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Welcome to the Malloy & Malloy, P.L.
Intellectual Property law Blog
Our goal is to provide some general information about recent developments and interesting news impacting Patent, Trademark and Copyright Issues. Please feel free to check back often for the latest.
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Design Patent Infringement Revisited
09-23-2008 [Ben Hanrahan] [Permalink]In an en banc decision, the Federal Circuit considered the appropriate legal standard to be applied in design patent infringement, and in particular, whether the "point of novelty" test should continue to be used. In granting the defendant's motion for summary judgment of non-infringement, the lower court stated that the plaintiff "must prove both (1) that the accused device is 'substantially similar' to the claimed design [i.e., the ordinary observer test] ... and (2) that the accused device contains 'substantially the same points of novelty that distinguised the patented design from the prior art' [i.e., the point of novelty test]. The Federal Circuit, however, held that:
the "point of novelty test" should no longer be used in the analysis of a claim of design patent infringement ... Instead ... the "ordinary observer" test should be the sole test for determining whether a design patent has been infringed.
The entire decision can be found here.