Amazon as Prior Art: The Rise in Design Patent §102 Rejections

by Dennis Crouch

Design patent prosecution has changed substantially over the past decade.  One place we see that is in the anticipation rejection rate. Among US-domestic design patents that actually issued, the share that received at least one §102 rejection during prosecution climbed from roughly 0.1% in 2008 to above 7% in early 2025. The rate has pulled back slightly under Director Squires to around 5-6%, but even at that level it sits at the highest sustained figure ever recorded. For practitioners who learned design prosecution in an era when prior art rejections were a relative rarity, that shift represents a fundamentally different examination environment.

The chart here shows the percentage of granted U.S. design patents that received at least one §102 or §103 rejection during prosecution, grouped by grant date. Granted patents only; abandoned applications are not reflected because the bulk of design patents (the U.S. originated ones) are kept secret and never published.

In a prior post, I looked at U.S. design patent applications that came through the Hague System (series-35); and the data here for series-29 applications is roughly the same for obviousness rejections - showing no post-LKQ rise.  Dennis Crouch, Prior Art Rejection Rates in Design Patent Prosecution, Patently-O (May 2026).  But, the domestic cases show a much higher rate of §102 anticipation rejections than what I found in Hague cases. I don't have a definitive explanation for it, but the most plausible hypothesis tracks the Amazon story that I dig into below.  Most of the rise in anticipation rejections has come from searches of US-facing marketplace platforms - Amazon.com in particular.  Those searches return results that reflect products already in the US consumer market. Domestic applicants are more likely to have their products listed on Amazon before or around the time of filing. Hague applicants skew heavily foreign, and foreign-originated goods may not yet have a US market presence at the time of examination, or may distribute through platforms like Alibaba that examiners are not searching.  Ultimately this means that U.S. originated cases may be receiving a more rigorous examination than their foreign counterparts.

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