As we have previously written about here, the United States Court of Appeals for the Federal Circuit (“Federal Circuit”) has granted a petition for an en banc rehearing of LKQ Corp. et al v. GM Global Technology to rule on the issue of whether the current test for determining obviousness of design patents, i.e., the Rosen/Durling Standard, is proper in view of the Supreme Court’s 2007 decision in KSR v. Teleflex, 550 U.S. 398 (2007), which significantly broadened the obviousness inquiry for utility patents beyond the classic Teaching Suggestion Motivation (“TSM”) test.  The Rosen/Durling Standard was originally set forth in In re Rosen, 673 F.2d 388 (CCPA 1982) and both upheld and further clarified by the Federal Circuit in Durling v. Spectrum Furniture Co., 101 F.3d 100 (Fed. Cir. 1996).  The Standard first requires the identification of a proper primary or Rosen reference, which is “a single reference, ‘a something in existence, the design characteristics of which are basically the same as the claimed design’” and then the modification of the primary reference with a secondary reference. Durling, 101 F.3d at 103 (quoting Rosen, 673 F.2d at 391). Continue Reading Design Patent Obviousness Inquiry Is Up for Review at the CAFC