The LKQ Decision--A Seismic Shift in Design Patent Obviousness Analysis

On May 21, 2024, the United States Court of Appeals for the Federal Circuit did something it had not done in more than five years: it convened its full complement of active judges to hear a case en banc. The subject was a car fender. Specifically, the ornamental design of the front fender used on the 2018-2020 Chevrolet Equinox, as claimed in U.S. Design Patent No. D797,625, owned by GM Global Technology Operations LLC. The dispute that brought this humble piece of stamped sheet metal to the attention of all the court's active judges was, on its surface, a routine patent-validity challenge. LKQ Corporation, a manufacturer of aftermarket replacement auto parts and a former GM licensee, had asked the Patent Trial and Appeal Board to cancel GM's design patent as obvious in view of prior-art fender designs. The Board, applying the test that had governed design patent obviousness for more than four decades, ruled for GM.

What happened next was anything but routine. The en banc Federal Circuit, in a majority opinion authored by Judge Stoll, declared that the Rosen-Durling test--the two-step framework that had defined design patent obviousness since the early 1980s--was "improperly rigid" and fundamentally inconsistent with the Supreme Court's instructions in KSR International Co. v. Teleflex Inc., 550 U.S. 398 (2007), and with the statutory text of 35 U.S.C. Section 103. The court overruled In re Rosen, 673 F.2d 388 (CCPA 1982), and Durling v. Spectrum Furniture Co., 101 F.3d 100 (Fed. Cir. 1996), and replaced their rigid requirements with the flexible, fact-intensive four-factor framework of Graham v. John Deere Co. of Kansas City, 383 U.S. 1 (1966)--the framework that has governed obviousness for utility patents since the Johnson administration.

LKQ Corp. v. GM Global Technology Operations LLC, 102 F.4th 1280 (Fed. Cir. 2024) (en banc), is the most significant design patent decision in a generation. It affects not only the hundreds of thousands of design patents in force in the United States, but every design patent application pending before the USPTO and every litigation strategy that deploys design patents as offensive or defensive tools. If you make smartphones, sneakers, furniture, faucets, automobiles, or graphical user interfaces, the rules for whether your design patent can survive an obviousness attack changed overnight. For patent applicants, in-house counsel, litigators, and the designers whose work the patent system is meant to protect, understanding the new framework is no longer optional--it is essential.

This article explains, in plain language, what design patent obviousness is, why the old test stood apart from the rest of patent law for forty years, exactly what the Federal Circuit changed, and--crucially--what the first two years of real-world practice (through 2026) reveal about whether the sky actually fell. The short answer, as we will see, is more interesting than the headlines suggested. If you want the broader foundation on how design patents work, pair this with our plain-English patent primer; if you want the courtroom mechanics of enforcing one, see patent litigation of design patents.

A Quick Primer: What Is a Design Patent, and What Does "Obvious" Mean?

Before we dive into the doctrine, let us anchor two terms of art in everyday language, because a judge, a seasoned patent litigator, and a curious layperson should all be able to follow what follows.

A design patent protects the way a useful product looks--its ornamental appearance--as opposed to the way it works. The statute, 35 U.S.C. Section 171, lets you patent "any new, original and ornamental design for an article of manufacture." Think of the distinctive scalloped silhouette of a particular running shoe, the rounded-rectangle face of a smartphone, or the curve of a designer chair. A utility patent, by contrast, protects function--the mechanism, the chemistry, the method, under 35 U.S.C. Section 101. The same product can carry both: a sneaker might have a utility patent on its cushioning foam and a design patent on the shape of its sole. We unpack the foundations of both in utility patent basics and the tricky overlap in our deeper treatment of concurrent design and utility protection.

Obviousness is one of the bedrock requirements for any patent. Even if an invention (or a design) is technically new--meaning no single prior product is identical to it--it cannot be patented if it would have been obvious to a person of ordinary skill in the field, looking at what already existed. The idea is that the patent system rewards genuine creative leaps, not trivial rearrangements of the already-known. For utility patents, the governing test for obviousness has been settled for sixty years, and we cover it in depth in overcoming obviousness rejections under Section 103. For design patents, the test was, until 2024, something else entirely. Understanding why--and why that separate track finally collapsed--is the heart of the LKQ story.

Part I: The Architecture of Design Patent Obviousness Before LKQ

The Constitutional and Statutory Framework

Design patent protection traces its authority to the same constitutional provision as all patent law: the Intellectual Property Clause, empowering Congress "to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries" (U.S. Const. art. I, Section 8, cl. 8). The specific statutory authority is 35 U.S.C. Section 171, which provides that "[w]hoever invents any new, original and ornamental design for an article of manufacture may obtain a patent therefor." Design patents protect ornamental appearance--how a product looks--as distinct from how it works, which is the province of utility patents under 35 U.S.C. Section 101. A design patent issued today runs for 15 years from the date of grant (35 U.S.C. Section 173), with no maintenance fees, a term that becomes strategically relevant the moment design patents look more vulnerable, as we discuss below.

The requirement that a patentable design be non-obvious comes from 35 U.S.C. Section 103--the very same provision that governs utility patents: "A patent for a claimed invention may not be obtained ... if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art." That single statute is the textual fulcrum of the entire LKQ dispute. There is, notably, no separate obviousness statute for designs. There never was.

