Live and recent posts from across the Fediverse tagged #egyptiangoddess, aggregated by home.social.
Stumbled upon this meme on another platform. Went all the way to decode it by seeking each hieroglyph individually on Wiktionary, which led me to dozens of Wiktionary tabs opened until I finally got to translate what Sekhmet said:
Sekhmet a-n-g-r-y
One thing I like about the decision in #LKQvGM is that it provides a good example of "how close is too close" in design patent law.
The court says these products are not close enough to anticipate. That means they would not, if later, be close enough to infringe.
http://cafc.uscourts.gov/opinions-orders/21-2348.OPINION.5-21-2024_2321050.pdf
Just out of curiosity, I looked up when the last Federal Circuit en banc design patent case, #EgyptianGoddess, was argued (6/2/08) and decided (9/22/08).
If #LKQvGM were to follow the same timeline, we could expect a decision around late May.
As to actual infringement, the accused product (at least the one at issue in this motion to dismiss), looks more like the patented design than the plaintiff's product. Maybe close enough to get through #EgyptianGoddess step one. But there are visual differences that are not immaterial (e.g., the side fluting), so this infringement claim probably should not succeed on the merits.
As to infringement, the defendants here seem a bit confused about how #EgyptianGoddess works. You don't compare the plaintiff's product to your product. You compare your product to the design patent drawings.
The last time the Federal Circuit took a design patent case en banc was in 2008. Yes, that's right, everyone's favorite: #EgyptianGoddess
For anyone who doesn't know:
The test is not: "Is the accused design closer to the claimed design or to the closest prior art?"
It's: "Does the accused product look the same as the claimed design?"
If--and only if--the two designs are not plainly dissimilar, the factfinder can look to see whether the prior art narrows the presumptive scope of the claim.
For more on the test and how it works, with representative visual examples, see: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3338471
The asserted patent may also have validity issues. Again, it's hard to tell from these pictures but the prior art does look pretty close. In any case, it's certainly close enough to limit the presumptive scope of the patent under #EgyptianGoddess.
For more on the Goddess test and how it works, see https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3338471
The design patent infringement claim against TJ Maxx isn't the worst one Globefill has filed, but it's not a slam dunk either: https://design-law.tumblr.com/post/705333447183532032/does-this-decanter-infringe-this-design-patent
One key issue here: Is the shape of the bottle neck a "minor" or immaterial difference?
The answer might depend, at least in part, on the prior art.
For more on how the infringement test works, see this short piece: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3338471
Anyway, this case illustrates more reasons why we should #AbolishTradeDress
A bad design patent infringement claim can be thrown out early, even on a motion to dismiss, thanks to #EgyptianGoddess.
Trademark law has so many fact-specific inquiries and multi-factor balancing tests that it's hard to dispose of bad claims at any time prior to a full trial on the merits.
This gives plaintiffs undue leverage to force settlements, even when their claims lack merit (or are just very, very weak).
To paraphrase an excellent question I got this semester: "Why are so many design patent infringement claims filed in court so....bad?"
I don't know for sure. But I suspect it's mostly a combination of not understanding the #EgyptianGoddess test (see, e.g., the #ConceptFallacy) and/or trying to push its boundaries.
I don't like to assume my fellow attorneys are knowingly filing nonmeritorious claims but, of course, that may sometimes be happening, too.
Looking back at the claim construction order, it appears that the patent owner didn't actually offer its own construction of the design patents and merely "Acufloor rejects the need to construe the design claims."
https://storage.courtlistener.com/recap/gov.uscourts.flmd.395495/gov.uscourts.flmd.395495.101.0.pdf
It's true that #EgyptianGoddess said courts don't have to (and in most cases, really shouldn't) verbally construe claims. But I'm not sure what exactly the patent owner plans to argue on appeal.
When these designs are properly compared, this infringement claim doesn't pass #EgyptianGoddess step 1. There are noticeable (and not immaterial) visual differences.
For some examples of how high the standard of visual similarity is, see https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3338471
I've added a new slide to my standard "Design Patents 101" deck. #DesignPatents #Infringement #EgyptianGoddess
Yes, infringement is a fact issue BUT where, as here, a design patent infringement claims fails at Egyptian Goddess step one, no additional fact development will change the result. There's no reason to make the defendant go forward with discovery.
For more on how the Goddess test works, see: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3338471
Columbia v. Seirus is going back to the Federal Circuit. Oral argument is scheduled for 1/12/23.
One big issue: What is the scope of the prior art for #EgyptianGoddess Step 2?
For more on the Goddess test and how it works, see this short piece: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3338471
For my on the proper scope of the prior art, see this (not so short) piece: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2714081
For the parties' briefs: https://www.scribd.com/document/611300069/Columbia-v-Seirus-Round-2
#DesignPatents #FederalCircuit #Litigation #LawFedi #ColumbiaVersusSeirus