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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

Rosen Set Table For Design Patent Obviousness, LKQ Might Clear It

Big changes to design patent invalidity law may be coming. A pending IPR appeal challenges the Federal Circuit’s 40-year-old obviousness formula as inconsistent with the Supreme Court’s rejection of “a rigid rule that limits...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

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

Wurst Case Scenario: Sausage Tray Design Patent Found Obvious

Last October, the Federal Circuit reversed the PTAB’s decision that a challenged design patent was not obvious. Campbell Soup Co. v. Gamon Plus, Inc., 939 F.3d 1335 (Fed. Cir. 2019). We wrote about how the court applied a...more

Opening a Can of Worms for Design Patent Obviousness?

Design patent obviousness requires a heavy threshold burden of proof. Challengers have to find a “primary reference,” i.e., prior art that has “basically the same” design characteristics as the claimed design. Below is an...more

325(d) And Printed Publication Issues Doom Petition

The most persuasive IPR petitions offer fresh unpatentability theories never considered before. But petitions that simply repackage old issues often don’t gain traction. So, when you’re citing prior art that was before the...more

Design Patents at PTAB – Substantially the Same vs Basically the Same

The PTAB’s recent decision instituting post-grant review of a design patent in Man Wah Holdings Ltd. v. Raffel provides interesting perspectives on how design patent invalidity theories work. This decision highlights the...more

Unsupported Assertions: Expert’s Persuasive Authority Suffers Without Directly Engaging Claim Limitations

An expert asserting that a patent claim reciting different features than the prior art is nonetheless “equivalent” to the prior art must address and account for the recited limitations head-on, or otherwise lose persuasive...more

The PTAB Chats Designs: And Now, for Something Completely Different

On February 1, the PTAB held its first “Boardside Chat” of 2018, which featured three judges discussing appeals and AIA trial proceedings for design patents. Not only are such proceedings less common for design patents than...more

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