[Article / US Designs] Evolution of methods for assessing design patent infringement in the United States (Masato Sasaki, Patent, January 2026)
Updated: 3 hours ago
Article information
Article type: Publication review
Categories: United States
Main topics: Similarity of designs
First published on this website: October 1, 2026
Display and classification checked: October 1, 2026 (not a revalidation of the legal analysis)
[Article / US Designs] Evolution of methods for assessing design patent infringement in the United States (Masato Sasaki, Patent, January 2026)
US design patent infringement assessment originates in the ordinary observer test established by the Supreme Court's 1871 Gorham judgment.
From the 1984 Litton Systems judgment onward, the CAFC introduced the point of novelty test alongside it. This required the accused design to possess the novel design features (points of novelty) distinguishing the patented design from prior designs.
⇒ Infringement consequently required both substantial identity and appropriation of the points of novelty.
However, the 2008 Egyptian Goddess en banc judgment abolished the point of novelty test and reaffirmed that the ordinary observer test is the sole test for design patent infringement. It clarified that comparison should be made from the perspective of an ordinary observer familiar with the prior designs, assessing how differences affect the design as a whole in light of those prior designs.
Subsequent judgments have indicated:
① Consider the overall ornamental features after excluding functional aspects at the conceptual level.
② The prior designs used for comparison are limited to those applied to the article identified in the claim.
③ Logos on accused products and their placement may also be considered as ornamental differences.
⇒ Current US assessment thus centres on the ordinary observer test, emphasizing the overall ornamental impression after considering prior designs and separating functional elements, rather than simple visual similarity.
Original article: https://lnkd.in/gyNDCrkV
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Substantive corrections and additions are recorded separately from classification, related links and display changes.
October 1, 2026: First publication of the author's original LinkedIn text on this website. Article type, categories, topic tags, sources and consultation navigation added.
2026-10-01 | Display maintenance: added case references stated in the original or language-alternate metadata; not a revalidation of legal analysis.
2026-10-01 | Name notation: replaced verified Japanese-script personal names with Roman-letter forms in this English article and its navigation. Legal analysis and original publication date unchanged.
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