[JURIST] An en-banc panel of the US Court of Appeals for the Federal Circuit [official website] on Monday clarified [decision, PDF] the test to be used to determine whether a design patent [government backgrounder] has been infringed. The issue came before the court in a dispute over an alleged infringement of US Design Patent No. 467,389 [patent materials], a design for a four-sided nail buffer, in which a three-member panel [opinion, PDF] of the court had found no violation. The court had originally denied the claim because it found that the allegedly infringing design did not include a non-trivial "point of novelty." In the rehearing, the court again found no infringement, but broadly rejected the widely-used "point of novelty" test. Instead, the court held that an "ordinary observer test" designed to include relevant knowledge of design trends in a particular field was a better application of legal precedent:

We think, however, that...predecessor cases...are more properly read as applying a version of the ordinary observer test in which the ordinary observer is deemed to view the differences between the patented design and the accused product in the context of the prior art. When the differences between the claimed and accused design are viewed in light of the prior art, the attention of the hypothetical ordinary observer will be drawn to those aspects of the claimed design that differ from the prior art. And when the claimed design is close to the prior art designs, small differences between the accused design and the claimed design are likely to be important to the eye of the hypothetical ordinary observer.