The 'Ordinary Observer' Test Post-Mummification

Law360, New York (October 27, 2008, 12:00 AM EDT) -- On 22 Sept. 2008, the Federal Circuit, sitting en banc, issued a unanimous opinion in Egyptian Goddess Inc. v. Swisa, Inc., No. 06-1562 (Fed. Cir. 2008).

In its opinion, the Federal Circuit attempted to standardize and refine the test for determining design patent infringement. The Federal Circuit held “that the ‘point of novelty’ test should no longer be used in the analysis of a claim of design patent infringement.” Id., slip op. at 21.

Rather, “the ‘ordinary observer’ test should be the sole test for determining...
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