What Will a Move Back to ‘Ordinary Observer’ Within Patent Law Mean for Design?


We don’t know from law (hence why Stephanie has to keep changing her name and moving from state to state), but we ran across this press release from Brinks Hofer Gilson & Lione, “one of the largest intellectual property law firms in the U.S.” and found it interesting. The firm talks about a recent Federal Circuit decision (likely one they were involved in) that shows a move back to the “Ordinary Observer” test as opposed to the newer “Point of Novelty” test within patent law. If we understand it all correctly, what this means for design, particularly product design, is that going back to “Ordinary Observer” means that additional weight is placed on the aesthetics of a design, whereas “Point of Novelty” generally protected only the part of the creation that was entirely new. So, in short hand, it means that the form is as protected as the function. Is this is a good thing or a bad thing? Like we said, we don’t like to mess with the law interpretation, so we’ll leave that up to you (because Stephanie…or, rather, Karen Schmidt of Cedarhurst, Connecticut, doesn’t need any more hassles, dig?).