision of Egyptian Goddess Inc. v. Swisa Inc.,[1] the Federal Circuit struck down one of the two tests commonly used for determining design patent infringement, the "point of novelty" test.[2] Despite rejecting this test, the court incorporated the consideration of prior art into a slightly revised version of the "ordinary observer" test, the hypothetical "ordinary observer" now having familiarity with the prior art. This article will examine the application of this revised version of the "ordinary observer" test, and specifically the consideration of the "plainly dissimilar" analysis set forth by Egyptian Goddess....

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