Livestream of LKQ v. GM

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.  

Livestream below:

Lemley: Court cannot look at a reference unless it is “basically the same.”  Rather, the “analogous arts” test is the appropriate limit.

Judge Moore: What is the standard for analogous arts in the design patent case?  None of the briefs addressed what standard we should use.

Lemley: One way to address this is to recognize that “designers are setting out to solve design problems.”

Judge Stoll: But, is the designer trying to solve a problem with an “ornamental” design?

Lemley: The problems might be to “make the car look sporty” or to “sell product.”

Judge: Isn’t it a bit of an awkward fit to adopt wholesale obviousness doctrine, such as “reasonable expectation of success?”

Lemley: We are not arguing that all aspects of KSR must be applied, but the principle behind KSR that broadly looks for reasons why someone of skilled in the art should be applied here without the strict limits of the Federal Circuit’s prior precedent.

Lemley: We are almost entirely in agreement with the PTO, except that they are more concerned with ensuring that the the examination is administrable.  “The solution is not a rigid rule” especially one that

Judge Reyna: What is your problem with Rosen-Durling?

Lemley: The test is a problem. It does not allow us to look to the views and knowledge of one of ordinary skill in the art in the flexible way required by KSR.  Further, the “so related” requirement prohibits consideration of additional factors outside of the art that would motivate an ordinary designer.

Judge Chen: Does the simple substitution analysis from KSR apply to design patents? If so, doesn’t that kill most of design patents because we don’t have the functional relationship.

Lemley: That is right, and so we should require some reason to combine in the design context.  It will depend upon the circumstances.  Lemley pointed to Whitman Saddle — in that case the Supreme Court looked to the fact that saddle designers were in the habit of mixing and matching parts of saddles in order to provide different styles.

Judge Stoll: I’m hung-up on the “problem” for analogous arts — for utility patents that is usually a technical problem. How does that apply to designs?

Lemley: KSR suggest that the the analogous art test beyond technical details. (Although KSR did not expand the test).

Judge Moore: It seems like there are very many areas here that don’t flow easily from utility to design patents.

Lemley: The analogous art test fits “not terribly poorly.”

Judge Moore: Should the field of endeavor be beyond the claimed subject (such as vehicle fender).  Would it be fine for us to say “analogous arts” is left to another day to determine?

Lemley: Yes, this case can address Rosen and Durling — eliminating those.

Judge Stoll: Is the “so related” test effectively the analogous arts test?

Lemley: If so, it is entirely too narrow.

Where to start with the design patent analysis:

Lemley: An ordinary designer may often start with a single reference, but the court should leave open the potential for alternative approaches.  We want to make sure it isn’t simply “Rosen under another name.”

Judge Stoll: Did Whitman Saddle have a primary reference?

Lemley: Maybe? We want to make sure that any test that comes from the court would

Judge ___: Would you object to an opinion that states that a Rosen-reference is a powerful tool, even though not necessarily required. We would also usually expect that a primary reference would be from the same article of manufacture and have a substantially similar visual appearance.  Further, a visually dissimilar seems unlikely to be a 103 primary reference.

Lemley: Yes, Rosen will likely continue to be a powerful mechanism for proving obviousness.

Judge ____: I’m not aware of any historical case where the primary reference comes from a different area of manufacture.

Lemley: We are OK with this as the norm, but it should not be strictly limited.  And the court’s language should be open enough to ensure that we don’t have re-ossification of the law.

Judge Reyna: Is this an industry specific case. And isn’t there a risk of fashioning a new test here?

Lemley: This is exactly why the law should be flexible that allows for factual inquiry to apply in any particular case — this allows for automotive designers to operate differently than designers in other fields. . . . And it is not going to percolate any further.

Judge Reyna: If there is no percolation, there is no problem.

Lemley: I entirely disagree. It is ossified, and the result is that only 2% of design patent applications receive an obviousness rejection.

