Law360 | Full Fed. Circ. Urged To Treat Design Patents Like Patents

Several players in the replacement auto parts industry, including LKQ Corp. represented by Mark Lemley and Mark McKenna of Lex Lumina PLLC, and Barry Irwin, Iftekhar Zaim and Andrew Himebaugh of Irwin IP LLP., are urging the full Federal Circuit to reconsider the criteria used for determining the invalidity of design patents as obvious. They argue that the court’s current approach treats design patents more like trademarks than utility patents, making it extremely challenging to invalidate them.

LKQ Corp. is seeking a review of the test for obviousness in design patents, particularly in their unsuccessful attempt to invalidate General Motors’ auto design patents. They have gained support from four amicus petitions, all of which emphasize that design patents should not receive special treatment.

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