Fed Circuit Edict Should Spur Design Patent Refinement

In a recent design patent case, the Federal Circuit determined that the District Court for the Northern District of Illinois should not have issued a preliminary injunction against companies selling Gyroor branded hoverboards. As the District Court for the Northern District of Illinois is a popular venue for counterfeiting and design patent cases, Managing Intellectual Property interviewed Finnegan partner Elizabeth Ferrill to discuss what this case means for patent owners.

Elizabeth said the case refines the ordinary observer test, which requires plaintiffs to show that ordinary observers familiar with the prior art would believe accused products were the same as patented designs. The court emphasized that the ordinary observer test should have been conducted through the lens of the prior art. The court acknowledged that point before in Egyptian Goddess v Swisa, but it made it even clearer here.

Additionally, she pointed out that the Federal Circuit likewise emphasized that the ordinary observer test had to be done on a product-by-product basis. She said, “That was something that we knew before, but it’s a helpful reminder that gives us something to cite when we’re in similar situations in the future.”

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