= = =

Judge Moore: What is your proposed test:

USPTO Solicitor Farheena Rasheed: Apply KSR, apply an analogous arts test (mere similarities between the references), but we’re OK with keeping Rosen-Durling.

Judge Moore: This makes no sense.

Solicitor Rasheed: We would require an overall similar visual impression, as a potential starting point. But, that should not be a strict requirement. The basic insight is to recognize from KSR that there may be rare circumstances that don’t meet the primary reference requirement.  But, we’ll probably presume that it won’t be obvious.

Judge Prost: How does your test differ from LKQ?

Solicitor Rasheed: We think it is important for examiners to be able to start with a primary reference, and don’t want to rely upon expert testimony for examiners to know where to start.

Judge: What is your view of what the analogous arts should allow in the design patent context?

Solicitor Rasheed: It depends upon the context, but we should look to similar references.

Judge Hughes: What about the reality that furniture manufactures look to architecture for inspiration?

Solicitor Rasheed: That could be analogous, using the nature of the art and the claimed design.

Judge Hughes: How is the examiner supposed to know whether to look to another area of manufacture?

Solicitor Rasheed: One way is to look for at the claim — if it is a “wicker basked used as a lampshade” then that is good indication to look to both.  If the claim is a chair, then examiner should look to furniture broadly.

Solicitor Rasheed: We ask the court to soften Rosen and Durling and then remand for reconsideration.

Solicitor Rasheed: There is something very special about designs that if the closest reference does not give the same overall visual appearance then it is probably not obvious.  But, the PTO believes that even in that situation the law should permit a broader consideration of the art before finally concluding that it is non-obvious.

Judge Reyna: Has the PTO Considered the impact of AI, and whether it turns the two-step process of obviousness into a 1-step test.

Solicitor Rasheed: We are studying that issue carefully, but I don’t have an answer regarding designs.

Judge Reyna: Has the PTO Considered the impact of AI, and whether it turns the two-step process of obviousness into a 1-step test.

Judge ___: Is it true that only about 1-2 percent of design patent applications receive an obviousness rejection?

Solicitor Rasheed: Our most recent data shows that it is about 4%.

= = =

Joe Herriges (arguing for GM): KSR did not overrule Rosen-Durling.

Judge ___: How is Rosen-Durling (basically the same) different than the anticipation standard (substantially the same)?

Herriges: There are a number of differences. Anticipation relies upon the ordinary observer, rather than ordinary designer; anticipation requires deception that is a higher standard; anticipation must be the same article of manufacture.

Judge ___: A Rosen reference doesn’t have to be the same article of manufacture.

Herriges: Yes, in “some universe.” (apparently meaning that in some situations in our universe).

Judge Prost: How do you see Whitman saddle?

Herriges: This is from the 19th century. A fact finder could have identified either of the references used in that case could have been a primary reference?

Judge ___: Is a Rosen reference a requirement?

Herriges: There may be a case where a patent challenger can show obviousness outside of Rosen, but we have not seen such an example ever articulated.  The way to provide an offroad would be to permit a later court to depart from Rosen if those facts ever arise.

Judge ____: Does analogous arts test play a role?

Herriges: The Rosen test likely subsumes the test, and is ‘baked into” the Durling test.

Judge ___: What is the problem with a flexible analysis in terms of what art to consider?

Herriges: First, the law is more flexible than LKQ allows.

Judge ___: What would you have us say about claim construction?

Herriges: We need to look at the overall visual impression, and anyone challenging a design patent as obvious needs to expressly address the differences between the invention and the prior art references.

Judges spent some amount of time arguing about the difference between ordinary observer test for anticipation and infringement compared with the ordinary designer test for obviousness.

Herriges: Differences with the USPTO — it is not clear if the USPTO is actually wanting to loosen the standard or rather to simply provide a semantic offramp. Either way is problematic.

Herriges: Often a design patent will be part of a large patent family that focuses on different aspects of the same invention. This fact helps explain the high allowance rate.  Design patents are generally being used to narrowly prevent knock-offs.

