USPTO aligns practices with Federal Circuit's flexible approach for design patent obviousness after LKQ v. GM case, eliminating 'basically the same' and 'so related' requirements.
Although primary reference not 'basically the same', courts still stress starting the obviousness analysis with a primary reference to avoid hindsight in design patent cases.
Decision highlights the need to identify a primary reference for protection against hindsight bias in analyzing design patents, as new designs often consist of old elements.
USPTO's new guidance closely mirrors Federal Circuit's opinion, emphasizing the identification of a primary reference, albeit not necessarily 'basically the same', in determining design patent obviousness.
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