Case: 22-1253   Document: 45     Page: 1    Filed: 01/20/2023




        NOTE: This disposition is nonprecedential.


   United States Court of Appeals
       for the Federal Circuit
                 ______________________

  LKQ CORPORATION, KEYSTONE AUTOMOTIVE
            INDUSTRIES, INC.,
                Appellants

                            v.

  GM GLOBAL TECHNOLOGY OPERATIONS LLC,
                   Appellee
            ______________________

                       2022-1253
                 ______________________

     Appeal from the United States Patent and Trademark
 Office, Patent Trial and Appeal Board in No. PGR2020-
 00055.
                  ______________________

                Decided: January 20, 2023
                 ______________________

    MARK A. LEMLEY, Lex Lumina PLLC, New York, NY,
 argued for appellants. Also represented by MARK P.
 MCKENNA; ANDREW HIMEBAUGH, BARRY IRWIN, IFTEKHAR
 ZAIM, Irwin IP LLC, Chicago, IL.

    JOSEPH HERRIGES, JR., Fish & Richardson P.C., Minne-
 apolis, MN, argued for appellee. Also represented by JOHN
 A. DRAGSETH; NITIKA GUPTA FIORELLA, Wilmington, DE;
 LAURA E. POWELL, Washington, DC.
Case: 22-1253      Document: 45     Page: 2    Filed: 01/20/2023




 2                                     LKQ CORPORATION v.
                      GM GLOBAL TECHNOLOGY OPERATIONS LLC


                    ______________________

     Before LOURIE, CLEVENGER, and STARK, Circuit Judges.
            Opinion for the court filed PER CURIAM.
        Additional views filed by Circuit Judge LOURIE.
     Opinion concurring in part and concurring in judgment
                 filed by Circuit Judge STARK.
 PER CURIAM.
      LKQ Corp. and Keystone Automotive Industries, Inc.
 (collectively, “LKQ”) appeal from a final written decision of
 the U.S. Patent and Trademark Office Patent Trial and Ap-
 peal Board (“the Board”) holding that LKQ failed to show
 by a preponderance of the evidence that U.S. Patent
 D855,508 (the “’508 patent”) was anticipated or would have
 been obvious over the cited prior art before the effective fil-
 ing date. See LKQ Corp. v. GM Glob. Tech. Operations
 LLC, PGR2020-00055, Paper 33 (P.T.A.B. Oct. 8, 2021)
 (“Decision”), J.A. 1–65. For the reasons provided below, we
 affirm.
                         BACKGROUND
      GM Global Technology Operations LLC (“GM”) owns
 the ’508 patent, which is directed to an “ornamental design
 for the vehicle front skid bar” as shown below.
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 LKQ CORPORATION v.                                          3
 GM GLOBAL TECHNOLOGY OPERATIONS LLC




     GM manufactures and sells automotive vehicles. LKQ
 sells automotive body repair parts for most mainstream ve-
 hicle models available, including front skid bars for vehi-
 cles manufactured by GM. GM and LKQ had previously
 been parties to a license agreement, under which LKQ was
 granted a license to many of GM’s design patents. The li-
 cense agreement expired in February 2022 following a
 breakdown of renewal negotiations, after which GM sent
 letters to LKQ’s business partners alleging that the now
 unlicensed LKQ parts infringe its patents.
     LKQ petitioned for post-grant review of the ’508 pa-
 tent, asserting that it was anticipated by the design of the
 2015 Changfeng Leopaard CS1020 (“Leopaard”) and would
 have been obvious over the Leopaard alone or in combina-
 tion with the design of the 2012 Chevrolet Equinox (“Equi-
 nox”). The Board issued a final written decision concluding
 that LKQ had not demonstrated by a preponderance of the
 evidence that the ’508 patent was anticipated or would
 have been obvious before the effective filing date. Decision,
 J.A. 1–65.
     First, the Board determined that the ordinary observer
 would include both retail consumers who purchase replace-
 ment skid bars and commercial replacement part buyers.
 Decision, J.A. 14–16. In so doing, the Board emphasized
 that the “’508 design claims a ‘vehicle front skid bar,’ not a
 vehicle in total.” Decision, J.A. 15.
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 4                                    LKQ CORPORATION v.
                     GM GLOBAL TECHNOLOGY OPERATIONS LLC