Judge ___: Is there a key source for the “basically the same” requirement?

Herriges: Jennings required a starting point and then Rosen added the details. It has been further refined over the past 40 years.  Like any test in a vacuum it may be difficult to understand, but we have 40 years of precedent that has worked.

= = = =

Lemley: We are in good agreement with the Gov’t brief, but not in full agreement with the Solicitor’s oral arguments that were too narrow.

 

 

 

 

 

73 thoughts on “Livestream of LKQ v. GM

  1. 9

    Someone below asked a good question as to why the “repair versus reconstruction” doctrine does not allow purchasing and using repair parts from anyone even if the part itself is design patented.
    This is the best answer I could quickly find: “In Auto. Body Parts Ass’n v. Ford Globe. Techs., LLC, 930 F.3d 1314 (Fed. Cir. 2019), the court held that the exhaustion only applied to the original product being sold and does not extend to its reconstruction if the part being reconstruction was patent protected. This patent protection could be either a utility or design patented part.”

    1. 9.1

      Please Pardon Potential re(P)eat S

      Your comment[S are] is awaiting moderation.

      February 12, 2024 at 7:54 am
      February 12, 2024 at 7:52 am

      The easier rationale is that one had dominion over what has been exhausted (a prior purchase).

      Separate items – having each their own protection – does not render those protections inert for items not exhausted.

  2. 8

    Given that ANY attempt to fit Design into Utility aspects is necessarily an exercise in Charley Foxtrot, Lemley’s back and forth is a complete FLUB.

  3. 7

    Unless someone is using 3rd party repair parts to build a *new* car doesn’t the end user (car owner) have the right to use that shape on their existing car?

    Whatever happened to the “Right to Repair” laws they were talking about enacting?

    Oh, that requires a Congress that actually does useful and necessary things.

    1. 7.1

      NOIP,

      Do you really think that “useful and necessary” describes that attempt to carve out that “But we want to make money so let’s stop protection under the law” position?

      Think beyond the surface level my friend.

  4. 6

    Have car fenders been litigated at the CAFC?

    It seems entirely reasonable to treat the fender itself as the article of manufacture.

    Sheet metal stampers who make aftermarket fenders don’t make automobiles, so why should automobiles be the article of manufacture at issue? Should examiners have discretion to identify the article of manufacture, or should that right belong only to the patentee?

    The shape of a fender is functional mechanically, aerodynamically, and for purposes of manufacture. If a fender is ornamental, what of paint, louvers, ports, slots, etc. ? Are those ornaments applied to ornaments?

    If a purpose of design patents is to bridge until trademark / dress is perfected, should the patent expire when that occurs?

    This seems a very strange area of law; reasonable people can’t even decide if it should exist, what the law is, or how it should be applied.

    1. 6.1

      The design patent must identify the item to which ornamentation is applied – no “designs in the abstract.”

      You seriously did not know that?

      1. 6.1.1

        Yes, and also apparently difficult as for some others to understand is that a design patent is obtainable on just the shape [just its curves, or whatever] of an article of manufacture, or parts of it. That shape is the ornamental design. Just the beveled corners of a smartphone being the famous example in Apple v. Samsung. That is, design patents are not just limited to ornamentation in the narrow sense of decorating an object.

        1. 6.1.1.1

          “ Just the beveled corners of a smartphone being the famous example in Apple v. Samsung. ”

          Infamous is more like it.

        2. 6.1.1.2

          Paul,

          You do realize your error in, “That is, design patents are not just limited to ornamentation in the narrow sense of decorating an object.

          do you not?

          Recent case law has re-emphasized that narrow sense of “object.”

          Or have you decidedly (unilaterally) that designs ‘in the abstract’ are what the law covers?

      2. 6.1.2

        Just because a patentee says something doesn’t make it so.

        The rounded corners of a phone are clearly integral to the phone, but a panel intended to bolted to a car chassis is not integral, so there appears to be room for interpretation as to what the actual article is, or even if the shape itself (required to conform to the chassis) is ornamental whatsoever when not integrated into a car.

