Article · Intellectual Property
After LKQ v. GM: Design Patent Obviousness Under the Graham Framework
- Type
- Article
- Jurisdiction
- National
- Date
- 2026-05-10
- Topic
- Intellectual Property
In LKQ Corp. v. GM Global Technology Operations LLC, 102 F.4th 1280 (Fed. Cir. 2024) (en banc), the full Federal Circuit scrapped the forty-year-old Rosen-Durling test for design patent obviousness and replaced it with the flexible, four-factor Graham framework that governs utility patents. This UpLaw analysis traces the statutory and doctrinal roots of the change, dissects the new four-factor inquiry factor by factor, and explains the pivotal "sliding scale" that ties a challenger's evidentiary burden to visual distance. It maps the institutional response, from the USPTO's overnight examiner memorandum and revised MPEP 1504.03 to the PTAB's early refusal to institute post-LKQ IPR petitions and the Federal Circuit's first litigation guidance in Dynamite Marketing v. WowLine. Drawing on two years of practice through 2026, it shows why the predicted collapse of design patent protection has not arrived, identifies analogous art as the doctrine's next battleground, and offers prosecution, portfolio, and litigation strategy alongside a compliance checklist, worked hypotheticals, and an FAQ. The through-line: LKQ opened the gate to more obviousness arguments without lowering the bar for winning them.
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