Egyptian Goddess, Inc. v. Swisa, Inc.

We granted rehearing en banc in this design patent case to address the appropriate legal standard to be used in assessing claims of design patent infringement.

Appellant Egyptian Goddess, Inc., (“EGI”) brought this action in the United States District Court for the Northern District of Texas, alleging that Swisa, Inc., and Dror Swisa (collectively, “Swisa”) had infringed EGI’s U.S. Design Patent No. 467,389 (“the '389 patent”). The patent claimed a design for a nail buffer, consisting of a rectangular, hollow tube having a generally square cross-section and featuring buffer surfaces on three of its four sides. Swisa’s accused product consists of a rectangular, hollow tube having a square cross-section, but featuring buffer surfaces on all four of its sides.

The district court first issued an order construing the claim of the '389 patent. In so doing, the district court sought to describe in words the design set forth in Figure 1 of the patent, which is depicted below:

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Upon study of the claimed design, the court described it as follows:

A hollow tubular frame of generally square cross section, where the square has sides of length S, the frame has a length of approximately 3S, and the frame has a thickness of approximately T = 0.1S; the corners of the cross section are rounded, with the outer corner of the cross section rounded on a 90 degree radius of approximately 1.25T, and the inner corner of the cross section rounded on a 90 degree radius of approximately 0.25T; and with rectangular abrasive pads of thickness T affixed to three of the sides of the frame, covering the flat portion of the sides while leaving the curved radius uncovered, with the fourth side of the frame bare.

In the same order, the district court ruled that “Swisa has not shown that the appearance of the Buffer Patent is dictated by its utilitarian purpose.” The court therefore held that the patent is not invalid on the ground that the design was governed solely by function. Egyptian Goddess, Inc. v. Swisa, Inc., Civil Action No. 3:03-CV0594-N (N.D.Tex. Mar. 4, 2005), citing Seiko Epson Corp. v. Nu-Kote Int’l, Inc., 190 F.3d 1360, 1368 (Fed.Cir.1999).

Swisa then moved for summary judgment of noninfringement. The district court granted the motion. Citing precedent of this court, the district court stated that the plaintiff in a design patent case must prove both (1) that the accused device is “substantially similar” to the claimed design under what is referred to as the “ordinary observer” test, and (2) that the accused device contains “substantially the same points of novelty that distinguished the patented design from the prior art.” Egyptian Goddess, Inc. v. Swisa, Inc., Civil Action No. 3:03-CV-0594-N, 2005 WL 5873510 (N.D.Tex. Dec. 14, 2005), citing Goodyear Tire & Rubber Co. v. Hercules Tire & Rubber Co., 162 F.3d 1113 (Fed.Cir.1998). After comparing the claimed design and the accused product, the court held that Swisa’s allegedly infringing product did not incorporate the “point of novelty” of the '389 patent, which the court identified as “a fourth, bare side to the buffer.”

*669 The district court noted that the parties disagreed as to the points of novelty in the '389 patent. EGI identified four elements in its design, and for each element it identified prior art that did not embody that element. EGI therefore contended that the point of novelty of the '389 patent is the combination of those four elements. The district court, however, declined to address the question whether the point of novelty could be found in the combination of elements not present in various prior art references, because the court found that a single prior art reference, United States Design Patent No. 416,648 (“the Nailco patent”), contained all but one of the elements of the '389 design. The court described the Nailco Patent as disclosing “a nail buffer with an open and hollow body, raised rectangular pads, and open corners.” The only element of the '389 patent design that was not present in the Nailco patent, according to the district court, was “the addition of the fourth side without a pad, thereby transforming the equilateral triangular cross-section into a square.” Because the Swisa product does not incorporate the point of novelty of the '389 patent — a fourth side without a pad— the court concluded that there was no infringement.

EGI appealed, and a panel of this court affirmed. The panel agreed with the district court that there was no issue of material fact as to whether the accused Swisa buffer “appropriates the point of novelty of the claimed design.” Egyptian Goddess, Inc. v. Swisa, Inc., 498 F.3d 1354, 1355 (Fed.Cir.2007). In reaching that conclusion, the panel stated that the point of novelty in a patented design “can be either a single novel design element or a combination of elements that are individually known in the prior art.” Id. at 1357. The panel added, however, that in order for a combination of individually known design elements to constitute a point of novelty, “the combination must be a nontrivial advance over the prior art.” Id.

