ANTICIPATION? / ORDINARY OBSERVER / IS THE CORRECT TEST

International Seaway Trading Corporation v. Walgreens Corporation, and TOUCHSPORT FOOTWEAR USA, INC., [2009-1237](December 17, 2009)[DYK, Bryson, Clevenger] The Federal Circuit, affirmed in part, reversed in part, and remanded the holding that the design patents in suit were anticipated.
DISCUSSION: The Federal Circuit held that the district court did not err in concluding that the ordinary observer test is the sole test for design patent invalidity under § 102, but that it did err in failing to consider the entirety of the designs, including the insoles of the shoes.