One Design, Two Regimes: U.S. and EU Design Protection After LKQ

Executive Summary: This article compares U.S. design-patent law after LKQ Corp. v. GM Global Technology Operations LLC with the European Union’s unitary design regime, highlighting the different perspectives of the U.S. “ordinary designer” and the EU “informed user.” Although LKQ replaced the rigid Rosen-Durling obviousness test with a more flexible framework, recent decisions—including Dynamite Marketing and Range of Motion—show that challengers must still identify an actual, analogous primary reference and support any proposed modification with evidence rather than hindsight. These early cases are illustrative, however, and do not yet establish a stable invalidity-rate trend. The EU regime, now governed by Regulation (EU) 2026/715, instead evaluates novelty and individual character through the design’s overall impression, informed by the designer’s degree of freedom and without importing U.S. obviousness doctrine. The article also examines differences in claim scope, enforcement, invalidity, and repair-part protection, concluding that businesses should coordinate—but not conflate—their U.S. and EU filing, prosecution, and litigation strategies.

I. Introduction

Consider a replacement fender that an automotive manufacturer protects in both the United States and the European Union. An aftermarket supplier wants to sell a visually compatible part. In the United States, the supplier may challenge the design patent under the Federal Circuit’s new obviousness framework. In the EU, it may attack novelty or individual character. Even if the EU design is valid, however, the supplier may invoke the EU’s repair clause. The same fender therefore raises different questions, before different hypothetical viewers, using different bodies of evidence. The EU side of this comparison is limited to the Union’s unitary EU design regime; it does not address United Kingdom design law or the separate national design-right regimes of EU Member States, including their treatment of repair parts.

Although both regimes assess visual impression, LKQ Corp. v. GM Global Technology Operations LLC did not convert U.S. obviousness into the EU individual-character test. LKQ unquestionably made U.S. obviousness more flexible. But it did not import EU individual-character doctrine. U.S. obviousness remains a § 103 inquiry conducted from the perspective of an ordinary designer. It permits a reasoned combination of analogous references and requires consideration of objective indicia. EU individual character asks whether an informed user receives a different overall impression from each earlier design considered individually. Commercial success and fame do not enter that validity analysis.

Recent decisions sharpen rather than erase these differences. Early U.S. cases applying LKQ emphasize the need for an actual primary reference, whole-design analysis, and a record-supported reason for the proposed modification. Recent EU decisions reject any free-standing creativity threshold, refuse to treat fashion trends as constraints on designer freedom, and reiterate that prior designs may not be mosaiced. At the same time, new U.S. cases on prosecution disclaimer, written descriptions, and functionality demonstrate why validity cannot be equated with claim scope. And the EU’s now-permanent repair clause creates a substantial commercial difference in the market that gave rise to LKQ itself.

II. The Systems Begin at Different Gates

The two regimes differ at the point of registration. The United States Patent and Trademark Office substantively examines a design application for compliance with the Patent Act, including novelty, nonobviousness, ornamentality, and disclosure requirements. An issued design patent carries the statutory presumption of validity, although many existing patents were examined under the now-overruled Rosen–Durling framework. See 35 U.S.C. § 282(a).

The European Union Intellectual Property Office does not ordinarily examine whether an application is new or has individual character before registering it. Those requirements are commonly tested later, through an invalidity application or counterclaim. A registered EU design therefore provides an enforceable right, but its registration should not be confused with an adjudication that the design satisfies the substantive validity standards. See Regulation (EU) 2026/715 of the European Parliament and of the Council of 11 March 2026 on European Union Designs (Codification), recital 18, 2026 O.J. (L 715).

The governing text is now Regulation (EU) 2026/715, which entered into force on July 1, 2026 and codifies the EU design regulation as amended by the 2024 reform. Id. art. 164. Current terminology refers to an “EU design” or “registered EU design,” rather than a “Community Registered Design” or “CRD.” Under the codified regulation, Article 6 governs novelty, Article 7 governs individual character, Article 11 governs scope, Article 19 identifies the object of protection, and Article 22 contains the repair clause. Because the codification carries forward much of the predecessor regulation’s operative language, earlier decisions remain relevant where the text is unchanged, subject to the new numbering and transitional rules.

This procedural mismatch matters. A comparison between U.S. allowance and EU registration is not an apples-to-apples comparison of substantive merit. Substantive validity is compared most directly by placing U.S. patentability and validity under §§ 102 and 103 alongside EU validity under Articles 6 and 7.