The panel noted that EGI’s asserted point of novelty was a combination of four of the claimed design’s elements: (1) an open and hollow body, (2) a square cross-section, (3) raised rectangular buffer pads, and (4) exposed corners. The panel agreed with the district court’s observation that the Nailco prior art patent contained each of those elements except that the body was triangular, rather than square, in cross-section. 498 F.3d at 1358. In light of the prior art, the panel determined that “no reasonable juror could conclude that EGI’s asserted point of novelty constituted a non-trivial advance over the prior art.” Id.

The panel further observed that the various design elements of the claimed design “were each individually disclosed in the prior art.” 498 F.3d at 1358. The Swisa buffers, the panel noted, have raised, abrasive pads on all four sides, not just on three of the four sides, as in the claimed design, in which the fourth side is bare. The panel then concluded that “[w]hen considering the prior art in the nail buffer field, this difference between the accused design and the patented design cannot be considered minor.” Id. The panel therefore concluded that summary judgment was appropriate.

The dissenting judge would not have adopted the “non-trivial advance” test as a way of ascertaining whether a particular feature of the claimed design constituted a point of novelty for infringement purposes. In the view of the dissenting judge, the “nontrivial advance” test was inconsistent with and unsupported by prior precedent; it conflated the criteria for infringement and obviousness; it applied only to designs that involved combinations of design elements; and it improperly focused on the *670 obviousness of each point of novelty, rather than the obviousness of the overall design. 498 F.3d at 1359-60 (Dyk, J., dissenting).

This court granted rehearing en banc and asked the parties to address several questions, including whether the “point of novelty” test should continue to be used as a test for infringement of a design patent; whether the court should adopt the “nontrivial advance test” as a means of determining whether a particular design feature qualifies as a point of novelty; how the point of novelty test should be administered, particularly when numerous features of the design differ from certain prior art designs; and whether district courts should perform formal claim construction in design patent cases.

I

The starting point for any discussion of the law of design patents is the Supreme Court’s decision in Gorham Co. v. White, 14 Wall. 511, 81 U.S. 511, 20 L.Ed. 731 (1871). That case involved a désign patent for the handles of tablespoons and forks. In its analysis of claim infringement, the Court stated that the test of identity of design “must be sameness of appearance, and mere difference of lines in the drawing or sketch ... or slight variances in configuration ... will not destroy the substantial identity.” Id. at 526-27. Identity of appearance, the Court explained, or “sameness of effect upon the eye, is the main test of substantial identity of design”; the two need not be the same “to the eye of an expert,” because if that were the test, “[t]here never could be piracy of a patented design, for human ingenuity has never yet produced a design, in all its details, exactly like another, so like, that an expert could not distinguish them.” Id. at 527.

The Gorham Court then set forth the test that has been cited in many subsequent cases: “[I]f, in the eye of an ordinary observer, giving such attention as a purchaser usually gives, two designs are substantially the same, if the resemblance is such as to deceive such an observer, inducing him to purchase one supposing it to be the other, the first one patented is infringed by the other.” 81 U.S. at 528. In the case before it, the Court concluded that “whatever differences there may be between the plaintiffs’ design and those of the defendant in details of ornament, they are still the same in general appearance and effect, so much alike that in the market and with purchasers they would pass for the same thing — so much alike that even persons in the trade would be in danger of being deceived.” Id. at 531.

Since the decision in Gorham, the test articulated by the Court in that case has been referred to as the “ordinary observer” test and has been recognized by lower courts, including both of this court’s predecessors, as the proper standard for determining design patent infringement. See, e.g., Blumcraft of Pittsburgh v. United States, 178 Ct.Cl. 798, 372 F.2d 1014, 1016 (1967); In re Dubois, 46 C.C.P.A. 744, 262 F.2d 88, 91 (1958). However, in a series of cases tracing their origins to Litton Systems, Inc. v. Whirlpool Corp., 728 F.2d 1423 (Fed.Cir.1984), this court has held that proof of similarity under the ordinary observer test is not enough to establish design patent infringement. Rather, the court has stated that the accused design must also appropriate the novelty of the claimed design in order to be deemed infringing. The court in Litton Systems wrote as follows:

For a design patent to be infringed ... no matter how similar two items look, “the accused device must appropriate the novelty in the patented device which distinguishes it from the prior art.” That is, even though the court *671 compares two items through the eyes of the ordinary observer, it must nevertheless, to find infringement, attribute their similarity to the novelty which distinguishes the patented device from the prior art.