For utility patents, the framework for applying Section 103 was established by the Supreme Court in Graham v. John Deere Co., 383 U.S. 1 (1966), which identified four factual inquiries: (1) the scope and content of the prior art; (2) the differences between the prior art and the claims at issue; (3) the level of ordinary skill in the pertinent art; and (4) so-called secondary considerations, such as commercial success, long-felt but unsolved needs, and the failure of others. These four Graham factors are the workhorses of utility-patent obviousness analysis, and any practitioner who has answered a Section 103 rejection knows them cold.

For design patents, however, the Federal Circuit had developed a different test--one that, for more than forty years, ran on a separate doctrinal track with materially more rigid requirements than the Graham framework.

The Rosen-Durling Test: Four Decades of Rigid Analysis

The Rosen-Durling test derived from two decisions. The first, In re Rosen, 673 F.2d 388 (CCPA 1982), established that a design patent obviousness analysis must begin with a single prior-art reference--a "Rosen reference" or "primary reference"--whose design characteristics are "basically the same" as the claimed design. This was a threshold gate: if no single reference could be identified that created essentially the same overall visual impression as the claimed design, the obviousness inquiry simply ended. The design was deemed non-obvious as a matter of law, no matter what combinations of other references might suggest. Imagine a defendant holding ten prior products that, together, plainly add up to the patented design--but unable to point to any one of them that, standing alone, looks "basically the same." Under Rosen, that defendant lost the obviousness argument before it began.

The second case, Durling v. Spectrum Furniture Co., 101 F.3d 100 (Fed. Cir. 1996), governed the second step. Once a qualifying primary reference was identified, secondary references could be used to bridge the gap between that primary reference and the claimed design--but only if those secondary references were "so related" to the primary reference that "features in one would suggest application of those features to the other." This requirement throttled the range of prior art that could be combined and limited the sources from which a motivation to combine could be drawn.

The Rosen-Durling test had a real virtue: predictability. Examiners and litigators knew exactly what was required, and the test's rigidity made design patents comparatively hard to invalidate on obviousness grounds. As a practical matter, obviousness rejections were uncommon in design examination, and obviousness-based invalidity challenges in litigation faced a steep bar. But the test also had critics, who argued that its inflexibility could allow design patents to issue--and be enforced--for designs an ordinary designer would have found obvious, simply because no single prior-art reference happened to be "basically the same." The test was, as the original panel concurrence put it, "precisely the type of limiting, rigid rule KSR faulted."

KSR v. Teleflex: The Gathering Storm

The tension between Rosen-Durling and the Supreme Court's 2007 decision in KSR International Co. v. Teleflex Inc., 550 U.S. 398 (2007), was apparent almost the moment KSR came down. In KSR, the Supreme Court rejected the Federal Circuit's rigid application of the "teaching, suggestion, or motivation" (TSM) test for utility-patent obviousness, holding that Section 103 and Graham "set forth an expansive and flexible approach" and that "[r]igid preventative rules that deny factfinders recourse to common sense ... are neither necessary under our case law nor consistent with it." KSR, 550 U.S. at 415, 421.

KSR did not involve design patents, and it did not mention Rosen-Durling. But its sweeping language about flexibility, its rejection of rigid rules, and its insistence that the same statutory provision--Section 103--governs all patents raised an obvious question: did KSR implicitly overrule the rigid requirements of Rosen and Durling? For more than fifteen years after KSR, the Federal Circuit decided dozens of design patent appeals without squarely answering it. It took the LKQ litigation--and LKQ's persistence in pressing the argument through a three-judge panel, a concurrence acknowledging the "substantial tension" between KSR and Rosen-Durling, and finally an en banc petition--to force a reckoning. The storm clouds had been visible for seventeen years before the rain finally came.

Part II: The LKQ Decision--Anatomy of a Doctrinal Revolution

The Facts and Procedural History

The underlying dispute was almost mundane. GM owns U.S. Design Patent No. D797,625, claiming the ornamental design of a vehicle front fender used on the 2018-2020 Chevrolet Equinox. LKQ, once a licensed manufacturer of GM replacement parts, lost its license in early 2022 when renewal negotiations collapsed. GM then informed LKQ's business partners that LKQ's replacement fenders infringed the D'625 patent. LKQ answered by filing a petition for inter partes review (IPR) at the PTAB, arguing that the D'625 patent was unpatentable as obvious in view of U.S. Design Patent No. D773,340 to Lian (a similar vehicle fender design), either alone or as modified by the front fender of a 2010 Hyundai Tucson.

The PTAB applied Rosen-Durling and concluded that the Lian reference did not qualify as a primary reference because it did not create "basically the same" overall visual impression as the D'625 patent. Because that threshold was not met, the Board never reached whether the Tucson fender could serve as a secondary reference. A three-judge Federal Circuit panel affirmed in January 2023 and declined to address LKQ's argument that KSR had implicitly overruled Rosen-Durling, citing the absence of a "clear directive from the Supreme Court."

LKQ petitioned for en banc rehearing. On June 30, 2023, the full Federal Circuit granted the petition and posed two questions for briefing: (1) Should the Rosen-Durling test be modified or eliminated in light of KSR? (2) If eliminated, what test should replace it? The case drew amicus briefs from the United States government, the American Intellectual Property Law Association, the Industrial Designers Society of America, the International Trademark Association, and many other stakeholders. Oral argument was held on February 5, 2024. The decision issued on May 21, 2024.

The Majority Opinion: Flexibility Replaces Rigidity

The en banc majority, per Judge Stoll, held that both prongs of Rosen-Durling were "improperly rigid" and inconsistent with Section 103, the Graham framework, KSR, and the Supreme Court's own design patent precedent in Smith v. Whitman Saddle Co., 148 U.S. 674 (1893)--an 1893 case about the design of a horse saddle in which the Court had applied a flexible, fact-based obviousness analysis with no requirement for a "basically the same" primary reference. There is something quietly delicious about a 2024 revolution in design patent law resting on a 131-year-old saddle case: the Federal Circuit was, in effect, telling itself that it had spent forty years applying a stricter rule than the Supreme Court ever endorsed.

