Arguing for LKQ, Mr. Mark Lemley asserted “the correct test should be the KSR test applied through the filter of the designer of ordinary skill in the art.”

After the per curium panel opinion in LKQ, obviousness for design patents continues with business as usual. But change may be on the horizon. LKQ filed a request for rehearing en banc, focusing solely on the issue of Rosen’s potential overruling in light of KSR. As summarized by Mr. Lemley: “we don’t say ‘let’s just start with one reference,’ right, instead what we say is ‘what would a person of skill in this field actually do.’”