     Second, applying that understanding of the ordinary
 observer, the Board concluded that, although there were
 some similarities, the references produced depicting the
 Leopaard design did not show certain aspects of the
 claimed design (e.g., the bottom or the sides) and what was
 visible from the provided images created a different overall
 impression. Decision, J.A. 18, 42–61. Namely, the claimed
 features in the aggregate contributed to a “rugged, chis-
 eled, three-dimensional overall appearance” that the
 Leopaard’s sloping design did not have. Decision, J.A. 57.
 The Board was ultimately not persuaded that an ordinary
 observer would be deceived into purchasing the Leopaard
 skid bar supposing it to be the claimed skid bar, finding no
 anticipation.
      Third, applying the tests established in Rosen and
 Durling, the Board found that LKQ failed to identify a suf-
 ficient primary reference, and therefore failed to prove ob-
 viousness by a preponderance of the evidence. Durling v.
 Spectrum Furniture Co., Inc., 

 (Fed. Cir. 1996);
 In re Rosen, 

 (C.C.P.A. 1982); Decision, J.A.
 57–60. Because the Board found that the Leopaard did not
 qualify as a proper primary reference under Rosen, the
 Board did not turn to Durling step two and look beyond the
 Leopaard to the Equinox. Decision, J.A. 57–60. The Board
 further noted that even if the Leopaard could serve as a
 sufficient primary reference, LKQ only proposed modifying
 the Leopaard skid bar “to have the vertical side edges” of
 the Equinox. As explained by the Board, because many
 other differences existed between the claimed design of the
 ’508 patent and the Leopaard, LKQ could not meet its bur-
 den to demonstrate obviousness of the claimed design. De-
 cision, J.A. 57–60.
     In summary, the Board concluded that LKQ had not
 demonstrated that the claimed design of the ’508 patent
 was anticipated or would have been obvious before the ef-
 fective filing date. LKQ appealed. We have jurisdiction
 under 

(a)(4)(A).
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 LKQ CORPORATION v.                                        5
 GM GLOBAL TECHNOLOGY OPERATIONS LLC


                        DISCUSSION
     LKQ raises two main challenges on appeal. First, LKQ
 contends that the Board erred in finding that the ordinary
 observer would include only retail consumers who pur-
 chase replacement skid bars and commercial replacement
 part buyers, and, ultimately, in finding no anticipation.
 Second, LKQ contends that the Rosen and Durling tests on
 which the Board relied in its obviousness analysis have
 been implicitly overruled by the Supreme Court’s decision
 in KSR International Co. v. Telflex, Inc., 

 (2007). We address each argument in turn.
      We review the Board’s legal conclusions de novo and its
 factual findings for substantial evidence. Campbell Soup
 Co. v. Gamon Plus, Inc., 

, 1339 (Fed. Cir.
 2019). Anticipation is a question of fact reviewed for sub-
 stantial evidence. Id.; Int’l Seaway Trading Corp. v.
 Walgreens Corp., 

 (Fed. Cir. 2009). The
 ultimate determination of obviousness is reviewed de novo,
 and any underlying factual findings are reviewed for sub-
 stantial evidence. Campbell Soup Co. v. Gamon Plus, Inc.,
 

, 1275 (Fed. Cir. 2021). Substantial evidence
 is “such relevant evidence as a reasonable mind might ac-
 cept as adequate to support a conclusion.” Consol. Edison
 Co. v. N.L.R.B., 

 (1938).
                              I
     We first consider LKQ’s challenge to the Board’s deter-
 mination that LKQ failed to meet its burden to prove that
 the ’508 patent was anticipated by the Leopaard design.
 LKQ first argues that the Board erred in not finding that
 original retail vehicle purchasers are the correct ordinary
 observer. LKQ notes that replacement parts are merely a
 downstream consequence of prior whole vehicle sales, that
 skid bars are not sold in the first instance as replacement
 products, and that replacement products make up a small
 subset of total skid bar sales. LKQ further asserts that
 that alleged error led the Board to place undue emphasis
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 6                                     LKQ CORPORATION v.
                      GM GLOBAL TECHNOLOGY OPERATIONS LLC


