Design Patents reinvigorated

Design patent holders will be thrilled withe new decision by the Federal Circuit in Egyptian Goddess, Inc. v. Swisa, Inc., _ F.3d _ (Fed. Cir. 2008), making enforcement of patent protection for design patent owners less onerous. Design patents protect the ornamental features of functional articles. Previous to the Egyptian Goddess decision, the test for infringement was (1) substantial similarity from the perspective of an ordinary observer, and (2) the accused device contains the same points of novelty as the ptented design. The second test required claim construction in words of the graphic ornamental features and was used for appeals, hearings, and other purposes in defense of a design patent infringement suit. The Federal Circuit in Egyptian Goddess did away with the point of novelty test, thus easing the burden on patent holders in proving infringement. Since design patents are often easier to obtain, and less expensive, than utility patents, this is a significant boost to the small business ip entrepreneur.