Federal Circuit to Reconsider Point of Novelty Test for Design Patent Infringement

Thanks to the folks at Filewrapper for posting a copy of the Federal Circuit's rehearing en banc order vacating the panel decision in Egyptian Goddess, Inc., et al. v. Swisa, Inc., et al. and requesting the parties to file briefs that address the following questions:

1. Should "point of novelty" be a test for infringement of design patent?
2. If so,
   (a) should the court adopt the non-trivial advance test adopted by the panel majority in this case;
   (b) should the point of novelty test be part of the patentee's burden on infringement or should it be an available defense;
   (c) should a design patentee, in defining a point of novelty, be permitted to divide closely related or, ornamentally integrated features of the patented design to match features contained in an accused design;
   (d) should it be permissible to find more than one "point of novelty" in a patented design; and
   (e) should the overall appearance of a design be permitted to be a point of novelty? See Lawman Armor Corp. v. Winner Int'l, LLC, 449 F.3d 1190 (Fed. Cir. 2006).
3. Should claim construction apply to design patents, and, if so, what role should that construction play in the infringement analysis? See Elmer v. ICC Fabricating, Inc., 67 F.3d 1571, 1577 (Fed. Cir. 1995)

Briefs of amici curiae "will be entertained in accordance with Federal Rules of Appellate Procedure 29 and Federal Circuit Rule 29."

"Hopefully, the en banc court will take this opportunity to return some sanity to design patent law," quips Professor Crouch with links to all of the supporting documents in the case. "Perhaps Egyptian Goddess will be remembered as the fairy godmother of design patents."

Choose your favorite Egyptian Goddess here.