Since the US Supreme Court's landmark decision in Eyptian Goddess in 2008, many predicted that the decision would make it easier to establish a design patent infringement claim because the court only left the ordinary observer test in place and abandoned the point of novelty test.  My experience, however, says otherwise.

I recently defeated another design patent infringement claim for my client, an Italian designer shoe company (I invalidated another design patent about a year ago for another client).  The Court granted my motion and dismissed the patent infringement claim with prejudice.  The victory is sweet in that the Court's opinion adopts a lot of languages straight from my briefs and cites all the legal authorities I provided to the court.  Lsil Co. v. Attilio Giusti Leombruni (S.D.N.Y.).  One thing the Court agrees with me is that the dotted lines in a design patent, which are not considered a part of the claimed design, are nonethess important because they describe the environment in which the claimed design must exist and therefore serve an important function of assisting the determination of the scope of the claimed design.