Egyptian Goddess v. Swisa: So Long “Point of Novelty” Test

Posted on | September 22, 2008 | No Comments

Here it is–hot off the wire.*  The Federal Circuit issued its en banc opinion in the Egyptian Goddess case this afternoon.  As many predicted, the "point of novelty" test is no more.  Instead, the Federal Circuit affirmed the district court’s grant of summary judgment based on "the ordinary observer test"–determining infringement "in light of the prior art":

In the language used by the Supreme Court in Gorham, 81 U.S. at 528, we hold that the accused design could not reasonably be viewed as so similar to the claimed design that a purchaser familiar with the prior art would be deceived by the similarity between the claimed and accused designs, “inducing him to purchase one supposing it to be the other.”

The opinion can be found here.  Stay tuned.  The blogosphere should be buzzing about this one for a while.

*Special thanks to Court watcher and friend of PATracer.com, Baker & Hostetler’s Tom Shunk, for alerting us. 

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