        That’s why I asked if any fender cases have been litigated.

        Here is another thread that doubtless will be last-dated by the knob who must have the last word.

        1. 6.1.2.1

          translation: “Wah.”

          Maybe instead of the ad hominem (that misses), you address the points raised.

          Or are your Feelings of being ‘dominated’ causing you angst again?

    2. 6.2

      “This seems a very strange area of law; reasonable people can’t even decide if it should exist, what the law is, or how it should be applied.”

      101 / eligibility, anyone?

      1. 6.2.1

        . . . and as an aside, imagine what a vehicle which infringed no auto-body design patents would look like . . . whoa, Nelly indeed.

      2. 6.2.2

        Pro Say,

        Please do not accept as true the clearly disconnected ramblings of a person who has shown an absolute penchant for not caring about the legal terrain upon which that person would do battle.

        While Design Patent Law is a mess due to its ‘force-fit’ into a utility statutory mechanism, reasonable people CAN – and do – navigate it to a very large extent.

    3. 6.3

      Hallo! Strange? Surely not, Martin. That reasonable people in the USA cannot decide if it should exist, can’t decide what the law should be, and can’t decide how to apply it, is true everywhere you look, in the world of IPR.

  5. 5

    Berries: “ Often a design patent will be part of a large patent family that focuses on different aspects of the same invention. This fact helps explain the high allowance rate.”

    How often is this true?

    1. 5.1

      How does the practice [yes] of filing design patents on different parts or different shaped portions of the same product make their meeting their respective 103 tests easier? The decreased amount of solid lines per design patent means broader claims, which logically should make 103 rejections easier, not harder.

      1. 5.1.1

        The decreased amount of solid lines per design patent means broader claims, which logically should make 103 rejections easier, not harder.
        This is accurate. The less you claim (utility or design), the easier it is to find prior art.

        1. 5.1.1.1

          Broken analogue clocks are correct twice a day.

    2. 5.2

      “Berries” —> Herriges

      [drop kicks worthless electronic brain]

  6. 4

    One positive aspect of the quoted part of the oral argument hopefully suggests the Court might also define the proper 103 POSITA person for design patent cases, which ought logically to be a professional product designer in many cases.

    1. 4.1

      Another question shows that the judges are aware of the large consumer economic burden of design patents on “must fit” and “must have same appearance” replacement parts, such as auto and truck fenders and bumpers, among others. I.e., design patented parts which cannot be designed around to avoid infringement by shape changes, and thus create “sole source” pricing.

      1. 4.1.1

        > “must fit” and “must have same appearance” replacement parts

        “Must” is a bit strong. I’ve personally taken the insurance settlement and just driven around with a dented bumper.

        FWIW, the hotrod and truck-mod communities routinely change the appearance of those ornamental parts. The antique car communities routinely repair said parts (e.g., the infamous Bondo) and/or obtain them from junkyards.

        1. 4.1.1.1

          The EU’s long quest for optimal wording of its pan-European design right protection statute involved much discussion of not only “must fit” but also “must match” component parts, in particular within the auto industry. On thinks of “must fit” in terms of function while “must match” is more to do with ornament or harmonious external appearance. Is the word “must” a bit too strong? In the context of the after-market in consumer goods used by millions of customers, I don’t think so.

          It’s a fine balance to be struck, between after-market suppliers and the OEM’s. Registered IPR law can play a big role. Compare the debate between innovative pharma and the generics makers. Or the market in consumables like coffee powder capsules, shaver blades or reservoirs of printer ink. All these areas have a bit more commercial/legal significance, I would wager, than the hot-rod community (unless that community is a lot bigger than I imagine).

          1. 4.1.1.1.1

            It is LESS the size, and more the intrusion of ‘Preserve Business Model’ versus disruptive innovation that underlies these battles.

            Let’s not get stuck on “Oh Shiny” types of positions.