The court replaced Rosen-Durling with the four-factor Graham framework, adapted for the design context.

Factor One: Scope and Content of the Prior Art. The analysis retains the concept of a "primary reference"--a starting point for the inquiry--but eliminates the requirement that the reference be "basically the same" as the claimed design. Instead, the primary reference "will likely be the closest prior art, i.e., the prior art design that is most visually similar to the claimed design." As the court observed, "the more visually similar the primary reference design is to the claimed design, the better positioned the patent challenger will be to prove its case." The court also held that prior art must be "analogous art"--drawn from the same field of endeavor as the article of manufacture of the claimed design, or potentially from related fields--but declined to "delineate the full and precise contours of the analogous art test for design patents," leaving that for future cases.

Factor Two: Differences Between the Prior Art and the Claimed Design. The comparison must focus on "the visual impression of the claimed design as a whole and not on selected individual features." This echoes the longstanding principle that design patents protect overall ornamental appearance, not isolated design elements--the same principle that animates the Egyptian Goddess, Inc. v. Swisa, Inc., 543 F.3d 665 (Fed. Cir. 2008) (en banc), "ordinary observer" infringement test discussed in our design patent litigation guide. The symmetry is worth noting: a design's overall visual impression now drives both whether it is valid (obviousness) and whether it is infringed (the ordinary observer).

Factor Three: Level of Ordinary Skill in the Art. The relevant perspective is that of "a designer of ordinary skill who designs articles of the type involved" in the relevant field. The court noted that this inquiry may incorporate the designer's experience and creativity, market demands, and industry customs--factors with weaker analogues in the utility-patent context.

Factor Four: Secondary Considerations and Motivation to Combine. When the primary reference alone does not render the design obvious, "there must be some record-supported reason (without hindsight) that an ordinary designer in the field of the article of manufacture would have modified the primary reference with the feature(s) from the secondary reference(s) to create the same overall appearance as the claimed design." The court reaffirmed that secondary considerations--commercial success, industry praise, copying--apply to designs, though it flagged that "it is unclear whether certain other factors such as long felt but unsolved needs and failure of others apply in the design patent context."

Critically, the court built a sliding scale into the doctrine: "the more different the overall appearances of the primary reference versus the secondary reference(s), the more work a patent challenger will likely need to do to establish a motivation to alter the primary prior art design in light of the secondary one and demonstrate obviousness without the aid of hindsight." In plain terms: the farther a challenger strays from a closely matching primary reference, the heavier the evidentiary load it must carry. That sentence has become the single most-quoted line of the opinion, and it is doing an enormous amount of work in the post-LKQ cases.

A short, clearly hypothetical illustration shows why this matters. Suppose a designer holds a design patent on a kitchen faucet with a high, gooseneck arc and a distinctive squared-off lever handle. A competitor wants to invalidate it. Under Rosen-Durling, the competitor needed one prior faucet that looked "basically the same"--a tall order if the patented arc-plus-handle combination had never appeared together before. Under LKQ, the competitor may instead start with the closest single faucet (say, one with the same gooseneck arc but a round knob) and then argue that an ordinary faucet designer, responding to a well-documented industry trend toward squared, minimalist hardware, would have swapped in the squared lever. The argument is now available--but the competitor still has to prove that trend with record evidence and explain, without hindsight, why this particular swap would have produced this particular overall look. The gate is open; the climb up the hill is not.

The same dynamic plays out across the industries that lean most heavily on design patents. Consider a design patent on a smartphone with a uniquely curved edge display: under Rosen-Durling, if no single reference showed a phone with a similarly curved face, the design likely cleared the obviousness gate at step one; under LKQ, a challenger might pair a conventional flat-faced smartphone (the closest reference) with a curved-display television and argue that an ordinary designer, motivated by documented ergonomic or aesthetic trends, would have applied the curve to the phone. Or take an automotive taillight that marries horizontal and vertical lighting elements in a distinctive pattern: a challenger could now start with one model's horizontal element, reach to another model's vertical element, and invoke general automotive-lighting design trends to bridge them. In each case the combination is now available where it was once foreclosed--but the challenger still bears the burden of supplying the non-hindsight motivation with record evidence, and the farther the secondary reference sits from the primary, the heavier that burden grows.

Judge Lourie's Concurrence: Tinkering, Not Demolition

Judge Lourie, the only judge to write separately, concurred in the judgment but disagreed with the majority's decision to overrule Rosen and Durling outright. In his view, the two cases "expressed the concepts adopted by the Court majority, albeit with a couple of unnecessarily strong words"--namely "basically the same" and "so related." Lourie argued the cases needed only "a bit of tinkering" to shed their rigidity, not wholesale demolition. He also questioned whether the KSR framework, developed for functional inventions, fits the fundamentally different character of designs, which "relate to considerations of appearance, which are inherently subjective." His concurrence has become a touchstone for those who suspect that LKQ, despite its revolutionary rhetoric, may produce less radical change in practice than the initial alarm suggested. As the data below shows, Lourie may have called it correctly.

