Design Patents May Be Harder To Get Under New Test

Christopher Gloria spoke with Law360 about the Federal Circuit's decision to discard long-standing tests for proving design patent obviousness, noting that the new standard could lead to increased rejections and costs for clients. He stated, "That's going to obviously be a lot more costly to clients, just responding to office actions, yes, but also appeals, as the whole practice tries to figure out what this new test means." The ruling in LKQ v. GM replaces the old test with one requiring consideration of "analogous art" and the motivation to combine designs, creating significant uncertainty for patent applicants.

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