Our Patent Case Summaries provide a weekly summary of the precedential patent-related opinions issued by the Court of Appeals for the Federal Circuit and the opinions designated precedential or informative by the Patent Trial and Appeal Board.
Range of Motion Products, LLC v. Armaid Co. Inc.
No. 2023‑2427 (Fed. Cir. (D. Me.) Feb. 2, 2026). Opinion by Cunningham, joined by Hughes. Dissenting opinion by Moore.
Range of Motion Products (RoM) sued Armaid alleging that the Armaid2 device infringes a design patent that claims an “ornamental design for a body massaging apparatus, as shown and described.” The district court determined that several features shown in the claimed design were functional rather than ornamental and that “the overall … scope of the claim is accordingly narrow.” Under that construction, the court ruled that no reasonable jury could find the design of the Armaid2 substantially similar to the claimed design, and thus granted Armaid summary judgment of noninfringement. RoM appealed.
The Federal Circuit affirmed in a divided opinion.
As to claim construction, RoM argued that the intrinsic evidence unambiguously demonstrates that the “shape of the arms” is ornamental. RoM also asserted that all elements depicted in the patent drawings by solid lines are ornamental, and all elements depicted by dotted lines are functional. The Federal Circuit disagreed, stating that “our case law does not support this proposition.” Also, the evidence did not establish that the shape of the arms is solely ornamental. Thus, the Federal Circuit ruled that “the district court did not commit reversible error with respect to its claim construction, including with respect to its determination that the shape of the arms is functional.”
Next, RoM argued that, even if the claim construction was correct, the patented design and the Armaid2 design are similar enough to withstand summary judgment of noninfringement. The Federal Circuit again disagreed, ruling that RoM’s argument “is based on the application of an incorrect version of the ordinary observer test.”
The Federal Circuit summarized the pertinent law for design patent infringement and explained how both “RoM and the dissent advocate for an approach that fails to respect the limits on a design patent’s scope.” RoM’s and the dissent’s approach omits “any attempt to consider claim construction or otherwise separate out functional aspects,” which “would dramatically increase the scope of design patents by precluding summary judgment whenever functional considerations result in two designs sharing similarities.” The Federal Circuit thus affirmed because “the district court did not reversibly err in reaching its plainly dissimilar conclusion.”
Chief Judge Moore dissented. In her view, a reasonable jury could find the two designs substantially the same, which “is, of course, a fact question.”
She also explained that “there exists a small and easily solved problem in our design patent law that led the district court astray,” a problem that “has infected several of our cases and which has been the subject of several amicus briefs to our court.” She stated that, “without realizing it, in [the Federal Circuit’s en banc opinion in] Egyptian Goddess, we meaningfully changed the substantial similarity test.” “We changed the frame of reference from whether two designs are substantially similar in overall appearance to whether two designs are ‘sufficiently distinct’ or ‘plainly dissimilar.’” This is “a significant change in the law” because “the former causes the fact finder to focus on the similarity of the overall designs whereas the latter forces the fact finder to focus on the differences.” Chief Judge Moore concluded that the Federal Circuit “ought to correct our error in Egyptian Goddess and reaffirm that the substantially similar test, announced by the Supreme Court in Gorham, is ‘the sole test’” for design patent infringement.