Egyptian Goddess, Inc. (EGI) (plaintiff) obtained a patent for a nail buffer that was a hollow, rectangular tube with buffing surfaces on three of the four sides. Subsequently, Swisa, Inc. (Swisa) (defendant) designed a nail buffer that was a hollow, rectangular tube with buffing surfaces on all four sides. EGI brought a patent infringement suit in the United States District Court for the Northern District of Texas. The district court granted Swisa’s motion for summary judgment, finding that EGI had not met its burden of proving: (1) that an ordinary observer of the designs would find substantial similarities between the EGI design and Swisa’s design (the ordinary observer test) and (2) that Swisa’s design contained the same points of novelty that distinguished EGI’s nail buffer from prior nail buffers (the point of novelty test). EGI appealed, and a panel of the United States Court of Appeals for the Federal Circuit affirmed. EGI petitioned for rehearing en banc, and this court granted rehearing to clarify and establish the correct legal standard for determining the existence of design patent infringement.