Litton Systems, 728 F.2d at 1444 (citations omitted). After identifying the combination of features in the design that it considered novel, the court in Litton Systems held that the accused design had none of those features and therefore did not infringe. Id.

In a number of cases decided after Litton Systems, this court has interpreted the language quoted above to require that the test for design patent infringement consider both the perspective of the ordinary observer and the particular novelty in the claimed design. See, e.g., Bernhardt, L.L.C. v. Collezione Europa USA, Inc., 386 F.3d 1371, 1383 (Fed.Cir.2004); Contessa Food Prods., Inc. v. Conagra, Inc., 282 F.3d 1370, 1377 (Fed.Cir.2002); Unidynamics Corp. v. Automatic Prods. Int'l, Inc., 157 F.3d 1311, 1323-24 (Fed.Cir.1998); Oakley, Inc. v. Int'l Tropic-Cal., Inc., 923 F.2d 167, 169 (Fed.Cir.1991); Avia Group Int'l, Inc. v. L.A. Gear Cal., Inc., 853 F.2d 1557, 1565 (Fed.Cir.1988).

The extent to which the point of novelty test has been a separate test has not always been clear in this court’s case law. In cases decided shortly after Litton, the court described the ordinary observer test and the point of novelty test as “conjunctive.” See L.A. Gear, Inc. v. Thom McAn Shoe Co., 988 F.2d 1117, 1125 (Fed.Cir.1993); Shelcore, Inc. v. Durham Indus., Inc., 745 F.2d 621, 628 n. 16 (Fed.Cir.1984). It has not been until much more recently that this court has described the ordinary observer and point of novelty tests as “two distinct tests” and has stated that “[t]he merger of the point of novelty test and the ordinary observer test is legal error.” Unidynamics Corp., 157 F.3d at 1323-24; see also Lawman Armor Corp. v. Winner Int'l, LLC, 437 F.3d 1383, 1384 (Fed.Cir.2006); Contessa Food Prods., Inc., 282 F.3d at 1377; Sun Hill Indus., Inc. v. Easter Unlimited, Inc., 48 F.3d 1193, 1197 (Fed.Cir.1995).

Regardless of the differences in the way it has been characterized, the point of novelty test has proved reasonably easy to apply in simple cases in which the claimed design is based on a single prior art reference and departs from that reference in a single respect. In such cases, it is a simple matter to identify the point of novelty and to determine whether the accused design has appropriated the point of novelty, as opposed to copying those aspects of the claimed design that were already in the prior art. However, the point of novelty test has proved more difficult to apply where the claimed design has numerous features that can be considered points of novelty, or where multiple prior art references are in issue and the claimed design consists of a combination of features, each of which could be found in one or more of the prior art designs. In particular, applying the point of novelty test where multiple features and multiple prior art references are in play has led to disagreement over whether combinations of features, or the overall appearance of a design, can constitute the point of novelty of the claimed design. Compare Lawman Armor Corp. v. Winner Int'l, LLC, 449 F.3d 1190 (Fed. Cir.2006) (supplemental opinion on petition for rehearing), with Lawman Armor Corp. v. Winner Int'l, LLC, 449 F.3d 1192 (Fed.Cir.2006) (Newman, J., dissenting from denial of rehearing en banc). In light of the questions surrounding the status and application of the point of novelty test, we use this case as a vehicle for reconsidering the place of the point of novelty test in design patent law generally.

*672 II

EGI argues that this court should no longer recognize the point of novelty test as a second part of the test for design patent infringement, distinct from the ordinary observer test established in Gor-ham. Instead of requiring the fact-finder to identify one or more points of novelty in the patented design and then determining whether the accused design has appropriated some or all of those points of novelty, EGI contends that the ordinary observer test can fulfill the purposes for which the point of novelty test was designed, but with less risk of confusion. As long as the ordinary observer test focuses on the “appearance that distinguishes the patented design from the prior art,” EGI contends that it will enable the fact-finder to address the proper inquiry, i.e., whether an ordinary observer, familiar with the prior art, would be deceived into thinking that the accused design was the same as the patented design. Relatedly, EGI argues that if the ordinary observer test is performed from the perspective of an ordinary observer who is familiar with the prior art, there is no need for a separate “non-trivial advance” test, because the attention of an ordinary observer familiar with prior art designs will naturally be drawn to the features of the claimed and accused designs that render them distinct from the prior art.

