The Director of the USPTO recently released his decision to institute Inter Partes Review (“IPR”) proceedings in Top Glory Trading Group Inc. and DP Dream Pairs Inc. v. Cole Hann LLC, IPR2025-01395 (January 12, 2026). In Top Glory, the Petitioner requested institution of IPR proceedings to invalidate US Design Patent D768,959 owned by Cole Hann, LLC, which had been granted in 2014. Although the current ”[1] doctrine would typically lead the Director of the USPTO to deny such a petition because of how long ago the patent was granted, the Director instead instituted IPR proceedings.

The institution decision is significant because Top Glory relies on the relatively recent decision in LKQ Corp. v. GM Global Tech. Operations, LLC, 102 F.4^th 1280 (Fed. Cir. 2024). In LKQ, the Federal Circuit fundamentally changed the obviousness standard for design patents by overruling the prior test and replacing it with the Deere factors for obviousness. As outlined in a previous article, the new standard for obviousness is far easier to satisfy for the purposes of invalidating a design patent because it expands the universe of prior art available to support a rejection and allows an examiner to rely upon additional reasons for substantiating a rejection in view of the prior art.

Here, in Top Glory, the patent at issue was examined and found to be non-obvious under the prior Rosen-Durling standard. However, the same result might not have been reached using the Deere factors. Accordingly, the Director found that “it is an appropriate use of Office resources to consider the merits of Petitioner’s challenge despite any settled expectations Patent Owner may have.” Top Glory at 2.

The primary lesson from Top Glory is that changes in the law can serve as a basis for overcoming the USPTO’s current “settled expectations” doctrine for instituting an IPR proceeding. Regarding design patents specifically, any design patents granted before the publication of the LKQ decision may be challengeable. Accordingly, barring a change in policy at the USPTO, it seems reasonable that petitioners will be able to challenge design patents granted prior to the LKQ decision until sufficient time has passed for the Director to decide that the “settled expectations” doctrine should be generally applicable once more.

The Top Glory decision also shows that significant changes in patent law at the Federal Circuit, that occur after a patent is granted, can be used as a basis for overcoming objections to institution of an IPR proceeding under the “settled expectations” Although Top Glory is an institution decision involving a design patent, the same rationale could apply for utility patents if there were a similar change in the law.