Trials@uspto.gov
`571-272-7822
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`Paper 11
`Entered: May 5, 2020
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`LKQ CORPORATION and
`KEYSTONE AUTOMOTIVE INDUSTRIES, INC.,
`Petitioner,
`
`v.
`
`GM GLOBAL TECHNOLOGY OPERATIONS LLC,
`Patent Owner.
`____________
`
`PGR2020-00005
`Patent D841,532 S
`____________
`
`
`
`Before JOSIAH L. COCKS, SCOTT A. DANIELS, and
`ROBERT L. KINDER, Administrative Patent Judges.
`
`DANIELS, Administrative Patent Judge.
`
`
`
`
`DECISION
`Denying Institution of Post-Grant Review
`35 U.S.C. § 324
`
`
`571-272-7822
`
`
`
`
`
`
`
`Paper 11
`Entered: May 5, 2020
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`LKQ CORPORATION and
`KEYSTONE AUTOMOTIVE INDUSTRIES, INC.,
`Petitioner,
`
`v.
`
`GM GLOBAL TECHNOLOGY OPERATIONS LLC,
`Patent Owner.
`____________
`
`PGR2020-00005
`Patent D841,532 S
`____________
`
`
`
`Before JOSIAH L. COCKS, SCOTT A. DANIELS, and
`ROBERT L. KINDER, Administrative Patent Judges.
`
`DANIELS, Administrative Patent Judge.
`
`
`
`
`DECISION
`Denying Institution of Post-Grant Review
`35 U.S.C. § 324
`
`
`
`PGR2020-00005
`Patent D841,532 S
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`
`INTRODUCTION
`I.
`A. Background and Summary
`LKQ Corporation and Keystone Automotive Industries, Inc.
`
`(collectively “LKQ” or “Petitioner”) filed a Petition requesting post-grant
`review of U.S. Patent No. D841,532 S (“the ’532 patent,” Ex. 1001). Paper
`2 (“Pet.”). The Petition challenges the patentability of the sole design claim
`of the ’532 patent. GM Global Technology Operations LLC (“GM” or
`“Patent Owner”) filed a Preliminary Response to the Petition. Paper 7
`(“Prelim. Resp.”).
`
`A post-grant review may be instituted only if “the information
`presented in the petition . . . demonstrate[s] that it is more likely than not
`that at least 1 of the claims challenged in the petition is unpatentable.”
`35 U.S.C. § 324(a) (2018). Having considered the arguments and evidence
`presented by LKQ and GM, we determine, for the reasons set forth below,
`that LKQ has failed to demonstrate that it is more likely than not that the
`challenged claim is unpatentable based on the grounds presented. Therefore,
`we do not institute a post-grant review of that claim.
`
`B. Related Proceedings
`One or both parties identify, as matters involving or related to
`
`the ’532 patent, Patent Trial and Appeal Board cases IPR2020-00062
`(US D811,964 S), IPR2020-00063 (US D828,255 S), IPR2020-00064
`(US D823,741 S), IPR2020-00065 (US D813,120 S), PGR2020-00002
`(US D847,043 S), PGR2020-00003 (US D847,703 S), and PGR2020-00004
`(US D840,306 S). Pet. 4; Paper 3, 2.
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`C. The ’532 Patent and Claim
`In a post-grant review requested in a petition filed on or after
`
`November 13, 2018, we apply the same claim construction standard used in
`district courts, namely that articulated in Phillips v. AWH Corp., 415 F.3d
`1303 (Fed. Cir. 2005) (en banc). See 37 C.F.R. § 42.200(b) (2019). With
`regard to design patents, it is well-settled that a design is represented better
`by an illustration than a description. Egyptian Goddess, Inc. v. Swisa, Inc.,
`543 F.3d 665, 679 (Fed. Cir. 2008) (en banc) (citing Dobson v. Dornan, 118
`U.S. 10, 14 (1886)). Although preferably a design patent claim is not
`construed by providing a detailed verbal description, it may be “helpful to
`point out . . . various features of the claimed design as they relate to the . . .
`prior art.” Id. at 679–80; cf. High Point Design LLC v. Buyers Direct, Inc.,
`730 F.3d 1301, 1314–15 (Fed. Cir. 2013) (remanding to the district court, in
`part, for a “verbal description of the claimed design to evoke a visual image
`consonant with that design”).
