Since the advent of AIA post grant practice four years ago, only 26 inter partes review petitions have been filed for design patents.1 The Patent Trial and Appeal Board issued 23 institution decisions, instituted 10 of those petitions, and rendered final decisions in six. The Federal Circuit and the PTAB have articulated and applied different standards for design patent anticipation, the former seemingly narrower than the latter. Notably, each of the 23 petitions receiving institution 103, whereas only 12 of the 23 raised some type of anticipation ground under 35 U.S.C. § 102. This article introduces and compares the standards for design patent anticipation and obviousness, explores the interplay between anticipation andobviousness at the PTAB, and summarizes practical takeaways from the current design patent IPR landscape.

Originally published in Bloomberg BNA’s Patent, Trademark & Copyright Journal® - October 21, 2016.