Federal Circuit top judge signals deep unease with US design patent ‘trend’
By Melissa Ritti ( February 3, 2026, 20:54 GMT | Comment) -- A dissent on Monday called for a return to the standard for design patent infringement set over 150 years ago by the Supreme Court in a dispute over tablespoons and forks. That wouldn’t only take the US back to its “substantially similar” roots — it could widen an existing divide with the EU.A 2008 decision which inadvertently moved the goalposts from “substantially similar” to “plainly dissimilar” or “sufficiently distinct” when assessing competing designs is a “linguistic sleight of hand” that should be undone, one of the nation’s leading patent judges argued Monday....
Prepare for tomorrow’s regulatory change, today
MLex identifies risk to business wherever it emerges, with specialist reporters across the globe providing exclusive news and deep-dive analysis on the proposals, probes, enforcement actions and rulings that matter to your organization and clients, now and in the longer term.
Know what others in the room don’t, with features including:
- Daily newsletters for Antitrust, M&A, Trade, Data Privacy & Security, Technology, AI and more
- Custom alerts on specific filters including geographies, industries, topics and companies to suit your practice needs
- Predictive analysis from expert journalists across North America, the UK and Europe, Latin America and Asia-Pacific
- Curated case files bringing together news, analysis and source documents in a single timeline
Experience MLex today with a 14-day free trial.