How does the Supreme Court’s KSR decision impact design patent obviousness analysis?

This page is an FAQ based on guidance from the Manual of Patent Examining Procedure. It is provided as guidance, with links to the ground truth sources. This is information only: it is not legal advice.

The Supreme Court’s decision in KSR International Co. v. Teleflex Inc., 550 U.S. 398 (2007), has significantly impacted the obviousness analysis for design patents. The MPEP states:

“In KSR, the Supreme Court particularly emphasized “the need for caution in granting a patent based on the combination of elements found in the prior art,” and discussed circumstances in which a patent might be determined to be obvious.“

Key points to consider:

• The KSR decision emphasizes a more flexible approach to obviousness analysis.
• It discourages rigid application of the “teaching, suggestion, or motivation” (TSM) test.
• Examiners are encouraged to consider “common sense” and “ordinary creativity” when assessing obviousness.
• The decision applies to both utility and design patents, although its application may differ due to the visual nature of designs.

When analyzing design patent applications post-KSR, examiners and practitioners should consider a broader range of potential obviousness arguments while still recognizing the unique aspects of design patent law.