US design practitioners are awaiting the en banc Federal Circuit decision in the Egyption Goddess v Swisa case, which may well be the most significant design patent case there for many years. Amicus briefs have been filed, on the following questions:
Should "point of novelty" be a test for infringement of design patent?
should the court adopt the non-trivial advance test adopted by the panel majority in this case;
should the point of novelty test be part of the patentee's burden on infringement or should it be an available defense;
should a design patentee, in defining a point of novelty, be permitted to divide closely related or, ornamentally integrated features of the patented design to match features contained in an accused design;
should it be permissible to find more than one "point of novelty" in a patented design; and
should the overall appearance of a design be permitted to be a point of novelty?.
Should claim construction apply to design patents, and, if so, what role should that construction play in the infringement analysis?
Design harmonisation was on the agenda at the WIPO Standing Committee on the Law of Trademarks, Industrial Designs and Geographical Indications (SCT) 19th session, July 21st to 25th 2008. The results of a questionnaire will be analysed and reviewed at the next session, in December.
The African Intellectual Property Organization (OAPI) joins WIPO's Hague international design system as of 16th Sept 2008, as does Ghana. Syria and Lithuania are also recent joiners.