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Functionality Requires Assessment of Design As a Whole: The Federal Circuit reiterated that design patents cover “any new, original and ornamental design for an article of manufacture . Holding that the district court applied the incorrect standard, the Federal Circuit reversed and remanded.
(“BDI”) claimed that Defendant High Point Design (“HPD”) infringed its design patent and its trade dress in a fuzzy slipper design. The Federal Circuit, in reviewing this determination, reversed and remanded, and in doing so, reiterated the appropriate standards for making such determinations. .” Therefore, the Federal Circuit explained, “a design patent can be declared invalid if the claimed design is ‘primarily functional’ rather than ‘primarily ornamental.’” In analyzing whether a design patent is invalid because it is functional, the Federal Circuit admonished that the district court incorrectly looked at whether the design’s .
Obviousness Analysis Critiqued: The Federal Circuit explained that when evaluating claims of obviousness, “first,one must find a single reference, a something in existence, the design characteristics of which are basically the same as the claimed design.” In doing that, “a court must both (1) discern the correct visual impression created by the patented design as a whole; and (2) determine whether there is a single reference that creates basically the same visual impression.” Once that primary reference is found, “other references may be used to modify it to create a design that has the same overall visual appearance as the claimed design.” Further, the “ultimate inquiry in an obviousness analysis is whether the claimed design would have been obvious to a designer of ordinary skill who designs articles of the type involved.” The district court used as a primary reference slippers it held were “indistinguishable” from the ‘183 patent, along with secondary references with spots on the soles, and held that the ‘183 patent was obvious and thus invalid: The Federal Circuit reversed and remanded, holding that the district court erred in several ways in its application of the standards for determining obviousness.
First, the Federal Circuit held that the district court incorrectly analyzed obviousness from the perspective of an ordinary .
That means the inventor as well as the law firm representing them.
(credit: I’m not sure who told me about it, but I think it may have come from or via John Levine.) If you become aware of a patent application (note: not an issued patent!
) for which you are aware of possible prior art, you may be able to help invalidate it, or at least ensure any resulting patent is narrow enough to be relatively sane. Of course, you have to go find the patent application number, the contact addresses of the filers, and the contact address for the patent examiner to do this ;) But it beats posting a whinge to Slashdot.
In this instance, the plaintiff put forth alleged evidence of copying and commercial success, which the Federal Circuit directed the district court to consider on remand.
By reiterating and clarifying these standards, this Federal Circuit decision helps to clarify design patent invalidity analysis.