 on allegedly trivial differences between the claimed design
 of the ’508 patent and the Leopaard design that would not
 have mattered to the correct ordinary observer, and that
 the Board failed to properly compare the designs as a
 whole.
     GM responds that the Board correctly defined the ordi-
 nary observer. GM emphasizes that the ’508 patent is not
 directed to the design of a whole vehicle, but rather a de-
 sign for a specific part of a vehicle. Therefore, GM argues
 that the ordinary observer must be the person who pur-
 chases that part or is otherwise sufficiently interested in
 that part, not necessarily the vehicle as a whole. GM fur-
 ther argues that, regardless of the ordinary observer, the
 Board’s holding that the claimed design of the ’508 patent
 is not anticipated by the Leopaard design was supported by
 substantial evidence.
      We agree with GM that the Board’s finding that the
 ordinary observer would include both retail consumers who
 purchase replacement skid bars and commercial replace-
 ment part buyers was supported by substantial evidence.
 Defining the ordinary observer is a fact-dependent inquiry.
 See Arminak & Assocs., Inc. v. Saint-Gobain Calmar, Inc.,
 

 (Fed. Cir. 2007) (abrogated on other
 grounds by Egyptian Goddess, Inc. v. Swisa, Inc., 

 (Fed. Cir. 2008)). It is through the lens of the ordinary
 observer that the anticipation inquiry is viewed. Gorham
 Co. v. White, 

 (1871). The Board’s finding
 that the ordinary observer here includes repair profession-
 als and vehicle owners purchasing replacement parts, and
 does not include retail vehicle purchasers, is well-grounded
 in the record. LKQ itself recognized that repair shop me-
 chanics and auto parts store employees who order replace-
 ment parts may be ordinary observers of skid bars. J.A.
 195–96. And LKQ cannot disagree that there is a market
 for the claimed skid bar alone, given that its business is
 selling individual replacement parts. See Appellant Br. at
 1. That GM sells whole vehicles to retail consumers, rather
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 LKQ CORPORATION v.                                          7
 GM GLOBAL TECHNOLOGY OPERATIONS LLC


 than skid bars to car manufacturers, is of no consequence.
 As the Board noted, the ordinary observer test requires
 consideration of the features visible 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.” Decision, J.A. 12
 (quoting Int’l Seaway, 

). See also Contessa
 Food Prods. v. Conagra, Inc., 

, 1380 (Fed. Cir.
 2002) (“[T]he ‘ordinary observer’ analysis is not limited to
 those features visible during only one phase or portion of
 the normal use lifetime of an accused product.”). The “nor-
 mal use” would thus include repair or replacement.
     Most notably, the claimed design of the ’508 patent is
 not the design of a whole vehicle, but rather a design of a
 specific part of a vehicle. J.A. 66–71. In Arminak and Key-
 stone, we recognized that the ordinary observer can be the
 purchaser of a component part of a later-assembled product
 as opposed to the purchaser of the later-assembled product.
 Arminak, 501 F.3d at 1321–24; KeyStone Retaining Wall
 Sys., Inc. v. Westrock, Inc., 

, 1451 (Fed. Cir.
 1993). The same is true here. In this case, substantial ev-
 idence supports the Board’s conclusion that the ordinary
 observer is a person who purchases that part or is other-
 wise sufficiently interested in that part, not the vehicle as
 a whole. See Egyptian Goddess, 

.
     When determining whether a design patent is antici-
 pated, we consider:
     [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 . . . .
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 8                                     LKQ CORPORATION v.
                      GM GLOBAL TECHNOLOGY OPERATIONS LLC


 Gorham, 

. 1 Under this standard, substantial
 evidence supports the Board’s finding of no anticipation.
     Most importantly, the references submitted by LKQ de-
 picting the Leopaard design do not sufficiently show cer-
 tain aspects of its design, e.g., the bottom or the sides, to
 enable comparison with the claimed design of the ’508 pa-
 tent. As the Board found:
     LKQ has not produced images of the Leopaard that
     would enable a persuasive comparison with corre-
     sponding views of the claimed invention. The evi-
     dence produced by LKQ related to the Leopaard
     simply fails to clearly show several claimed aspects
     of the design. . . . The exhibits do not show a suffi-
     cient bottom view to allow comparison and the ex-
     hibits also have obscured side views due to other
     trim features covering the outsides of the skid
     board.
 Decision, J.A. 18. LKQ’s expert admits that these perspec-
 tives are obscured or not shown in the references they pro-
 vided. J.A. 832 at 2:5, 13–17. This impedes a comparison
 of the claimed design to the reference by any ordinary ob-
 server and is alone sufficient to support a finding of no an-
 ticipation. It would be speculation to assume that the
 unshown features have certain characteristics that match
 the claimed invention.
    Additionally, given the evidence in the record, the
 Board concluded that the design claimed in the ’508 patent
 and the Leopaard design created different overall


