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Petitioners Beware: Screenshots Showing Product May Not Qualify as Printed Publication

In a recent decision, the PTAB determined that images of products offered for sale via online retailers, such as Amazon, did not alone qualify as printed publications—even if the images showed the product and the date it was...more

LKQ v. GM: PTAB and Examiner Guidance on Design Patent Obviousness from USPTO

Those following this blog knew change was coming to design patent obviousness in the LKQ v. GM decision by the en banc Federal Circuit. In its May 21, 2024 decision, the court overruled the long-standing Rosen-Durling test...more

Federal Circuit Overrules Rosen-Durling Test for Design Patent Obviousness

Now a more flexible Graham v. John Deere analysis applies. On May 21, 2024, the en banc Federal Circuit overruled the Rosen-Durling test for design patent obviousness, holding that Supreme Court law dictates "a more...more

En Banc Federal Circuit Overrules Rosen-Durling Test for Design Patent Obviousness

The en banc Federal Circuit has overruled the Rosen-Durling test for design patent obviousness, holding that the Supreme Court’s KSR decision dictated “a more flexible approach . . . for determining non-obviousness.” LKQ v....more

En Banc Federal Circuit Questions Standard for Design Patent Obviousness

Changes to design patent validity law may be coming thanks to LKQ v. GM, a case that we’ve been tracking since April 2021. On February 5, 2024, in a rare en banc hearing, the Court of Appeals for the Federal Circuit asked...more

Rosen-Durling Test Back on the Table

In February, the Federal Circuit declined to modify or overrule its long-standing test for obviousness in design patents, the Rosen-Durling test, despite arguments that the Supreme Court overruled it in KSR v. Teleflex. A...more

Federal Circuit Tables Scrutiny of Rosen under KSR

A recent post flagged LKQ v. GM as a potential watershed moment in design patent validity law, calling into question whether In re Rosen, long-standing obviousness precedent, comports with the Supreme Court’s decision in KSR....more

No Soup for You! Partial Display Design Patent Found Obvious

As with utility patents, a patentee can counter obviousness of a patented design by producing objective evidence that the design was non-obvious, like commercial success, copying, etc.  But to be persuasive, a nexus must...more

When Trademarks and Design Patents Intersect: Making Waves in Columbia v. Seirus

For nearly 30 years, the inclusion of a trademark in the design of a defendant's product did not mean much in the design patent infringement analysis. That changed on August 6, 2021, in Columbia Sportswear North America, Inc....more

If IPR’s Not Your Bag, Consider Ex Parte Reexamination

These days, we generally think about inter partes review as a first option to challenge patentability.  Rightly so.  But don’t forget about ex parte reexamination (“XPR”).  Even in the IPR era, patent challengers are still...more

Balance is Key in Design Patent Claim Drafting

The Patent Trial and Appeal Board recently designated as informative its decision instituting post-grant review and addressing the issues of design patent functionality in Sattler Tech Corp. v. Humancentric Ventures, LLC. ...more

SharkNinja Cleans Up Over Dyson

This win is one of the most significant in U.S. history for a design patent case. Vacuum and appliance manufacturer Dyson voluntarily dismissed its appeal to the U.S. Court of Appeals for the Federal Circuit on July 30,...more

Are Online Videos "Publicly Accessible"?

The decision in HVLP02 LLC v. Oxygen Frog turned on whether or not a YouTube video could qualify as a "printed publication," and therefore constitute prior art for patent purposes. As courts tend to assign the term "printed...more

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