109 Iowa L. Rev. Online 128 (2024)

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Abstract

In this Essay, I comment on Mark Bartholomew’s Article Nonobvious Design and link it to an important contemporary debate over the nonobviousness test for design patents in the en banc rehearing in LKQ. I begin by challenging the assertion that nonobviousness doctrine is the most compelling vehicle for design patent policy reform, suggesting that Nonobvious Design may be borrowing this thinking from utility patent law, where nonobviousness plays a different role. I then turn to Nonobvious Design’s elaboration of the concept of the “aesthetic middle,” which provides the chief impetus for the suggested nonobviousness reforms. I question the normative implications of using the aesthetic middle as the driver of patentability for designs. Finally, I take up the reforms to design patent nonobviousness suggested in Nonobvious Design, and those at issue in the LKQ case, and offer my views on how the court should rule in that case.