     1   While the test articulated in Gorham was with re-
 gard to infringement, we have found “that the same tests
 must be applied to infringement and anticipation,” as to
 “prevent an inconsistency from developing between the in-
 fringement and anticipation analyses.” Int’l Seaway, 

.
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 LKQ CORPORATION v.                                          9
 GM GLOBAL TECHNOLOGY OPERATIONS LLC


 impressions. The Board pointed to several differences in
 the designs: (1) the front face, (2) the outwardly projecting
 top and side surfaces, (3) the size, shape, and positioning of
 the recesses, and (4) the curvature from side-to-side. Deci-
 sion, J.A. 56–57. And LKQ’s claim that the Board failed to
 properly compare the designs as a whole is without merit.
 The Board clearly found the claimed design of the ’508 pa-
 tent created a rugged, chiseled, durable, three-dimensional
 truck-like appearance, while the skid bar of the Leopaard
 had a softer, sloping appearance. Decision, J.A. 57. We
 agree and find the Board’s finding of no anticipation was
 supported by substantial evidence.
                               II
     LKQ next argues that the Supreme Court’s decision in
 KSR implicitly overruled the long-standing Rosen and
 Durling tests for obviousness of design patents, and there-
 fore the Board’s decision applying such tests must at least
 be vacated and remanded. For design patent obviousness,
 Durling outlines a two-step analysis. First, it must be de-
 termined whether a primary reference, also known as a
 Rosen reference, exists with characteristics “basically the
 same” as the claimed design by discerning the visual im-
 pression of the design as a whole. Durling, 

;
 Rosen, 673 F.2d at 390–91. Second, if a satisfactory pri-
 mary reference exists, the court must consider whether an
 ordinary designer would have modified the primary refer-
 ence to create a design with the same overall visual appear-
 ance as the claimed design. 

 This test safeguards
 against a challenger picking and choosing features from
 multiple references to create something entirely new, fun-
 damentally changing the overall visual impression of the
 original designs. See In re Jennings, 

 (C.C.P.A. 1950) (explaining that one must start with
 “something in existence -- not with something that might
 be brought into existence by selecting individual features
 from prior art and combining them”).
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 10                                    LKQ CORPORATION v.
                      GM GLOBAL TECHNOLOGY OPERATIONS LLC


     While KSR does not address Rosen or Durling, LKQ ar-
 gues that its holding implicates the test established in
 these cases. GM argues that LKQ has forfeited this argu-
 ment by not raising it before the Board, and even if it were
 not forfeited, KSR does not overrule Rosen or Durling.
                              A
     As a general proposition, a federal appellate court does
 not consider issues not raised before the lower tribunal.
 Singleton v. Wulff, 

 (1976). The exact
 phrasing of the argument need not have been used below
 “so long as it can be said that the tribunal was ‘fairly put
 on notice as to the substance of the issue.’” Nike Inc. v.
 Adidas AG, 

 (Fed. Cir. 2016) (citing
 Consolidation Coal Co. v. United States, 

 (Fed. Cir. 2003) (quoting Nelson v. Adams, 

 (2000) (“But [issue preservation] does not demand
 the incantation of particular words; rather, it requires that
 the lower court be fairly put on notice as to the substance
 of the issue.”))).
     But even if an issue was not presented below, there is
 no absolute bar to considering and deciding the issue on
 appeal, as forfeiture is a matter of discretion. Harris Corp.
 v. Ericsson Inc., 

 (Fed. Cir. 2005) (“An
 appellate court retains case-by-case discretion over
 whether to apply waiver.”). In Icon Health and Fitness,
 Inc. v. Strava, Inc., we set forth some relevant considera-
 tions to guide the exercise of such discretion. 

