In En Banc Ruling, Federal Circuit Clarifies Test for Design Patent Infringement

In Egyptian Goddess, Inc. et al., v. Swisa, Inc. and Dror Swisa, 543 F3d 665, 88 USPQ2d 1658 (Fed. Cir. 2008) en banc, the Federal Circuit unanimously redefined the test for infringement with regard to design patents to remove the “point of novelty” prong of the analysis.  Egyptian Goddess, Inc. (EGI) brought suit in the District Court for the Northern District of Texas alleging that Swisa, Inc. and Dror Swisa (Swisa) had infringed EGI’s U.S. Design Patent No. 467,389 (the ‘389 patent).  The ’389 patent claimed a design for a nail buffer, “consisting of a rectangular, hollow tube having a generally square cross-section and featuring buffer surfaces on three of its four sides.”  The accused Swisa product had a rectangular, hollow tube having a square cross-section and featuring buffer surfaces on all four of its sides. Continue reading