On remand, the plaintiff continues to use the wrong infringement test: https://storage.courtlistener.com/recap/gov.uscourts.ilnd.384154/gov.uscourts.ilnd.384154.635.0.pdf
Some of you may recognize this as the #ScheduleA case that went up to the Federal Circuit last year:
https://patentlyo.com/patent/2022/10/guest-post-about.html
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Discussion
For anyone who doesn't know:
The test is not: "Is the accused design closer to the claimed design or to the closest prior art?"
It's: "Does the accused product look the same as the claimed design?"
If--and only if--the two designs are not plainly dissimilar, the factfinder can look to see whether the prior art narrows the presumptive scope of the claim.
For more on the test and how it works, with representative visual examples, see: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3338471
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