New Design Patent Test Creates Uncertainty Over What’s Obvious

The Federal Circuit’s more relaxed framework for invalidating obvious design patents will require years of legal work to iron out nuances in district courts and at the US Patent and Trademark Office.

The Tuesday opinion unwound a test for design patents dating back 42 years, bringing the approach more in line with how obviousness is determined for utility patents. The previous test was applied so rigidly, detractors have said, it had become nearly impossible to invalidate as obvious a design patent. But the new ruling leaves key questions unanswered.

“We’re left with this kind of amorphous analogous art test” courts ...