Did you know that the test that determines whether an object infringes a design patent is the observer test? That’s right! But what is even more unique is that this test has withstood the test of time in an area of law that is generally associated with innovation and ever changing standards of review.
The observer test has been around for close to 150 years! It relies on an ordinary observer to differentiate between the infringing design and the patented design. An who is this ordinary observer? well to some extent it is the court, which relies on testimony of “ordinary observers” regarding the similarity of the designs Gorham Co. v. White, 81 U.S. 511 (U.S. 1872).
However, the court in Egyptian Goddess, Inc. v. Swisa, Inc., 543 F.3d 665 (Fed. Cir. 2008) commented that while the ordinary observer test is used to determine whether an infringement exists, the accused infringer may defend using a test that specifically focuses on the novelty features of the prior art thereby applying the novelty test in defense against an infringement claim.