This article discusses the U.S. Court of Appeals for the Federal Circuit’s decision to apply the flexible KSR standard for assessing obviousness to design patents, overturning the previous Rosen-Durling test. This decision may result in inconsistencies in lower court and PTO rulings. Attorneys anticipate years of uncertainty as patent owners and courts navigate the implications of this decision, suggesting that patent holders adopt strategies similar to those used for utility patents and remain vigilant as the law evolves. The U.S. Patent and Trademark Office has issued initial guidance on the new standard, but further clarification and understanding are expected to develop over time.

Sterne Kessler Director, Deirdre Wells comments, “Because there are fewer design patents issued and litigated than utility patents, design patent law typically develops at a slower pace than utility patent law.” She continues, “We likely will not have a full understanding of the new analysis for many years to come.”

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