DESIGN PATENT BLOG POSTS
The Shape the Consumer Never Sees: What 509 prosecution histories show and what practitioners might consider
Of the 509 design patents that issued on October 13, 2026, two Lamb Weston files beat anticipation by showing that the cited shape was raw dough or an uncooked strip the ordinary observer never sees. Also this week: three ways to beat an Amazon “Date First Available,” a priority document that saved a mistaken drawing set, and a grace-period reference cleared with no declaration.
Line Weight as Evidence of Possession: What 466 prosecution histories show and what practitioners might consider
Of the 466 design patents issued October 6, 2026 after a rejection, ten files stand out. A 2015 parent’s line weights saved a one-line DexCom claim from new matter. The first allowances under the March 2026 GUI guidance arrived. An Amazon Seller Support reply moved a reference forward nearly three years, and one frame of a patented animation avoided double patenting.
No Declaration Needed: What 431 prosecution histories show and what practitioners might consider
Of the 431 design patents that issued on September 29, 2026 after a rejection, the most useful files cleared prior art without the declaration the examiner asked for: a prior-disclosure statement in the specification, an attack on Amazon’s “Date First Available,” and an inventorship correction. Also this week: a boundary line that cost a 2011 priority chain, and an appeal brief that ended a functionality fight.
The Review Is Not the Product: What 285 prosecution histories show and what practitioners might consider
Of the 285 design patents that issued on September 22, 2026 after a rejection, the best responses attacked what a web listing actually proves: a reused Home Depot SKU whose oldest review did not date the picture, and an inventor’s own listing used as a shield against third-party registrations. Also this week: measurements that beat the inventor’s own Instagram post, and one ADS line that broke a priority chain.
Secondary Considerations After LKQ: What the Examination Record Shows and What Practitioners Might Consider
The fourth Graham factor applies to design patents. LKQ v. GM, 102 F.4th 1280, 1296, 1299-1300 (Fed. Cir. 2024) (en banc). The court named commercial success, industry praise, and copying, and said it was not deciding whether long-felt need and failure of others apply to designs.
Analogous Art After LKQ: What the Examination Record Shows and What Practitioners Might Consider
Every reference in a design patent obviousness rejection must now be analogous art to the claimed design. LKQ v. GM, 102 F.4th 1280, 1296-99 (Fed. Cir. 2024) (en banc).
The Reason to Combine After LKQ: What the Examination Record Shows and What Practitioners Might Consider
An obviousness rejection of a design claim now requires a record-supported reason to combine the references. See LKQ v. GM, 102 F.4th 1280, 1299 (Fed. Cir. 2024) (en banc).
Analogous Is Not the Same Article: What 198 prosecution histories show and what practitioners might consider
Of the 198 design patents that issued on September 15, 2026 after a rejection, one drew a Board reversal holding that an examiner must answer a different-article argument separately from analogous art. Also this week: a GUI allowed with no screen drawn under the March 2026 guidance, a domain registration date that sank a web reference, and two continuations that recovered lost priority dates.
The Differences the Examiner Skipped: What 444 prosecution histories show and what practitioners might consider
Of the 444 design patents that issued on September 8, 2026, one shows how to answer an obviousness rejection built on the “so related” sentence: list the differences the examiner skipped, with Ex parte Chen behind them. Also this week: an Amazon date beaten with the brand’s archived website, web art showing only one side of the article, and a design that claimed a utility parent filed the same day.
Obviousness after LKQ v. GM
In LKQ v. GM the en banc Federal Circuit discarded the rigid two-part test that had governed design patent obviousness since the early 1980s and replaced it with the Graham factors adapted for design patents. The inquiry is more flexible now, and challengers are already testing it, but as the Board’s denial in Next Step Group v. Deckers shows, a challenger still needs analogous art, a primary reference, and a record-supported reason, without hindsight, to modify it. This episode covers five things a prosecutor can do to make that job harder: put the closest art on the record, answer rejections with the claim rather than emphatic remarks, build a family rather than a single patent, choose the article title deliberately, and keep the claimed design aligned with the product so objective evidence has a nexus.
The Title after Curver Luxembourg v. Home Expressions
When a design patent’s drawings show no article, the title and claim language supply it, and that language can decide the case. This episode walks through Curver Luxembourg v. Home Expressions, where a pattern claimed for a chair could not be asserted against a basket, and In re SurgiSil, where the same language defeated anticipation, and explains how to choose and amend the title deliberately during prosecution.
Prosecution History Disclaimer after Top Brand v. Cozy Comfort
This episode discusses how the Federal Circuit applied prosecution history disclaimer to a design patent in Top Brand v. Cozy Comfort, and what that means for how you draft and argue responses to office actions so the patent holds its scope when it is later enforced. It also covers the related doctrine of prosecution history estoppel.