WHERE ARE THE DESIGNERS? JUDGE REYNA WANTS TO KNOW.

On February 5, 2024, the U.S. Court of Appeals for the Federal Circuit (CAFC) held its en banc oral argument in the LKQ v. GM case to reconsider the obviousness test for design patents, during which Judge Reyna posed the following questions:

“Looking at all the amicus briefs that we got, and we’ve got quite a few of them, almost all of them, if not all, are within the auto parts and auto industry. Where’s everybody else? Where’s the outcry? Where are the other designers? . . . So aren’t we entering a slippery slope here in trying to fashion a new test under your arguments when we don’t fully understand the implications of what we’re doing?”

Charles Mauro, noted industrial designer and co-author of an amicus brief filed on behalf of the Institute of Design Science and Public Policy (IDSPP) and 36 distinguished industrial designers, penned an answer to Judge Reyna and the Court in a recent posting on IPWatchdog.  In the article’s introduction, Mr. Mauro stated:

“Listening to the argument, it became instantly clear that the designer’s voice was missing from the arguments of both parties. The judges had deeply probing and important questions that need the input of a design professional. As an experienced design professional, I penned this article to highlight the designer’s voice by providing answers to several critical questions posed by the court during oral argument.

“Judge Reyna’s questions hit the nail on the head. Any modification to basic design-patent law must consider the role of design in many industries—not just the concerns of one company in one narrow industry.

With a strong interest in this case, I took Judge Reyna’s questions as an opportunity to highlight our amicus brief,  which answers many questions and concerns presented during the oral argument.”

I encourage you to read the IPWatchdog article and the designers’ amicus brief to understand exactly why the designers’ input is so important in determining the proper test for design patent obviousness.