          2. 4.1.1.1.2

            >unless that community is a lot bigger than I imagine

            It probably is. Pickup trucks are far-and-away the best-selling vehicles in the US every year. Virtually all pickups have some level of after-market customization (e.g., tonneau covers, etc.) The customizations typically cost a couple thousand dollars.

    2. 4.2

      which ought logically to be a professional product designer in many cases.

      Why?

  7. 3

    What purpose do design patents even serve? And would that purpose be underserved by other forms of IP if design patents didn’t exist?

    We must always remember that the point of the obviousness bar is protect inventions that would not have occurred but for the patent incentive. That can be easier to conceive in theory than in practice, but it provides a real world anchor for the 103 inquiry.

    1. 3.1

      Dear Leader has reasonably suggested that in many instances a patent on an ornamental mark serves to protect the mark before the trademark rights are perfected. That’s admittedly a rather artificial “purpose” (certainly not the intent of the patent or copyright system). Beyond that, “design patents” are a pointless drag on the production of creative ornamental designs and this doubly true when the means for evaluating the worthiness of a design for protection are non-existent or impossible to apply fairly and consistently in practice.

      1. 3.1.1

        Who is this “Dear Leader” that you are so erroneously referencing?

        And why?

        It’s not as if ANY reasonable person can readily deduce that different aspects of a single thing can EASILY garner different protections under different intellectual property laws, even those driven by different portions of the Constitution.

        We as attorneys are trained to understand this.

        1. 3.1.1.1

          Dear Leader=Prof. Crouch, who has floated a theory that design patents increase welfare because they supplement trade dress protection in a more organized fashion (i.e., there’s a filing date associated with your design, which allows better evaluation of whether you’re taking from the public domain).

          As attorneys, and just people with brains, we should scrutinize the evidence that a legal regime actually increases welfare, and press for its abolition or curtailment if it does not.

          1. 3.1.1.1.1

            Thank you Kyle.

  8. 2

    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.
    The question I have to asked is why do we need to made design patents easy to reject?

    I understand the need for an obviousness test in utility patents. If someone, for example, discovers a new coating that more effectively reduces friction, we don’t want there to be a race to the USPTO to file applications that claim that new formulation in conjunction with known applications for friction-reducing compounds. While I stated there may be a race to the patent office, if such a race doesn’t happen, perhaps one may decide to patent the known coating with a know application 10 years after the coating was invented — thereby extending the patent to the coating. Or perhaps someone invents a new product in which the old coating can be used — you don’t want to tie up the utility realized by the combination of new product and old coating because no one else patented it.

    A design patent, however, does not protect utility. It protects ornamentation. Society isn’t being harmed if someone protects a particular design ornamentation on a particular product. The utility of the product still exists if another ornamentation is used.

    Personally, I don’t see a problem that justifies an expansion of the standard. Moreover, I don’t believe that many of the policy concerns expressed by the Supreme Court with regard to utility patents translate well to design patents.

    1. 2.1

      +1

      . . . and when Lemley argues “common sense,” rest assured that the correct answer / approach is absolutely wrong.

      For once you’ve built your career, home, and 401(k) with infringer money, there’s just no going back.

    2. 2.2

      +1

    3. 2.3

      “Society isn’t being harmed if someone protects a particular design ornamentation on a particular product.”

      That would depend very heavily on the “ornamentation” itself, the product, and how many entities are being sued. This case is addressing the fact that the PTO regularly grants patents on “ornamentation” that is obvious, thereby removing the ornamentation from the public domain where it belongs.

      But you knew that already before you posted your woefully inane comment.

      1. 2.3.1

        This case is addressing the fact that the PTO regularly grants patents on “ornamentation” that is obvious, thereby removing the ornamentation from the public domain where it belongs.
        My overarching point (naturally) eludes you as your anti-patent bent prevents any critical thinking/analysis on your part.

