Egyptian Goddess v. Swisa Inc.

Point of novelty test is rejected;  Infringement of a design patent requires that an ordinary observer, taking into account the prior art, would believe the accused design to be the same as the patented design.

(Fed. Cir. 2008, en banc, 06-1562)

 

The CAFC granted a rehearing en banc  to address the appropriate legal standard to be used in assessing claims of design patent infringement. 

Egyptian Goddess (“EGI”) originally brought suit in US District Court (N.D Tex.), alleging that Swisa had infringed EGI’s U.S. Design Patent No. 467,389 (“the ’389 patent”).  The ‘389 patent claimed a design for a nail buffer, consisting of a rectangular, hollow tube having a generally square cross-section and featuring buffer surfaces on three of its four sides.  Swisa’s product consists of a rectangular, hollow tube having a square cross-section, but featuring buffer surfaces on all four of its sides.  The district court granted the motion for summary judgment of noninfringement for Swisa, stating that the plaintiff in a design patent case must prove both: (1) that the accused device is “substantially similar” to the claimed design under what is referred to as the “ordinary observer” test; and (2) that the accused device contains “substantially the same points of novelty that distinguished the patented design from the prior art.”

EGI appealed and a panel of the CAFC affirmed.  The panel agreed with the district court that there was no issue of material fact as to whether the accused Swisa buffer “appropriates the point of novelty of the claimed design.”  The AT! analysis of the original CAFC panel opinion may be found here.

In an unanimous decision, the en banc CAFC held that the “point of novelty” test, previously used as a second and free-standing requirement for proof of design patent infringement, is inconsistent with precedent and is not needed to protect against unduly broad assertions of design patent rights.  The en banc CAFC instead applied the “ordinary observer” test first set forth in Gorham Co. v. White.  The ordinary observer test states:

[I]f, in the eye of an ordinary observer, giving such attention as a purchaser usually gives, two designs are substantially the same, if the resemblance is such as to deceive such an observer, inducing him to purchase one supposing it to be the other, the first one patented is infringed by the other.

Using the ordinary observer test, the CAFC concluded that no reasonable fact-finder could find that EGI met its burden of showing, by a preponderance of the evidence, that an ordinary observer, taking into account the prior art, would believe the accused design to be the same as the patented design. In concluding that a reasonable fact-finder could not find infringement in this case, the court affirmed the conclusion of the district court.

AFFIRMED.

They Invented What? (No. 114)

U.S. Pat. No. 6,612,440:  Banana protective device.

 

I claim:

1. A banana protective device comprising:
          a container having a first cover member and a second cover member being hingedly attached to said first cover member, said first and second cover members defining an interior for receiving and storing a banana therein, each of said first and second cover members having a substantially concave inner side;
          pad members each being mounted on the inner side of one of said first and second cover members for protecting and cushioning the banana when the banana is received in said interior; and fastening members being attached to said first and second cover members for fastenably closing said first and second cover members together;
          wherein each of said first and second cover members has an elongate wall which has a lateral U-shaped cross-section and which is longitudinally curved and banana-shaped, each of said elongate walls further having an outer side;
          wherein each of said elongate walls has an inner curved longitudinal edge and an outer curved longitudinal edge, said elongate walls of said first and second cover members being hingedly attached along said outer curved longitudinal edges;
          wherein each of said first and second cover members further has a fastener support member being attached to a respective said inner longitudinal edge and extending outwardly therefrom, each of said fastener support members comprising a ledge;
          wherein each of said elongate walls has a plurality of perforations being spaced about and being disposed therethrough;
          wherein said first cover member includes an elongate rib being disposed upon said outer curved longitudinal edge thereof, and said second cover member includes an elongate groove being disposed in said outer curved longitudinal edge thereof and being adapted to receive said elongate rib;
          wherein said pad members are made of foam material and are spaced apart along said inner sides of said elongate walls to cushion and support the banana in said container;
          wherein said fastening members are strips of hook and loop fasteners being attached upon said ledges of said first and second cover members and being attachable to one another to close said first and second cover members upon one another and about the banana.

They Invented What? (No. 113)

U.S. Pat. No. 5,687,752:  Dining table having integral dishwasher.

 

What is claimed is:

1. A dishwasher comprising:
          a washing basin having side and bottom walls and an open top;
          a rack assembly for carrying dishes, and that is vertically shiftable between a lower cleaning position wherein the rack assembly is disposed within the basin below the open top and an upper loading position wherein the rack assembly is disposed above the open top of the basin;
          a shifting mechanism coupled with the rack assembly for selectively shifting the assembly between the cleaning position and loading position;
          a lid member for covering the open top of the basin when the rack assembly is in the cleaning position; and
          a cleaning means for cleaning the dishes carried in the rack assembly when the assembly is in the cleaning position, said lid member being coupled with the shifting mechanism for shifting movement with the rack assembly, said lid member having an undersurface and including a bar suspending from the undersurface to support the rack assembly, said rack assembly including a pair of vertically spaced wire frames, said frames being rotatably supported on the bar.

They Invented What? (No. 112)

U.S. Pat. No. 4,300,473: Device for moistening the adhesive coating on postage stamps and envelopes.

 

What is claimed is:

1. An apparatus for moistening adhesive coatings on postage material and the like, comprising:
         (a) an enclosure member;
         (b) an open top liquid container disposed within said enclosure member;
         (c) a spring biased linkage member pivotally mounted within the enclosure member and biased to a predetermined position;
         (d) a moistening member pivotally mounted to the linkage member, said moistening member being movable from a first position in which it is disposed within the open top liquid container to a second position in which it is extended outwardly from the enclosure member;
         (e) a plunger reciprocally movable within the enclosure member, said plunger engaging the linkage member for applying a force thereto non-coincident with the linkage member’s pivotal axis to overcome its spring bias; and
         (f) a reciprocally movable closure member, said closure member being movable from a first position to a second position in response to a force transmitted by said moistening member for selectively closing and exposing of an opening in said enclosure member, said moistening member extending through said opening when said closure member is in its second position.

They Invented What? (No. 111)

U.S. Pat. No. 5,675,103:  Non-lethal tetanizing weapon.

JW Note:  Set phase pistols to stun.

Definition : Tetanize = To affect with tetanic convulsions; produce or induce tetanus (a state of continuous muscular contraction, especially when induced artificially by rapidly repeated stimuli).

   

What is claimed is:

1. An apparatus for applying a tetanizing electrical current to muscular tissue of a distant human target which comprises:
          means for generating a high-voltage pulsed electrical current modulated to closely replicate physiological neuroelectric impulses which control human striated, skeletal muscle tissue;
means for ionizing at least one channel of ambient air between said means for generating and the target; and
          means for inducing said tetanizing electrical current within said ionized channel wherein said means for generating and said means for ionizing have rated output powers capable of inducing a flow of pulsed electrical current through said tissue, said current being adjusted to cause tetanization of said tissue.