1. “The test for design-patent infringement that the Supreme Court established in Gorham inquires only as to whether an ordinary observer would find the appearance of two designs ‘substantially the same.’ 81 U.S. at 528. Is this Court’s test for design-patent infringement, originating in Egyptian Goddess, Inc. v. Swisa, Inc., 543 F.3d 665 (Fed. Cir. 2008) (en banc), inconsistent with that rule, because this Court’s test asks first whether the appearance of two designs is ‘plainly dissimilar’?”
2. “Does this Court’s precedent holding that judges should resolve ‘factual dispute[s]’ regarding functionality versus ornamentation at claim construction . . . conflict with the Seventh Amendment jury-trial right under the Supreme Court’s framework in Markman?”
