The 'more flexible approach' adopted this week will unquestionably give [design patent] challengers more latitude to argue that prior art warrants a finding of obviousness.
The Federal Circuit's en banc decision in LKQ Corp. v. GM Glob. Tech. Operations LLC calls the strength of design patent benefits into question, replacing the rigid 'obviousness' test with a more 'flexible' standard.
The decision is certain to encourage fresh challenges to the validity of design patents, potentially allowing competitors to challenge monopolized design features but also raising concerns about undermining brand protections.
Design patents offer strong protection for brands, easier to obtain than extensive trade dress protection. If the new 'flexible' standard is misinterpreted, it may threaten brands' abilities to fend off copycats.
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