Part III: The Immediate Institutional Response

The USPTO's May 22, 2024 Memorandum

The USPTO responded with remarkable speed. On May 22, 2024--the day after the decision--then-Director Kathi Vidal issued a memorandum to the Corps of Patent Examiners providing "updated guidance and examination instructions, effective immediately, on evaluating obviousness in design patent applications and design patents." The memorandum tracked the LKQ opinion closely, instructing examiners to apply the four Graham factors to designs and to abandon the rigid Rosen-Durling requirements. It directed examiners to use the appropriate Section 103 form paragraph for design applications and promised further guidance, examples, and training.

The memorandum added little substance beyond restating the opinion--a point many commentators noted. The absence of detailed guidance on the hard questions (How visually similar must a primary reference be? What counts as analogous art across design fields? How should examiners weigh a motivation to combine visual elements?) left examiners with broad discretion and applicants with real uncertainty. In early 2025, the USPTO issued revised form paragraphs for design patents, further implementing the LKQ framework in examination practice but still leaving many questions for case-by-case development. As of 2026, the agency has continued to fold LKQ into examiner training and into the Manual of Patent Examining Procedure--principally MPEP Section 1504.03, the provision governing design patent nonobviousness, which now frames the inquiry around the four Graham factors and the "designer of ordinary skill" standard--but no comprehensive examination guideline with worked design examples--comparable to the Section 101 subject-matter eligibility guidance that we discuss in our work on responding to office actions--has yet appeared.

The PTAB's First Post-LKQ Decision

The first substantive application of the new standard came on August 6, 2024, when the PTAB issued its decision in Next Step Group, Inc. v. Deckers Outdoor Corp., IPR2024-00525, Paper 16 (P.T.A.B. Aug. 6, 2024). The petitioner, Next Step Group, challenged U.S. Design Patent No. D927,161--covering the design of the UGG Classic Mini boot--on eight obviousness theories. The PTAB applied the LKQ framework, found that none of the theories was likely to prevail, and declined to institute IPR.

The decision was notable for what it revealed about the Board's posture. The PTAB criticized the petitioner for failing to "dig into the asserted prior art and the '161 patent and explain why combining or modifying the prior art" would produce the claimed design. The petitioner had asserted, in conclusory fashion, that varying shaft height and width would have been obvious, but the Board found these arguments insufficiently developed: the petition did not explain, with record support, why an ordinary designer would have been motivated to make the specific modifications needed to arrive at the claimed boot. The message was unmistakable--the new standard is more flexible in theory, but it still demands rigorous, evidence-based analysis. Conclusory cries of obviousness will not do.

Part IV: Two Years of Post-LKQ Case Law--What the Data Shows

With more than two years of post-LKQ practice behind us as of 2026, the picture is coming into focus--and the results may surprise anyone who predicted a dramatic collapse of design patent protection.

Design Patent Allowance Rates: Stability, Not Collapse

According to USPTO data tracked from the decision through 2025, the allowance rate for design patent applications has remained in the low-to-mid-eighties--essentially unchanged from pre-LKQ levels. This stability suggests that, at the examination level, the shift from Rosen-Durling to Graham has not produced the flood of new obviousness rejections that some commentators feared. Whether that reflects the inherently visual nature of design comparisons (which may resist formulaic application even under a flexible standard), examiner caution during a period of doctrinal transition, or simply the long lag time built into patent examination remains to be seen. What is clear is that, two years on, no statistical cliff has materialized.

PTAB Institution Rates: The Board Stays Skeptical

Perhaps the most striking early statistic was the PTAB's institution rate for post-LKQ design patent IPR petitions: through mid-2025, all three petitions decided on institution had been denied. See Next Step Group, Inc. v. Deckers Outdoor Corp., IPR2024-00525, Paper 16 (P.T.A.B. Aug. 6, 2024); A&A Global Imports, Inc. v. Lerman Container Corp., IPR2024-01138, Paper 7 (P.T.A.B. Jan. 22, 2025); Arashi Vision (U.S.) LLC v. GoPro, Inc., IPR2024-01434, Paper 9 (P.T.A.B. Mar. 31, 2025). That early 0% institution rate, while based on a small sample, signaled that the Board was applying the new standard with rigor and demanding the kind of detailed, evidence-based showing that casual challengers struggle to muster. Practitioners watching the docket into 2026 should treat the headline number with appropriate caution--three denials do not make a trend--but the qualitative lesson is robust and repeated: a petition that does not marshal record evidence of a non-hindsight motivation to combine will not be instituted, flexibility or no flexibility.

Federal Circuit Guidance: Primary References Still Essential

In September 2025, the Federal Circuit issued its first decision directly applying the new standard in a litigation context. In Dynamite Marketing, Inc. v. The WowLine, Inc., Nos. 2024-1523, 2024-1525 (Fed. Cir. Sept. 12, 2025) (non-precedential), the court affirmed a jury verdict holding that a design patent was not proven obvious under either the old Rosen-Durling test (which the jury had been instructed to apply at trial) or the new LKQ standard. The court held that the challenger's obviousness defense failed because "the record [did not] clearly support[] the existence of a primary reference." The challenger had apparently never moved its proposed primary reference into evidence--a threshold failure fatal under either standard. It is a useful reminder that doctrinal revolutions do not excuse blocking-and-tackling: you cannot win on a reference you never admitted.

More significantly, the court criticized the challenger's expert testimony as offering only "a general hindsight-based conclusion" rather than "clear and convincing record-supported reasons" why an ordinary designer would have been motivated to combine specific features from multiple references. The court repeated LKQ's admonition that "the more different the overall appearances of the primary reference versus the secondary reference(s), the more work a patent challenger will likely need to do." The takeaway: LKQ did not create a free-for-all. Challengers must still identify a primary reference, get it into evidence, and supply detailed, non-hindsight reasoning for any proposed modifications or combinations.

