Egyptian Goddess, Inc. v. Swisa, Inc.

This ease concerns the scope of the point of novelty requirement in design patents. The majority decides this case on a ground that was not addressed in briefs or at oral argument by either party. In my view, the majority opinion departs from our precedent in fashioning a new rule — that a combination of elements cannot constitute a point of novelty in design patent cases unless the combination constitutes a “nontrivial advance” over the prior art. The majority equates its newly-fashioned nontrivial advance test with the requirement that a design patent be nonobvious over the prior art.1 It…