[Article / US Designs] New obviousness standards for US design patents (Masato Sasaki, Patent, June 2025)
Updated: 3 hours ago
Article information
Article type: Publication review
Categories: United States
Main topics: Inventive step
First published on this website: October 1, 2026
Display and classification checked: October 1, 2026 (not a revalidation of the legal analysis)
[Article / US Designs] New obviousness standards for US design patents (Masato Sasaki, Patent, June 2025)
The CAFC en banc judgment of May 21, 2024 (LKQ) abolished the Rosen–Durling test, used to assess US design-patent obviousness for over 40 years.
⇒ Design patents will now be subject to the four factual inquiries (Graham factors), as utility patents are.
1. Previous standards: The end of the Rosen–Durling test
The US previously assessed whether a design was obvious through two strict stages.
① Stage 1 (selecting the primary reference): One primary reference (Rosen reference) with design characteristics basically the same as the claimed design was required.
② Stage 2 (applying secondary references): A secondary reference had to be so related to the primary reference that applying one reference's features to the other was suggested.
This two-stage test was extremely strict compared with utility-patent obviousness standards, and invalidating a US design patent was considered difficult.
2. Changes under the LKQ en banc judgment
The CAFC en banc held that the test did not accord with the flexible approach indicated by Supreme Court precedents, including KSR, and abolished it.
Design patents will now be subject to the four factual inquiries (Graham factors) under the Supreme Court's Graham judgment, as utility patents are.
<Four elements of the new approach>
① Determine the scope and content of prior art: The primary reference need not be basically the same; a visually similar existing thing suffices.
② Determine differences between the claimed design and prior art: Compare visual appearances from an ordinary designer's perspective.
③ Identify the level of ordinary skill: Consider the knowledge of a designer with ordinary skill in designing the article concerned.
④ Evaluate secondary considerations: Consider objective evidence such as commercial success, industry praise and copying by others.
Original article: https://lnkd.in/g69ma2W3
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Substantive corrections and additions are recorded separately from classification, related links and display changes.
October 1, 2026: First publication of the author's original LinkedIn text on this website. Article type, categories, topic tags, sources and consultation navigation added.
2026-10-01 | Display maintenance: added case references stated in the original or language-alternate metadata; not a revalidation of legal analysis.
2026-10-01 | Name notation: replaced verified Japanese-script personal names with Roman-letter forms in this English article and its navigation. Legal analysis and original publication date unchanged.
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