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ARTICLE · 07 AUGUST 2023

Rosen-Durling Test Back On The Table

Jones Day
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In February, the Federal Circuit declined to modify or overrule its long-standing test for obviousness in design patents, the Rosen-Durling test, despite arguments that the Supreme Court overruled it

United StatesIntellectual Property
John Evans
John Evans
Vishal Khatri
Vishal Khatri
Jesse T. Wynn
Jesse T. Wynn
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In February, the Federal Circuit declined to modify or overrule its long-standing test for obviousness in design patents, the Rosen-Durling test, despite arguments that the Supreme Court overruled it in KSR v. Teleflex. A series of recent posts outlined the LKQ v. GM case's challenge to the Rosen-Durling standard. One post suggested that the Rosen-Durling test may be questioned in future en banc review.

On June 30, the Federal Circuit granted en banc review of LKQ v. GM on petition by Appellants LKQ Corporation and Keystone Automotive Industries, Inc. ("LKQ"). Four amici submitted briefs. The court posed the following questions for review:

A. Does KSR International Co. v. Teleflex Inc., 550 U.S. 398 (2007), overrule or abrogate In re Rosen, 673 F.2d 388 (CCPA 1982), and Durling v. Spectrum Furniture Co., Inc., 101 F.3d 100 (Fed. Cir. 1996)?

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