Case Alert: En Banc Panel of the Federal Circuit Unanimously Streamlines the Test For Infringement of a Design Patent

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Egyptian Goddess v. Swisa (Fed. Cir. 2008, en banc)

On September 22, in an unanimous en banc opinion, the Court of Appeals for the Federal Circuit streamlined the test for infringement of design patents by rejecting the “point of novelty” test as a separate requirement for a finding of infringement. Instead, the court held that the “ordinary observer” test, first announced by the United States Supreme Court in 1871, is the “sole test for determining whether a design patent has been infringed.”

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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