GM, LKQ Trade Punches at Fed. Cir. Over Design Patent Test (1)

Judges on the Federal Circuit expressed skepticism over a test that’s been used for 40 years to determine when a patent on an ornamental design is obvious and thus shouldn’t be granted.

The Rosen-Durling test for snuffing out obvious design patents was challenged in the context of a case over a General Motors Co. front fender from aftermarket parts maker LKQ Corp. LKQ has argued the test sets an almost impossibly high bar and has allowed automakers to patent—and charge above-market prices—for parts that contain only incremental, non-innovative design changes over previous iterations.

The test, from the 1982 In re ...