Several of the amici make essentially the same point, referring to the proper approach as calling for a three-way visual comparison between the patented design, the accused design, and the closest prior art. The amici point out that courts, including this one, have on occasion applied that approach in design patent cases, without identifying it as a separate test. See, e.g., Brief of Amicus Curiae Apple, Inc., at 19 (citing, inter alia, Elmer v. ICC Fabricating, Inc., 67 F.3d 1571 (Fed.Cir., 1995); Braun, Inc. v. Dynamics Corp. of Am., 975 F.2d 815 (Fed.Cir.1992); and Bergstrom v. Sears, Roebuck & Co., 496 F.Supp. 476 (D.Minn.1980)).

Swisa counters that this court may not, and should not, abandon the point of novelty test. According to Swisa, the point of novelty test was adopted by the Supreme Court in Smith v. Whitman Saddle Co., 148 U.S. 674, 13 S.Ct. 768, 37 L.Ed. 606 (1893). Swisa interprets that case as dictating the use of the point of novelty test as a second and distinct test for design patent infringement, separate from the ordinary observer test set forth in Gorham. Swisa contends that the subsequent decisions of this court and others applying the point of novelty test are soundly based on Whitman Saddle, and that we cannot depart from that test without disregarding that governing Supreme Court precedent as well as intervening precedent from other courts of appeals.

We disagree with Swisa’s submission. A close reading of Whitman Saddle and subsequent authorities indicates that the Supreme Court did not adopt a separate point of novelty test for design patent infringement cases. In fact, a study of the development of design patent law in the years after Gorham shows that the point of novelty test, in its current form, is of quite recent vintage. After a review of those authorities, which we examine in some detail below, we conclude that the point of novelty test, as a second and freestanding requirement for proof of design patent infringement, is inconsistent with the ordinary observer test laid down in Gorham, is not mandated by Whitman Saddle or precedent from other courts, and is not needed to protect against unduly broad assertions of design patent rights.

Whitman Saddle involved a patent on a design for a saddle. The Court began by reciting the requirements for obtaining *673 patent protection for a design. The Court emphasized the importance of “invention” to the patentability of a design. It stated, “Mere mechanical skill is insufficient. There must be something akin to genius, an effort of the brain as well as the hand. The adaptation of old devices or forms to new purposes, however convenient, useful, or beautiful they may be in their new role, is not invention.” 148 U.S. at 679, 13 S.Ct. 768. The Court then explained (id):

The exercise of the inventive or origi-native faculty is required, and a person cannot be permitted to select an existing form, and simply put it to a new use, any more than he can be permitted to take a patent for the mere double use of a machine. If, however, the selection and adaptation of an existing form is more than the exercise of the imitative faculty, and the result is in effect a new creation, the design may be patentable.

In the case before it, the Court characterized the patented saddle design as a combination of elements from two saddle designs that were well known in the art. The Court explained that the patented design consisted of a combination of the front half of the so-called Granger saddle and the back end of the so-called Jenifer saddle. The design differed from a simple combination of the two known saddles, according to the Court, only in that the front end of the design had “a nearly perpendicular drop of some inches at the rear of the pommel,” unlike in the Granger saddle. Id. at 680, 13 S.Ct. 768.

Although the trial court, sitting in equity, concluded that the design was patentable, the Supreme Court disagreed. The Court wrote, “Nothing more was done in this instance (except as hereafter noted) than to put the two halves of these saddles together in the exercise of the ordinary skill of workmen of the trade, and in the way and manner ordinarily done.” 148 U.S. at 681, 13 S.Ct. 768. The Court noted that there was a difference between the pommel of the designed saddle and the pommel of the Granger saddle, and it added that the “shape of the front end being old, the sharp drop of the pommel at the rear seems to constitute what was new and to be material.” Id. at 682., 13 S.Ct. 768 That feature, however, was not present in the defendants’ saddle. The Court then concluded with the following remarks (id.):

If, therefore, this drop were material to the design, and rendered it patentable as a complete and integral whole, there was no infringement. As before said, the design of the patent had two features of difference as compared with the Granger saddle, one the cantle, the other the drop; and unless there was infringement as to the latter there was none at all, since the saddle design of the patent does not otherwise differ from the old saddle with the old cantle added, an addition frequently made. Moreover, that difference was so marked that in our judgment the defendant’s saddle could not be mistaken for the saddle of the complainant.

