Supreme Court to Consider Awards to Successful Patent Defendants

October 2, 2013 | Intellectual Property News
The patent statutes allow the award of attorneys’ fees in a patent infringement lawsuit to the prevailing party—plaintiff or defendant—in exceptional cases. The Federal Circuit Court of Appeals has long held that a prevailing accused infringer must prove the plaintiff’s position was objectively unreasonable and that it was subjectively (that is, knowingly) asserted in bad faith. Some companies that have been sued for patent infringement contend that the standard should be lowered, making it easier for a successful defendant to recover its fees when defending against a weak patent infringement case. Now the Supreme Court has agreed to consider that question. On October 1, the Supreme Court agreed to hear two similar cases. A first case involves Icon Health against Octane Fitness in which Octane prevailed but its request for attorneys’ fees was denied. Octane argued that the standard for exceptionality should be lowered to require objective unreasonableness, but not proof of subjective bad faith. In most cases, the subjective element is extremely difficult or impossible to prove. The Federal Circuit declined the request to lower the standard, and the Supreme Court has agreed to consider it. The Supreme Court also agreed to review an appeal involving Highmark and Allcare Health. The issue in the Highmark appeal involves a similar issue related to the ability of the court of appeals to reconsider a decision made by the trial court. In Highmark, the trial court concluded that the case was exceptional and awarded $5 million in fees to Highmark. In part, the Federal Circuit concluded that the typically high amount of such fee awards is reason to make the standard to award them quite high. After evaluating the lower court decision, the Federal Circuit reversed the award. The issue to be considered by the Supreme Court is whether that reversal was proper, and the degree of deference that must be afforded to a trial court decision finding a case to be exceptional. The Supreme Court will likely hear arguments and issue a decision sometime in summer, 2014.

Federal Circuit to Reconsider Internet Process Patents

May 25, 2012 | Intellectual Property News
On May 21, 2012, the Supreme Court ordered the Federal Circuit to reconsider a decision related to a method for allowing Internet users to view copyrighted material for free in exchange for watching advertisements. At stake is whether a process of this sort can be patented at all, even if it is new and not obvious in view of the prior art. The invention was approved by the USPTO, resulting in US patent 7,346,545 owned by Ultramercial. In general, the claims of the patent relate to a method in which a user accesses a website and requests to see certain content, but is only allowed to view the content for free after agreeing to view a sponsored message. There are certain additional technicalities related to tracking the activities in a log and offering items for payment. Ultimately the issue seems to be whether these additional technicalities are important enough to result in a specific application of the general principle, or are so superficial that the patent encompasses the entirety of the general principle. After the validity of the patent was challenged, the Federal Circuit Court of Appeals believed the invention was patent-eligible because the claims were drawn to specific applications of business principles, using computer hardware tp do it. If they had been drawn to more abstract principles then the court perhaps would have invalidated the patent. But the Supreme Court has recently been scrutinizing patents with claims that are arguably drawn to abstract principles and laws of nature. Generalized notions such as “buy low, sell high” or “watch for free if you will watch an advertisement” are too abstract to be patented; it is only when they are applied to a more specific environment, with particularized implementation details, that the Supreme Court considers them to be patentable. The Supreme Court had recently reached that conclusion in Mayo v. Prometheus, a case involving a patent characterized as administering a drug in an amount high enough to be effective but low enough to avoid side effects. That general notion was also considered to be a law of nature, without sufficient additional details accompanying the principle within the patent to be able to characterize the patent as a specific application rather than an effort to monopolize the law of nature. In view of the Mayo decision, the Federal Circuit has been tasked with revisiting the patentability of the Internet patent in WildTangent v. Ultramercial. Considering the treatment in Mayo, the message to the Federal Circuit may be to perform an exacting and skeptical review of Internet patents that seek broad applications of generalized principles.

