"The most important part of the case is Chief Judge Moore's dissent, which offers an attack on how the Federal Circuit has been applying the "plainly dissimilar" standard for design patent infringement. Drawing on psychological research, empirical survey data from recent amicus briefs, and a children's puzzle from Highlights magazine, Chief Judge Moore argues that the court's post- Egyptian Goddess framing has fundamentally shifted the infringement analysis away from the Supreme Court's "substantially similar" test in Gorham Co. v. White, 81 U.S. 511 (1871)."
"Judge Hughes: I'm perfectly content saying it out loud. I mean, you look at the front of your blue brief and you say the claim is this picture. Well, sure, that's the way you do design patents, but when you're doing claim construction, we use words and you have to give them words. And just saying "overall appearance" is not words."
The Federal Circuit affirmed summary judgment of non-infringement in a design-patent dispute involving body-massaging devices. A judicial critique contends that the "plainly dissimilar" standard has been applied in ways that depart from the Supreme Court's "substantially similar" test, citing psychological research, empirical survey data, and a children's puzzle as evidence. The court's majority rejected those concerns in a footnote. Oral argument emphasized disputes over claim construction and the necessity of verbal claim terms rather than reliance on overall appearance. A prior petition for en banc rehearing on a similar issue in a related case was denied.
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