Here is a report on recent news and commentary related to the Federal Circuit and its cases. Today’s report highlights:
- two blog posts discussing the Federal Circuit’s recent grant of a petition for rehearing en banc in a design patent case addressing obviousness; and
- an article noting takeaways from a recent Federal Circuit opinion addressing how “the U.S. Patent Trial and Appeal Board need not consider evidence submitted via incorporation by reference.”
Eileen McDermott wrote a blog post for IPWatchdog discussing the Federal Circuit’s recent grant of a petition for rehearing en banc in LKQ Corporation v. GM Global Technology Operations LLC, a design patent case addressing obviousness. She highlights how Chris Carani of McAndrews Held & Malloy stated this case “is only the second time that the en banc Federal Circuit has taken on a design patent case.” She notes that he further said “the en banc Federal Circuit realizes that reworking this area of the law is not as simple as striking down the currently employed test or applying the Supreme Court’s KSR test.” He is further quoted explaining that if the court “makes a change,” it “has signaled that it needs a viable alternative test to put in its place that avoids the concerns of a rigid rule, while taking into account the peculiar aspects of design patents.”
Dennis Crouch wrote a blog post for PatentlyO also highlighting the recent developments in LKQ Corporation v. GM Global Technology Operations LLC. He remarks that the “crux of the issue” with design patent law “lies in the manner” in which “patent law decisions are typically written.” He notes that “[m]ost of precedential patent decisions are penned with a strong focus on utility patent doctrine, yet, surprisingly, the same patent doctrines of novelty, obviousness, definiteness, enablement, and written description are also applicable in the realm of design patents.”
Karen Selvaggio and Paul Stewart authored an article for Law360 about takeaways from a recent Federal Circuit opinion addressing how “the U.S. Patent Trial and Appeal Board need not consider evidence submitted via incorporation by reference.” They discuss how the Federal Circuit “makes clear that a judge is not required to scale a mountain of evidence without a map” and that, “[a]ccordingly, litigators should resist the temptation to bypass page limits by incorporating lengthy declarations or shortcut brief writing with broad citations to the record.” They also remark that “litigators in receipt of briefs devoid of pin cites or overly reliant on incorporating lengthy declarations or exhibits should consider challenging these arguments as failing to meet the requisite burden of proof.”