Opinions — Tuesday, August 11, 2026

The Federal Circuit denied en banc rehearing in Range of Motion Products, LLC v. Armaid Company Inc., a design patent infringement appeal from the District of Maine. The panel had affirmed summary judgment of non-infringement of U.S. Patent No. D802,155. Chief Judge Moore, joined by Judge Reyna and Judges Stoll and Stark (the latter two without opinion), dissented from the denial. Judge Cunningham, joined by Judge Hughes, concurred in the denial. The en banc petition challenged two aspects of Federal Circuit design patent jurisprudence: first, whether a sentence in Egyptian Goddess, Inc. v. Swisa, Inc., 543 F.3d 665, 678 (Fed. Cir. 2008) (en banc), improperly permits district courts to grant summary judgment of non-infringement based on plain dissimilarity without comparing the designs to the prior art; and second, whether the functional-versus-ornamental inquiry in design patent claim construction involves factual questions that must be resolved by a jury rather than by the court as a matter of law.

The denial preserves the framework established in Egyptian Goddess while highlighting a deepening circuit split over the role of juries in design patent cases. The concurrence emphasizes that assessing whether two designs are "substantially the same" under Gorham Co. v. White, 81 U.S. 511 (1872), necessarily involves accounting for both similarities and differences, and that summary judgment remains appropriate when no reasonable jury could find infringement. On claim construction, the concurrence reaffirms that determining claim scope—including distinguishing ornamental from functional features—is a question of law for courts under Markman v. Westview Instruments, Inc., 517 U.S. 370 (1996), even when subsidiary factual findings are required under Teva Pharmaceuticals USA, Inc. v. Sandoz, Inc., 574 U.S. 318 (2015). The four-judge dissent signals substantial concern that current practice permits courts to resolve design patent infringement without adequate jury participation, potentially undermining the Seventh Amendment and the Supreme Court's instructions in Gorham. The presence of amicus briefs from the Industrial Designers Society of America and AIPLA underscores broader industry attention to these procedural allocations between judge and jury in design patent litigation.