by Mike Masnick
Mon, Sep 29th 2008 5:03pm
Most patent infringement lawsuits you hear about involve utility patents, but every once in a while we hear about cases involving design patents, which are about the ornamental design of a product, rather than the process or method. However, most IP attorneys are always quick to point out how weak design patents really are (which is why you rarely see them pop up in litigation). However, that may have just changed. CAFC (the Court of Appeals for the Federal Circuit, who handles all patent related issues) has released a unanimous ruling that lowers the standard for infringement of a design patent from the "point of novelty" test that the court has used for almost 25 years (which required that any design patent actually have something novel) to a "ordinary observer" test -- where infringement will be deemed to occur if an "ordinary observer" would think the designs are the same. It's difficult to understand why the courts wouldn't keep a novelty requirement, considering the very purpose of the patent system, but we've been confused by CAFC rulings on a regular basis for years, now. Anyway, you can now expect more lawsuits over design patents and perhaps a few more questions about why we need design patents when trademarks already exist.
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