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Design Patent Owners Will Worship CAFC's Egyptian Goddess Decision

In an eagerly-awaited en banc ruling, the U.S. Court of Appeals for the Federal Circuit has banished the "point of novelty" test as a "second and free-standing requirement for design patent infringement," finding it inconsistent with the Supreme Court's Gorham v. White ordinary observer test. In addition, the CAFC ruled that, rather than describe a patented design in words, "the preferable course ordinarily will be for a district court not to attempt to 'construe' a design patent claim by providing a detailed verbal description of the claimed design." Egyptian Goddess, Inc. v. Swisa, Inc., Appeal No. 2006-1562 (September 22, 2008). [precedential].Revisiting the Litton Systems case, often cited as the genesis of a separate "point-of-novelty" test, the CAFC gave it a different reading:"We think, however, that Litton and the predecessor cases on which it relied are more properly read as applying a version of the ordinary observer test in which the ordinary observer is deemed to view the differences between the patented design and the accused product in the context of the prior art...continue to full post

Full post as published by The TTABlog on September 22, 2008 (boomark / email).