NEW ARTICLE: DESIGN PATENTS ARE SINKING IN INTERNATIONAL SEAWAY - THE NEED TO RE-THINK THE LAW OF DESIGN PATENT ANTICIPATION

The U.S. Court of Appeals for the Federal Circuit’s 2009 decision of International Seaway v. Walgreens held that the ordinary observer design patent infringement test is the sole test for anticipation under 35 U.S.C. 102. 

International Seaway drastically changed the well-settled law of design patent anticipation from a relatively objective standard (the prior art must be identical to the claimed design) to a very subjective one (the prior art must only be substantially the same as the claimed design).  This change in the law was ill-considered. 

My paper examines the underpinnings of the Seaway case, in the hope that a case will soon present itself to the Federal Circuit so that the test for design patent anticipation can be returned to its correct original formulation.