En Banc Federal Circuit Announces Standard for Infringement of Design Patents and Rejects Requirement for Claims Construction in Design Patent Cases

After a series of decisions narrowing the scope of utility patents, the en banc Federal Circuit on September 22 reinforced design patent protection in a unanimous ruling that dropped both the “point of novelty” and “non-trivial advance” tests previously required to show infringement. Instead, the court in Egyptian Goddess, Inc. v. Swisa, Inc. held that “the ‘ordinary observer’ test should be the sole test for determining whether a design patent has been infringed.” The court also held that verbal claim construction is not required in a design patent infringement action, but is entirely within the district court’s discretion.

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