Because Whitman Saddle was an action in equity, the Court did not distinguish sharply between its analysis of patentability and its discussion of infringement. Within the same passage, the Court moved from stating that it could not agree with the trial court that the design in issue was patentable to the conclusion that if the design were patentable because of the drop at the rear of the pommel, there was no infringement. Nothing in the Court’s opinion suggested that it was fashioning a separate point of novelty test for infringement. The point the Court was making was that, viewed in light of the similarities between the prior art and the patented design, the accused design did not contain the single feature that would have made it *674 appear distinctively similar to the patented design rather than like the numerous prior art designs. For that reason, the Court held, the accused design did not infringe.

Subsequent cases applied that principle, interpreting the ordinary observer test of Gorham to require that the perspective of the ordinary observer be informed by a comparison of the patented design and the accused design in light of the prior art, so as to enable the fact-finder to determine whether the accused design had appropriated the inventiveness of the patented design. For example, two cases decided in the wake of Whitman Saddle shed light on the Supreme Court’s analysis in Whitman Saddle and illustrate the application of the ordinary observer test in light of the prior art.

In the first of those cases, Bevin Brothers Manufacturing Co. v. Starr Brothers Bell Co., 114 F. 362 (C.C.D.Conn.1902), the patent drawing showed an oblate spheroid and neck, and the claim covered “a bell as herein shown and described.” Sitting in equity, the court addressed both validity and infringement, noting that the test of identity on both issues “is the eye of the ordinary observer.” Id. at 363. After noting that the patented form was commonly found in a variety of prior art structures, the court held that the “defense of want of patentable novelty is sustained.” Id. As for infringement, the court again consulted particular objects in the prior art having a similar shape, including a door knob, and concluded that “[t]he shape of the defendant’s bell differs from plaintiffs more widely than plaintiffs differs from the door knob, and therefore defendants’ construction does not infringe the patent.” Id. Thus, the court’s approach, like that of the Supreme Court in Whitman Saddle, did not employ a point of novelty test, but invoked the ordinary observer test in which the observer was comparing the patented and accused designs in the context of similar designs found in the prior art.

The second case, Zidell v. Dexter, 262 F. 145 (9th Cir.1920), cited Whitman Saddle for the proposition that under the ordinary observer standard, a patented design that consists “only of bringing together old elements with slight modifications of form” is not infringed by “another who uses the same elements with his own variations of form ... if his design is distinguishable by the ordinary observer from the patented design.” Id. at 146. The court emphasized the importance of similar prior art designs to the determination of infringement under the ordinary observer test:

The evidence shows that at and prior to the conception of this design there were in use and on sale very many similar garments, with variations in design so slight as to leave to the ordinary observer the impression of a very general resemblance, and we must assume that to womankind, who are the purchasers in the main of this class of garment, these various coincident forms of garments were known, and whether such purchasers would be deceived into taking the garments which are alleged to infringe for a garment of the patented design would necessarily depend largely upon that general knowledge.

Id. at 147.

Some years later, the Sixth Circuit addressed a similar issue in a case involving a design patent on a combination ash tray and electric lighter. Applied Arts Corp. v. Grand Rapids Metalcraft Corp., 67 F.2d 428 (6th Cir.1933). The district court found infringement by two of the defendant’s designs upon finding that the resemblance between the patented design and the accused design was such as to deceive the ordinary observer. In analyzing the case, the court addressed the question whether the ordinary observer test of *675 Gorham was in conflict with the principle that “similitude of appearance is to be judged by the scope of the patent in relation to the prior art.” Id. at 429.

The court explained that the ordinary observer of the Gorham test was not one “who has never seen an ash tray or a cigar lighter, but one who, though not an expert, has reasonable familiarity with such objects,” and is capable of assessing the similarity of the patented and accused designs in light of the similar objects in the prior art. 67 F.2d at 430. Viewing the ordinary observer test in that manner, the court stated:

[Wjhile there is some similarity between the patented and alleged infringing designs, which without consideration of the prior art might seem important, yet such similarity as is due to common external configuration is no greater, if as great, between the patented and challenged designs as between the former and the designs of the prior art.