`
`The ’532 patent is titled “Vehicle Front Fascia Molding,” and issued
`February 26, 2019, from U.S. Application No. 29/605,902, filed May 31,
`2017.1 Ex. 1001, codes (21), (22), (45), (54). The claim recites “[t]he
`ornamental design for a vehicle front fascia molding, as shown and
`described.” Id., code (57). The drawings of the claim depict a front surface
`of the claimed molding with rear portions of the design shown as unclaimed
`
`
`1 Because the earliest possible effective filing date for the ’532 patent is after
`March 16, 2013 (the effective date for the first inventor to file provisions of
`the America Invents Act) and this petition was filed October 17, 2019, and
`within 9 months of its issue date, the ’532 patent is eligible for post-grant
`review. See 35 U.S.C. § 321(c).
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`by broken lines. See id. (“The broken lines shown in the drawings depict
`portions of the vehicle front fascia molding that form no part of the claimed
`design.”). The ’532 design is depicted in four figures, which are reproduced
`below.2
`
`
`Ex. 1001. Figures 1–4 above depict, respectively, the following views of the
`claimed vehicle front fascia molding design: a front and left side perspective
`
`
`2 We refer to the claim, i.e., the vehicle front fascia molding shown in
`Figures 1–4, also as “the ’532 design.”
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`view, a left side elevation view, a front elevation view, and a top plan view.
`Id., code (57).
`The parties both describe certain features that contribute to the overall
`appearance of the claimed design. See Pet. 9–13; Prelim. Resp. 8–17; see
`also Ex. 1003 ¶¶ 30–34; Ex. 1004 ¶¶ 28–32. LKQ contends that the claim
`can be described according to the drawings as shown by the solid lines as
`[a] A vehicle front fascia comprising:
`an elongated molding stretching horizontally having distal
`ends and sloping back from a center line;
`the center line bisecting the elongated molding into a first
`half and a second half;
`a top edge of each half slopes gradually upward from the
`center line to the respective distal ends of each the first half and
`the second half;
`a horizontal lower portion extending rearward and
`downward from a bottom edge of the elongated molding; and
`the horizontal lower portion being narrower than the
`elongated molding.
`Pet. 11–13.
`GM argues that LKQ’s claim construction mischaracterizes the design
`because it “ignores the orientation of the ‘elongated molding’ in the vehicle
`front fascia molding design.” Prelim. Resp. 10. GM argues that the 3-
`dimensional orientation of the ’532 design is important specifically because
`the “front fascia molding design of the ’532 Patent includes an upper portion
`that angles both upward (as illustrated by the dashed blue line) and rearward
`(as illustrated by the dashed red line).” Id. at 11. GM’s annotated Figure 1,
`is reproduced below.
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`Figure 1 of the ’532 design, above, as annotated by GM, illustrates an
`orientation based on an x-y-z axis, as shown relative to an “Upward” and a
`“Rearward” direction. Id. GM argues that LKQ’s construction “ignores
`importance of the center line that bisects the horizontal lower portion to the
`design of the front fascia molding.” Id. at 13. GM provides another
`annotated version of Figure 1, below.
`
`
`
`Figure 1 of the ’532 design, above, as modified with an exploded view, and
`annotated by GM to highlight the center line. GM also argues that in the
`
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`’532 design “the upper and lower portions of the front fascia molding form
`an aerodynamic convex front fascia design.” Id. at 15
`Our observation is that the descriptive analyses provided by both
`parties has some merit. LKQ’s description does not so much
`mischaracterize, as it is incomplete with respect to the relative orientation of
`the elongated molding and horizontal lower portion and the center line.
`GM’s argument about orientation of these elements and the center line is
`noteworthy.3 Visually, and keeping in mind the overall appearance of the
`article, a distinct feature of the ’532 design is that, on either side of the
`centerline, the elongated molding and the horizontal lower portion are joined
`at a reflex angle along the length of the lower edge of the elongated molding.
`Given the parties analyses, along with our own observation of the
`figures, we determine that an accurate description of ’532 design includes
`LKQ’s description as set forth above, as well as description of the centerline
`and relative orientation of the upper elongated molding and horizontal lower
`portion. Thus, LKQ’s description is modified as follows:4
` a horizontal lower portion extending rearward and
`downward from a bottom edge of the elongated molding; [and]
`the horizontal lower portion is bisected by the centerline,
`and is [being] narrower than the elongated molding[.]; and
`
`
`3 The claimed “vehicle front fascia molding” is not illustrated, or claimed, in
`relation to any other ornamental or functional element or any frame of
`reference, for example, a vehicle. Therefore, the ’532 design can be
`understood to exist essentially in any orientation in 3-dimensional space.