III. What LKQ Changed

For decades, Federal Circuit law channeled design-patent obviousness through the two-step Rosen–Durling test. First, the challenger had to identify a single primary reference with design characteristics “basically the same” as the claimed design. In re Rosen, 673 F.2d 388, 391 (C.C.P.A. 1982). Only after crossing that threshold could the challenger invoke secondary references, and then only if they were sufficiently related to the primary reference to suggest applying their ornamental features to it. Durling v. Spectrum Furniture Co., 101 F.3d 100, 103 (Fed. Cir. 1996). The rigid gateway often ended the analysis before the factfinder considered the full prior-art record or the ordinary designer’s knowledge.

The en banc Federal Circuit did more than question that framework. It expressly overruled Rosen–Durling as inconsistent with § 103 and the Supreme Court’s flexible approach in KSR International Co. v. Teleflex Inc., 550 U.S. 398 (2007). LKQ Corp. v. GM Global Technology Operations LLC, 102 F.4th 1280, 1293–95 (Fed. Cir. 2024) (en banc); see 35 U.S.C. §§ 103, 171(b) (2018). The court vacated the Patent Trial and Appeal Board’s nonobviousness determination and directed application of the factual inquiries established in Graham v. John Deere Co., 383 U.S. 1, 17–18 (1966). LKQ, 102 F.4th at 1293–94, 1301.

The resulting framework is flexible, but it is not standardless. The factfinder first determines the scope and content of analogous prior art. Art from the same field of endeavor as the claimed article is analogous; the Federal Circuit left the precise treatment of more remote fields for later cases. Id. at 1295–97. Each reference used in the obviousness analysis must qualify as analogous art.

An actual primary reference must still be identified. It need not be “basically the same” as the claimed design, but it must be a design that exists—not a synthetic object assembled from isolated features scattered across the art. Id. at 1297–98. Ordinarily, it will be the closest and most visually similar reference. Visual proximity is not a formal Rosen-style gate, but it affects the strength of the challenge: the farther the starting design is from the claim, the more persuasive the proof of modification must be.

The factfinder then evaluates the differences between the prior designs and the claim as a whole from the perspective of an ordinary designer in the relevant field. Id. at 1298–99. That actor is not the consumer who later decides infringement. The ordinary designer brings knowledge of the relevant design field, customary practices, commonplace ornamental features, and appropriate market or industry influences.

Secondary references may supply features absent from the primary reference. But the ability to combine references does not authorize a retrospective reconstruction of the patent. The record must contain a nonhindsight reason why an ordinary designer would have made the proposed modification to create the same overall visual appearance. Id. at 1299–1300. The reason need not appear expressly in the references themselves; it may arise from designer knowledge, industry custom, market demands, or other supported considerations. When the references have markedly different overall appearances, the challenger generally must do more to explain the proposed alteration.

Finally, objective indicia remain part of the inquiry. Commercial success, industry praise, and copying may support nonobviousness when the required nexus exists. Id. at 1300. LKQ did not decide whether every utility-patent consideration—such as long-felt but unmet need or failure of others—translates cleanly into design law. Id. at 1300–01. Nonobviousness therefore does not turn on whether the design embodies a sufficient “leap of creativity.”

IV.  The Early U.S. Cases: A Flexible Test Still Requires Proof

The limited body of post-LKQ decisions offers useful illustrations of how the new framework operates, but it does not yet support a stable trend in design-patent invalidity rates. The selected cases arise in varied procedural settings, apply different burdens, and include a nonprecedential Federal Circuit decision. Read with those limitations, they repeatedly emphasize the need to identify a proper starting reference, compare the design as a whole, and provide a record-supported reason for modification. A district-court challenger generally must prove invalidity by clear and convincing evidence. Microsoft Corp. v. i4i Ltd. Partnership, 564 U.S. 91, 95 (2011). An IPR petitioner at institution, by contrast, must show a reasonable likelihood of prevailing. 35 U.S.C. § 314(a) (2018).

The Federal Circuit’s early application in Dynamite Marketing, Inc. v. The WowLine, Inc. is instructive, although nonprecedential. Nos. 2024-1523, 2024-1525, slip op. at 11–13 (Fed. Cir. Sept. 12, 2025) (nonprecedential). A jury had rejected an obviousness challenge under Rosen–Durling, and the accused infringer sought a remand after LKQ. The Federal Circuit declined. The reference the expert tentatively described as the likely primary reference had never been admitted into evidence. Even assuming an adequate starting reference, the expert’s generalized, hindsight-driven opinion did not explain why an ordinary designer would combine specific features from identified art to create the patented overall appearance. Id. at 11–13. A change in legal framework could not repair an undeveloped evidentiary record.