The Ongoing LKQ v. GM Saga

The parties whose dispute produced the landmark en banc decision continue to litigate in a separate but related case. In a 2025 summary judgment ruling, the district court denied cross-motions on obviousness and anticipation, finding genuine fact disputes that precluded summary judgment under the new framework. The court held that pre-LKQ obviousness precedents still offer guidance even under the more flexible standard, reasoning that LKQ made the analysis more flexible rather than more stringent--so prior case law applying the old, higher bar remains good law a fortiori. The court also rejected challenges to the patentability of component-part designs (fenders as distinct from complete vehicles), holding that a design patent is not invalid merely because it claims a component rather than a whole product--an issue of recurring importance to the automotive aftermarket and, indeed, to anyone patenting a part rather than the finished good.

Part V: The New Framework in Practice--What Has Changed and What Has Not

What Has Changed

The threshold for a primary reference is lower. Under Rosen, a primary reference had to be "basically the same" as the claimed design--a requirement that functioned as a near-anticipation standard. Under LKQ, the primary reference need only be "visually similar" and the "closest prior art." This opens room for examiners and challengers to identify starting points for obviousness analysis, especially in crowded design fields where many products share common visual themes without any single reference being essentially identical to the claimed design.

The range of combinable prior art is broader. Under Durling, secondary references had to be "so related" to the primary reference that features from one would suggest application to the other. Under LKQ, a motivation to combine can come from sources beyond the references themselves, including market demands, industry customs, design trends, and the knowledge and creativity of an ordinary designer in the field. This invites arguments that draw on the broader design ecosystem rather than limiting the inquiry to closely related products.

The Graham factors provide the governing structure. The four-factor Graham framework--scope of prior art, differences from prior art, level of ordinary skill, and secondary considerations--now governs all design patent obviousness analysis. This aligns the analytical structure for designs with that of utility patents, giving practitioners and courts a common vocabulary. If you already know how to argue a Section 103 utility-patent rejection (see our Section 103 guide), you now know the shape of the design analysis too--though the content remains stubbornly visual.

What Has Not Changed

A primary reference is still required. LKQ did not abolish the primary reference; it relaxed the threshold for what qualifies. Challengers must still identify a specific prior-art design as the starting point, get it into evidence, and explain why an ordinary designer would have used it as a baseline. Dynamite Marketing makes that vivid.

The analysis remains visual and holistic. Design patent obviousness still turns on the "overall visual impression" of the design as a whole, not on individual features dissected in isolation. This is what continues to distinguish design obviousness from utility obviousness, where the focus is on the functional contribution of claimed elements.

Hindsight is still prohibited. The requirement that a motivation to combine be "record-supported" and free of hindsight bias remains the central safeguard. Conclusory assertions that an ordinary designer "would have" combined elements are insufficient; the record must explain why, based on non-hindsight factors, the combination would have been obvious at the time of creation.

Secondary considerations remain relevant. Evidence of commercial success, industry praise, copying by competitors, and other objective indicia of non-obviousness continue to serve as a check against improper hindsight reconstruction. Under the more flexible LKQ standard, these factors may assume even greater importance as the primary guardrail against over-aggressive obviousness attacks.

Part VI: Strategic Implications Across the Design Patent Ecosystem

For Patent Applicants and Portfolio Managers

LKQ demands a recalibration of design patent prosecution strategy. Applicants should conduct broader prior-art searches before filing, considering designs from related fields that might now be deemed analogous. Where a search once focused narrowly on the specific product category, the new standard may warrant extending into adjacent design spaces--for example, an applicant seeking a design patent on a smartwatch face might now consider prior art from automotive dashboard displays, consumer-electronics interfaces, and even architectural clock designs. The borders of "analogous art" are precisely where the next decade of litigation will be fought.

Applicants should also consider filing multiple design patent applications with varying claim scopes--broad and narrow, covering different aspects of the same design--to hedge against obviousness challenges. Because a design patent's "claim" is defined by what its figures show, and broken (unclaimed) lines can disclaim environment to broaden or narrow scope, applicants have a powerful and underused dial here. Documenting the design process in detail, including the specific creative decisions, dead ends, and iterations that produced the final design, builds a record that can support non-obviousness by demonstrating the design was not a straightforward mash-up of known elements.

Perhaps most importantly, applicants should begin collecting and preserving evidence of secondary considerations from the outset. Sales data attributable to the ornamental design (as distinct from functional features), industry awards and media coverage of the design, evidence of competitor copying, and documentation of long development cycles can all support non-obviousness under the new framework. Building those habits early is far cheaper than reconstructing the record under litigation deadline pressure.

For In-House Counsel and IP Portfolio Owners

In-house counsel should audit existing design patent portfolios to flag patents newly vulnerable under LKQ--particularly those in crowded design fields where multiple references share visual elements with the claimed design. For these, it may be worth developing defensive strategies preemptively: assembling secondary-considerations evidence, preparing claim-construction arguments that emphasize the distinctive overall visual impression, and considering supplemental filings (continuation applications, trade dress registrations, or even copyright registrations for qualifying sculptural works) to create layered protection that does not hinge solely on the design patent. Our comparison of design patents versus trade dress is a good starting point for that layering analysis.

Conversely, in-house counsel defending against design patent assertions should evaluate whether LKQ opens new invalidity arguments that were foreclosed under Rosen-Durling. The relaxed primary-reference standard and broader prior-art landscape may support obviousness defenses that were not viable before May 2024--potentially shifting leverage in licensing negotiations and settlement discussions. Those same defensive instincts matter when policing a portfolio for inequitable conduct exposure, because a broadened analogous-art universe also broadens what should have been disclosed to the examiner.