`Viewed in this light, we find it most helpful to describe the claimed design
`in terms of its native and illustrated elements.
`4 We indicate deleted text within [ ] brackets, and added text in the
`description by underlining.
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` the elongated molding and horizontal lower portion are
`oriented at a reflex angle along the length of the bottom edge of
`the elongated molding.
`For purposes of this decision, we apply LKQ’s description as modified to
`include these additional details and modifications.
`While we recognize that the illustration, rather than a verbal
`description, is the better representation of the claimed design, Egyptian
`Goddess, Inc., 543 F.3d at 679, we determine that the verbal description is
`helpful in this case. See Ex. 1001, Figs. 1–4.
`
`D. Asserted Grounds of Unpatentability
`LKQ asserts that the sole design claim of the ’532 patent is
`
`unpatentable on the following grounds (Pet. 14):
`Claim(s) Challenged
`35 U.S.C. §
`1
`102
`1
`103
`1
`103
`
`Reference(s)/Basis
`Munson5
`Munson
`Cadillac CTS Brochure,6 and
`auto-brochures.com7
`
`II. ANALYSIS
`A. Principles of Law
`
`Anticipation
`1.
`The “ordinary observer” test for anticipation of a design patent is the
`same as that used for infringement, except that for anticipation, the patented
`
`
`5 Ex. 1006, U.S. Patent No. D 605,082 S, issued Dec. 1, 2009.
`6 Ex. 1007, 2009 Cadillac CTS brochure, copyright 2008.
`7 Ex. 1008, 2009 Cadillac CTS photograph, April 4, 2014, http://www.auto-
`brochures.com/makes/Cadillac/CTS/Cadillac_US CTS_2009.pdf.
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`design is compared with the alleged anticipatory reference rather than an
`accused design. Int’l Seaway Trading Corp. v. Walgreens Corp., 589 F.3d
`1233, 1238, 1240 (Fed. Cir. 2009). The ordinary observer test for design
`patent infringement was first enunciated by the Supreme Court in Gorham
`Co. v. White, 81 U.S. 511 (1871), as follows:
`
`[I]f, in the eye of an ordinary observer, giving such attention as
`a purchaser usually gives, two designs are substantially the
`same, if the resemblance is such as to deceive such an observer,
`inducing him to purchase one supposing it to be the other, the
`first one patented is infringed by the other.
`Id. at 528. The ordinary observer test requires the fact finder to consider all
`of the ornamental features illustrated in the figures that are visible at any
`time in the “normal use” lifetime of the accused product, i.e., “from the
`completion of manufacture or assembly until the ultimate destruction, loss,
`or disappearance of the article.” Int’l Seaway, 589 F.3d at 1241. Further,
`while the ordinary observer test requires consideration of the overall prior art
`and claimed designs,
`
`[t]he mandated overall comparison is a comparison taking into
`account significant differences between the two designs, not
`minor or trivial differences that necessarily exist between any
`two designs that are not exact copies of one another. Just as
`“minor differences between a patented design and an accused
`article’s design cannot, and shall not, prevent a finding of
`infringement” . . . so too minor differences cannot prevent a
`finding of anticipation.
`Id. at 1243 (citation omitted) (quoting Litton Sys., Inc. v. Whirlpool Corp.,
`728 F.2d 1423, 1444 (Fed. Cir. 1984)).
`Obviousness
`2.
` “In addressing a claim of obviousness in a design patent, the ultimate
`inquiry is whether the claimed design would have been obvious to a designer
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`of ordinary skill who designs articles of the type involved.” Apple, Inc. v.
`Samsung Elec. Co., 678 F.3d 1314, 1329 (Fed. Cir. 2012) (internal quotation
`and citations omitted); see also High Point Design, 730 F.3d at 1313 (“The
`use of an ‘ordinary observer’ standard to assess the potential obviousness of
`a design patent runs contrary to the precedent of this court and our
`predecessor court, under which the obviousness of a design patent must,
`instead, be assessed from the viewpoint of an ordinary designer.”).
