Would an identical real tooth count as "analogous art" under #LKQvGM? Or as an anticipatory piece of prior art under #CurviSil?
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#CurviSil
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Posts tagged #CurviSil
In design patent law, we got #CurviSil:
- Curver: www.cafc.uscourts.gov/9-12-2019-18...
- SurgiSil: www.cafc.uscourts.gov/10-04-2021-2...
And while SCOTUS' decision in #appsung leaves a lot to be desired, at least it rejected the Federal Circuit's read of § 289: www.oyez.org/cases/2016/1...
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Someone asked a question that made me realize that, even if these components did look the same, this case might raise an interesting #CurviSil issue:
Does this defendant sell "an animal paw shaped pet treat dispensing puzzle"?
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D1,018,980 cover. the patent claims a design for "a sponge headband"
Side note: It looks like there's a #CurviSil issue here, too. The patent claims a design "for a sponge headband." Are the accused products sponges? Made of sponge? What does "sponge" even mean in this context?
It matters.
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I'll add, just for fun: Under U.S. law, the Lotus could theoretically be relevant to the question of design patent infringement at Goddess step 2.
But that would require someone to actually make the underwater vehicle. See #CurviSil.
And for that vehicle to not be "plainly dissimilar." See Goddess
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And because the #CurviSil, this could be relevant to situations where a registered product design is shown in a parodic book, play, or film, right?
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Not under #CurviSil! 😂
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I'll also say: Our § 102 rule (i.e., #CurviSil) is a good one. If you'd like to know more, here is the article the Federal Circuit cited in Curver and that the appellant drew from extensively at oral argument in SurgiSil:
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Under #CurviSil, an image in a video game can't anticipate a car. But in #LKQvGM, the Federal Circuit indicated that, for designs, the universe of § 103 prior art can be broader than the universe of § 102 prior art. See patentlyo.com/patent/2024/...
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At least on first skim, Seirus seems to be attacking the entire basis of the #CurviSil line of cases (design patents protect applied designs, not designs per se) while attempting to distinguish those cases. For more on the "per se" versus "as applied" issue: papers.ssrn.com/sol3/papers....
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