Invalidating a design patent

Instead, a policy lever not discussed by Buccafusco, Lemley, and Masur—namely, statutory subject matter—may be more helpful in addressing the very valid concerns raised in Intelligent Design.

This response will explain how courts analyze design patent infringement under the Federal Circuit’s Egyptian Goddess test. The Federal Circuit has had exclusive jurisdiction over patent appeals, including design patent appeals, since 1982.

And if there were a case where a piece of prior art looked the same as the accused design, one would expect that case to settle quickly in light of the infringement-anticipation symmetry principle.

The author is not aware of any cases where anyone has been held liable for infringement post-Goddess for merely practicing the prior art.

Wallace cannot, as a matter of law, prove that the designs appear substantially the same.”); Lin v.

See id.; Wallace, 2014 WL 4637216, at *4 (“Indeed, a comparison supports a finding that these two designs are sufficiently distinct and Ms.

at 678 (emphasizing that the Gorham test focused on similarity of appearance). Professor of Law at the University of Oklahoma College of Law. Indeed, shortly after the decision came out, leading practitioners noted that the Goddess test was different. Carani, The New “Extra-Ordinary” Observer Test for Design Patent Infringement—On A Crash Course with the Supreme Court’s Precedent in Gorham v. “If a patentee is able to show that there is no substantial difference between the claimed design and the purported commercial embodiment, a comparison between that embodiment and the accused design is permissible” but such a comparison is never required. The author thanks Pamela Samuelson and Mark Lemley for comments on earlier drafts of this response. White, 8 354, 380 (2009) (“The Federal Circuit’s holdings in Arminak and Egyptian Goddess improperly replace the ordinary observer test with an ‘extra-ordinary observer’ test.”); James Juo, Egyptian Goddess: Rebooting Design Patents and Resurrecting Whitman Saddle, 18 design patents are given a much narrower scope than the cases discussed in Intelligent Design might seem to suggest. 1986) (“Likelihood of confusion as to the source of the goods is not a necessary or appropriate factor for determining infringement of a design patent.”). Egyptian Goddess, 543 F.3d at 677 (citing Amini Innovation Corp.

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See, e.g., Egyptian Goddess, 543 F.3d at 678 (noting that the designs must “appear” to be the same to support a finding of infringement); id.

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