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And if there were a case where a piece of prior art looked the same as the accused design, one would expect that case to settle quickly in light of the infringement-anticipation symmetry principle.
The author is not aware of any cases where anyone has been held liable for infringement post-Goddess for merely practicing the prior art.
For example, Apple’s graphical user interface design patent claim should have never made it to a jury.
2010) (“The district court here properly factored out the functional aspects of Richardson’s design as part of its claim construction”). That’s not to say this test has always been perfectly applied or that there have been no outliers.
547, 570 (2006) (noting that, in copyright law, “[f]ragmented literal similarity is the test of substantial similarity in cases where only a portion of a work is copied, without copying of the work’s overall essence or structure”). Where there are many examples of similar prior art designs, .
Bach to Hip Hop: Musical Borrowing, Copyright and Cultural Context, 84 . In other instances, when the claimed and accused designs are not plainly dissimilar, resolution of the question whether the ordinary observer would consider the two designs to be substantially the same will benefit from a comparison of the claimed and accused designs with the prior art, as in many of the cases discussed above and in the case at bar. differences between the claimed and accused designs that might not be noticeable in the abstract can become significant to the hypothetical ordinary observer who is conversant with the prior art.
But on the whole, the Egyptian Goddess framework has proved quite effective in appropriately constraining design patent scope. Although the patent owner retains the ultimate burden of persuasion on the issue of infringement, the accused infringer bears the burden of identifying any relevant prior art.
In some instances, the claimed design and the accused design will be sufficiently distinct that it will be clear without more that the patentee has not met its burden of proving the two designs would appear “substantially the same” to the ordinary observer . In other words, there are no mechanisms in the legislation to deal with these problems.”). at 156 n.282 (suggesting that “the PTO could also impose maintenance fees for design patents”); id.