The Pittsburgh Gazette reports on a lawsuit initiated by Leslie Friend, owner of a design patent for a pretzel shaped like a peace sign. The suit names Keystone Pretzels and Laurel Hill Foods as defendants, alleging that the former makes the infringing pretzels and the latter sells them.
In general terms, a US design patent relates to the ornamental design of an object having practical utility while a “utility patent” protects the way an article is used and works. Design patents are classified into 33 classes of subject matter, with Ms. Friend’s design patent assigned to Class 1 pertaining to “Edible Products.”
Given the nature of this case, a key issue will likely be the validity of the design patent, including the state of the prior art and whether it is “obvious.” Ms. Friend’s design patent was filed in 1999 and there may be a question of whether peace-sign pretzels were sold well before that date. As for obviousness, the Federal Circuit’s two-part test for determining whether a design patent is obviousness provides that (1) the prior art is viewed through the lens of one of ordinary skill in the art to determine “whether to combine earlier references to arrive at a single piece of prior art for comparison with the design or to modify a single prior art reference” and (2) once that piece of prior art has been constructed, “obviousness, like anticipation, requires application of the ordinary observer test, not the view of one skilled in the art.”