Design Patents Post "Egyptian Goddess"

Originally published January 26, 2011

It's been two years since the Federal Circuit's ruling in Egyptian Goddess Inc v. Swisa. This landmark ruling, which effectively reset the standard for design patent infringement, has made a once relatively obscure and murky area of patent law only slightly clearer.

For over 25 years, infringement in design patent cases was determined by a two-pronged test. To infringe, the accused device had to meet both the so-called "point of novelty test" and the "ordinary observer" test. In Egyptian Goddess, the Court eliminated the requirement that a patent holder needed to show that the accused device "appropriated the novelty in the patented device which distinguishes from the prior art," and re-established the "ordinary observer" test as the sole criteria for (literal) infringement in design patent cases.