`This obviousness analysis generally involves two steps: first, “one
`must find a single reference, a something in existence, the design
`characteristics of which are basically the same as the claimed design”;
`second, “once this primary reference is found, other references may be used
`to modify it to create a design that has the same overall visual appearance as
`the claimed design.” High Point Design, 730 F.3d at 1311 (internal
`quotation and citations omitted). In performing the first step, we must “(1)
`discern the correct visual impression created by the patented design as a
`whole; and (2) determine whether there is a single reference that creates
`basically the same visual impression.” Id. at 1312 (internal quotation and
`citations omitted). In the second step, the primary reference may be
`modified by secondary references “to create a design that has the same
`overall visual appearance as the claimed design.” Id. at 1311 (internal
`quotation and citations omitted). However, the “secondary references may
`only be used to modify the primary reference if they are ‘so related [to the
`primary reference] that the appearance of certain ornamental features in one
`would suggest the application of those features to the other.’” Durling v.
`Spectrum Furniture Co., 101 F.3d 100, 103 (Fed. Cir. 1996) (quoting In re
`Borden, 90 F.3d 1570, 1575 (Fed. Cir. 1996)).
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`When evaluating prior art references for purposes of determining
`
`patentability of ornamental designs, the focus must be on actual appearances
`and specific design characteristics rather than design concepts. In re
`Harvey, 12 F.3d 1061, 1064 (Fed. Cir. 1993); see also Apple, 678 F.3d at
`1332 (“Rather than looking to the ‘general concept’ of a tablet, the district
`court should have focused on the distinctive ‘visual appearances’ of the
`reference and the claimed design.”).
`
`B. The Ordinary Observer
`The parties offer different definitions for the ordinary observer. LKQ
`contends “the ordinary observer would be the retail consumer of vehicle
`front fascia moldings.” Pet. 30–31 (citing Ex. 1003 ¶ 3[6]; Ex. 1004 ¶ 34).
`Neither LKQ, nor its declarants, further elaborate as to who may qualify as a
`retail consumer of front bumpers. Id. GM argues that “the ordinary
`observer includes commercial buyers who purchase replacement vehicle
`front fascia moldings to repair a customer’s vehicle, such as repair shop
`professionals.” Prelim. Resp. 6. GM asserts that LKQ has admitted in a
`related proceeding (IPR2020-00065) that “customers for aftermarket
`automotive parts primarily consist of professional auto body and mechanical
`repair shops who are knowledgeable about the automotive industry.” Id. at 7
`(quoting IPR2020-00065, Paper 2, 21) (emphasis omitted). GM points out
`that “[b]ecause a repair shop buyer reviews and analyzes various products as
`part of his or her job duties, that buyer is particularly discerning.” Id.; Ex.
`2001, 4 (“LKQ’s customers for aftermarket automotive parts primarily
`consist of professional auto body and mechanical repair shops who are
`knowledgeable about the automotive industry.”).
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`GM has presented credible argument and evidence as to why the
`ordinary observer would be a repair shop professional. The evidence,
`however, also reveals that a retail consumer, such as the owner of a vehicle,
`may also be in the position of an ordinary observer. A vehicle owner may
`have a contract with its insurance agent which “require the insurer to repair
`vehicles with parts of ‘like kind and quality’ to the OEM parts.” Ex. 2001,
`14, see also id. at 11 (“Automobile owners seek to repair their automobiles
`in a way that returns their automobile as closely as possible to its original
`appearance and condition.”). For purposes of this Decision we accept that
`both parties’ definitions fall within the purview of an ordinary observer. Our
`analysis reaches the same result using either parties’ definition of the
`ordinary observer.
`
`C. The Designer of Ordinary Skill
`LKQ contends that:
`
`
`
`a designer of ordinary skill would be an individual who has at
`least an undergraduate degree in transportation or automotive
`design and [has work] experience in the field of transportation
`design or [automotive design], or someone who has several
`years’ work experience in the field of transportation or
`automotive design.
`Pet. 29 (citing Ex. 1003 ¶¶ 38–39; Ex. 1004 ¶ 36). GM argues, without
`citation to evidence, that:
`
`[a] designer of ordinary skill in the art relevant to the ’532
`Patent would have at least an undergraduate degree in
`automotive design, or other related industrial design field, with
`at least two years of relevant practical experience in designing
`automotive body parts. An increase in experience could
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`compensate for less education, and an increase in education
`could likewise compensate for less experience.
