[Excerpt] “On September 22, 2008, the Federal Circuit, sitting en banc, handed down the most important decision in design patent law in nearly twenty-five years. Egyptian Goddess, Inc. v. Swisa, Inc. (Egyptian Goddess III) abolished the point-of-novelty test first set out in Sears, Roebuck & Co. v. Talge and adopted by the Federal Circuit in Litton Systems, Inc. v. Whirlpool Corp. The point-of novelty test required patent holders to prove that an accused design appropriated the element which sets the patented design apart from the prior art—in addition to the ordinary-observer standard’s requirement of having substantially the same appearance—in order to prove infringement.
The point-of-novelty test proved difficult to apply and often rendered valid design patents unenforceable. Additionally, the test had no basis in Supreme Court precedent. In place of the rigid point-of novelty test, the Federal Circuit announced a more malleable ordinary-observer standard that gives factfinders more leeway in evaluating infringement. Egyptian Goddess has been hailed as a major victory for owners of design patents, but this Note argues that the actual effect will be much more muted.
After giving an overview of design patents, this Note will analyze the cases that preceded the Federal Circuit’s adoption of the point-of-novelty test in Litton Systems. Additionally, this Note will discuss some of the cases decided during the reign of the point-of novelty test to demonstrate the problems inherent in it. After covering Egyptian Goddess in depth, the Note will then argue that Egyptian Goddess’s effect will be limited.”
Evan Szarenski, Egyptian Goddess, Inc. v. Swisa, Inc.: A Dramatic Change in the Law of Design Patents?, 8 Pierce L. Rev. 89 (2009), available at http://scholars.unh.edu/unh_lr/vol8/iss1/6