In the recent case of Egyptian Goddess, Inc. v. Swisa, Inc., 543 F.3d 665, 678 (Fed. Cir. 2008) (en banc), the U.S. Court of Appeals for the Federal Circuit revised the legal standard for proving infringement in a design patent lawsuit.  Prior to this case, a patent holder would have to satisfy both the “ordinary observer” test and the “point of novelty” test to win the suit.  The first test, the ordinary observer test, examined whether an ordinary observer, paying as much attention as a customer would, might be confused into believing the allegedly infringing design was substantially the same as the patented design.  The second test, the point of novelty test, inquired whether the innovations of the patented design—the “novel” elements of the patented design that distinguished it from prior patents on similar products—were also found in the allegedly infringing design.  Failure to satisfy either test would result in a court victory for the alleged infringer.

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Section 292 of Title 35 of the United States Code relates to false marking of unpatented articles/goods as “patented” or “patent pending.”  Specifically, the 35 USC 292 states:

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