In a recent decision, LKQ Corp. v. GM Global Tech. Operations LLC, No. 2021-2348, 2023 U.S. App. LEXIS 1412 (Fed. Cir. Jan. 20, 2023), the Federal Circuit declined to change its test for obviousness of design patents, saying it was bound to apply “existing law.” 2023 U.S. App. LEXIS 1412, at *16. The LKQ decision, though, if reviewed by the Supreme Court, could lead to a change in the law, since the Supreme Court has, on several occasions, struck down tests applied by the Federal Circuit where the tests were not tethered to statutory language, which is arguably true of the judicially-created test for the obviousness of design patents at issue in LKQ.
