As we predicted in our 2023 report, 2024 was a banner year for design rights in the U.S. and elsewhere. In last year’s report, we noted that the U.S. Court of Appeals for the Federal Circuit (CAFC) agreed to consider en banc whether the long-standing design patent obviousness test required modification. As you will see in this year’s report, the court did not modify it— instead, it threw more than 30 years of design jurisprudence out the window and adopted a new (but old) test.
While the new test was predicted to make design patents easier to invalidate, we saw in at least one application of it by the Patent Trial and Appeal Board (PTAB), that instituting inter partes review of a design patent can still be a challenge. We also saw district courts continue to grapple with claim construction and the issue of functionality. Adding a new obviousness test may only aggravate reversal rates by the CAFC in the future. And finally, the U.S. International Trade Commission (ITC) continues to be a pivotal forum for enforcing design patents provided the domestic industry requirement can be shown for the asserted patent, which proved challenging in two cases in 2024.
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