Infringement

1. Infringement • Test for infringement and anticipation are the same: substantial similarity of overall appearance • Suppose when I apply for patent, I argue claimed design is different from prior art based on the arm; PTO allows claim based on the lack of substantial similarity arising from the prior art not showing an arm • If patentee then asserts patent against a design that lacks that difference, court should find no infringement because claimed design and accused design aren’t substantially similar – PTO already found there to be a lack of substantial similarity • If, however, the court concludes that the designs are substantially similar (and thus there’s infringement), then it follows that the prior art and the claimed design are substantially similar, which means that the patent on the claimed design is invalid

2. Infringement Cont’d • “That which infringes, if later, would anticipate, if earlier.” Peters v. Active Mfg, 129 U.S. 530, 537 (1889) • “A patent may not, like a ‘nose of wax,’ be twisted one way to avoid anticipation and another to find infringement.” Amazon.com, Inc. v. Barnesandnoble.com, 239 F.3d 1343, 1351 (Fed. Cir. 2001)