Federal Circuit to Decide Whether Design Patents Require a “Non-trivial Advance”

Last year, the Federal Circuit decided a design patent case by apparently creating a new standard for the point of novelty test, stating that “for a combination of individually known design elements to constitute a point of novelty, the combination must be a non-trivial advance over the prior art.” The Federal Circuit has decided to review the case en banc, to determine the appropriate “point of novelty” test for design patent infringement. Egyptian Goddess, Inc. v. Swisa, Inc., 256 Fed. Appx. 357, 2007 U.S. App. LEXIS 27456 (Fed. Cir. 2007).