The Rosen-Durling test has been used to determine obviousness in design patents for over 25 years. In the recent LKQ v. GM en banc decision, the Federal Circuit found the Rosen-Durling test was "improperly rigid." The Federal Circuit determined that the test for obviousness that is used for utility patent should also be used for design patents. The test for obviousness for utility patents was established in Graham v. John Deere (U.S. 1996) and KSR International Co. v Teleflex Inc. (U.S. 2007). The USPTO issued a memorandum on May 22, 2024, to provide guidance and instructions on evaluating obviousness in design patent applications and design patents.

Faculty:
Jeremy Barton, Dorsey + Whitney LLP