Design patents, like utility patents, are required to comply with a requirement that an applicant’s design is non-obvious. 35 U.S.C. §§103, 171. But design patents protect the non-functional aspects of a design of a product, Elmer v. ICC Fabricating, 67 F.3d 1571, 1577 (Fed. Cir 1995), and the concept of determining whether a design is obvious, when aesthetics are by definition subjective, requires at least a degree of cognitive dissonance.

Nevertheless, because Congress codified the non-obviousness requirement, the U.S. Court of Appeals for the Federal Circuit (CAFC) has developed, and both the lower courts and the U.S. Patent and Trademark Office (USPTO) have implemented, an analytic framework for applying this statutory requirement.

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