America Invents Act Signed by Obama

September 16, 2011 | Intellectual Property News
The key features of the Leahy-Smith America Invents Act (H.R. 1249) are summarized below. Note that the law is very detailed and technical, with a variety of exceptions and specific dates of implementation. The application of the following rules to any particular situation may vary. Likewise, the bill is unusually lengthy and therefore the summary below hits only the high points. In many cases the new provisions below do not take effect until a year after the law is signed. First to File. After decades of debate, the law finally changes the U.S. patent priority system from one based on “first to invent” to one based on “first to file.” Prior to the new law, if two applicants sought patents for the same invention the patent would be awarded to the inventor who could prove to be the first to have invented it. Under the new law, the patent is awarded to the inventor who files the application first, regardless of whether another person invented it earlier. This change brings with it a modification in the way prior art is applied. Currently an inventor is allowed to “swear behind” certain prior art by establishing a date of invention earlier than the date of the prior art reference. Under the new version of the law, all publications and events occurring before the filing date is prior art. The sole exception is for the inventor’s own disclosures (or those derived from the inventor) that occurred less than one year from the filing date. This provision applies to applications filed eighteen months after enactment of the law. Defense based on prior commercial use. Under prior law, it was a defense to a business method patent to assert prior use of the patented method. The new law extends this defense to all patents, such that proof that a patented method was in use before the filing date of the patent application will constitute a defense to a charge of infringement. This provision applies to any patent issued on or after the date of enactment of the law. Reexamination. The law retains inter partes and ex parte reexamination procedures while adding mechanisms for preissuance submissions by third parties. Fees. The USPTO is given authority to adjust its fees, and the result is that fees will go up. One fee increase takes effect quickly: within ten days of passage, the law imposes a 15 percent surcharge on most patent application fees. This rule takes effect within ten days of enactment. Marking. Patent marking may be made “virtually” by providing a citation to a website on which patent information can be found. False marking litigation should substantially end as it is limited to complaints by those who can demonstrate a competitive injury as a result of the violation. No longer will lawyers be able to file a random lawsuit complaining about errors and other minor marking problems. This provision is effective upon enactment. Advice of counsel. The failure of an infringer to obtain advice of counsel may not be used to prove that an accused infringer willfully infringed a patent. This applies in all lawsuits filed on or after the date of enactment. Multiple defendant litigation. Plaintiffs will not be allowed to file a lawsuit against multiple unrelated defendants claiming patent infringement. Multiple defendants will only be allowed in a single lawsuit if they acted together to commit a common act of infringement. Inventor declarations. New provisions make it easier for a company to file an application on its own behalf and to proceed with an application when the individual inventor is uncooperative or cannot be reached to sign the declaration. Read the full text of the law here: http://www.govtrack.us/congress/billtext.xpd?bill=h112-1249

Supreme Court to Review Induced Infringement

November 2, 2010 | Intellectual Property News
After many years of confusion, the Supreme Court has agreed to review a lawsuit addressing the standard of intent required for inducement of infringement. This pivotal case may resolve once and for all whether a party must intend to infringe a patent in order to be liable, or whether it is sufficient to be aware of the possibility of infringement by third parties. Under Section 271 of the patent statutes, one who “actively induces” infringement by others is liable for infringement. Most commonly, this statute is asserted when a patent requires a product to be used in a particular way. In that situation, the manufacturer may not be liable for direct infringement because the manufacturer does not use the product at all. If the packaging describes a particular way of using the product, or perhaps if there is really only one principal way of using it, then the manufacturer or seller may be liable for inducing infringement once the customers buy the product and use it as directed. According to court decisions to date, the party accused of inducing infringement must either have knowledge of the patent or the specific intent to induce infringement. These are certainly two very different standards. If knowledge of the patent is sufficient then the seller may be liable for infringement even if there is no actual knowledge that anyone actually used the product in an infringing manner, and perhaps without the intent that any buyers would actually use the product in an infringing way. Under the second standard, by contrast, the seller would escape liability even if it knew about the patent as long as it did not specifically intend to encourage infringement by others. The specific case under review is SEB S.A. v. Montgomery Ward & Co., Inc., 594 F.3d 1360 (Fed. Cir. 2010). In this case, Pentalpha reverse-engineered SEB’s patented cooker and began selling a competing product. Pentalpha obtained an opinion from its attorneys who believed that the product did not infringe any patents, but Pentalpha did not tell its attorneys that the product copied another product already on the market. The opinion was therefore considered to be suspect because the attorneys did not look for patents belonging to the company that manufactured the copied product. The Federal Circuit Court of Appeals believed that Pentalpha deliberately ignored the possibility that SEB had a patent covering its product. The language of the decision makes it unclear whether such “deliberate indifference” is sufficient for inducement or whether “specific intent” is required. The Supreme Court agreed to review the case in order to specifically address whether deliberate indifference of a known risk is sufficient or whether inducement of infringement requires purposeful, culpable expression and conduct to encourage the infringement by others.

