En Banc Federal Circuit Overrules Rosen-Durling Test for Design Patent Obviousness, PTAB Litigation Blog
Visit the PTAB Litigation Blog
The en banc Federal Circuit has overruled the Rosen-Durling test for design patent obviousness, holding that the Supreme Court’s KSR decision dictated “a more flexible approach . . . for determining non-obviousness.” LKQ v. GM, — F.4th —, slip op. (Fed. Cir. May 21, 2024). This precedent marks a shift in design patent invalidity law that allows for a less-rigid approach to obviousness—even though the court expressly warned that “creative” patent challenges are not always persuasive.
Insights by Jones Day should not be construed as legal advice on any specific facts or circumstances. The contents are intended for general information purposes only and may not be quoted or referred to in any other publication or proceeding without the prior written consent of the Firm, to be given or withheld at our discretion. To request permission to reprint or reuse any of our Insights, please use our “Contact Us” form, which can be found on our website at www.jonesday.com. This Insight is not intended to create, and neither publication nor receipt of it constitutes, an attorney-client relationship. The views set forth herein are the personal views of the authors and do not necessarily reflect those of the Firm.
