Sarah Burstein on Nostr: I wrote about this issue over a decade ago, in my first-ever article about design ...
I wrote about this issue over a decade ago, in my first-ever article about design patents: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1926162 (tl;dr https://patentlyo.com/patent/2022/12/defense-rosen-references.html)
I concluded (and still believe) that the Rosen requirement is basically a good one, but that it has been applied too strictly by the Federal Circuit.
Specifically, the court seems to leave little blue sky between a design that looks "the same" (and is thus anticipating) and "basically the same" (and can thus serve as a proper primary reference.
I concluded (and still believe) that the Rosen requirement is basically a good one, but that it has been applied too strictly by the Federal Circuit.
Specifically, the court seems to leave little blue sky between a design that looks "the same" (and is thus anticipating) and "basically the same" (and can thus serve as a proper primary reference.