 (Fed. Cir. 2017) (citing Automated Merch. Sys.,
 Inc. v. Lee, 

, 1379 (Fed. Cir. 2015)). These
 considerations include whether the issue involves a pure
 question of law and refusal to consider it would result in a
 miscarriage of justice, and whether the issue presents sig-
 nificant questions of general impact. 

     In this case, appellants argue that KSR, 

,
 overrules this court’s long-standing precedents, Rosen, 

, and Durling, 

, which outline the test
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 LKQ CORPORATION v.                                          11
 GM GLOBAL TECHNOLOGY OPERATIONS LLC


 for determining design patent obviousness. In their peti-
 tion to the Board, the appellants raised their KSR argu-
 ment in the following manner:
     As a final matter, the Federal Circuit has, to date,
     been silent regarding whether the Supreme Court’s
     opinion in KSR Int’l Co. v. Teleflex, Inc., 

 (2007), governs design patent obviousness,
     other than to say that it was “not obvious that the
     Supreme Court necessarily intended to exclude de-
     sign patents from the reach of KSR.” Titan Tire
     Corp. v. Case New Holland, Inc., 

,
     1384–85 (Fed. Cir. 2009). 2 In a design patent obvi-
     ousness analysis, to modify a primary reference, a
     secondary reference must be “so related [to the pri-
     mary reference] that the appearance of certain or-
     namental features in one would suggest the
     application of those features to the other.” Titan
     Tire, 

 (quoting Durling, 

). To the extent that the “so related” test op-
     erates to unduly limit the scope of design patent
     obviousness, such an overly restrictive view would
     run afoul of KSR’s proscription against rigid re-
     strictions on the scope of an obviousness analysis.
 J.A. 186–87.
     We consider that this assertion in the petition is suffi-
 cient to preserve the argument that LKQ seeks to make,
 that KSR overrules our current test for design patent



     2   In KSR, the Supreme Court rejected the “rigid,
 mandatory formula” embodied in the Federal Circuit’s
 then-prevailing “teaching suggestion motivation” require-
 ment as improperly limiting the obviousness inquiry and,
 instead, prescribed a more flexible approach to obviousness
 and motivation to combine prior art teachings. KSR, 550
 U.S. at 420–22.
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 12                                    LKQ CORPORATION v.
                      GM GLOBAL TECHNOLOGY OPERATIONS LLC


 obviousness. While not extensive, LKQ’s argument enun-
 ciates concern that the applied obviousness test was
 “overly restrictive” in light of KSR, which is the heart of its
 argument on appeal. To be sure, LKQ could have made its
 argument in depth. However, such arguments would have
 been to an unreceptive audience, as the Board already had
 heard and rejected the argument. See, e.g., Johns Manville
 Corp. v. Knauf Insulation, Inc., IPR2015-1453, 2017 Pat.
 App. LEXIS 3419 at *63-64 (P.T.A.B. Jan. 11, 2017) (con-
 cluding that there was no suggestion that KSR is “germane
 to an obviousness determination in design patents, or has
 any effect upon the relevance of the Durling analysis,” and
 that, regardless, the “basically the same test” is consistent
 with KSR).
     Further, this challenge to Rosen and Durling is a pure
 question of law that undoubtedly presents a significant
 question of general impact, favoring the exercise of our dis-
 cretion to hear and decide this issue. See Icon Health, 

. Moreover, we may decide to apply the correct
 law even if the parties did not argue it, so long as the issue
 is properly before the court. Forshey v. Principi, 

, 1356–57 (Fed. Cir. 2002) (en banc) (superseded by
 statute on other grounds, Flores v. Nicholson, 

 (Fed. Cir. 2006)). Given the aforementioned
 considerations and in our discretion, we decline to find
 LKQ’s KSR argument forfeited.
                               B
      Appellant argues that the Supreme Court, in reviewing
 Teleflex, Inc. v. KSR Int’l Co., 

 (Fed. Cir.
 2005), overruled Rosen and Durling. The Court stated,
 “[t]he obviousness analysis cannot be confined by a formal-
 istic conception of the words teaching, suggestion, and mo-
 tivation . . . .” KSR, 

. The Court did note
 that the teaching, suggestion, and motivation test “cap-
 tured a helpful insight,” but it found it overly “rigid.” 

