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[patengineer]

The recently decided Egyptian Goddess case held that the test for design patent infringement is only the “ordinary observer” test which was the same test formulated in 1871 by the Supreme Court. But it seems that the court in Egyptian Goddess qualified an ordinary observer to be a person with knowledge of the prior art.

Does this mean that an infringement analysis has to include the prior art OR can one just analyze the design patent and the infringer product?

Thanks in advance!

[bsbinla]

[Egyptian Goddess...]

Does this mean that an infringement analysis has to include the prior art OR can one just analyze the design patent and the infringer product?

Egyptian Goddess says that infringement should be assessed in the context of prior art, when needed.  The more crowded the design field, the narrower the range of design patent coverage.    If the designs are clearly disparate or clearly identical, then no such analysis is needed.

Egyptian Goddess did not change the definition of an "ordinary observer".   The term as defined back in 1871 means a interested consumer that would be aware of the market and would be a potential purchaser of products specific to their market.  For example, a teenage girl will be aware of teen clothing styles while an elderly woman may have little if any knowledge of them.  The teenager is the "ordinary observer".   I recall that either the 1871 case or one of its progeny had a quaintly sexist example of "ordinary observer" similar to this one.   

Although an "ordinary observer" may not be cognizant of antiquated designs no longer represented in the market, this gap in knowledge of prior art does not impact an infringement analysis.  [Prior knowledge of] such prior art designs only impacts validity analysis.