The Federal Circuit, sitting en banc, heard oral argument in LKQ v. GM. The case presents the question “Does KSR International Co. v. Teleflex Inc., 550 U.S. 398 (2007), overrule or abrogate In re Rosen, 673 F.2d 388 (CCPA 1982), and Durling v. Spectrum Furniture Co., Inc., 101 F.3d 100 (Fed. Cir. 1996)?”

Mark Lemley, representing LKQ v. GM, argued that the CAFC should overrule its prior case Rosen-Durling, which provides a fairly narrow test of obviousness for design patents based on references. That approach is at odds with the Supreme Court’s approach to obviousness (for utility patents) in KSR. GM argued for maintaining the Rosen-Durling test. The SG’s Office argued for something in between. You can find the briefs here.

Link to audio of oral argument.