“Design Patent Infringement and the ‘Non-Trivial Advance’ Test,” John J. Cunniff, Esq.

In Egyptian Goddess, Inc. v. Swisa Inc., the U.S. Court of Appeals for the Federal Circuit affirmed a finding of noninfringement of a design patent, it did so, however, under a rationale that has been widely criticized. In fact, the Federal Circuit has indicated that it will rehear the case to decide whether the point of novelty test should be used in design patent cases.