Intellectual Property Report

Design Patent Obviousness - Federal Circuit Update

David Bailey

The Federal Circuit is set to decide en banc whether its design patent obviousness framework was overruled or abrogated by the Supreme Court's seminal obviousness decision in KSR International Co. v. Teleflex Inc. Over 15 years ago, the Supreme Court in KSR instructed against applying a rigid approach to obviousness in favor of a more flexible and expansive approach. While KSR addressed utility patent obviousness, according to appellants in LKQ Corp. v. GM Glob. Tech. Operations LLC, KSR's holdings are equally applicable to design patent obviousness. Particularly, the LKQ appellants contend that the Federal Circuit's design patent obviousness framework requires exactly the kind of rigid and restrictive approach explicitly rejected in KSR. The Federal Circuit recently granted the LKQ appellants' petition for rehearing en banc to decide this and other related issues. Interested parties have an