What changed as a result of Egyptian Goddess?
On September 22, 2008, in Egyptian Goddess, Inc. v. Swisa, Inc., the Federal Circuit rejected the point of novelty test as a requirement for proving infringement of a design patent. Instead, the court held that the ordinary observer test should be the sole test for determining whether a design patent has been infringed. The court was careful to note, however, that differences between the patented design and the prior art still play a role-just not as part of a separate test. According to the court, the ordinary observer test is to be applied through the eyes of someone familiar with the prior art. Thus, if an accused design copies features of a patented design that depart conspicuously from the prior art, the accused design is likely to infringe. But, unlike the point of novelty test, this modified ordinary observer test does not run the risk of exaggerating the importance of small differences relating to insignificant features of the overall design. How will Egyptian Goddess impact ma
