You Can’t Handle the Obvious: LKQ and Testing for Nonobviousness in Design Patents

Authors

Frank Easterlin, University of Georgia School of Law

Abstract

This Note traces the change from the rigid Rosen-Durling test for obviousness in design patents, to the Graham analysis in light of KSR v. Teleflex. The history of obviousness inquiries supported a more flexible approach and thus made Rosen-Durling unsupportable as anomalous. However, in abandoning a functional, if stiff, test for obviousness, the Federal Circuit both clarifies and clutters the law around obviousness. This Note follows that change, makes sense of what it can, and humorously criticizes the ambiguities and circularity of the court’s opinion. Ultimately, the new test opens up design patents to a wider array of attacks. This may ultimately sound the death knell for an under-utilizes form of intellectual property protection.

Recommended Citation

Frank Easterlin, You Can’t Handle the Obvious: LKQ and Testing for Nonobviousness in Design Patents, 32 J. Intell. Prop. L. 64 (2025).
Available at: https://digitalcommons.law.uga.edu/jipl/vol32/iss2/4