`Prelim. Resp. 8. The parties do not identify, and we do not discern, any
`material difference between the parties’ proposed definitions. For purposes
`of this decision and on the record currently before us, which includes
`testimony by LKQ’s witnesses, we adopt LKQ’s proposed definition of the
`ordinary designer. Also, we point out that adopting GM’s definition would
`not alter the outcome of this Decision.
`
`D. Alleged Anticipation of the Claim over Munson
`Petitioner argues that the ’532 design is anticipated by Munson.
`1. Munson
`Munson is a U.S. Design Patent No. D605,082 S, issued December 1,
`2009, and indicates that it was assigned to GM. Ex. 1006, code (73).
`Munson’s Figures 1, 3, and 5 are reproduced below.
`
`Munson’s Figure 1, above, as annotated by the Board, depicts a front
`perspective view of a vehicle body including a front fascia molding as
`highlighted in yellow. Id. at code (57).
`
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`Munson’s Figure 3, above, illustrates a front view of a vehicle body
`including the front fascia molding. Id.
`
`Munson’s Figure 5, above, illustrates a side view of a vehicle body including
`the front fascia molding. Id.
`
`
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`Anticipation Analysis
`2.
`To begin, we reproduce Figure 3 of the claimed design, below on the
`left, side-by-side and in comparison with relevant corresponding Figure 3
`from Munson.
`
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`Munson’s front elevation view in Figure 3, on the left, is shown next to a
`corresponding front elevation view in Figure 3 of the ’532 design, on the
`right. Below, also in side-by-side comparison, is Munson’s Figure 1
`(flipped by the Board to be in mirror view) as it corresponds to Figure 1 of
`the ’532 design.
`
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`Figure 1 of the ’532 design on the left illustrates a perspective view of the
`claimed front fascia molding, and a mirror image of Munson’s perspective
`view in Figure 1, is shown on the right, including the front fascia molding.
`LKQ argues that “[t]he front fascia molding claimed in Munson is
`substantially the same as, if not identical to, the claimed design of the ’532
`Patent from the perspective of an ordinary observer.” Pet. 31. LKQ
`contends specifically that the similarities include:
`
`1) an elongated molding stretching horizontally having distal
`ends sloping back from a center line;
`2) the center line bisecting the elongated molding into a first half
`and a second half;
`3) the top half edge of each bisected half slopes gradually upward
`from the center line to the respective distal end of the respective
`half;
`4) a horizontal lower portion extending rearward and downward
`from the bottom edge of the elongated molding, wherein the
`horizontal lower portion is narrower than the elongated molding.
`Id. at 31–33.
`GM argues that LKQ’s analysis fails to take into account the
`differences between the ’532 design and Munson. Prelim. Resp. 18–19.
`GM argues that LKQ “fail[s] to consider the readily apparent features of the
`design that contribute to its overall appearance that differ from Munson.”
`Id. at 18. GM argues specifically that LKQ fails to address the differences
`in the orientation of the upper elongated molding of the ’532 design, alleging
`that it slopes in a different direction, rearward, rather than forward as
`Munson’s front fascia appears. Id. at 19–20. GM also argues that the ’532
`design’s lower horizontal portion extends “rearward and downward” as
`opposed to Munson “that extends forward and downward from the bottom
`
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`edge of the elongated molding.” Id. at 22. We reproduce below, GM’s
`annotated comparison of Munson and the ’532 design.
`
`
`
`Figure 2 of the ’532 design is reproduced above, on the left, including
`annotations by GM in the form of arrows representing the relative
`orientation of the elongated molding along the bottom edge of the elongated
`molding with respect to the horizontal lower portion. Id. at 24. A portion of
`Munson’s Figure 5 is shown on the right with annotations also by GM in the
`form of arrows also depicting the relative orientation of the elongated
`molding and the bottom edge of the elongated molding with respect to the
`horizontal lower portion. Id.
`Observing the front elevation views in respective Figures 3 of both the
`’532 design and Munson, as compared above, it might appear at first glance
`that these designs are similar. For instance, at first glance the front profiles
`are similar, being reminiscent of the upper half of a bowtie. Also in both
`designs the proportions of the upper elongated molding and the lower
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`horizontal portion appear similar, although the horizontal lower portions
`look somewhat different in relative proportion to one another.