For Litigators

LKQ creates both opportunities and challenges in design patent litigation. For defendants, the more flexible standard opens new avenues for invalidity challenges, whether through IPR petitions at the PTAB (though the early 0% institution rate cautions that the Board is not rubber-stamping anything) or through invalidity defenses in district court. Expert testimony is now even more critical: experts must opine on the perspective of an ordinary designer, the motivation to combine prior-art elements, the overall visual impression of the competing designs, and the relevance of analogous art from related fields. For the broader playbook on litigating these patents--claim construction from the figures, the Egyptian Goddess ordinary-observer infringement test, and Section 289 total-profit damages (which let a successful design patent owner recover the infringer's entire profit on the article)--see our dedicated guide on design patent litigation and our comprehensive patent infringement litigation guide.

For plaintiffs, the increased vulnerability of design patents to obviousness attacks means pre-filing diligence must be more thorough. Before asserting a design patent, counsel should stress-test validity under the new standard by running a comprehensive prior-art search under the broadened LKQ framework and preparing responses to the most likely obviousness theories a defendant might raise. The stakes are high precisely because the upside--total-profit recovery under Section 289--is so large; a design patent that crumbles on obviousness takes a powerful damages remedy down with it.

Jury instructions will need revision to reflect Graham as applied to designs. Dynamite Marketing offers early guidance, but the precise contours of jury instructions under the new standard remain a work in progress. At least one district court declined to grant a new trial when LKQ issued shortly after a substantial verdict, reasoning that the decision was not "so disruptive as to consider the jury instructions in this case a miscarriage of justice"--a signal that courts may treat the change as more incremental than the early commentary suggested.

For Designers and Design Teams

For the industrial, graphic, and product designers and the engineers whose work sits at the center of the design patent system, LKQ reinforces the value of original, creative design that goes beyond the routine recombination of known elements. Designs reflecting genuinely innovative aesthetic choices--especially choices that respond to identified problems, break from industry conventions, or produce commercially distinctive products--are most likely to satisfy the non-obviousness requirement under the new standard.

Design teams should also recognize that the documentation they create during the design process may become legally significant evidence. Sketches, mood boards, design briefs, iteration logs, focus-group feedback, and correspondence explaining why certain choices were made (or rejected) can support non-obviousness by demonstrating the creative leap from prior art to the claimed design. In a real sense, LKQ turned the design studio's ordinary paper trail into latent litigation evidence--for better or worse.

Part VII: The Intersection with Alternative Design Protection

LKQ does not exist in a vacuum. Design protection in the United States has always involved a portfolio of overlapping intellectual property rights, and the potential weakening of one form naturally raises the strategic importance of the others. The fully layered approach--design patent plus trade dress plus copyright plus utility patent plus trade secret--has never looked more attractive.

Trade dress under the Lanham Act, 15 U.S.C. Section 1125(a), protects the overall commercial image or "look and feel" of a product that serves as a source identifier. Unlike design patents, trade dress requires proof of distinctiveness--and, for product configuration specifically, distinctiveness can never be inherent; it must be acquired through secondary meaning under Wal-Mart Stores, Inc. v. Samara Bros., 529 U.S. 205 (2000). Trade dress is not subject to an obviousness analysis at all, but it carries its own gatekeeper: functional features cannot be protected (TrafFix Devices, Inc. v. Marketing Displays, Inc., 532 U.S. 23 (2001)). For product designs with established market recognition, trademark registration or common-law trade dress may provide a more durable complement to--or, in some cases, a substitute for--design patent coverage. We compare the two regimes head-to-head in design patents versus trade dress and explore the functionality bar that polices both in the evolution of design patent functionality.

Copyright may protect certain pictorial, graphic, and sculptural features of useful articles if those features are "separable" from the utilitarian aspects of the article--a test refined by the Supreme Court in Star Athletica, L.L.C. v. Varsity Brands, Inc., 580 U.S. 405 (2017). For products with distinctive ornamental features meeting this separability standard, copyright offers an alternative or supplemental layer with a far longer term (life of the author plus 70 years, versus 15 years for a design patent) and no novelty or non-obviousness requirement whatsoever.

Utility patents protect the functional aspects of a design--how it works, not how it looks. Where a product incorporates both ornamental and functional innovations, a utility patent directed to the functional aspects provides protection that is immune to the design patent obviousness analysis entirely. The overlap, and the double-patenting traps that come with it, are the subject of our guide on the intersection of design and utility patents; for the fundamentals of that functional cousin, see utility patent basics.

Trade secrets under the Defend Trade Secrets Act, 18 U.S.C. Section 1836, and state analogs can protect proprietary design processes, manufacturing techniques, and internal design data that confer a competitive edge. While trade secret protection does not prevent independent creation, it can deter and remedy misappropriation by competitors, employees, or former licensees.

Part VIII: The Road Ahead--Open Questions and Emerging Trends

LKQ explicitly left several important questions for future development, and the first two years of post-decision practice have not resolved most of them.

Analogous art across design fields. The court declined to define the "full and precise contours" of the analogous art test for designs. How broadly may examiners and challengers reach? Can a clasp from jewelry serve as prior art for a handbag closure? Can an automotive dashboard element be analogous to a smartphone interface? The answers will develop case by case, but analogous-art determinations are likely to be the single most actively litigated aspect of post-LKQ practice. Expect the field-of-endeavor and reasonably-pertinent inquiries familiar from utility law (and discussed in our Section 103 guide) to be reworked for the visual context.

