Pennsylvania Litigation Blog : Pennsylvania Litigation Lawyer & Attorney : Barley Snyder Law Firm : Serving Lancaster, Reading, York, Chambersburg

The United States Court of Appeals for the Federal Circuit, relaxed the once two-prong test for design patent infringement in Egyptian Goddess, Inc. v. Swisa, Inc.,  2006-1562, slip op. (Fed. Cir. Sept. 22, 2008) (en banc). 

Prior to the Egyptian Goddess, Inc holding, design patent infringement was proven through a two-prong test: the “ordinary observer” test and the “points of novelty” test. Bernhardt, L.L.C. v. Collezione Europa USA, Inc., 386 F.3d 1371, 1383 (Fed. Cir. 2004).  The two tests are very different. The “ordinary observer” tests looks at the design as a whole, questioning if an ordinary observer informed by the prior art would believe that the accused design is substantially the same as the patented design. However, the “point of novelty” test examined the individual elements of the design, and the novelty of those individual elements. 

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Pennsylvania has statutorily mandated that insured drivers be afforded coverage for uninsured and underinsured motorists, pursuant to Section 1731 of the Motor Vehicle Financial Responsibility Law. The purpose of this coverage was to provide an otherwise adequately insured driver protection as a result of an injury from the negligence of another, especially when the negligent driver did not carry enough coverage to compensate for the injuries sustained. 

However, this mandate has created a number of questions. One such question is if a neutral is appointed to render a decision in this matter, and provided with a range for settlement purposes, what effect would that neutral’s decision have, if any, on recovery by Plaintiff in accordance with his or her underinsured policy. 

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