        The point is that, unlike patents directed towards utility, there is no societal need to have access to ornamentation. For any given product, there is an untold number of ways that product can have different ornamentation. There is no loss of utility, if someone should protect, for a limited time, one particular ornamentation. No lives are being lost. No livelihoods are being hampered. Future ornamentation on the same or different products is not being overly hampered. You presume that ornamentation belongs in the public domain, but that statement is not consistent with copyright law. You need a better argument than that.

        Consider some of the justifications stated by the Supreme Court in KSR:
        For over a half century, the Court has held that a “patent for a combination which only unites old elements with no change in their respective functions . . . obviously withdraws what is already known into the field of its monopoly and diminishes the resources available to skillful men.”
        Ornamental design elements don’t have functions. The resources available in the useful arts are not being diminished by protection of ornamental elements.

        More language from KSR:
        What matters is the objective reach of the claim. If the claim extends to what is obvious, it is invalid under §103. One of the ways in which a patent’s subject matter can be proved obvious is by noting that there existed at the time of invention a known problem for which there was an obvious solution encompassed by the patent’s claims.
        There are no “known problem[s]” being solved by ornamentation.

        From the conclusion of KSR:
        These advances, once part of our shared knowledge, define a new threshold from which innovation starts once more. And as progress beginning from higher levels of achievement is expected in the normal course, the results of ordinary innovation are not the subject of exclusive rights under the patent laws. Were it otherwise patents might stifle, rather than promote, the progress of useful arts. See U. S. Const., Art. I, §8, cl. 8.
        Patents are intended to promote the progress of useful arts. However, design patents do not promote the progress of the useful arts as there is no utility being protected. Consequently, design patents should not be judged in the same manner as utility patents.

        1. 2.3.1.1

          prevents any critical thinking/analysis on your part.

          That is on purpose by Malcolm.

          Has been since his first comments on this blog some SEVENTEEN years ago now (as first pointed out by Night Writer, and independently confirmed by yours truly).

        2. 2.3.1.2

          What evidence is there that design patents are needed to encourage people to create new designs for their products? I disagree with a couple of your statements:

          1. “For any given product, there is an untold number of ways that product can have different ornamentation.”

          Not sure this is true. How many different ways can someone design a car fender?

          2. “There is no loss of utility, if someone should protect, for a limited time, one particular ornamentation. . . Future ornamentation on the same or different products is not being overly hampered.”

          Even if there are innumerable ways to design something, people still need to spend time and money paying attention to what designs have been patented; and the vague boundaries of design patent protection means that there will inevitably be unnecessary lawsuits to police boundaries.

          1. 2.3.1.2.1

            What evidence is there that design patents are needed to encourage people to create new designs for their products?
            Holistically, you are asking the wrong question. There is no requirement that patent law be needed for encouragement. Rather, the question to be asked is whether patent law does encourage? That point aside, I wrote that design patents shouldn’t be judged by the same standard as utility patents. As such, this question about encouragement shouldn’t be relevant.

            Not sure this is true. How many different ways can someone design a car fender?
            I have to presume, from this comment, that you know little about design patents. Given the size of a car fender, there are tens of thousand of ways (at a bare minimum) I can get a design patent on a fender. A curve here, a flare there, a line there … and poof, you’ve got a new design. I did a quick search and came up with two design patents for bumpers: D641296 (assigned to Honda) and D744390 (assigned to Daimler). Compare those side by side and you can easily tell how many different variations one can have.

            people still need to spend time and money paying attention to what designs have been patented; and the vague boundaries of design patent protection means that there will inevitably be unnecessary lawsuits to police boundaries
            You can level that same criticism against utility patents. Actually, it is probably harder and much more expensive to address utility patents.

            1. 2.3.1.2.1.1

              1. “There is no requirement that patent law be needed for encouragement.”

              I suppose this is true in a wooden legal sense, but if it doesn’t encourage better designs than we’d otherwise get, why does it exist? Isn’t it just a drag on society then? Legal systems need to earn their keep in my view.

