US Design Law Still Decorated with 1880’s Era Carpeting

Under the provisions of the United States Patent Act, the sale of “any article of manufacture” to which an infringing design has been applied makes the infringer liable “to the extent of his total profit” with respect to the article of manufacture. In other words, the language of the Act specifically bars apportionment of an […]

Ordinary Observer Test Prevails Over Point of Novelty for Design Patents

Nirav Bhatt is an LLM candidate at Osgoode Hall Law School. The test for determining the validity of design patents should be the “ordinary observer test” and not the “point of novelty”. The US Court of Appeals for the Federal circuit (CAFC) in the recent case of International Seaway Trading Corp. v. Walgreens Corporation ruled that […]