A recent decision from the U.S. Court of Appeals for the Federal Circuit has changed the standard approach to evaluating questions of patent validity—in particular, the question of whether a patented design is obvious—for design patents. Following the principles of the less rigid approach to evaluating obviousness for utility patents in the Supreme Court’s decision in KSR International v. Teleflex, the Federal Circuit has now extended those broad-view principles to design patents. 550 U.S. 398 (2007).

In May, the Federal Circuit issued its decision in LKQ v. GM Global Technology Operations, which marks a significant shift away from the prior and more rigid Rosen-Durling test, toward a more flexible framework for determining whether a patented design is obvious. No. 2021-2348, 2024 WL 2280728 (Fed. Cir. May 21, 2024) (En Banc Decision). The new LKQ test focuses on the overall visual impression of the claimed design, considers the scope and content of analogous prior art, and evaluates differences without the strict “so related” requirement for secondary prior art references.

Background of Design Patent Obviousness