• Answering the New Test for Invalidating Design Patents
  • January 19, 2010 | Author: Alan N. Herda
  • Law Firm: Haynes and Boone, LLP - Dallas Office
  • As those interested in design patents may recall, the court changed the test for design patent infringement in 2008 by rejecting the point of novelty test and holding that the ordinary observer test is the sole test for determining whether a design patent has been infringed. Egyptian Goddess, Inc. v. Swisa, Inc., 543 F.3d 665 (Fed. Cir. 2008). To establish design patent infringement under the ordinary observer test, the Supreme Court held in 1871 that the claimed and accused designs must be substantially the same, and the Federal Circuit confirmed this is the exclusive design patent infringement test. That is to say, in the eye of an ordinary observer who gives such attention as a purchaser usually gives, the resemblance between the claimed and accused designs must be such as to deceive the ordinary observer and induce the ordinary observer to purchase the accused design supposing it to be the claimed design.