McDonnell Boehnen Hulbert & Berghoff LLP partners Anthoula Pomrening and Jori Fuller co-authored an article entitled, “Tests For Design Patent Infringement Post-Egyptian Goddess” that appears in the September 26, 2014 edition of IP Law360.com. In the seminal decision of Egyptian Goddess Inc. v. Swisa Inc., the Federal Circuit struck down one of the two tests commonly used for determining design patent infringement, the “point of novelty” test. Despite rejecting this test, the court incorporated the consideration of prior art into a slightly revised version of the “ordinary observer” test, the hypothetical “ordinary observer” now having familiarity with the prior art. This article will examine the application of this revised version of the “ordinary observer” test, and specifically the consideration of the “plainly dissimilar” analysis set forth by Egyptian Goddess. View the article (subscription required)
George Lyons, a 2014 summer associate for MBHB, was a contributing co-author for this article. Note: this article originally appeared in the MBHB Summer 2014 edition of snippets.