Here is an update on recent en banc activity at the Federal Circuit in patent cases. Highlights include the filing of an opening en banc brief in an en banc case reconsidering the longstanding test governing design patent obviousness and the denial of a petition raising questions related to obviousness.
En Banc Case
In the only pending en banc case, a patent case addressing design obviousness, LKQ Corporation v. GM Global Technology Operations LLC, LKQ filed its en banc brief. In it, LKQ argues the Federal Circuit should “find that the appropriate test for design patent obviousness is the expansive and flexible approach prescribed by Graham and refined by KSR, applied in the manner that approach was intended to be applied: that is, to determine whether, in light of the facts and evidence, a person having ordinary skill in the art would have found the claimed design obvious.” LKQ, moreover, argues the court “should find that the principle of KSR, rejection of rigid limitations on the obviousness inquiry, leads to the conclusion that the Rosen-Durling test should be eliminated because it is even more rigid than the TSM test that KSR overruled.”
The Federal Circuit denied the petition for rehearing en banc in Yita LLC v. MacNeil IP LLC, which raised questions related to obviousness.