According to the 2004 Design Patent Infringement Assessment Guidelines, a finding of design patent infringement must meet the following two tests: (1) in the eyes of an ordinary customer, the overall visual design of a patented design is the same as or similar to that of an accused product; and (2) the accused product contains a point of novelty of the patented design. The so-called "point of novelty" refers to a feature that contributes novelty and/or creativeness to a patented design over prior art. A point of novelty is a visual feature, not a functional feature.
However, in the new Design Patent Infringement Assessment Guidelines, which is effective as of February 2016, and published by the Intellectual Property Office, the above test (2) is abolished and the "ordinary customer" is defined as a person who is reasonably familiar with similar prior art. Furthermore, where the accused product is not plainly dissimilar to the patented design, a three-way comparison can be used to facilitate determination of whether the overall visual design of a patented design, in the eyes of an ordinary customer, is the same as or similar to that of an accused product; where the difference between the accused product and the patented design is sufficiently distinct, there is no need for a three-way comparison, and a finding of no infringement should be rendered. The so-called “three-way comparison” refers to comparing the accused product on the one hand with the patented design, and on the other hand with the prior art. If the appearance of the accused product is “closer” to that of the patented design than it is to that of the prior design, then a finding of infringement is more likely. Conversely, if the appearance of the accused product is “closer” to that of the prior design, then a finding of no infringement is more likely.