Egyptian Goddess, Inc. v. Swisa, Inc.
United States Court of Appeals for the Federal Circuit
543 F.3d 665 (Fed. Cir. 2008)
Egyptian Goddess (EGI) (plaintiff) held a design patent on a hollow rectangular nail buffer with buffing surfaces on three of its four sides; Swisa (defendant) made a similar rectangular buffer with buffing surfaces on all four sides. The district court granted Swisa summary judgment, finding EGI failed both the ordinary observer test (whether an observer would find the designs substantially similar) and a separate point of novelty test (whether the accused design shared the same novel features distinguishing EGI's patent from prior designs); a Federal Circuit panel affirmed, and the full court granted rehearing en banc to clarify the correct standard.
Whether a design infringes a design patent when an ordinary observer would not find substantial similarity between the patented and accused designs such that the observer would be induced to buy one thinking it was the other.