. However, KSR did not involve or discuss design
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 LKQ CORPORATION v.                                        13
 GM GLOBAL TECHNOLOGY OPERATIONS LLC


 patents, which is the type of patent we have here before us
 and that was addressed by Rosen and Durling.
     And we note that in the more than fifteen years since
 KSR was decided, this court has decided over fifty design
 patent appeals. In these appeals, this court has continu-
 ally applied Rosen and Durling just as it had in the decades
 preceding. Notably, the correctness of our current law in
 light of KSR was raised in only two of those over fifty ap-
 peals, only tangentially, and not addressed in our decisions
 in those two cases. This challenge is therefore an outlier.
     We, as a panel, cannot overrule Rosen or Durling with-
 out a clear directive from the Supreme Court. Deckers
 Corp. v. United States, 

 (Fed. Cir. 2016)
 (explaining panels are “bound by prior panel decisions until
 they are overruled by the court en banc or the Supreme
 Court”). See also California Inst. Of Tech. v. Broadcom
 Ltd., 

, 990–91 (Fed. Cir. 2022) (explaining the
 panel only had authority to overrule circuit precedent with-
 out en banc action given the Supreme Court’s reasoning
 undermining said circuit precedent). As explained above, it
 is not clear the Supreme Court has overruled Rosen or
 Durling. The panel is therefore bound to apply existing law
 to this appeal.
                              C
     Finally, applying existing law, we affirm the Board’s
 non-obviousness determination, and conclude that its fac-
 tual findings are supported by substantial evidence.
     Our above discussion of the differences between the
 Leopaard design and the claimed design of the ’508 patent
 applies equally here. Although the tests for anticipation
 and obviousness of design patents are viewed through dif-
 ferent lenses—the ordinary observer and ordinary de-
 signer, respectively—we, like the Board, acknowledge the
 relevance of the findings of one to the other. See In re Nal-
 bandian, 

 (C.C.P.A. 1981) (discussing
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 14                                    LKQ CORPORATION v.
                      GM GLOBAL TECHNOLOGY OPERATIONS LLC


 the “ordinary observer” and “ordinary designer” tests); De-
 cision, J.A. 57–59 (citing LKQ Corp., PGR2020-00055, Ex.
 2004, ¶ 86).
      In sum, LKQ failed to show that the Leopaard creates
 “basically the same” visual impression as the claimed de-
 sign. Durling, 

; Rosen, 673 F.2d at 390–91.
 The Board found several differences between the claimed
 design and Leopaard, including (1) the front face, (2) the
 outwardly projecting top and side surfaces, (3) the size,
 shape, and positioning of the recesses, and (4) the curva-
 ture from side-to-side. Decision, J.A. 56–57. The Board
 found that these “differences in the aggregate create an
 overall ornamental design that is not basically the same
 between the claimed design of the ’508 patent and the
 Leopaard.” Id. at 58. For example, the “features of the
 claimed design that are missing from the Leopaard are sig-
 nificant in the aggregate, and contribute to its rugged, chis-
 eled, three-dimensional overall appearance that contrasts
 with the Leopaard’s appearance dominated by a rearward
 sloping lower surface and relatively shallow recesses.” Id.
 at 57. In reaching these determinations, the Board cred-
 ited the testimony of GM’s witnesses. Id. We cannot find
 that the Board erred in valuing certain testimony over oth-
 ers. In re Jolley, 

 (Fed. Cir. 2002)
 (where “two different, inconsistent conclusions may rea-
 sonably be drawn from the evidence in record, an agency’s
 decision to favor one conclusion over the other is the epit-
 ome of a decision that must be sustained upon review for
 substantial evidence”). The Board’s finding that Leopaard
 did not create “basically the same” visual impression as
 created by the claimed design is therefore supported by
 substantial evidence.
     Further, as discussed in Section I, the references pro-
 vided by LKQ depicting the Leopaard did not show all the
 features necessary for comparison (e.g., the bottom or
 sides). Decision, J.A. 18, 58–60. As the Board noted, “There
 are simply too many aspects of the claimed design that are
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 LKQ CORPORATION v.                                      15
 GM GLOBAL TECHNOLOGY OPERATIONS LLC


 not adequately disclosed by the images of the [Leopaard].”
 Id. at 60. This amounts to a failure of proof. We therefore
 affirm the Board’s conclusion that LKQ did not show that
 the ’508 patent would have been obvious over the cited ref-
 erences.
                        CONCLUSION
      We have considered LKQ’s remaining arguments but
 find them unpersuasive. For the foregoing reasons, the de-
 cision of the Board is affirmed.
                       AFFIRMED
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         NOTE: This disposition is nonprecedential.


