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The recent Federal Circuit case, KQ Corp. v. GM Global Tech. Operations LLC, No. 21-2348, has introduced a new obviousness test for design patents. Companies need to understand this new test to stay competitive. But what does this obviousness test really mean, and how should you react to keep your company ahead of competitors? Today, we’ll explain the new test, its implications, and why it’s important to re-evaluate and possibly expand your design patent portfolio.

What is the New Obviousness Test?

The Federal Circuit has replaced the longstanding Rosen-Durling test with a new framework based on principles from utility patents. Previously, the Rosen-Durling test required:

The new test removes these strict requirements. It aligns design patent obviousness with the broader and more flexible standard applied to utility patents as outlined in the Supreme Court cases KSR v. Teleflex and Graham v. John Deere. This change will likely make it harder to obtain and easier to invalidate design patents.

In simpler terms, the new rules make it easier for someone to challenge a design patent and harder for inventors to get new design patents approved.

What the New Test Means for You

The new test affects both pending and existing design patents. What does this mean for your business?

Re-evaluate Existing Patents: The new obviousness test makes existing design patents more likely to be challenged. Review your current patents to identify any that might be at risk. An intellectual property attorney, patent lawyer, or patent prosecution attorney can assist in this process.

Stronger Focus on Visual Similarity: Now, the analysis starts with the closest existing designs and emphasizes overall visual appearance. It looks at the design from the viewpoint of an ordinary designer without needing a high level of similarity. Consult with a design patent attorney to ensure your designs are adequately protected.

Analogous Art Considerations: The new test includes designs from related fields that are relevant to the problem being solved. This means prior art must be from the same field or closely related to it. A patent lawyer or invention patent attorney can help you navigate these nuances.

3 Strategic Steps for Your Success

Sounds overwhelming? Start by taking a few simple steps. Here’s what you can do right now:

1. Analyze Your Existing Patents

2. File Additional Design Patent Applications

3. Leverage Your Patents

Why Re-evaluating Your Patent Strategy Matters

A strong patent portfolio is necessary for your company to protect its innovations and stay competitive. The new obviousness test highlights the need for a well-thought-out plan to manage and expand your design patents. Taking action is important! Addressing these changes proactively can protect your intellectual property and support your business growth.

Want to enhance your patent portfolio? For expert advice and support, contact us today. We can help your company with patent law issues, protect your innovations, and promote your business’s success. Let’s secure your future together! An intellectual property attorney, patent lawyer, patent prosecution attorney, invention patent attorney, or design patent attorney at our firm is ready to assist you.