Wednesday, September 24, 2008

Point of Novelty Is No Longer Separate Test For U.S. Design Patent Infringement Proof

Point of Novelty Is No Longer Separate Test for U.S. Design PatentInfringement Proof

The "point of novelty" test is no longer to be used as a separate test inthe analysis of design patent infringement, the en banc Federal Circuitunanimously held September 22, 2008, in Egyptian Goddess, Inc. v. Swisa,Inc. Instead, the appropriate test is "a version of the ordinary observertest in which the ordinary observer is deemed to view the differencesbetween the patented design and the accused product in the context of theprior art," Judge William Bryson wrote.The rejection of the point of novelty test, however, does not mean that thedifferences between the claimed design and prior art designs are irrelevant,according to the court. "[T]he comparison of the designs, including theexamination of any novel features, must be conducted as part of the ordinaryobserver test, not as part of a separate test focusing on particular pointsof novelty that are designated only in the course of litigation," JudgeBryson explained. The court also declined to adopt the panel's "non-trivialadvance" test, finding it only a refinement of the point of novelty test,and declined to require that courts give a detailed verbal description ofthe claimed design by way of claim construction.See

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