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Federal Circuit Sitting en banc Overrules Long-standing Test for Assessing Obviousness of Design Patents and Adopts the Same Framework Established for Utility Patents
On May 21, 2024, Federal Circuit sitting en banc issued an opinion, authored by Judge Stoll, in LKQ Corp. v. GM Glob. Tech. Operations LLC, 102 F.4th 1280 (Fed. Cir. 2024). Petitioner LKQ appealed from the Patent Trial and Appeal Board's (Board) final written decision in an Inter Partes Review (IPR) proceeding that found a design patent claim: 1) not anticipated under the ordinary observer test; and 2) not obvious under the long-standing Rosen-Durling test. Because the Rosen-Durling test is inconsistent with Supreme Court precedent, the Federal Circuit overruled In re Rosen, 673 F.2d 388 (CCPA 1982) and Durling v. Spectrum Furniture Co., Inc., 101 F.3d 100 (Fed. Cir. 1996), and adopted the same framework established for utility patents, including the application of the factors enumerated in Graham v. John Deere, 383 U.S. 1 (1966),and the flexible analysis under KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398 (2007). The Federal Circuit affirmed the Board's finding of no anticipation, and consistent with the change in the applicable framework, vacated the Board's non-obviousness determination and remanded for further proceedings.
LKQ challenged GM's design patent covering a vehicle's front fender in an IPR proceeding under 35 U.S.C. §§102 and 103. Slip Op. at 5. The Board found that the challenged claim not anticipated under the ordinary observer test. Id. at 6-7. The Board further found that the challenged claim not obvious under the long-standing Rosen-Durling test because the prior art reference failed to meet the threshold Rosen requirement. Id. at 7-8. On appeal, a Federal Circuit panel affirmed the Board's decisions. Id. at 8. The Federal Circuit granted rehearing en banc. Id. at 10.
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