An en banc panel of the U.S. Court of Appeals for the Federal Circuit will soon decide whether to amend its long-standing framework for assessing design patent obviousness, known as the Rosen-Durling test. The forthcoming decision in LKQ v. GM Global Technology Operations, No. 2021-2348 (LKQ) will be the first en banc decision the Federal Circuit has issued in a design patent case since 2008.

On Feb. 5, 2024 the Federal Circuit heard arguments in the rehearing en banc in LKQ, which asks whether and how the obviousness test for design patents should be modified in light of the more flexible approach to obviousness that the Supreme Court endorsed in the utility patent context in KSR International v. Telflex, 550 U.S. 398 (2007) (KSR).

While the original LKQ panel considered the survival of the Rosen-Durling test a foregone matter, noting that in the more than 15 years since KSR, the Federal Circuit "has decided over 50 design patent appeals" in which it "has continually applied Rosen and Durling just as it had in the decades preceding," LKQ v. GM Global Technology Operations, 2023 WL 328228, at *6 (Fed. Cir. Jan. 20, 2023), reh'g en banc granted, opinion vacated, 71 F.4th 1383 (Fed. Cir. 2023), the circuit's decision to grant rehearing en banc could have far-reaching implications for design patents.