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Egyptian Goddess, Inc. v. Swisa, Inc., 543 F.3d 665, 88 U.S.P.Q.2d 1658

Facts

Egyptian Goddess, Inc. (EGI) owned a design patent for a nail buffer, which featured a rectangular, hollow tube with a square cross-section and buffer surfaces on three sides. EGI alleged that Swisa, Inc. infringed this patent with their own nail buffer design, which had similar features but included buffer surfaces on all four sides. The district court ruled in favor of Swisa, granting summary judgment of noninfringement, leading EGI to appeal the decision. The Court of Appeals affirmed the lower court's ruling.

Issue

Did Swisa's nail buffer design infringe EGI's design patent?

Did Swisa's nail buffer design infringe EGI's design patent?

Rule

The test for design patent infringement is whether an ordinary observer, familiar with the prior art, would be deceived into thinking that the accused design is the same as the patented design. Infringement is not found unless the accused design embodies the patented design or a colorable imitation thereof. The burden of proof lies with the patentee, but if the accused infringer relies on prior art for defense, the burden of production shifts to them.

Test for design patent infringement is whether an ordinary observer, familiar with the prior art, would be deceived into thinking that the accused design was the same as the patented design, and infringement will not be found unless the accused article embodies the patented design or any colorable imitation thereof; abrogating Bernhardt, L.L.C. v. Collezione Europa USA, Inc., 386 F.3d 1371 (Fed.Cir.2004); Contessa Food Prods., Inc. v. Conagra, Inc., 282 F.3d 1370 (Fed.Cir.2002); Unidynamics Corp. v. Automatic Prods. Int'l, Inc., 157 F.3d 1311 (Fed.Cir.1998); Oakley, Inc. v. Int'l Tropic Cal., Inc., 923 F.2d 167 (Fed.Cir.1991); Avia Group Int'l, Inc. v. L.A. Gear Cal., Inc., 853 F.2d 1557 (Fed.Cir.1988); Lawman Armor Corp. v. Winner Int'l, LLC, 437 F.3d 1383 (Fed.Cir.2006); and Sun Hill Indus., Inc. v. Easter Unlimited, Inc., 48 F.3d 1193 (Fed.Cir.1995).

Analysis

In applying the ordinary observer test, the court compared the designs of EGI's patented nail buffer and Swisa's accused product. The court found that the differences in design, particularly the presence of buffer surfaces on all four sides of Swisa's product, would not deceive an ordinary observer familiar with the prior art. The court noted that the point of novelty in EGI's design was the fourth side without a pad, which was not present in Swisa's design. Therefore, the court concluded that Swisa's product did not infringe EGI's patent.

Conclusion

The Court of Appeals affirmed the district court's ruling that Swisa's nail buffer did not infringe EGI's design patent.

Affirmed.

Who won?

Swisa prevailed in this case as the court found that their nail buffer design did not infringe upon EGI's design patent. The court's analysis focused on the ordinary observer test, concluding that the differences between the two designs were significant enough that an ordinary observer would not be deceived into thinking they were the same. The court emphasized that the point of novelty in EGI's design was not appropriated by Swisa's product, leading to the affirmation of the summary judgment in favor of Swisa.

Swisa prevailed in this case as the court found that their nail buffer design did not infringe upon EGI's design patent. The court's analysis focused on the ordinary observer test, concluding that the differences between the two designs were significant enough that an ordinary observer would not be deceived into thinking they were the same.

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