September 28, 2007

I will periodically post case citations from the Federal Circuit along with the date of the opinion/order and a brief list of the legal topics discussed therein (specifically those with additional embedded case law citations). My goal is to post new cases on a weekly basis. This posting covers the sole patent case that was appealed from the district court level and decided by the Federal Circuit during the 35th calendar week of 2007. All opinions are precedential unless otherwise indicated.

Egyptian Goddess, Inc., et al. v. Swisa, Inc., et al. (08/29/2007): appeal of final judgment granting summary judgment of noninfringement of design patent (affirmed); discussion of design patent related to an ornamental design for a nail buffer (U.S. Patent No. D467,389, entitled “Nail buffer”); there are two distinct requirements for establishing design patent infringement: (1) “[t]he first, called the ordinary observer test, requires that “in the eye of an ordinary observer, giving such attention as a purchaser usually gives, [the] two designs are substantially the same . . . the resemblance is such as to deceive such an observer, inducing him to purchase one supposing it to be the other”, and (2) “[t]he second, called the point of novelty test, requires that “no matter how similar two items look, ‘the accused device must appropriate the novelty in the patented device which distinguishes it from the prior art’”; “[f]or a combination of individually known design elements to constitute a point of novelty, the combination must be a non-trivial advance over the prior art”; the district court “properly” determined that “no reasonable jury could conclude that the point of novelty proffered by EGI is a non-trivial advance over the prior art”; because the district court properly determined that there is no genuine issue of material fact as to whether the alleged infringing product appropriates the point of novelty of the claimed design, the judgment was affirmed

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Mark Reichel
Reichel IP LLC

I am a patent attorney with Reichel IP LLC, where I concentrate my practice on patent drafting and prosecution, trademarks, and general intellectual property matters. I currently focus on the preparation and prosecution of medical device and other life sciences patent applications, and being actively involved in a number of local not-for-profit organizations.

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