Motivation to combine in the visual context. For utility patents, motivation often stems from functional advantage--solving a technical problem more efficiently. For designs, where the subject matter is inherently aesthetic, what counts as a non-hindsight "reason" to combine visual elements? Market demands, design trends, consumer preferences, manufacturing constraints that shape form--all have been floated as potential sources, but no court has yet built a detailed framework.

Secondary considerations unique to designs. The LKQ court flagged uncertainty over whether "long felt but unsolved needs" and "failure of others" apply where needs are aesthetic rather than functional. This doctrinal gap will need filling, particularly as secondary considerations may carry greater weight as a counterweight to the relaxed primary-reference standard.

International divergence. The U.S. design patent obviousness analysis is unusual; many jurisdictions apply no obviousness or inventive-step requirement to design protection at all, relying instead on novelty and individual-character assessments. The LKQ shift may widen the gap between U.S. practice and that of the European Union (which examines registered Community designs for novelty and individual character under the EU Community Designs framework), the Hague Agreement countries (under which U.S. applicants increasingly file), and major Asian jurisdictions. Companies with global design portfolios will need to calibrate strategies for divergent substantive standards, and renewed calls for harmonization would not be surprising.

The potential for AI-generated designs. As artificial intelligence tools grow ever more capable of generating product designs, the intersection of LKQ's flexible standard with AI-generated inventions raises genuinely novel questions. If an AI can spin out thousands of design variations by recombining known elements, does that capability expand the universe of what an "ordinary designer" would have found obvious? The USPTO's 2024 Inventorship Guidance for AI-Assisted Inventions begins to address the inventorship side, but the obviousness implications--whether an ordinary designer is now presumed to wield generative tools--remain largely unexplored, and could become the most consequential LKQ sequel of all.

Part IX: Practical Compliance Checklist

For organizations navigating the post-LKQ landscape, the following checklist offers a structured approach to adapting design protection strategies.

Pre-Filing Due Diligence

• Conduct prior-art searches beyond the specific product category, extending to related design fields and analogous articles of manufacture.
• Evaluate the closest prior art under the relaxed "visually similar" standard rather than the former "basically the same" threshold.
• Document the design process, including creative decisions, iterations, and the rationale for specific aesthetic choices.
• Begin collecting secondary-considerations evidence (sales data, industry recognition, evidence of copying) before filing.

Patent Prosecution Strategy

• Consider filing multiple design patent applications with varying claim scopes (broad/narrow, different design aspects), using broken lines to calibrate what is claimed.
• Prepare for Graham-factor obviousness rejections by developing non-obviousness arguments rooted in the overall visual impression, not individual features.
• Select application titles strategically to define the field of endeavor and influence analogous-art determinations.
• Be ready to argue that proposed prior-art combinations would not produce the same overall visual impression as the claimed design.

Portfolio Management

• Audit existing design patent portfolios to identify patents potentially vulnerable under the new standard.
• Develop layered IP strategies combining design patents with trade dress, copyright, trade secret, and utility patent protection.
• Establish procedures for preserving secondary-considerations evidence on an ongoing basis.
• Reevaluate the relative weight of design patents versus other IP forms in licensing and enforcement strategies.

Litigation Preparedness

• Stress-test design patents under the LKQ framework before asserting them.
• Prepare expert testimony addressing all four Graham factors as applied to the specific design field.
• Develop jury-instruction proposals that accurately reflect the LKQ standard.
• Monitor developing case law, particularly Federal Circuit decisions refining the analogous-art and motivation-to-combine analyses.

Frequently Asked Questions

1. In one sentence, what did the LKQ decision actually change?

It scrapped the rigid, forty-year-old Rosen-Durling two-step test for judging whether a design patent is obvious and replaced it with the same flexible, four-factor Graham framework that has long governed utility patents--meaning a challenger no longer needs a single prior-art design that is "basically the same" as the patented design to even start an obviousness argument.

2. Does LKQ make my existing design patents weaker?

Possibly, but the early evidence suggests the effect is modest. Patents in crowded design fields--where many products share visual themes--are the most exposed, because challengers now have an easier time identifying a primary reference. But through 2026, allowance rates have held steady, the PTAB declined to institute the first post-LKQ IPR petitions, and the Federal Circuit reaffirmed that challengers still must identify a primary reference and supply non-hindsight reasons to combine. Audit crowded-field patents and shore them up with secondary-considerations evidence and layered protection, but do not panic.

3. Do I still need a "primary reference" to invalidate a design patent?

Yes. LKQ relaxed the threshold for what qualifies as a primary reference (now the "closest" and "most visually similar" prior art, rather than one that is "basically the same"), but it did not eliminate the requirement. As Dynamite Marketing v. WowLine (Fed. Cir. 2025) shows, a challenger who fails to identify--and actually admit into evidence--a primary reference will lose under either the old or the new standard.

4. What is "analogous art" and why does everyone keep mentioning it?

Prior art only counts against a patent if it is "analogous"--roughly, from the same field or a related, reasonably pertinent one. LKQ held that design prior art must be analogous but pointedly declined to define how far afield a challenger may reach. Because the borders are undefined, analogous-art fights (Can a jewelry clasp be prior art for a handbag closure? Can a dashboard display be prior art for a smartwatch face?) are expected to be the most heavily litigated part of post-LKQ practice.

