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By Howard J. Shire and Matt Berkowitz
January 29, 2010

Federal Circuit HoldsThat 'Ordinary Observer' Test Is Sole Test for Design Patent Invalidity

In International Seaway Trading Corp. v. Walgreens Corp., 2009-1237 (Fed. Cir. Dec. 17, 2009), the Federal Circuit affirmed-in-part, vacated-in-part and remanded a district court's summary judgment ruling that the design patents-in-suit were invalid as anticipated, holding that the district court correctly held that the “ordinary observer” test was the sole test of design patent invalidity under 35 U.S.C. ' 102, but that it erred in limiting application of that test to the “portions of the product that are visible during normal use.”

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