The Patent Nobody Files: Design Patents, the Ordinary Observer, and What LKQ Changed
By Casey Scott McKay ·
A design patent costs a fraction of a utility patent, issues in about half the time, and gives an exclusive right measured by what a product looks like rather than by what it does - and most companies never file one. This article explains what a design patent actually claims, why the drawings are the claim and broken lines are the most consequential drafting decision available, and how the ordinary observer test works after Egyptian Goddess. It covers the obviousness framework that LKQ v. GM replaced in 2024 and what the flexible Graham-based approach means for both prosecution and validity challenges. It works through the functionality bar, the total-profits damages provision that makes these patents disproportionately valuable, and the deadlines that quietly foreclose filing. It closes with how design patents sequence against trade dress and copyright.
IP and Technology > Patent Counseling Transactions | Article | Published 14 August 2024 - Updated 22 July 2026 | Casey Scott McKay - marksy.us
Summary. A design patent costs a fraction of a utility patent, issues in about half the time, and gives an exclusive right measured by what a product looks like rather than by what it does — and most companies never file one. This article explains what a design patent actually claims, why the drawings are the claim and broken lines are the most consequential drafting decision available, and how the ordinary observer test works after Egyptian Goddess. It covers the obviousness framework that LKQ v. GM replaced in 2024 and what the flexible Graham-based approach means for both prosecution and validity challenges. It works through the functionality bar, the total-profits damages provision that makes these patents disproportionately valuable, and the deadlines that quietly foreclose filing. It closes with how design patents sequence against trade dress and copyright.
Keywords: design patent · article of manufacture · ornamental design · drawings and broken lines · claim scope · ordinary observer test · Egyptian Goddess · LKQ v GM · Rosen-Durling · obviousness for designs · functionality bar · total profits damages · Samsung v Apple · design patent term · priority and grace period · continuation practice · partial designs · graphical user interface designs · trade dress overlap · portfolio sequencing
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