Show Me the Evidence: Primary References Still Required after LKQ, PTAB Litigation Blog
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Federal Circuit decisions applying the new standards for design-patent obviousness continue to inform how patent challengers should frame their plans of attack, both in the PTAB and in the courts. In Dynamite Marketing, Inc. v. The WowLine, Inc., the Federal Circuit affirmed a jury verdict holding that the asserted design patent (U.S. Patent No. D751,877 (“’877”)) was not proven obvious under the old Rosen-Durling test that the jury was instructed to apply, or the new LKQ test that overruled it. 2024-1523, 2024-1525 (Fed. Cir. Sept. 12, 2025) (non-precedential). The decision serves as an important reminder that, under the old test or the new one, a patent challenger must always identify a primary reference in evidence and provide a non-hindsight-based analysis to prove that the challenged design would have been obvious.