5. How is design patent obviousness different from utility patent obviousness now?

They share the same statute (Section 103) and now the same four-factor Graham structure, but the substance differs. Design obviousness turns on the overall visual impression of the design as a whole--an aesthetic, holistic judgment--whereas utility obviousness turns on the functional contribution of claimed elements. A motivation to combine in the utility world usually means a functional advantage; in the design world it may mean market trends, consumer preference, or industry custom. For the utility analysis, see our Section 103 guide.

6. If design patents are now riskier, what should I use instead--or in addition?

Layer your protection. Trade dress (no obviousness requirement; protects market recognition), copyright (for separable sculptural features, with a life-plus-70 term), utility patents (for the functional aspects, immune to design obviousness), and trade secrets (for the design process itself) each cover a different slice of a product. The smart post-LKQ move is a portfolio, not a single patent. Start with our comparison of design patents versus trade dress and our guide to concurrent design and utility protection.

7. Does LKQ change how I prosecute a new design application?

Yes, at the margins. Search prior art more broadly (into analogous fields), document the creative process to rebut hindsight, consider filing multiple applications with different claim scopes, choose your title carefully to frame the field of endeavor, and start banking secondary-considerations evidence (sales, awards, copying) from day one. Our guide on responding to office actions covers the mechanics of answering the Graham-based rejections you may now see.

8. Is the law settled now, or is more change coming?

Far from settled. LKQ expressly left open the contours of analogous art, what counts as a non-hindsight motivation to combine visual elements, and whether certain secondary considerations apply to aesthetic designs at all. Add the looming question of AI-generated designs, and it is fair to say the law of design patent obviousness is being written in real time, one case at a time, throughout 2026 and beyond.

Conclusion and Key Takeaways

The LKQ decision is, by any measure, a landmark. By overruling forty years of precedent and aligning design patent obviousness with the Graham/KSR framework that governs utility patents, the Federal Circuit injected genuine doctrinal change into a corner of patent law that had operated under a separate, more rigid regime since the early 1980s. The court acknowledged that "there may be some degree of uncertainty for at least a brief period" but maintained that the change was "compelled by both the statute and Supreme Court precedent."

Yet the first two years of data offer a measured counterpoint to the more dramatic predictions. Design patent allowance rates have remained stable. The PTAB declined to institute the first post-LKQ IPR petitions. The Federal Circuit's first substantive application of the new standard reaffirmed that primary references remain essential and that hindsight-based, conclusory arguments will not survive scrutiny. District courts have treated the change as evolutionary rather than revolutionary--one even declining to disturb a substantial verdict over jury instructions based on the old standard. Judge Lourie's prediction that this was tinkering rather than demolition is, so far, holding up.

This does not make LKQ inconsequential. The relaxed primary-reference threshold and broader prior-art landscape create real opportunities for more aggressive obviousness challenges, especially in crowded design fields. The open questions--analogous art, motivation to combine, secondary considerations unique to design, and the AI overhang--will be battlegrounds for years. And the decision has already nudged sophisticated owners toward layered IP strategies that pair design patents with trade dress, copyright, utility patents, and trade secrets.

For practitioners and businesses navigating this evolving terrain, a "wait-and-see" posture that avoids overreaction while staying alert to incremental developments remains the wisest counsel. The law of design patent obviousness is being written in real time, one case at a time. Those who follow it closely--and adapt their strategies accordingly--will be best positioned to protect the designs that drive their businesses forward.

Primary Authorities and Further Reading

Key authorities:

• LKQ Corp. v. GM Global Technology Operations LLC, 102 F.4th 1280 (Fed. Cir. 2024) (en banc)
• KSR International Co. v. Teleflex Inc., 550 U.S. 398 (2007)
• Graham v. John Deere Co., 383 U.S. 1 (1966)
• Smith v. Whitman Saddle Co., 148 U.S. 674 (1893)
• In re Rosen, 673 F.2d 388 (CCPA 1982)
• Durling v. Spectrum Furniture Co., 101 F.3d 100 (Fed. Cir. 1996)
• 35 U.S.C. Sections 103, 171, 173 (conditions for patentability and design patents)
• Manual of Patent Examining Procedure (MPEP) Section 1504.03 (design patent nonobviousness)

Selected scholarship: Readers seeking deeper academic grounding in the recurring doctrinal puzzles of design patent law--what counts as the relevant "article of manufacture," where the point of novelty lies, and how designs map onto the prior-art landscape--will find these foundational treatments useful: Sarah Burstein, The "Article of Manufacture" Today, 31 Harv. J.L. & Tech. 781 (2018); Mark A. Lemley, Point of Novelty, 105 Nw. U. L. Rev. 1253 (2011); and Jason J. Du Mont & Mark D. Janis, Virtual Designs, 17 Stan. Tech. L. Rev. 107 (2013).

Related Articles

• Patent Basics--A Plain-English Guide
• Utility Patent Basics
• Patent Litigation--Design Patents
• Design Patents vs. Trade Dress Protection for Product Configurations
• The Evolution of Design Patent Functionality--Clarifying the Muddle
• The Intersection of Design and Utility Patents--Concurrent Protection and Double Patenting
• Overcoming Obviousness Rejections--A Comprehensive Guide to Section 103 Analysis
• Responding to Patent Office Actions--Strategies for Overcoming Rejections
• Comprehensive Guide to Patent Infringement Litigation
• Finding Evidence of Inequitable Conduct in Patent Prosecution
• AI-Generated Inventions--Who Owns What the Machine Creates

This article is for general informational purposes only and does not constitute legal advice. For guidance on specific design patent, IP strategy, prosecution, or litigation matters, please consult qualified counsel.