With Ira Levy
On September 22, 2008, in “Egyptian Goddess, Inc. v. Swisa”, No. 2006-1563, the U.S. Court of Appeals for the Federal Circuit, in a unanimous “en banc” opinion, rejected the long-standing “point of novelty” test as a “second and free standing requirement for proof of design patent infringement,” holding that the “ordinary observer” test, albeit one in which the ordinary observer takes into account prior art, is the proper test for infringement in design patent cases.