    United States Court of Appeals
        for the Federal Circuit
                   ______________________

   LKQ CORPORATION, KEYSTONE AUTOMOTIVE
             INDUSTRIES, INC.,
                 Appellants

                              v.

   GM GLOBAL TECHNOLOGY OPERATIONS LLC,
                    Appellee
             ______________________

                         2022-1253
                   ______________________

     Appeal from the United States Patent and Trademark
 Office, Patent Trial and Appeal Board in No. PGR2020-
 00055.
                  ______________________

 LOURIE, Circuit Judge, additional views.
     The panel resolves this case by determining that sub-
 stantial evidence supports the Board’s conclusion that the
 claims of the ’508 patent are not unpatentable as antici-
 pated or obvious. I agree. I write separately to respond to
 the assertion by appellant that the Board improperly relied
 on our predecessor court’s Rosen decision for its rationale
 in deciding its case. Appellant argues that Rosen, what-
 ever its validity at the time it was decided, is inconsistent
 with, and hence was implicitly overruled, by the Supreme
 Court in KSR. The panel resolves the case without having
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 2                                     LKQ CORPORATION v.
                      GM GLOBAL TECHNOLOGY OPERATIONS LLC


 to reach this issue, but I comment separately on the argu-
 ment appellant raises, but which we do not reach.
      Rosen was decided by the Court of Customs and Patent
 Appeals in 1982, sitting with its usual en banc panel of
 Judges Markey, Rich, Baldwin, Miller, and Nies, hardly a
 group unversed in patent law. Rosen, in reversing the Pa-
 tent Office’s Board of Appeals, stated that “there must be a
 reference, a something in existence, the design character-
 istics of which are basically the same as the claimed design
 in order to support a holding of obviousness.” In re Rosen,
 

 (C.C.P.A. 1982) (citing In re Jennings,
 

 (C.C.P.A. 1950)).
     Appellant argues that the Supreme Court in reviewing
 Teleflex, Inc. v. KSR Int’l Co., 

 (Fed. Cir.
 2005), a non-precedential decision of ours that recited al-
 most as boilerplate the longstanding requirement that, in
 evaluating a combination of references asserted to render
 a claimed invention obvious, there must be some teaching,
 suggestion, or motivation shown in the prior art to combine
 the references, overruled Rosen. The Court stated, “[t]he
 obviousness analysis cannot be confined by a formalistic
 conception of the words teaching, suggestion, and motiva-
 tion . . . .” KSR Int’l Co. v. Teleflex Inc., 

 (2007). The Court did note that the teaching, suggestion,
 and motivation test “captured a helpful insight,” but it
 found it overly “rigid.” 

. That essentially is the
 broad concept that appellant now asserts has overruled an
 almost forty-year-old design patent decision that this court
 has been bound to follow and has continued to follow in the
 decade since KSR was decided.
     I disagree. First, KSR did not involve design patents,
 which is the type of patent we have here before us. Utility
 patents and design patents are distinct types of patents.
 Utility patents protect processes, machines, manufactures,
 compositions of matter, and improvements thereof. But
 their inventions must be “useful.” 

. A design
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 LKQ CORPORATION v.                                          3
 GM GLOBAL TECHNOLOGY OPERATIONS LLC


 patent protects ornamentation, the way an article looks, 

. See M.P.E.P. § 1502.01. Claims and claim
 construction in design patents are thus quite different com-
 pared with utility patents. See Richardson v. Stanley
 Works, Inc., 

 (Fed. Cir. 2010) (question-
 ing how “a court could effectively construe design claims,
 where necessary, in a way other than by describing the fea-
 tures shown in the drawings.”); Egyptian Goddess, Inc. v.
 Swisa, Inc., 

 (Fed. Cir. 2008) (en banc)
 (citing Dobson v. Dornan, 

 (1886)) (finding
 that a design is better represented by an illustration than
 a description).
     While 

