In a unanimous judgment, following an en banc hearing, the 12 judges rejected both the point of novelty test and the non-trivial advance test, a refinement proposed by a panel of the court last year.

“Instead, in accordance with Gorham and subsequent decisions, we hold that the ‘ordinary observer' test should be the sole test for determining whether a design patent has been infringed,” wrote Circuit Judge Bryson.

He added: “Under that test, as this court has sometimes described it, infringement will not be found unless the accused article ‘embod[ies] the patented design or any colorable imitation thereof’.”

The judgment came after Egyptian Godddess sued competitor Dror Swisa in the Northern District of Texas, alleging infringement of its US design patent (number 467,389) for an "ornamental nail buffer" design.

The district court granted Swisa summary judgment of non-infringement, asserting that Egyptian Goddess had failed to satisfy its burden under the standard point of novelty test for design patent infringement cases.

That test, established by a 1984 Federal Circuit case, Litton Systems Inc v Whirlpool Corp, said that plaintiffs in design patent infringement cases must prove that an accused design "appropriate[s] the novelty in the patented device which distinguishes it from the prior art".

Egyptian Goddess appealed to the Federal Circuit, which affirmed the decision in August last year but added a new step for determining the point of novelty.

Following concern that this raised the bar for patentees, the court granted a request to rehear the case last November.

The rehearing attracted a lot of interest and amicus curiae briefs.

Despite using a different approach, the Federal Circuit reached the same conclusion and affirmed the district court’s decision.

Reaction to the judgment will be available on managingip.com later this week.