The Federal Circuit is hearing oral arguments today in the design patent case of LKQ Corporation v. GM Global Technology Operations LLC 21-2348. Judge Stoll's opinion in the case sides with the patentee GM on the issue of obviousness -- affirming a PTAB decision in favor of the patentee. LKQ's appellate team led by Prof. Mark Lemley argues that Federal Circuit's obviousness standard (known here as the Rosen-Durling test) makes it too difficult to actual reject or cancel design patent claims. Lemley argues for a much more flexible and common sense approach as required by KSR. The USPTO's amicus agrees Federal Circuit law should be expanded, but not as far as suggested by LKQ. GM argues for the status quo.
According to the listing, the en banc panel today consist of Chief Judge Moore, and Circuit Court Judges Lourie, Dyk, Prost, Reyna, Taranto, Chen, Hughes, Stoll, and Stark. Not listed is Judges Cunningham and Newman.
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