Resale of Software Not Insulated By First Sale Doctrine

September 10, 2010 | Intellectual Property News
In a closely-watched case, the Ninth Circuit Court of Appeals has ruled that the resale of software may not be insulated by the first sale doctrine. The case involved the sale of AutoCAD software that was originally sold by Autodesk, Inc. to one of its direct customers. That customer sold fourteen used copies of AutoCAD to Timothy Vernor, who then resold them on eBay. The court considered whether the Autodesk customer had rights sufficient to allow it to resell the programs to Vernor, and therefore whether Vernor could legally resell them on eBay. As a general rule, most intellectual property rights are governed by a “first sale” defense. Once the owner of a copyrighted work sells it to another person or company, that person or company becomes the owner of the work and is free to resell it to others. The original owner has no right to pursue any subsequent downstream buyers because the original owner passed all rights in the work to the first buyer. The federal copyright laws codified the first sale doctrine with a provision stating that the owner of a particular copy of a copyrighted work can sell or dispose of the copy without first obtaining the original author’s permission. Vernor argued that his sale of the fourteen copies of AutoCAD was protected by the first sale doctrine, arguing that once Autodesk sold them to its initial customer Autodesk had no remaining rights that could prevent subsequent sales of the software. The district court agreed with Vernor, but the Ninth Circuit Court of Appeals disagreed and reversed the decision. According to the Ninth Circuit, Autodesk licensed its AutoCAD software and did not originally sell it. The software was distributed with a license that expressly restricted the ability to transfer or resell it. Because the original customer was a licensee, not an owner, the first sale doctrine did not apply. Vernor could not legally buy the software from the first customer, and therefore Vernor did not own the software. The result for Vernor—and for his customers who bought the fourteen copies on eBay—was that the use and sale of the used AutoCAD software infringed Autodesk’s copyrights in the software. This decision by the Ninth Circuit is not necessarily consistent with decisions from other federal courts of appeal. As such, the law remains unsettled and the issue may continue to the Supreme Court. It is also a decision that is primarily concerned with software because software, unlike most other goods, is commonly distributed under a license. Nonetheless, it allows original sellers of goods to take advantage of the possible use of a license to distribute their goods, and requires resellers of used goods to pay close attention to whether the goods were originally sold or licensed. Read the full Ninth Circuit decision at http://www.ca9.uscourts.gov/datastore/opinions/2010/09/10/09-35969.pdf.

Supreme Court Upholds Patentability of Software and Business Methods

June 28, 2010 | Intellectual Property News

In Bilski v. Kappos, an inventor had filed a patent application for a process of buying a commodity at a low price under a periodic contract and selling it at a higher price. Setting aside the question of whether the claimed invention was even remotely new, the Patent Office rejected it because it was not “patent eligible subject matter.” According to the patent office the applicant claimed an invention so broadly that it was an abstract idea of hedging rather than a particular invention for carrying out the idea. Notably, it was a pure process that made no mention of a computer or any other physical objects that would be used to perform the process.

The patent statutes expressly provide that methods, or processes, are patentable. 35 U.S.C. § 101 provides: “Inventions patentable. Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.”

The statute further defines four categories of patent-eligible subject matter: processes, machines, manufactures, and compositions of matter. With regard to computer software, patents are typically written as “process” or “methods” for performing a series of steps that correspond to a computer algorithm. Thus, the issue of patent-eligible subject matter generally involves what the term “process” in § 101 means, and how to determine whether a given claim is a “new and useful process.”

