Sarah FackrellSome more assorted thoughts on #LKQvGM:
1) The "thousands of existing design patents are now at risk!" critique is not nearly as damning as some lawyers seem to think it is. That's what happens whenever the law changes. Move on.
2) I'm equally unsympathetic to arguments that this decision will "hurt SMEs." You know what else hurts SMEs? Bad design patents.
3) On uncertainty: Yes, this decision creates uncertainty. That's what judicial decisions do. It's the nature of our system.
3a) The only way to really avoid uncertainty is to create rules that make it impossible (or nearly so) for any design claim to ever be rejected/invalidated. That may be good for applicants (and those who charge them for patent prosecution services) but it's bad for everyone else.
4) We won't be able to see how this is applied at the USPTO, except in cases where applicants overcome 103 rejections and a patent issues. That's frustrating. Yet another reason why the USPTO's non-publication rule should be changed.
5) I've been critical of how the Federal Circuit applied Rosen. But I still think the basic requirement itself was good because it focused the inquiry on the design as a whole.
See: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1926162
The problem in LKQ (as in many other cases) was that the Federal Circuit required too high a degree of visual similarity. See https://patentlyo.com/patent/2022/12/defense-rosen-references.html
6) I still don't get why some of the judges are all worked up about analogous arts. Or what the new approach really changes vis-a-vis Glavas.
7) It amuses me to see the anti-KSR vitriol this decision has inspired in some utility patent dudes.
8) One silver lining: At least the Federal Circuit didn't buy into the idea that we should just apply utility patent tests to design patent cases (because, among other reasons, we can't). See https://patentlyo.com/patent/2023/07/design-patent-exceptionalism.html
9) In case this wasn't obvious from my previous writings: The way 103 was being applied to design patents (before yesterday) was bad.
Whether LKQ will make things better remains to be seen.
11) Overall: Don't hate it.