The "thousands of existing design patents are now at risk!" critique is not nearly as damning as some lawyers seem to think it is. That's what happens whenever the law changes. Move on.
3a) The only way to really avoid uncertainty is to create rules that make it impossible (or nearly so) for any design claim to ever be rejected/invalidated. That may be good for applicants (and those who charge them for patent prosecution services) but it's bad for everyone else.
We won't be able to see how this is applied at the USPTO, except in cases where applicants overcome 103 rejections and a patent issues. That's frustrating. Yet another reason why the USPTO's non-publication rule should be changed.
I've been critical of how the Federal Circuit applied Rosen. But I still think the basic requirement itself was good because it focused the inquiry on the design as a whole.
In other words, how does/should the fact that design patents protect applied designs (not designs per se) affect the scope of § 103 prior art, if at all?
The test for design patent infringement asks whether the accused product has the same shape. NOT whether it embodies the same idea or larger design concept.
I have so many questions (why is the plug the same size as the globe), but while I sometimes take issue with dashed lines, this is an instance where dashed lines are important. #DesignPatents