The term “process” could be construed quite broadly. In 1952, at the time Congress amended § 101 to include “process,” the ordinary meaning of the term was: “[a] procedure . . . [a] series of actions, motions, or operations definitely conducing to an end, whether voluntary or involuntary.” WEBSTER’S NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE 1972 (2d ed. 1952). Likely all process claims in issued patents or pending applications would meet this definition of “process.” But the Supreme Court has held that the meaning of “process” as used in § 101 is narrower than its ordinary meaning. See Flook, 437 U.S. at 588-89 (“The holding [in Benson] forecloses a purely literal reading of § 101.”). Specifically, the Court has held that a claim is not a patent-eligible “process” if it claims “laws of nature, natural phenomena, [or] abstract ideas.” Diamond v. Diehr, 450 U.S. 175, 185, 101 S. Ct. 1048, 67 L. Ed. 2d 155 (1981) (citing Flook, 437 U.S. at 589, and Gottschalk v. Benson, 409 U.S. 63, 67, 93 S. Ct. 253, 34 L. Ed. 2d 273 (1972)). Such fundamental principles are “part of the storehouse of knowledge of all men . . . free to all men and reserved exclusively to none.” Funk Bros. Seed Co. v. Kalo Inoculant Co., 333 U.S. 127, 130, 68 S. Ct. 440, 92 L. Ed. 588, 1948 Dec. Comm’r Pat. 671 (1948); see also Le Roy v. Tatham, 55 U.S. (14 How.) 156, 175, 14 L. Ed. 367 (1852) (“A principle, in the abstract, is a fundamental truth; an original cause; a motive; these cannot be patented, as no one can claim in either of them an exclusive right.”). “Phenomena of nature, though just discovered, mental processes, and abstract intellectual concepts are not patentable, as they are the basic tools of scientific and technological work.” Benson, 409 U.S. at 67; see also Comiskey, 499 F.3d at 1378-79 (holding that “mental processes,” “processes of human thinking,” and “systems that depend for their operation on human intelligence alone” are not patent-eligible subject matter under Benson). Klonopin

It has been difficult to reconcile the line of authority articulating when processes are patentable and when they are not. Regardless of whether cases are consistent on their facts, the Supreme Court has enunciated a test to determine whether a process claim is tailored narrowly enough to encompass only a particular application of a fundamental principle rather than to pre-empt the principle itself. A claimed process is surely patent-eligible under § 101 if: (1) it is tied to a particular machine or apparatus, or (2) it transforms a particular article into a different state or thing. See Benson, 409 U.S. at 70 (“Transformation and reduction of an article ‘to a different state or thing’ is the clue to the patentability of a process claim that does not include particular machines.”); Diehr, 450 U.S. at 192 (holding that use of mathematical formula in process “transforming or reducing an article to a different state or thing” constitutes patent-eligible subject matter); see also Flook, 437 U.S. at 589 n.9 (“An argument can be made [that the Supreme] Court has only recognized a process as within the statutory definition when it either was tied to a particular apparatus or operated to change materials to a ‘different state or thing’”); Cochrane v. Deener, 94 U.S. 780, 788, 24 L. Ed. 139, 1877 Dec. Comm’r Pat. 242 (1876) (“A process is . . . an act, or a series of acts, performed upon the subject-matter to be transformed and reduced to a different state or thing.”). A claimed process involving a fundamental principle that uses a particular machine or apparatus would not pre-empt uses of the principle that do not also use the specified machine or apparatus in the manner claimed. And a claimed process that transforms a particular article to a specified different state or thing by applying a fundamental principle would not pre-empt the use of the principle to transform any other article, to transform the same article but in a manner not covered by the claim, or to do anything other than transform the specified article. In general, this enunciation is referred to as the “machine or transformation test.”

Though articulated by the Supreme Court, it was not necessarily advanced as being exclusive. In Benson, 409 U.S. at 71, the Court held: “It is argued that a process patent must either be tied to a particular machine or apparatus or must operate to change articles or materials to a ‘different state or thing.’ We do not hold that no process patent could ever qualify if it did not meet the requirements of our prior precedents.” One alternate test was whether the claimed process produced a useful, concrete, and tangible result.

