Obviousness For Designs Is Now The Same As Inventions/Utility Patents

In LKQ Corp. et al. v. GM Global Technology Operations LLC,¹ the Federal Circuit held, on rehearing en banc, that obviousness of a patented design is determined based on the four-part obviousness test used for utility patents. The court overruled the rigid rule of finding a primary reference that was basically the same as the claimed design and a secondary reference that must be so related to suggest the modification of features to arrive at the claimed design.

GM Global Technology LLC (GM) owned U.S. Design Patent No. D797,625, which claimed a vehicle fender design. This design was used in GM's 2018–2020 Chevrolet Equinox. LKQ Corporation filed a petition for Inter Partes Review of GM's D'625 patent, alleging it was obvious based on U.S. Design Patent No. D773,340 (Lian) alone or as modified by a promotional brochure depicting the design of the front fender on the 2010 Hyundai Tucson (Tucson).²