Patent Law | Expert Legal Commentary
January 13, 2009
Egyptian Goddess v. Swisa: No more Point of Novelty Test for Design Patent Infringement
Egyptian Goddess v. Swisa
By
Olivier A. Taillieu of Zuber & Taillieu LLP and Spyros J. Lazaris
In its highly anticipated en banc opinion in Egyptian Goddess v. Swisa, 543 F.3d 665 (Fed. Cir. 2008), the Court of Appeals for the Federal Circuit rejected the point of novelty test for design patent infringement. The Court held that the “ordinary observer” test set forth in Gorham v. White is the only appropriate test for assessing claims of design patent infringement. When properly applied, the “ordinary observer” test takes into account prior art; therefore, the point of novelty test was an unnecessary and inconsistent departure from precedent and common sense.
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About the Author
Olivier A. Taillieu is a Partner of Zuber & Taillieu LLP, focusing on intellectual property litigation and arbitration.
Image Credit: Egyptian Goddess v. Swisa/ U.S. Court of Appeals for the Federal Circuit 543 F.3d 665 (Fed. Cir. 2008)
1 The court described its briefing request this way: “This court granted rehearing en banc and asked the parties to address several questions, including whether the “point of novelty” test should continue to be used as a test for infringement of a design patent; whether the court should adopt the “non-trivial advance test” as a means of determining whether a particular design feature qualifies as a point of novelty; how the point of novelty test should be administered, particularly when numerous features of the design differ from certain prior art designs; and whether district courts should perform formal claim construction in design patent cases.” 543 F.3d at 670.