Diode Dynamics, L.L.C. v. 5DLight, Inc. applied the same discipline at summary judgment. No. 5:23-cv-02238-WLH-JPR, 2025 WL 2827023, at *6 (C.D. Cal. Sept. 15, 2025), reconsideration denied, 2026 WL 638862 (C.D. Cal. Feb. 3, 2026). The asserted LED-lamp-bezel references differed substantially in geometry and overall visual impression. The challenger’s expert offered no contemporaneous functional constraint, market pressure, aesthetic trend, industry practice, or design principle explaining why an ordinary designer would extract particular features from one reference and add them to another. The proposed combination appeared selected because it recreated the patent, not because the prior art or design field supplied a reason to make it.

The PTAB has reached similar conclusions at institution. In A&A Global Imports, Inc. v. Lerman Container Corp., the petitioner challenged a jar design but did not explain why an ordinary designer would choose the claimed neck-to-base proportion or the particular shape and depth of the internal compartment. IPR2024-01138, Paper 7, at 10–13 (P.T.A.B. Jan. 22, 2025), 2025 WL 284651. Calling the differences “minimal” did not substitute for objective support in the prior art.

In Arashi Vision (U.S.) LLC v. GoPro, Inc., multiple webpages could not collectively supply the required existing primary design. IPR2024-01434, Paper 9, at 18–19, 27–39 (P.T.A.B. Mar. 31, 2025), 2025 WL 966792. The petition focused on selected buttons, lenses, and other components while inadequately addressing proportions, corner radii, feature placement, and the camera’s overall sleek or boxlike appearance. Id. at 27–39. Arashi Vision confirms that U.S. law does not permit a challenger to synthesize the initial reference from separate disclosures. Once an actual primary design is identified, however, U.S. law may permit motivated modification using analogous secondary art. EU individual-character law does not take that second step.

Taken together, these decisions illustrate a broader doctrinal path that remains evidence-dependent. A challenger must still prove where the ordinary designer would have started, why the designer would have changed that design, and how the evidence avoids hindsight.

V. EU Individual Character Is Not European Obviousness

EU law separates novelty from individual character. A registered EU design is new if no identical design was made available to the public before the relevant filing or priority date; designs are identical when they differ only in immaterial details. Regulation 2026/715, art. 6. Individual character exists when the design produces on the informed user an overall impression different from that produced by any earlier disclosed design, taking the designer’s degree of freedom into account. Id. art. 7.

The individual-character analysis is commonly expressed in four stages. The tribunal identifies the sector of the products to which the design applies, determines the relevant informed user and that user’s attention and awareness of the design corpus, evaluates the designer’s degree of freedom, and compares the overall impressions, directly where possible, of the contested design and each earlier design taken individually. Crocs, Inc. v. European Union Intellectual Property Office, Case T-228/25, ECLI:EU:T:2026:280, ¶ 19 (Apr. 22, 2026).

The informed user lies between the average consumer of trademark law and the technical or design expert. The user is particularly observant, has some awareness of designs in the relevant field, and pays a relatively high degree of attention, but does not dissect the design with the technical acuity attributed to a specialist. See PepsiCo, Inc. v. Grupo Promer Mon Graphic SA, Case C-281/10 P, ECLI:EU:C:2011:679, ¶¶ 53–59 (Oct. 20, 2011). Direct side-by-side comparison is preferred where feasible, but EU law does not assume it is possible in every market or use context.

Nor may an invalidity applicant create a composite earlier design by selecting features from multiple disclosures. Each earlier design must be assessed individually. Karen Millen Fashions Ltd. v. Dunnes Stores, Case C-345/13, ECLI:EU:C:2014:2013, ¶¶ 25–35 (June 19, 2014). The wider design corpus may inform how the informed user perceives similarities and differences, but it does not become a synthetic reference.

Designer freedom moderates the visual comparison. Technical-function and regulatory constraints may standardize certain product features. When freedom is genuinely limited, relatively small differences may carry more weight; when freedom is broad, minor differences are less likely to alter the overall impression. But designer freedom should not be collapsed with field saturation. A crowded field may heighten an informed user’s sensitivity if supported by evidence, while fashion trends, consumer expectations, or cost preferences do not necessarily constrain the designer in the legal sense.

