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Court of Appeals For The Federal Circuit Denies Petition For Rehearing En Banc In Design Patent Infringement Suit
08/18/2026On August 11, 2026, the U.S. Court of Appeals for the Federal Circuit (“CAFC”) denied a petition for rehearing en banc by Plaintiff-Appellant Range of Motion Products, LLC in a per curiam order. Range of Motion Products, LLC, v. Armaid Company Inc., No. 2023-2427 (Fed. Cir. Aug. 11, 2026). Plaintiff petitioned for a rehearing en banc of its appeal of the U.S. Court for the District of Maine’s grant of summary judgment, finding no infringement of Defendant-Appellee’s U.S. Design Patent No. D802,155 (the “D’155 Patent”).
Circuit Judge Cunningham, with whom Circuit Judge Hughes concurred, found that the panel decision to deny the petition for rehearing was “consistent with longstanding Supreme Court and Federal Circuit precedent” and that “[n]one of the other rationales for rehearing en banc apply.”
Dissenting, Chief Judge Moore, with whom Circuit Judge Reyna joined, wrote that the Federal Circuit has “messed up design patent infringement” by improperly diverting quintessential jury fact questions to the judge in two ways. First, by classifying the functional-versus-ornamental inquiry as part of claim construction, the court has assigned to judges a fact-intensive determination—whether aspects of a pictorial design serve a functional purpose—that is treated as a jury question in analogous contexts, including trade dress, trademark, and product liability law. Second, by inverting the “substantial similarity” test in Gorham Co. v. White, 81 U.S. 511 (1872), into a “plainly dissimilar” or “sufficiently distinct” standard in Egyptian Goddess, the court has enabled judges to routinely grant summary judgment of noninfringement—often without any prior-art comparison—in cases where a reasonable jury could have found the designs substantially similar. The dissent urged a return to Gorham’s original framework, allocating questions of ornamentality, functionality, and substantial similarity to the jury as inextricable parts of the infringement determination.
Addressing the arguments in the dissenting opinion, Judge Cunningham responded that assessing whether two designs are “substantially the same” under Gorham inherently requires considering both similarities and differences, and that the district court in this case properly conducted such an analysis, including a three-way comparison to the prior art. The concurrence further noted that the dissent’s real disagreement was one of “line-drawing”—i.e., how easy must a case be before a court may dispose of it without prior-art comparison—and that the remedy for any overreach is to reverse individual district courts, not to overhaul settled design patent law.
Judge Cunningham also rejected the argument that the functionality determination in design patent claim construction involves factual questions that should be submitted to a jury and held that claim construction—including subsidiary factual determinations about functionality—remains a question of law for the court.
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