              2. Fair, if you include every permutation of a “curve here, a flare there, a line there”, then I’m sure there are innumerable possible ways to design a fender. I still think the small distance between these designs requires a lot of transaction costs to sort out “infringement”.

              3. You can probably say the same about a lot of utility patents, but they’re overall on firmer ground as far as encouraging innovation that we would not get in their absence. The costs are arguably justified for a broad swath of them.

              1. 2.3.1.2.1.1.1

                The non-wooden view is that forcing something to be different is enough to encourage “better.”

                If you want “better” to be something other than that, than you are just not understanding the context of the law.

          2. 2.3.1.2.2

            >Not sure this is true. How many different ways can someone design a car fender?

            Infinite. E.g., you could add paisley surface treatment. Or sandy surface treatment. Or wood surface treatment. Or tile surface treatment. Or stone surface treatment. Or safety-tread surface treatment. Or…

            Even just looking at the grill, you could use big horizontal slats, small horizonal slats, big vertical slats, small vertical slats, divided grills, undivided grills, rounded grills, square grills, rectangular grills, triangular grills, tessellated hexagons, tessellated rectangles, tessellated square/octagons, circles, ovals, pointy slats, rounded slats, etc.

            1. 2.3.1.2.2.1

              “ Even just looking at the grill, you could use big horizontal slats, small horizonal slats, big vertical slats, small vertical slats, divided grills, undivided grills, rounded grills, square grills, rectangular grills, triangular grills, tessellated hexagons, tessellated rectangles, tessellated square/octagons, circles, ovals, pointy slats, rounded slats, etc.”

              All obvious.

              1. 2.3.1.2.2.1.1

                All obvious.

                Such wonderful feelings.

                ALL art is per se obvious. Isn’t that also a natural conclusion given that Generative AI has ‘absorbed’ the entire compendium of human work?

                Might as well close down the patent office, everything that can be invented has been invented…

    4. 2.4

      Re: “Society isn’t being harmed if someone protects a particular design ornamentation on a particular product.”
      Apparently you are unaware, for one example, that for the millions of car accidents requiring a replacement bumper, fender, etc., that those replacement parts are covered by design patents that cannot be designed around?

      1. 2.4.1

        I was not aware that one had to replace with the part covered by design patents. I thought all one needs is for the part to fit and function. Indeed, some insurance may not cover the OEM parts.

        1. 2.4.1.1

          The shape of most car body parts is not “functional” but is essential. Imagine installing a fender on one side of your car that has a different shape than the other side.

          1. 2.4.1.1.1

            Otoh, the hotrod and truck mod community change the ornamental treatments all the time

            They also repair many of those parts eg with bondo. And/or pull them off wrecked cars

          2. 2.4.1.1.2

            Imagine installing a fender on one side of your car that has a different shape than the other side.
            Huh? Left and right would be symmetrical — and they would likely be a singular piece. Regardless, being symmetrical isn’t protectable with a design patent.

            Back and front doesn’t need to be the same.

          3. 2.4.1.1.3

            How can it be essential if not functional?

            WT already addressed the fender being a single part issue. You may be talking about a front side panel, but even then it is not necessary.

            Have you not seen “bondo?”

            1. 2.4.1.1.3.1

              I would add a converse to this statement:

              How can it be essential if not functional?

              Having aspects OF functionality do NOT preclude design patent coverage.

              Example: automobile tire tread designs.

      2. 2.4.2

        Apparently you are unaware, for one example, that for the millions of car accidents requiring a replacement bumper, fender, etc., that those replacement parts are covered by design patents that cannot be designed around?
        Cannot be designed around? What propaganda are you reading? It is trivially easy to get around a design patent. While you won’t be able to get a part that looks the same, you can get a part with identical functionality. Its the functionality that matters — not the ornamentation.

        The ornamentation merely serves to distinguish an original part from a replacement part. In that sense, it is more akin to a trademark than an utility patent.

        1. 2.4.2.1

          “ The ornamentation merely serves to distinguish an original part from a replacement part.”

