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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....

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