The Court of Justice’s recent decision in Deity Shoes, S.L. v. Mundorama Confort, S.L. makes the absence of a creativity requirement explicit. Case C-323/24, ECLI:EU:C:2025:983 (Dec. 18, 2025). The footwear designs at issue were developed using models and customization options offered in suppliers’ catalogs. The referring court asked whether protection required genuine design activity, intellectual effort, or a minimum degree of originality. The Court answered that novelty and individual character are the governing requirements; EU design law does not add a copyright-like creativity threshold. Id. ¶¶ 23–33. A design is not categorically excluded merely because a supplier predetermined many features or the claimant selected from existing components.

Deity Shoes also rejected treating fashion trends as the equivalent of technical constraints. Trends may influence commercial choices, but they do not legally compel the designer to adopt a particular appearance. Id. ¶¶ 40–54. Nor are trend-driven features automatically assigned less weight in the informed user’s overall impression. Deity Shoes confirms that neither trend influence nor the extent of creative effort supplies an additional validity requirement.

The General Court’s 2026 Crocs decision illustrates the methodology on familiar facts. The contested clog was challenged using an earlier “Holey Soles” clog disclosed through a U.S. design-patent application. Crocs, ECLI:EU:T:2026:280, ¶¶ 2–7. The court found substantial designer freedom in the appearance of clogs. Id. ¶¶ 25–31. Against the shared overall shape, thick sole, rounded toe, holes, and cutouts, the addition of a heel strap was a minor difference that did not produce a different overall impression. Id. ¶¶ 38–48.

The Crocs court also held that Crocs’ commercial success, reputation, asserted iconic status, design process, and contribution to the footwear sector were not factors in individual-character validity. Id. ¶¶ 51–56. The treatment of related subject matter by the USPTO likewise did not govern the EU tribunal. Id. ¶¶ 69–70. U.S. law, by contrast, expressly preserves commercial success, industry praise, and copying as potential objective indicia of nonobviousness. That evidentiary difference is not peripheral; it reflects the different questions the two regimes ask.

VI. Three Viewers, Three Legal Functions

The phrase “overall impression” appears throughout design law, but it does not identify a single transatlantic test. U.S. validity, U.S. infringement, and EU individual character employ three distinct hypothetical viewers.

For U.S. obviousness, the viewer is the ordinary designer. The issue is whether, in light of analogous prior art and the designer’s knowledge, the claimed design as a whole would have been obvious. The inquiry may include a motivated combination of an actual primary design with secondary references and must consider appropriate objective indicia.

For U.S. infringement, the viewer is the ordinary observer—typically the principal purchaser of the article—who is treated as familiar with the prior art. The question is whether the accused product and claimed design are substantially the same in overall appearance such that the resemblance would deceive that observer. Egyptian Goddess, Inc. v. Swisa, Inc., 543 F.3d 665, 670, 676–79 (Fed. Cir. 2008) (en banc). Comparison art may help the observer identify which similarities or differences matter, but that is not the § 103 analogous-art inquiry.

For EU validity and scope, the viewer is the informed user. Individual character compares the registered design against each earlier design individually. Scope compares the registered design against the later design, asking whether the latter produces a different overall impression. Regulation 2026/715, art. 11. Designer freedom informs both applications.

The differences can be stated simply. U.S. obviousness permits a proven combination; EU individual character does not mosaic earlier designs. U.S. obviousness considers certain market-facing objective indicia; EU individual character does not treat success or fame as a validity factor. U.S. validity is judged by a designer; EU validity and scope use an informed user. The regimes share a commitment to evaluating designs as wholes, but they use whole-design reasoning for different legal purposes.

VII. LKQ Did Not Decide Scope or Infringement

LKQ addresses validity under § 103; it does not determine infringement or claim scope. U.S. rights are not confined to exact copies of the drawings. Under Egyptian Goddess, the accused design infringes when the ordinary observer would view the two overall appearances as substantially the same. 543 F.3d at 676–79. At the same time, recent Federal Circuit decisions show that drawings do not operate in a vacuum. Prosecution statements, accompanying descriptions, and the boundary between functional and ornamental subject matter can narrow what the claim reaches.

