AIPLA Files Amicus Brief with Court of Appeals for the Federal Circuit in LKQ Corp. v. GM Global Technology Operations LLC

Written September 5, 2023

Arlington, VA. August 29, 2023 - The American Intellectual Property Law Association (AIPLA) filed an amicus brief with the Court of Appeals for the Federal Circuit in support of neither party in LKQ Corp. v. GM Global Technology Operations LLC, a case that the Federal Circuit agreed to rehear en banc in June 2023. The case concerns the test for obviousness for design patents and whether the Supreme Court’s decision in KSR (which involved a utility patent) overrules or abrogates the current Rosen-Durling framework.


The brief argues that KSR neither overrules nor abrogates Rosen or Durling, two cases which provide the current framework that courts and patent examiners use to assess whether a US design patent claim is obvious. The brief calls for the retention of the Rosen-Durling framework while noting key aspects of its flexibility and expansiveness, including that (1) the framework is not an absolute rule, (2) for a Rosen reference (i.e. primary reference, or basic reference) to be “basically the same” it need only have a similar overall visual appearance, and (3) the perspective of a designer of ordinary skill in the art should be applied with common sense in mind and without undue limitations or restrictions.  The brief notes that eliminating the test would cause significant uncertainty in a challenging area of design patent law that has operated reasonably well for over 40 years.  The brief also examines fundamental differences between design patents and utility patents that warrant a tailored approach to assessing obviousness for design patents.



To read the full brief, please download the brief posted to the right of this page.