`The perspective and end views of the ’532 design and Munson,
`however, reveal a distinct difference in the designs. The distinction resides
`in the angular orientation of the elongated molding and the bottom edge of
`the elongated molding with respect to the horizontal lower portion. As
`shown above in GM’s annotations, Figure 2 of the ’532 design depicts an
`orientation of the elongated molding and horizontal lower portion as a reflex
`angle about the bottom edge of the elongated portion. Munson’s Figures 1
`and 5 illustrate the same elements being oriented at an obtuse angle (Figure
`1) or perhaps closer to a right (90 degree) angle (Figure 5). GM argues that
`in the ’532 design, this orientation is “a convex front fascia design,” and in
`Munson, “a concave angle.” Prelim. Resp. 24–25 (emphasis omitted).
`Although the verbal description provided by LKQ describes that the
`’532 design includes “a horizontal lower portion extending rearward and
`downward from the bottom edge of the elongated molding,” LKQ has
`avoided substantively addressing any difference with respect to this
`orientation in Munson. In fact, LKQ appears to argue that Munson similarly
`has “a horizontal lower portion extending rearward and downward from the
`bottom edge of the elongated molding.” Pet. 33. A reasonable review of
`Munson’s drawings does not support this characterization of Munson’s
`design. Also, in support of this particular similarity argument, LKQ
`provided a comparison figure in its Petition at page 34, that appears to be
`either a poor reproduction or, the less clear image taken from the face page
`of Munson, and not from Munson’s actual claim and perspective view in
`
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`Figure 1.8 Pet. 34. LKQ’s declarants parrot the same similarity argument
`and less clear figure, and, as such, we do not find their testimony useful. See
`Ex. 1003 ¶¶ 53–54; Ex. 1004 ¶¶ 56–57. Importantly, this less clear, or face
`page image does not include the same level of detail as in the drawings
`specified by the claim, specifically in Figure 1, and therefore we accord little
`weight to any related evidence and testimony in support of LKQ’s similarity
`argument as to this design characteristic.
`We are persuaded by GM’s arguments and evidence, as they are
`consistent with our review and visual observations of the overall ornamental
`characteristics of the ’532 design and Munson, that there exists a distinct and
`significant difference in orientation and overall appearance between critical
`elements of the designs, namely between the elongated molding and
`horizontal lower portion as they are oriented about the bottom edge of the
`elongated molding. Whether this orientation in the ’532 design is defined as
`a reflex angle, or as GM asserts, a concave angle, we find it creates an
`overall lack of visual similarity in comparison to Munson. Based on this
`distinction, we are not persuaded that an ordinary observer, either a repair
`shop professional or a vehicle owner, would recognize the designs as
`substantially the same. Further, we do not believe that the ordinary observer
`would be deceived so as to purchase one supposing it to be the other.
`Accordingly, we determine that LKQ has failed to establish a reasonable
`likelihood that the ’532 design claim is anticipated based on Munson.
`
`
`8 The Petition, at page 34, erroneously cites to Munson’s “Figure 3 (cropped
`annotated)” instead of Munson’s perspective view in Figure 1.
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`E. Alleged Obviousness of the Claim over Munson
`LKQ argues that the ’532 design is further obvious over Munson
`because “[a]ny differences between Munson and the ’532 Patent are de
`minimis and ‘insubstantial changes’ to a designer of ordinary skill in the art.”
`Pet. 35 (citing Ex. 1003 ¶ 58; Ex. 1004 ¶¶ 60–62). LKQ argues that Munson
`is a proper primary, or Rosen [9] reference because it evokes “basically the
`same overall visual appearance as claimed design for a vehicle front fascia
`molding in the ’532 Patent.” Id. (citing Ex. 1003 ¶ 61; Ex. 1004 ¶ 63;
`Durling, 101 F.3d at 103). LKQ argues specifically, that “[t]here is but one
`difference between Munson and the claimed design . . . [t]he horizontal
`lower portion of Munson has no center line where the ’532 Patent has such a
`center line.” Id. at 35–36 (citing Ex. 1003 ¶ 63; Ex. 1004 ¶ 65). LKQ
`contends that “the addition of a center line to Munson is an ‘insubstantial
`change that would have been obvious to a skilled designer’ to arrive at a
`design with the same overall appearance as the ’532 Patent.” Id. at 36
`(citing Ex. 1003 ¶¶ 64–66; Ex. 1004 ¶¶ 66–67; MRC Innovations, Inc., at
`1335).
