Extra credit assignment -1

The federal court clarifies tests for obviousness of design patents.

Who gets to decide whether design patent is obvious or not?

The panel of Judges O'Malley, Schall, and Wallach confirmed that the obviousness of a design patent is to be determined through the eyes of an ordinary designer. It is not done through ordinary observer.

You may ask what's the difference. The ordinary tests requires court to engage in more analysis that rely on expert testimony, usually. However, they do not have to have one. When obviousness analysis is done at higher level, the gap between prior art and design is easier to overcome because skill and knowledge attributed to the designer.

It makes it very easy to invalidate design patents on obviousness grounds. It means that courts are less likely to rule design patents invalid on summary judgement as competing facts will create fact issues for a jury to determine. 

For instance, this article talks about how International Seaway Trading Corp v. Walgreens Corp. stated that obviousness determination was to be made by the ordinary observer, but this decision clears up the confusion that was created.

So in all, it would mean that it's likely that the fate will be decided by the jurors not by judges on summary judgement. It's taking account into the fact of designer's minds at the time of designing rather than putting it out there with one's personal views. Personally, I think this makes sense because design patents are always hard to determine whether there were infringement or not.