Beyond Precedent, What An En Banc Ruling Means For Practitioners

For the first time since 2008, the United States Court of Appeals for the Federal Circuit issued an en banc decision in a design patent case — an event usually reserved for decisions that impact exceptionally important legal questions or questions involving prior precedent. In LKQ v. GM Global Technology Operations, No. 2021-2348, the Federal Circuit's full panel decided to address the ongoing appropriateness of the Rosen-Durling test for determining obviousness within design patents. According to the Federal Circuit's en banc panel, the Rosen-Durling test is no longer appropriate in light of the obviousness analysis endorsed by the Supreme Court in KSR International v. Telflex, 550 U.S. 398 (2007).