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New and Useful – January 31, 2013

· In Soverain Software LLC v. Newegg Inc. the Federal Circuit vacated in part and reversed in part an Eastern District of Texas decision finding Newegg Inc. liable for infringement of U.S. Patent Nos. 5,715,314, 5,909,492, and 7,272,639, all relating to electronic commerce. The Federal Circuit offered clarifying insight on the obviousness doctrine. The background […]

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More on Crocs at the CAFC

Another decision regarding a number of patents relating to foam based footware, this time held by Crocs, Inc. ("Crocs") has been handed down from the Court of Appeals for the Federal Circuit ("CAFC"). In this appeal from the U.S. International Trade Commission ("USITC"), the court addressed obviousness of a utility patent and claim construction of […]

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Clogging up the Federal Circuit

On December 17, 2009, the Court of Appeals for the Federal Circuit addressed in International Seaway Trading Corp. v. Walgreens Corp. whether the "ordinary observer" test from Egyptian Goddess likewise applies to anticipation of design patents. In Egyptian Goddess, the CAFC dropped the "point of novelty" test for design patent infringement and adopted the "ordinary […]

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En banc Federal Circuit scraps point of novelty test for design patent infringement

In an en banc decision this morning, the Federal Circuit has unanimously held that the "point of novelty" test for design patent infringement should no longer be applied. As stated by the court: [W]e hold that the "point of novelty" test should no longer be used in the analysis of a claim of design patent […]

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Federal Circuit grants rehearing en banc in design patent case

The Federal Circuit today granted a petition for rehearing en banc in a design patent case, Egyptian Goddess, Inc. v. Swisa, Inc. In that case, the court held that when a design patent's "point of novelty" is a combination of existing design elements, the point of novelty must be a "non-trivial" advance over the prior […]

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“Ordinary observer” can be commercial buyer when buyer uses designed item as part of retail product

In a recent decision, the Federal Circuit affirmed a district court’s order granting summary judgment of non-infringement of two design patents. Specifically, the court acknowledged that the Supreme Court's decision in Gorham Co. v. White held that an "ordinary observer" for purposes of design patent infringement cannot be an expert. Nevertheless, in this case, the […]

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When point of novelty is a combination of existing elements, it must be a “non-trivial” advance

In a case decided yesterday, the Federal Circuit clarified the point-of-novelty test for design patents when the point of novelty is a combination of existing design elements. The court adopted the rule that "to constitute a point of novelty, the combinations must be a non-trivial advance over the prior art." The court likened this analysis […]

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Analysis of overall appearance determines whether patented design is dictated by function

In PHG Technologies, LLC v. St. John Companies, Inc., the Federal Circuit vacated the preliminary injunction of the district court finding St. John raised a substantial questions of validity of the two patents-at-issue. At issue were two design patents owned by PHG: the ‘405 and ‘197 patents. The ‘405 and ‘197 patents depend from a […]

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