In its review of the Bilski rejection, the Court of Appeals for the Federal Circuit (one level below the Supreme Court) revisited the “useful, concrete, and tangible result” language associated with State Street, 149 F.3d at 1373 (“Today, we hold that the transformation of data, representing discrete dollar amounts, by a machine through a series of mathematical calculations into a final share price, constitutes a [patent-eligible invention] because it produces ‘a useful, concrete and tangible result’ . . . .”); see also Alappat, 33 F.3d at 1544 (“This is not a disembodied mathematical concept which may be characterized as an ‘abstract idea,’ but rather a specific machine to produce a useful, concrete, and tangible result.”); AT&T, 172 F.3d at 1357 (“Because the claimed process applies the Boolean principle to produce a useful, concrete, tangible result without pre-empting other uses of the mathematical principle, on its face the claimed process comfortably falls within the scope of § 101.”). The basis for this language in State Street and Alappat was that the Supreme Court has explained that “certain types of mathematical subject matter, standing alone, represent nothing more than abstract ideas until reduced to some type of practical application.” Alappat, 33 F.3d at 1543; see also State St., 149 F.3d at 1373. To be sure, a process tied to a particular machine, or transforming or reducing a particular article into a different state or thing, will generally produce a “concrete” and “tangible” result as those terms were used in our prior decisions. But while looking for “a useful, concrete and tangible result” may in many instances provide useful indications of whether a claim is drawn to a fundamental principle or a practical application of such a principle, Bilski held that inquiry to be insufficient to determine whether a claim is patent-eligible under § 101. And it was certainly never intended to supplant the Supreme Court’s test. Therefore, the court also concluded that the “useful, concrete and tangible result” inquiry is inadequate and reaffirmed that the machine-or-transformation test outlined by the Supreme Court is the proper test to apply.

Some amici to Bilski urged a “technological arts” test, but that test was rejected as being too vague, at least in part because the contours of what would be deemed technology is ever-changing. Similarly, the CAFC rejected specific exclusions such as business method exclusions, reasoning that every application should be evaluated the same way. Accordingly, business methods and software would remain patentable so long as it meets the machine or transformation test. Further, the articulation of physical steps in the process is not determinative. Rather, the issue remains whether there is a machine or transformation required by the claimed invention.

In its review of the case, the Supreme Court disagreed with the Federal Circuit Court of Appeals regarding the “machine or transformation” test. Instead, the Court concluded that it was sufficient to state that abstract ideas and mathematical formulas per se are not patentable, but particular applications of such concepts would be patentable even if not tied to a machine or transformation. The decision leaves open the possibility that the courts will further refine the tests for patentability of processes, including software and business methods. At the same time, it should be viewed as an endorsement of the general proposition that software and business methods remain patentable, and that the Supreme Court is unlikely to issue any decisions changing that status any time soon.


Court of Appeals Reins in False Marking Litigation

June 10, 2010 | Intellectual Property News
For more than a century, the patent statutes have made it illegal to include a patent number on a product that is not actually covered by the patent. 28 U.S.C. 292 provides that the use of a patent number, or the words “patented” or something similar, on a product or in advertising for the product, is illegal if it is done with an intent to deceive the public into thinking that the product is patented when it actually is not. The same restriction applies to the use of terms such as “patent applied for” or “patent pending.” The false marking statute of Section 292 has been largely ignored because of its weak remedies. The statute provides for a fine of not more than $500 for every offense of false marking. Although there have been very few court decisions applying the statute, most of the courts that had encountered it had concluded that the $500 cap was the maximum remedy no matter how many units had been sold with the erroneous patent number. Even a continuous and ongoing campaign to falsely mark products for years would merit no more than a $500 fine. But on December 28, 2009, the Federal Circuit Court of Appeals held that the $500 total cap should not be applied in this fashion. Instead, the penalty applies to each unit of a product that is sold with the false marking. Here’s a link to the decision: http://www.cafc.uscourts.gov/opinions/09-1044.pdf. In the wake of this precedential interpretation of the false marking statute, a cottage industry of lawsuits has sprung up, with potential plaintiffs scrutinizing patent numbers appearing on products in the hope of finding an error that might support a lawsuit. Notably, a false marking lawsuit can be filed by literally anyone, and a plaintiff need not be a competitor or someone who was actually harmed by the marking. In a few high profile cases, the number of units sold is great and the potential damages are astronomical. In one recent case involving lids made by the Solo Cup Company, the case alleged that 21 billion lids were sold with expired patent numbers on them. If the court were to award $500 per lid, the damages would be enormous. While a maximum of $500 per unit seems unlikely in most cases, even a penny per infraction can be huge if the volumes are high enough. In a June 10, 2010 decision, the Federal Circuit ruled that even though the damages may be calculated per unit, a plaintiff in a false marking lawsuit must prove that the false marking ws done with an “intent to deceive the public” in order to receive the damages. Merely placing an incorrect patent number is not enough to trigger damages under this statute without proof that the inaccurate patent marking was done with an intent to deceive. In the Solo decision, the court also noted that intent to deceive the public may not necessarily exist even if the company marking the products knew that the patent marking was incorrect. Read the full decision at http://www.cafc.uscourts.gov/opinions/09-1547.pdf. While each case is unique, and the best practice is to only mark products with patent numbers that are applicable to the product, merely marking a product with a false number does not trigger damages for false marking.

