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September 26, 2008 11:00 AM

Litigator of the Week: Frederick Medlin of K&L Gates

Posted by Ed Shanahan

From The Am Law Litigation Daily

Medlin_lin This week's choice is K&L Gates lawyer Frederick Medlin,who made the winning arguments in a case involving competing designs for nail buffers.

That may seem a bit trifling in these scary financial times, but Monday's rare unanimous en banc ruling from the Court of Appeals for the Federal Circuit in Egyptian Goddess v. Swisa is the most important design patent decision in years, and one that, according to the Patently-O blog, "revived the value of design patent protection."

In deciding the case, the appellate court scrapped the "point of novelty" test that had been used in conjunction with the "ordinary observer" test to assess design patent infringement for at least the last two decades. Going forward, the court ruled, the primary analysis should be a newly configured "ordinary observer" test. If you're still fuzzy on what that means, check out this excellent Legal Times analysis of the case.

Frederick Medlin of K&L Gates represented Swisa, which was accused of infringing Egyptian Goddess's patented design for a nail buffer. Egyptian Goddess's nail buffer is a rectangular tube with three padded sides. The Swisa nail buffer has four padded sides. Medlin has prevailed at the trial court level in the Northern District of Texas, before a three-judge Federal Circuit panel, and before the full Federal Circuit--though all of the courts have cited different reasons for their rulings. Like other observers, Medlin predicts that even though he won this case on behalf of a defendant, the decision should make it easier for plaintiffs to prevail in design patent challenges.

Medlin, a Dallas-based counsel at K&L Gates, told us that winning Swisa is the highlight of his career. "I must say, this case is the most exciting case I've ever worked on," he said.

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