In Top Brand LLC v. Cozy Comfort Co., the Federal Circuit held that prosecution-history disclaimer applies to design patents through argument as well as amendment. 143 F.4th 1349, 1356–58 (Fed. Cir. 2025). To overcome an anticipation rejection, the applicant had distinguished the prior design using the shape, width, and placement of a garment pocket, its relationship to the armholes, and the slope of the hem. Those representations unambiguously surrendered reliance on the identified subject matter when the patentee later argued infringement. Id. at 1357–62. For prosecution strategy, the lesson is immediate: a seemingly useful feature-by-feature distinction may become the enforcement boundary.

In Smartrend Manufacturing Group (SMG), Inc. v. Opti-Luxx Inc., the patent claimed an LED panel “as shown and described,” and the description stated that oblique shading denoted transparency. 159 F.4th 1322, 1325–26 (Fed. Cir. 2025). Although such shading can have more than one conventional meaning, the accompanying words narrowed the design to transparent rather than merely translucent surfaces. Id. at 1330–31. The court vacated the infringement judgment based on the district court’s broader construction. For applicants, words can narrow a visual claim.

Functionality introduces another filtering step. In Range of Motion Products, LLC v. Armaid Co., the Federal Circuit affirmed summary judgment of noninfringement for handheld massagers after distinguishing functional aspects from their ornamental implementation. 166 F.4th 981, 988–92 (Fed. Cir. 2026). Solid lines did not make every depicted aspect ornamental, and alternative designs were relevant but not an exclusive threshold test for functionality. Id. at 989–91. The majority found the remaining ornamental appearances plainly dissimilar. Chief Judge Moore dissented, arguing that the “plainly dissimilar” framing invited a find-the-differences exercise and displaced the jury’s whole-design factfinding role. Id. at 995–1000 (Moore, C.J., dissenting). Range of Motion filed a petition for rehearing en banc on April 3, 2026; Armaid responded on May 20, and the petition remained pending as of July 15, 2026. Petition for Rehearing En Banc at 1, Range of Motion Products, LLC v. Armaid Company Inc., No. 23-2427 (Fed. Cir. Apr. 3, 2026), ECF No. 52; Response to Petition for Rehearing En Banc at 1, id. (Fed. Cir. May 20, 2026), ECF No. 83.

EU design scope is not categorically broader than U.S. design-patent scope. Article 11 includes designs that do not produce a different overall impression on the informed user, taking designer freedom into account. Regulation 2026/715, art. 11. Article 19 further provides that the visibly shown features in the application define the object of protection. Id. art. 19. The resulting scope depends on the registration’s representation, the design corpus, the user’s perception, and the designer’s freedom—not on a presumption that EU rights always extend farther than U.S. claims.

LEGO A/S v. Pozitív Energiaforrás Kft. illustrates EU scope in the specialized setting of modular products. Case C-211/24, ECLI:EU:C:2025:648 (Sept. 4, 2025). The informed user did not become a technical expert merely because the product incorporated functional connection features. Id. ¶¶ 47–58. The assessment remained visual, although limited designer freedom could make smaller differences more important. Id. ¶¶ 51–53. The Court also construed narrowly the “special reasons” for withholding infringement measures: the fact that only a small number of components in a larger toy set infringed did not itself justify declining relief. Id. ¶¶ 63–67.

The available remedies provide another material distinction. Section 289 can provide the design-patent owner with the infringer’s total profit on the relevant article of manufacture, making U.S. design rights commercially powerful. But the article may be the complete product or a component, and the Supreme Court did not prescribe a test for identifying it. Samsung Electronics Co. v. Apple Inc., 580 U.S. 53, 59–62 (2016). Section 289 accordingly provides a potentially powerful, article-specific total-profit remedy, not an automatic entitlement to all profit on every end product.

VIII. Repair Parts Reveal the Practical Divide

The replacement-parts market exposes the regimes’ most consequential practical divergence. LKQ arose from an attempt by an aftermarket automotive-parts supplier to invalidate GM’s design patent for a vehicle fender. Yet LKQ changed only the validity analysis. It did not create a U.S. exception permitting third parties to reproduce patented replacement parts.

In Automotive Body Parts Ass’n v. Ford Global Technologies, LLC, the Federal Circuit rejected arguments that aesthetic functionality, patent exhaustion, or the permissible-repair doctrine authorized copying patented designs for an F-150 hood and headlamp. 930 F.3d 1314, 1317–20, 1322–25 (Fed. Cir. 2019). Because the patented articles were the component parts themselves, the sale of the vehicle did not exhaust patents covering separate replacement components that Ford had not sold, and making a new patented part was reconstruction rather than repair of that patented article. Id. at 1322–25. Congress has not enacted a general design-patent repair exception.