          In other words, in this context it’s not “ornamentation” but “information”.

          Yet another reason to dump all these so-called “patents” at the curbside and watch them flow into the sewer.

          1. 2.4.2.1.1

            Yet another reason to dump all these so-called “patents” at the curbside and watch them flow into the sewer.
            This so-called logic also applies to trademarks. Are you saying that we should dump trademarks as well?

            Based upon your posting history, it appears that you would have the United States dump the entire intellectual property system as you have an apparent affinity to copiers over creators.

            1. 2.4.2.1.1.1

              … WITH the singular exception of ULTRA-picture claims of exacting singular and full physically describing biomolecular patent claims.

              Everything else – and I do mean everything falls into Malcolm’s ‘one-bucket’ of “Grifters.”

            2. 2.4.2.1.1.2

              Trademark law has severe problems of its own (mostly arising under the First Amendment) but at least it doesn’t pretend to be “promoting progress” in anything.

              And it appears you woke the baby. Shame on you.

              1. 2.4.2.1.1.2.1

                Two questions for Malcolm:

                Who woke you after your fifteen year run and subsequent 15 month absence?

                Who puts you to sleep when you are asked for your (original?!) views on the Israel/Hamas fiasco?

                As to your post here at 2.4.2.1.1.2, you do know that “promote the progress” meant more than any type of linear – or otherwise – advancement, right? that “promote” included the (gasp) commercial sense of the word, as in advertising promotion, right?

                These things have been explained to you well over a decade now.

              2. 2.4.2.1.1.2.2

                Trademark law has severe problems of its own (mostly arising under the First Amendment) but at least it doesn’t pretend to be “promoting progress” in anything.
                Business speech does not receive the same kind of protections as other kinds of speech. While it may be a debatable problem, it isn’t a severe problem.

                Also, a trademark serves as communication of a source of a produce or service. If you are confusing a consumer as to the actual source (particularly if you are passing off an inferior product as being produced by the trademark holder), then that is akin to defamation, which is another well-defined exception to the first amendment.

                As for “promoting progress,” if design patents do not fall under the patent clause, then that isn’t a problem.

  9. 1

    So, Lemley wants another test where a judge can hold any claim invalid based on their subjective feelings. Lemley is like Mayorkas for patents.

    1. 1.1

      Let’s not confuse one that refuses to do their job (while gaslighting all the way to a certain desired ends) with another that DOES their job, and their job IS to gaslight to reach certain desired ends.

      One wears the robes of Academia – with NO meaningful recourse based in any actual ethics, and the other serves in the Executive Branch with an actual recourse of action that is underway.

      1. 1.1.1

        So funny when a “centrist” weighs in.

        Lulz

        1. 1.1.1.1

          Context – try not to be oblivious to it.

          Else, arse you are, the hole of it.

        2. 1.1.1.2

          … and Malcolm needs his Sprint Left One Bucket back (or maybe you think that the mayors of Sanctuary Cities crying out, No Mas, makes them Maga-tists as well.

            1. 1.1.1.2.1.1

              You do realize that That does not fit your narrative, right?

                1. Please Pardon Potential re(P)eat…

                  Your comment is awaiting moderation.

                  February 7, 2024 at 8:13 am

                  lgm….

                  That’s as bad as the Koolaid that Greg quaffs.

                2. …and of course, Smelly still ‘chooses’ not to comment (because of all of his cogent ‘script reading’) how he FEELS about the Israel/Hamas fiasco.

                  What, that has not yet been spoon fed to you there, Smelly?

                3. How I feel is that you are easily the biggest weird0 on this site. And I feel incredibly lucky not to have deal with you in any capacity other than pointing out what a weird0 you are.

                4. Wow – that Malcolm angst really grips you, Smelly.

                  Maybe you, P00py Diaper and p00r marty can get a group discount to address those feelings of yours.

                  Now try again and reply on topic.

                5. Pulling another Malcolm, I see – run away when directed to be on topic.

                  Shocked. Shocked I tell you.

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