In a split decision, the United States Court of Appeals for the Federal Circuit has resolved the hotly debated issue of the proper standard for pleading infringement of a design patent in Hall v. Bed, Bath & Beyond, -- F.3d --, 2013 WL 276080 (Fed. Cir., Jan. 25, 2013). Since the Supreme Court’s landmark decisions in Twombly/Iqbal, lower courts have debated the applicability of the heightened “plausibility” pleading standard in the context of complaints alleging infringement of design patents. In Hall, the district court dismissed a patent holder’s claim of infringement of a design patent on the grounds that it had failed to plausibly allege the “new, original and ornamental” features of its patented design.
In reversing, the Federal Circuit held that the district court’s insistence upon pleading a “point of novelty” was inconsistent with the Federal Circuit’s “ordinary observer” standard for infringement of a design patent as set forth in its 2008 Egyptian Goddess decision. Moreover, the Federal Circuit clarified that to state a plausible claim for infringement of a design patent, the patent holder need only: “(i) allege ownership of the patent, (ii) name each defendant, (iii) cite the patent that is allegedly infringed, (iv) state the means by which the defendant allegedly infringes, and (v) point to the sections of patent law invoked.” This minimal threshold for pleading infringement of a design patent is similar, but not precisely the same as, the standard applicable to pleading infringement of utility patents pursuant to Form 18 of the Federal Rules of Civil Procedure. See McZeal v. Sprint Nextel Corp., 501 F3d 1354 (Fed. Cir. 2007). Thus, as with utility patents, there is a low bar for pleading infringement of a design patent.
The decision is important to holders of design patents in two respects. Substantively, the decision reaffirms the more lenient “ordinary observer” test for establishing infringement of a design patent. Procedurally, it simplifies pleading claims of infringement and lessens the risk of expensive and time-consuming motions practice in the initial pleading stages of litigation.
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