The current EU regulation takes a different approach. Article 22 withholds EU design protection from a component part of a complex product when the component’s design depends on the complex product’s appearance and the component is used solely to repair the complex product and restore its original appearance. Regulation 2026/715, art. 22(1). A manufacturer or seller seeking the exception must clearly identify the product’s commercial origin and manufacturer so consumers can make an informed choice. Id. art. 22(2). The supplier need not guarantee that end users ultimately employ every part solely for qualifying repair. Id. art. 22(3).

The exception is not a blanket license for every component. Its requirements—complex product, appearance-dependent component, sole repair purpose, and restoration of original appearance—must be established. Still, the commercial contrast is significant. In the United States, a qualifying design patent may remain enforceable against a newly made replacement component unless it is invalid or not infringed. In the EU, Article 22 may foreclose design protection for the qualifying repair use even when the registration is otherwise valid. The practical gap in the automotive aftermarket may therefore be wider after the EU reform, notwithstanding the more flexible U.S. validity standard.

IX. Building a Transatlantic Strategy

The doctrinal differences call for separate proof models rather than a translated version of the same expert report.

For a U.S. obviousness challenge, counsel should identify the article of manufacture and define the ordinary designer before selecting the reference set. The analysis should begin with an actual analogous primary design, not a feature collage. Each proposed modification should be tied to contemporaneous evidence: recurring design practices, functional constraints, market demands, aesthetic trends, industry custom, or other principles that would have mattered to the ordinary designer. The presentation should compare whole designs while explaining how the cited evidence leads to the asserted overall appearance. Patent owners, in turn, should develop objective-indicia evidence early and be prepared to establish a nexus between the claimed design and commercial success, praise, or copying.

An EU invalidity case should generally lead with the strongest single earlier design. Counsel must prove that the reference was made available to the public and then conduct the individual-character comparison without constructing a composite from unrelated disclosures. The evidence should define the sector, informed user, level of attention, and genuine limits on designer freedom. If saturation is asserted, it should be proved as a feature of the design corpus and kept analytically distinct from technical or regulatory constraints.

Filing strategy also differs. U.S. applicants should treat descriptions, shading conventions, broken lines, titles, amendments, and prior-art arguments as potential determinants of later scope. Top Brand and Smartrend make clear that prosecution words can follow the drawings into litigation. Applicants should also coordinate design and utility disclosures and review marketing statements that could later be offered as evidence that a visual feature is functionally driven.

EU applicants should use clear representations and consider multiple registrations or variants where commercial embodiments may evolve. Registration’s speed should not create false confidence about substantive validity. Public launches and social-media disclosures must be coordinated with filing, priority, and the EU grace period. The modernized regulation also reaches digital subject matter more expressly: its definitions encompass movement, transition, animation, and nonphysical products, while the rights provisions address creation and sharing of digital media or software used to manufacture a protected design. Regulation 2026/715, arts. 4, 20(2)(d).

Finally, enforcement analysis should identify the correct viewer and the correct legal role for prior designs. A U.S. validity expert speaking as an ordinary designer does not answer infringement from the principal purchaser’s perspective. EU informed-user evidence is not a substitute for either. In a component case, EU counsel should analyze Article 22 before investing in infringement proceedings; U.S. counsel should separately evaluate validity, ordinary-observer infringement, and the § 289 article of manufacture.

X. Convergence in Language, Not Architecture

LKQ is a major change in U.S. design-patent law. It removes the rigid “basically the same” gateway, restores the Graham/KSR framework, and allows a challenger to prove a reasoned combination that Rosen–Durling might have excluded. But the decision retains an actual primary reference, analogous-art limits, the ordinary designer, whole-design analysis, a nonhindsight evidentiary requirement, and objective indicia.

EU individual character asks a different question. The informed user compares the contested design with each earlier design individually, with designer freedom moderating the required visual distance. The inquiry does not add a creativity threshold and does not consider commercial success or iconic status. For scope, the informed user appears again, while the representation and designer freedom define the right’s reach. For qualifying repair parts, Article 22 may prevent enforcement altogether.

The two systems thus share a vocabulary of visual impression without sharing a legal architecture. The ordinary designer, the ordinary observer, and the informed user should not be collapsed into one transatlantic eye. LKQ made U.S. obviousness more flexible. It did not make U.S. design-patent law European.