is an attorney with Schneider Rothman Intellectual Property Law Group in Boca Raton, Florida. He has been actively involved in over 200 intellectual property lawsuits around the country including at the International Trade Commission, and has obtained over 1,000 patents and trademarks for his clients. He is Board Certified in Intellectual Property Law by The Florida Bar and “AV” rated by Martindale- Hubbell. For more information, or to contact Jerold, please visit his firm profile page.
First, look at the merits of the infringement claim. They may be stronger than you think, and you can thank a 2008 ruling for that. That year, the United States Court of Appeals for the Federal Circuit unanimously ruled en banc in Egyptian Goddess, Inc. v. Swisa, Inc. that a design patent is infringed if an ordinary observer would think that the accused design is substantially the same as the patented design when the two designs are compared in the context of the prior art. The court removed the “point of novelty” and “non-trivial advance” standards that previously seemed to constitute a second set of criteria to prove design patent infringement. That ruling has made life much easier for plaintiff attorneys and it helped Apple in its lawsuit against Samsung.