Id. After noting the similarities between the patented design and the prior art designs, the court concluded that the differences between the two “are no greater than those that exist between the patented design and the alleged infringing designs.” Accordingly, the court concluded, assuming the patent to be valid “it is quite clear it is entitled to a very limited interpretation and that so limited the defendant’s designs do not infringe.” Id. The court ruled that while it was aware that similarity “is not to be determined by making too close an analysis of detail,” nonetheless, “where in a crowded art the composite of differences presents a different impression to the eye of the average observer (as above defined), infringement will not be found.” Id.

That precedent was followed by the Eighth Circuit in Sears, Roebuck & Co. v. Talge, 140 F.2d 395 (8th Cir.1944). The district court in that case held that the defendant’s home fruit juicer infringed the plaintiffs patents on fruit juicer designs. The court stated that the test for design patent infringement involves two elements: (1) “the identity of appearance, or sameness of effect as a whole upon the eye of an ordinary purchaser must be such as to deceive him, inducing him to purchase one, supposing it to be the other” and (2) “the accused device must appropriate the novelty in the patented device which distinguishes it from the prior art.” Id. at 395-96. To make the latter determination, the court explained, “requires a comparison of the features of the patented designs with the prior art and with the accused design.” Id. at 396. By examining the prior art fruit juicers, the court was able to identify the “novel elements embodied in the [patented] design.” The court then determined that there was no identity of appearance with respect to those elements between the claimed designs and the accused products. Id.

The Sears, Roebuck and Applied Arts cases, in turn, became the principal precedents relied upon by this court in the seminal Litton Systems case to which this court’s precedents dealing with the point of novelty test trace their origin. In Litton Systems, as in Sears, Roebuck, the court identified the Gorham ordinary observer test as the starting point for design patent infringement. Quoting from Sears, Roebuck, the Litton court added, however, that “no matter how similar two items look, ‘the accused device must appropriate the novelty in the patented device which distinguishes it from the prior art.’ ” 728 F.2d at 1444. That is, the court added, after comparing two items through the eyes of the ordinary observer, the court must, to find infringement, “attribute their similarity to the novelty which distinguishes the patented device from the prior *676 art.” Id. The court then referred to that second test as the point of novelty approach, and that tag has been applied to the second part of the design patent infringement test ever since.

In analyzing the claim of infringement, the court in Litton Systems focused on what it characterized as the novelty of the patent in suit, i.e., “the combination on a microwave oven’s exterior of a three-stripe door frame, a door without a handle, and a latch release lever on the control panel.” Significantly, however, the court quoted from the Applied Arts case and stated that the degree of similarity between the accused design and the patented design had to be assessed in light of the designs in the prior art. The court noted that where, as in the case before it, “a field is crowded with many references relating to the design of the same type of appliance, we must construe the range of equivalents very narrowly.” 728 F.2d at 1444. Accordingly, the court held that the scope of protection of the patent in that case was limited to “a narrow range” that did not include the accused design. Id

As noted, this court has cited Litton Systems for the proposition that the point of novelty test is separate from the ordinary observer test and requires the paten-tee to point out the point of novelty in the claimed design that has been appropriated by the accused design. We think, however, that Litton and the predecessor cases on which it relied are more properly read as applying a version of the ordinary observer test in which the ordinary observer is deemed to view the differences between the patented design and the accused product in the context of the prior art. When the differences between the claimed and accused design are viewed in light of the prior art, the attention of the hypothetical ordinary observer will be drawn to those aspects of the claimed design that differ from the prior art. And when the claimed design is close to the prior art designs, small differences between the accused design and the claimed design are likely to be important to the eye of the hypothetical ordinary observer. It was for that reason that the Supreme Court in Whitman Saddle focused on the one feature of the patented saddle design that departed from the prior art — the sharp drop at the rear of the pommel. To an observer familiar with the multitude of prior art saddle designs, including the design incorporating the Granger pommel and the Jenifer can-tie, “an addition frequently made,” 148 U.S. at 682, 13 S.Ct. 768, the sharp drop at the rear of the pommel would be important to the overall appearance of the design and would serve to distinguish the accused design, which did not possess that feature, from the claimed design.

The same can be said of the courts’ analysis in Bevin Brothers, Zidell, Applied Arts, and Sears, Roebuck. In Bevin Brothers and Zidell, the courts emphasized that the defendant’s product would appear different from the plaintiffs protected design to an ordinary observer aware of the great number of closely simila