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Federal Circuit Overrules 'Improperly Rigid' Obviousness Test
In an eagerly anticipated en banc decision involving the proper standard for assessing when a claimed design is obvious, the U.S. Court of Appeals for the Federal Circuit overruled the Rosen-Durling test that courts and the U.S. Patent and Trademark Office (USPTO) have been applying for nearly 30 years, calling the test "improperly rigid" and inconsistent with Supreme Court precedent. LKQ v. GM Global Tech Operations, 102 F.4th 1280 (Fed. Cir. 2024).
Rejecting concerns that the decision would lead to uncertainty, the court found that design patent obviousness should be assessed under the same flexible approach used in the utility patent context. Because a claimed design must be nonobvious under 35 U.S.C. §103 for a design patent to issue, some believe that replacing the Rosen-Durling test with a more liberal standard will make it more difficult to obtain design patents and defend them against invalidity attacks in litigation. But whether the "new" standard will prove significantly less stringent in practice is just one of many open questions that practitioners and companies with design patent portfolios may have moving forward.
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