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Is something afoot? “Ordinary observer” test used to determine design patent anticipation


SKU: IIPjj101. Category: .


Abstract: Design patents can be invalid if the designs aren’t original. But when is a design “anticipated”? When a patent holder sued a retailer for selling an allegedly infringing product, the retailer successfully claimed that the designs were anticipated by a third party’s similar products. On appeal, the patent holder contended that the court had erred by basing its determination only on the ordinary observer test and failing to apply the point of novelty test. But the Federal Circuit concluded that the former must logically be the sole test for anticipation as well as infringement. However, as a sidebar to this article explains, the court did find fault with the district court’s application of the ordinary observer test.

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