Page 11 - The Katten Kattwalk - Fall 2024 - Issue 28

design at issue need not come from the references designers should stay up to date with the developing
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themselves. Nonetheless, a “record-supported” obviousness test case law as nuanced interpretations
reason, without the benefit of hindsight, must explain emerge and carefully assess how this framework
why an ordinary designer in the relevant field would affects the ornamental innovations in their products.
combine features from the primary reference with
features from other references to create a design
1 See LKQ Corp. v. GM Global Tech. Operations, LLC, 102 F.4th 1280 (Fed. Cir. 2024).
with the same overall appearance as the design at 2 Durling v. Spectrum Furniture Co., Inc., 101 F.3d 100, 103 (Fed. Cir. 1996)
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issue. This might include experience, creativity, (quoting In re Rosen, 673 F.2d 388, 391 (CCPA 1982)) (emphasis added).
market demands, industry customs or common 3 Id. at 103 (emphasis added).
4 148 US 674, 681 (1893).
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ornamental features in the relevant field. “Secondary 5 See KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 415–421 (2007).
considerations,” such as commercial success, industry 6 383 US 1 (1966).
praise and copying may also indicate obviousness or 7 Id. at 1295–96.
8 Id. at 1296.
non-obviousness. 16 9 See id. at 1297–98.
10 Id. at 1298.
The new obviousness test applies to obtaining and
11 See id. at 1298–99.
challenging a design patent. The US Patent and 12 Id. at 1299.
Trademark Office, Patent Trial Appeal Board and 13 See id.
federal courts will determine the contours of applying 14 See id.
15 See id. at 1299–1300.
the Graham factors to designs. Brands and their 16 See id. at 1300.
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