In any case, these infringement claims are not good and it's ridiculous that this case has gotten so far.
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
#DesignPatents #EgyptianGoddess
Discussion
Accordingly, the fact that this denial is without prejudice is cold comfort. These defendants have already had to spend way too much time and money defending against these claims.