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Federal Circuit Just Made It Much Easier To Get a Design Patent

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October 13, 2021

In re Surgisil, LLP is a key federal circuit decision that makes it easier to obtain design patent protection. It narrows the scope of prior art available for anticipation rejections in design patent cases. The ruling makes for easy reading, being about 600 words long. It seems to be in contradiction with precedent holding that the claim scope should be limited only to ornamental features, and the USPTO appealed to the federal circuit on that basis, but the appellate panel did not address that argument. The patent office will see this case as a major change to anticipation analysis.  It seems to allow someone to obtain a design patent by taking a design that is known in the art and applying it to a new article of manufacture.

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