, which deals with obviousness,
 does not differentiate between types of inventions, and
 hence applies to all types of patents, the considerations in-
 volved in determining obviousness are different in design
 patents. Obviousness of utility patents requires consider-
 ations such as unexpected properties, utility, and function.
 Design patents, on the other hand, relate to considerations
 such as the overall appearance, visual impressions, art-
 istry, and style of ornamental subject matter. Ornament is
 in the eyes of the beholder. Functional utility is objective.
     What is the utility or function of something that is or-
 namental? To be sure, it may also be functional and have
 use, as do the skid bars in the case before us, but that func-
 tion is beside the point when considering whether its orna-
 mental features would have been obvious. And what is an
 unexpected property in the context of design patents, for it
 must be related to ornament, as function is not to be con-
 sidered in evaluating obviousness of a design?
     Obviousness of an ornamental design thus requires dif-
 ferent considerations from those of a utility invention.
 KSR did not address any of these considerations, and it did
 not even mention design patents. Surely, it did not intend
 to speak to obviousness of designs, and what was said
 about a test long applied to utility inventions was not
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 4                                     LKQ CORPORATION v.
                      GM GLOBAL TECHNOLOGY OPERATIONS LLC


 indicated to apply to design patents. It cannot reasonably
 be held to have overruled a precedent of one of our prede-
 cessor courts involving a type of patent it never mentioned.
      A comprehensive review of obviousness in design pa-
 tents, Overcoming the “Impossible Issue” of Nonobvious-
 ness in Design Patents, supports the view that “KSR has
 very limited, if any, applicability to design patents.” Janice
 M. Mueller and Daniel Harris Brean, 99 KY. L. J., 419, 518
 (2011). It further states that, “[m]ost of the KSR Court’s
 discussion is completely irrelevant to what design patents
 protect.” 

 It notes that “[t]he subject matter of a design
 patent is fundamentally different from a utility patent, as
 evidenced by the separate statutory provisions that define
 the eligible subject matter of each type of patent.” 

 “In-
 deed, a patented design ‘need not have any practical util-
 ity,’ the antithesis of a utility invention.” 

     Second, while Rosen may have overstated its point in
 adding to the quoted Jennings language such as that the
 primary reference must have design characteristics that
 are “basically the same” as those of the claimed design, this
 statement hardly reflects the rigidity the Court was con-
 demning in KSR. 

.
     And finally, Rosen was not essentially incorrect. In any
 obviousness analysis, the question is whether the claimed
 invention was obvious, but obvious over what. One has to
 start from somewhere. See K/S Himpp v. Hear-Wear
 Techs., 

 (Fed. Cir. 2014) (finding that
 an examiner may not rely on his common knowledge with-
 out a supporting prior art reference) (citing M.P.E.P.
 § 2144.03).
      In any event, whether Rosen was right or wrong, or
 over-simplified, the Supreme Court, in KSR, reviewing a
 decision involving a utility patent, did not address the basic
 concept of beginning an obviousness analysis in design pa-
 tents by looking for a “something in existence.” And, espe-
 cially, it did not overrule Rosen.
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         NOTE: This disposition is nonprecedential.


    United States Court of Appeals
        for the Federal Circuit
                  ______________________

   LKQ CORPORATION, KEYSTONE AUTOMOTIVE
             INDUSTRIES, INC.,
                 Appellants

                             v.

   GM GLOBAL TECHNOLOGY OPERATIONS LLC,
                    Appellee
             ______________________

                        2022-1253
                  ______________________

     Appeal from the United States Patent and Trademark
 Office, Patent Trial and Appeal Board in No. PGR2020-
 00055.
                  ______________________

 STARK, Circuit Judge, concurring in part and concurring in
 judgment.
     I agree with the majority’s conclusion that the Board
 had substantial evidence to conclude LKQ failed to show
 that the ’508 patent was anticipated or would have been
 obvious. Accordingly, I join the majority’s anticipation
 analysis and most of its obviousness analysis. However, for
 the reasons I set forth fully in LKQ Corp., Keystone Auto-
 motive Industries, Inc. v. GM Global Technology Opera-
 tions LLC, No. 21-2348 (Fed. Cir. Jan. 20, 2022), I
Case: 22-1253    Document: 45      Page: 21    Filed: 01/20/2023




 2                                     LKQ CORPORATION v.
                      GM GLOBAL TECHNOLOGY OPERATIONS LLC


 respectfully decline to join parts II.A and II.B of the major-
 ity’s opinion.