Got a Design Patent Lawsuit? Hire a Copyright Lawyer.

Businesses involved in design patent litigation would be well-served to consult IP counsel with copyright expertise. Recent Federal Circuit decisions, Crocs v. ITC, Int’l Seaway v. Walgreens, and Egyptian Goddess v. Swisa, require that the standard to be employed when evaluating both design patent infringement and design patent validity, is one similar to that used in copyright infringement cases: the ordinary observer test.

Generally, to prove patent infringement, one must prove that the accused device meets every limitation of the claim, either literally or under the doctrine of equivalents. That analysis has very little to do with copyright jurisprudence. With respect to design patents, however, the question is whether an ordinary observer, familiar with the prior art, would believe that the accused product was the same as the patented design. That test is very similar to the “more discerning ordinary observer” test employed in copyright infringement cases, which asks: whether the ordinary observer, putting aside the copyrighted work’s unprotected elements, would think that the plaintiff’s work was taken by the defendant.

Copyright lawyers should be more comfortable with the more amorphous ordinary observer test and its more "touchy feely" application than patent practitioners, who are more accustomed to precise evaluation of claim limitations. For that reason, businesses involved in design patent lawsuits may be well-served to include a copyright litigator on the litigation team.
 

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