USPTO-Judicial-Decisions-Review.pdf - Haynes and Boone, LLP

Lightning Review Design Patent Infringement:COMPARISON of Claimed and Accused Designs!!• The ordinary observer test is the sole test for determiningwhether a design patent has been infringed. EgyptianGoddess, Inc. v. Swisa, Inc., 543 F.3d 665 (Fed. Cir. 2008).• The O.O.T.: “[I]f, in the eye of an ordinary observer, giving such attention as apurchaser usually gives, two designs are substantially the same, if theresemblance is such as to deceive such an observer, inducing him to purchaseone supposing it to be the other, the first one patented is infringed by the other.”Gorham Co. v. White, 81 U.S. 511 (1871).• Back to Egyptian Goddess:– “In other instances, when the claimed and accused designs are not plainlydissimilar, resolution of the question whether the ordinary observer wouldconsider the two designs to be substantially the same will benefit from acomparison of the claimed and accused designs with the prior art, asin many of the cases discussed above and in the case at bar.”© 2012 Haynes and Boone, LLP