Two's A Crowd: Prior Art In Design Patent Claim Construction

On April 15, 2021, the PTAB issued a Final Written Decision in the LKQ Corp. case finding a design patent claiming a vehicle fender panel unpatentable as obvious.  IPR2020-00064, Paper No. 39 (Apr. 15, 2021).  The obviousness analysis was by-the-numbers—but the finding that the cited prior art was not "crowded" for purposes of claim construction is noteworthy.

First, some background on "crowded" prior art.  Federal Circuit law says that "crowded" prior art can influence whether we read design patent claims holistically or focus on their details.  For example, "[w]here there are many examples of similar prior art designs ... differences between the claimed and accused designs that might not be noticeable in the abstract can become significant to the hypothetical ordinary observer who is conversant with the prior art."  Egyptian Goddess, Inc. v. Swisa, Inc., 543 F.3d 665, 678 (Fed. Cir. 2008) (en banc).