False patent marking requires greater attention

February 5, 2010 | Intellectual Property News
For more than a century, the patent statutes have made it illegal to include a patent number on a product that is not actually covered by the patent. 28 U.S.C. 292 provides that the use of a patent number, or the words “patented” or something similar, on a product or in advertising for the product, is illegal if it is done with an intent to deceive the public into thinking that the product is patented when it actually is not. The same restriction applies to the use of terms such as “patent applied for” or “patent pending.” The false marking statute of Section 292 has been largely ignored because of its weak remedies. The statute provides for a fine of not more than $500 for every offense of false marking. Although there have been very few court decisions applying the statute, most of the courts that had encountered it had concluded that the $500 cap was the maximum remedy no matter how many units had been sold with the erroneous patent number. Even a continuous and ongoing campaign to falsely mark products for years would merit no more than a $500 fine. That is, until recently. On December 28, 2009, the Federal Circuit Court of Appeals held that the $500 total cap should not be applied in this fashion. Instead, the penalty applies to each unit of a product that is sold with the false marking. Here’s a link to the decision: http://www.cafc.uscourts.gov/opinions/09-1044.pdf. In the wake of this precedential interpretation of the false marking statute, a cottage industry of lawsuits has sprung up, with potential plaintiffs scrutinizing patent numbers appearing on products in the hope of finding an error that might support a lawsuit. Notably, a false marking lawsuit can be filed by literally anyone, and a plaintiff need not be a competitor or someone who was actually harmed by the marking. In a few high profile cases, the number of units sold is great and the potential damages are astronomical. In one recent case involving lids made by the Solo Cup Company, the case alleged that 21 billion lids were sold with expired patent numbers on them. If the court were to award $500 per lid, the damages would be enormous. While a maximum of $500 per unit seems unlikely in most cases, even a penny per infraction can be huge if the volumes are high enough. Although patent numbers should always be applied carefully, in this current environment it’s wise to be especially accurate. Congress is evaluating new legislation that might cap the damages award and stem the tide of false marking litigation, but for now the use of patent numbers on products and in advertising should be carefully scrutinized to ensure the numbers are accurate and the patents are still valid and enforceable.

Court of Appeals alters test for design patent infringement

October 1, 2008 | Intellectual Property News
The test for design patent infringement has been well understood to include certain discrete steps. First, the court must determine the “points of novelty” of the patented design. Because a design patent often includes a mix of elements that are new and old, functional and aesthetic, the court has been required to separate the new and aesthetic features from the rest of the design. Second, the accused product is evaluated to determine whether it includes the so-called points of novelty. If not, then the product would not infringe the design patent even if it otherwise seemed quite similar. If the accused product included the points of novelty, then the design patent as a whole would be compared to the accused product as a whole to determine whether an ordinary person would be confused into thinking that the two designs are the same. The accused product would infringe the patent if it both included the points of novelty and had an overall appearance that was confusingly similar to the design in the patent. In Egyptian Goddess, Inc. v. Swisa, Inc., http://www.cafc.uscourts.gov/opinions/06-1562.pdf, the Federal Circuit Court of Appeals abandoned this technical approach to design patent infringement that dissected the design patent for points of novelty. Instead, patent infringement is to be evaluated by comparing the design patent with the accused product, while at the same time keeping an eye on the previously existing designs so that the new components of the patented design can be afforded greater weight. This simultaneous evaluation of the patent, the accused product, and the prior art brings its own challenges, and the manner in which the courts implement it will continue to evolve. While the distinction may eventually be more procedural than substantive, conventional wisdom seems to be that design patents will be stronger with this decision. The points of novelty test had been used in many cases to whittle a design patent down to a few trivial points of distinction that were arguably missing from the accused product. This new test considers the design patent as a whole and should lead to a broader scope of protection for design patents.