IP / Regulatory Law Watch Comprehensive Federal Consumer Privacy Bill Moves Forward Congress once again moves closer to imposing a federal standard for consumer data privacy. The American Privacy Rights Act (APRA) would eliminate the current patchwork system of state-by-state data privacy legislation. The bill focuses on data minimization, transparency, and consumer control. Read more about what obligations the APRA imposes on covered entities here. Should March in Rights Be Expanded? The National Institute of Standards and Technology (NIST) has proposed exposed march-in rights in order to lower the price for products built on patented technologies. See https://www.nist.gov/news-events/news/2023/12/nist-releases-public-comment-draft-guidance-march-rights. More information can be found here. Professor Ghosh, Crandall Melvin Professor of Law and Director of Technology Commercialization Law Program and Syracuse Intellectual Property Law Institute, was invited to participate in a panel evaluating this proposal. The panel with Professor Ghosh’s comments can be found here. Ag Innovation Challenge Extends Application Deadline The American Farm Bureau Federation (AFBF) has extended the deadline to apply online for the 2025 Farm Bureau Ag Innovation Challenge. In its 11th year, this national competition showcases U.S. startup companies developing innovative solutions to challenges faced by America’s farmers, ranchers and rural communities. Past winners include Barn Owl Precision, an autonomous micro-tractor company, and Harvust, a farm HR software company. Read more about the Ag Innovation Challenge here. Federal Circuit Overrules 42-Year Old Precedent on Nonobviousness of Design Patent On May 21, 2024, an en banc panel of the United States Court of Appeals for the Federal Circuit overruled the 1982 precedent established by In re Rosen, 673 F.2d 388 (CCPA 1982) for determining when a design patent is nonobvious. The precedent had been affirmed in 1996 by Durling v. Spectrum Furniture Co., Inc., 101 F.3d 100 (Fed. Cir. 1996). Based on these two precedents, the Federal Circuit and lower courts had been following the Rosen-Durling test for determining nonobviousness in design patent law based on combining prior art references. The en banc panel ruled that the test for nonobviousness adopted for utility patents in Graham v. John Deere Co. of Kansas City, 383 U.S. 1 (1966), and affirmed by KSR Int’l Co. v. Teleflex Inc., 558 U.S. 398 (2007). The 10-judge panel voted 9 to 1 to overrule the precedent. Judge Lourie agreed with the majority except for the conclusion that Rosen-Durling had to be overruled since it could fit into the flexible approach in Graham and KSR. At issue in this new precedent, LKQ Corp. v. GM Global, is a patent infringement dispute involving a design patent owned by GM Global. The design patent covered the front fender on an automotive body. LKQ challenged the nonobviousness of the design based on two pieces of prior art, a primary reference and a secondary reference in a proceeding before the Patent Trial and Appeal Board (PTAB). Under Rosen, the primary reference had to be “basically the same” as the patented design. Once this primary reference has been identified, the examiner looks to other references to identify differences against which the patented design would be compared for obviousness. The PTAB ruled against LKQ because it failed to produce a primary reference that was “basically the same.” LKQ argued that the Rosen-Durling test had been overruled by the Supreme Court’s 2007 decision in KSR, affirming the Graham test from 1966. The PTAB rejected this argument, the three-judge panel of the Federal Circuit affirmed, but the en banc panel accepted LKQ’s argument. Under Graham, the nonobviousness inquiry is a three-step one involving (1) identification of the relevant prior art; (2) identification of the differences between the prior art and the claimed invention; and (3) determination of whether a person of ordinary skill in the art would find the differences obvious. Secondary factors can guide the third step. Now that the Federal Circuit has ruled that Graham applies to design patents, future cases will address attendant questions, such as who the person of ordinary skill for design patents and the basic question of whether the Federal Circuit correctly extended Graham to design patents. As for the references identified by LKQ, the Federal Circuit addressed the approach under Graham for identifying prior art: (1) the first step is to identify prior art from the same field as the claimed invention and (2) the second step is to identify prior art for similar fields. The en banc panel held that the first step applied to design patents but left open the question of what it means for a design to arise from a similar field. In this case, since both references dealt with the front fenders of cars, the second question was not relevant and could be addressed in future cases. More information can be found here. | 