`GM argues that LKQ’s obviousness challenges “are based on the
`flawed premise that there is only one difference between Munson and the
`claimed design.” Prelim. Resp. 36. GM contends that “there are actually
`multiple readily apparent differences between the claimed design and
`Munson” and that LKQ has failed to provide evidence that changing
`Munson’s design to account for such differences, for instance the
`
`
`9 In the context of design patent law, a proper primary, or Rosen, reference is
`“something in existence, the design characteristics of which are basically the
`same as the claimed design.” In re Rosen, 673 F.2d 388, 391 (CCPA 1982).
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`“aerodynamic convex angle formed by the orientation of the ‘elongated
`molding’ in relation to the ‘horizontal lower portion,’” are unrelated to the
`overall aesthetic appearance of the ’532 design. Id. at 37. For the reasons
`discussed below, we find GM’s position to be persuasive.
`For our obviousness analysis, we must evaluate the design as a whole,
`from the perspective of a designer of ordinary skill, and so we reproduce,
`again, the four figures embodying the ’532 design. See Rosen, 673 F.2d at
`390 (“In determining the patentability of a design, it is the overall
`appearance, the visual effect as a whole of the design, which must be taken
`into consideration.”).
`
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`Figures 1–4, reproduced above, best illustrate the visual overall appearance
`of the ’532 design. Also, we must keep in mind the verbal description of
`this design determined previously, as it helps inform us as to particular
`characteristics of the design that must be evaluated in terms of the overall
`appearance. Section II.C.
`We would agree, considering for example just Figure 3 of the ’532
`design, above, compared with Munson’s Figure 3, below, that there may be
`some degree of similarity.
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`Munson’s Figure 3, above, illustrates a front view of a vehicle body
`including the highlighted front fascia portion, as annotated by the Board. In
`this comparison, the profile and proportionality of the designs are similar,
`and is reflected in LKQ’s proposed verbal description.
`But simply relying on a comparison of front elevation views does not
`tell the whole story. The side and perspective views in Figures 1 and 2 of
`the ’532 design reveal a distinct angulation, what we refer to in this
`Decision, as a reflex angle, between the elongated molding in relation to the
`horizontal lower portion, as these design elements are contiguous along the
`length of the bottom edge of the elongated molding. As discussed above, we
`have determined that it is appropriate to define this distinctive angularity
`actively, in terms of the elements relationship, that is—by adding to the
`verbal description, “the elongated molding and horizontal lower portion are
`oriented at a reflex angle along the length of the bottom edge of the
`elongated molding.” See Section II.C. (emphasis added). LKQ’s originally
`
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`proposed claim description, to some extent, attempt to account for this
`feature stating “a horizontal lower portion extending rearward and
`downward from a bottom edge of the elongated molding.” Id. However,
`LKQ’s obviousness analysis does not sufficiently address this readily
`apparent difference of the ’532 design in relation to Munson. See Pet. 35–36
`(asserting in the Petition that “[t]here is but one difference between Munson
`and the claimed design. The horizontal lower portion of Munson has no
`center line where the ’532 Patent has such a center line.”). LKQ concludes,
`wrongly, that the orientation of the elongated molding and horizontal lower
`portion in both designs is similar. See Pet. 35 (referencing Pet. 33, asserting
`that Munson’s horizontal lower portion is “extending rearward and
`downward.”).
`We determine that a comparison of the visual characteristics as a
`whole, in particular of Figures 1, 2, and 4 of the ’532 design, reveals a
`distinctly different non-obvious design compared to Munson. As discussed,
`Figures 1 and 2 of the ’532 design depict a front fascia molding having a
`reflex angle, or perhaps a convex surface as GM argues, whereas Munson’s
`vehicle body reveals an obtuse, or concave, angulation between these
`surfaces. This difference in angulation or, curvature, between the ’532
`design and Munson is not simply different, but strikingly, opposite. This is
`perhaps best shown in the relative perspective views, below, in a comparison
`of annotated version of Munson’s Figure 1, with Figure 1 of the claimed
`design.
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`A highlighted obtuse angle right-edge portion of Figure 1 of Munson’s
`vehicle body, as annotated by the Board, is shown above in comparison to a
`highlighted reflex angle right-edge portion Figure 1 of the ’532 design.
`Based on an overall comparison, we disagree with LKQ’s conclusion
`that the only difference is that of the centerline, and find unsubstantiated the
`assertion that Munson
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