At a high level, Range of Motion Products, LLC v. Armaid Company, Inc.[1] looks like a familiar design patent case. A Federal Circuit panel affirmed summary judgment of noninfringement after filtering out functional features and concluding that the accused design was plainly dissimilar from the claimed design. That might normally be the end of the story. But following a detailed dissent by Chief Judge Moore, the case has been awaiting en banc review. One prior en banc design patent decision, Egyptian Goddess, Inc. v. Swisa Inc., significantly reshaped infringement analysis by eliminating the point of novelty test and centering the ordinary observer standard.[2] Range of Motion presents the court with a more incremental question: how that framework is being applied in practice.
The Case in Brief: A Narrowing That Drives the Result
The dispute involves U.S. Design Patent No. D802,155, directed to a body massaging apparatus. The accused product, Armaid2, shares the same general concept as the claimed design, a handheld device with opposing arms and rollers for applying pressure to the body. At that level, both the district court and the Federal Circuit acknowledged the products appear similar.
The analysis, however, did not remain at that level. During claim construction, the court relied on a related utility patent and the patentee’s own marketing materials to conclude that the clamshell arm geometry and key structural features were functional. Once those features were filtered out, the claimed design was reduced to a narrower set of ornamental details, thereby placing greater emphasis on the remaining ornamental details than on the overall ornamental appearance.
The court then compared only those remaining features and found the designs plainly dissimilar as a matter of law. Summary judgment followed. Viewed in sequence, the outcome was driven less by the products themselves and more by how much of the design was removed through functionality.
Functional Filtering as De Facto Disposition
The functionality analysis follows established precedent, but its practical effect is significant. By treating the dominant structural features as functional, the court removed the aspects of the design that most strongly shape its overall appearance.
What remained were secondary characteristics involving contour, proportion, and surface detail. At that point, a finding of dissimilarity becomes easier to justify. In this sense, claim construction increasingly performs the bulk of the work in infringement analysis, with the ordinary observer comparison operating within a constrained field.
This shift invites a broader question. If functionality analysis can narrow the design so substantially, is the ordinary observer test still acting as an independent check, or merely confirming a conclusion already shaped at claim construction?
The “Plainly Dissimilar” Inquiry
Chief Judge Moore’s dissent focuses on how courts frame the infringement analysis. Under Gorham Mfg. Co. v. White, the test is whether the accused and claimed designs are substantially the same in the eyes of an ordinary observer.[3] Modern cases often begin instead with whether the designs are plainly dissimilar.
That shift affects how the analysis is conducted. A substantial similarity inquiry emphasizes overall visual impression. A plainly dissimilar inquiry emphasizes differences. In Range of Motion, the court identified specific distinctions in the remaining ornamental features and treated those distinctions as dispositive.
The question raised by the dissent, and now by the en banc posture, is whether this framing has moved the analysis away from Gorham’s focus on overall appearance and toward a more difference-driven approach.
Summary Judgment and the Role of the Jury
The district court case was resolved at summary judgment, with the court concluding that no reasonable jury could find substantial similarity once functional elements were excluded. That determination reflects an implicit view about the role of the jury in design patent cases.
Historically, the ordinary observer test has been treated as a fact-intensive inquiry grounded in visual perception. But as functionality filtering narrows the scope of comparison and the analysis focuses on specific differences, courts are increasingly resolving these disputes as a matter of law.
Range of Motion thus fits within a broader trend. Design patent cases involving arguably similar products are nonetheless being resolved at the summary judgment stage once the analysis is framed around filtered ornamental features.
Implications for Practitioners
For prosecutors, the case underscores the importance of how features will later be characterized. Design elements tied to performance or described in functional terms, whether in patents or marketing materials, may be excluded from the protected scope.
If functionality is reemerging as a basis for narrowing design patent scope and reducing enforceability, applicants may wish to strengthen their design patent portfolios in anticipation of such challenges. Design patent functionality case law places substantial weight on the existence of alternative designs that provide the same or similar functional capabilities. In Ethicon Endo-Surgery, Inc. v. Covidien, Inc., the Federal Circuit emphasized that the availability of alternative designs is an important, and sometimes dispositive, consideration in determining whether a claimed design is primarily ornamental rather than functional.[4] Accordingly, filing multiple embodiments, whether within a single application or across related applications, that perform the same function while presenting different ornamental appearances may help establish a record demonstrating the existence of alternative designs. Such a record may support arguments that the claimed design reflects ornamental choice and is not dictated solely by function. Likewise, where utility and design applications are pursued in parallel, multiple ornamental embodiments may further reinforce that the claimed design is not the only form capable of achieving the underlying functionality.
For litigators, the case highlights both the strength and potential vulnerability of summary judgment strategies. Defendants benefit from a framework that facilitates early resolution, but the increasing focus on that framework, including through en banc review, introduces some uncertainty.
Range of Motion v. Armaid illustrates how modern design patent doctrine operates rather than announcing a new rule. Functional filtering, followed by a difference-focused comparison, creates a pathway for resolving infringement at summary judgment.
The case’s current posture suggests that the Federal Circuit will revisit how these pieces fit together. Whatever the outcome, the decision will clarify how courts balance functionality, similarity, and the role of the fact finder in design patent cases going forward.
[1] Range of Motion Prods., LLC v. Armaid Co. Inc., 166 F.4th 981 (Fed. Cir. 2026)
[2] Egyptian Goddess, Inc. v. Swisa, Inc., 543 F.3d 665 (Fed. Cir. 2008)
[3] Gorham Mfg. Co. v. White, 81 U.S. 511, 20 L. Ed. 731 (1871)
[4] Ethicon Endo-Surgery, Inc. v. Covidien, Inc., 796 F.3d 1312 (Fed. Cir. 2015)
About the Authors
Christopher Francis is a shareholder whose practice focuses on Patent Prosecution, Intellectual Property Due Diligence, and patent portfolio strategy. He advises clients on U.S. and international patent prosecution, freedom-to-operate analyses, intellectual property investigations, and portfolio management designed to support broader business objectives. Chris works with companies across a range of industries, including Automotive and Mobility Brands & Technology, Industrial Manufacturing & Equipment, Electrical & Computer Technology, Information Technology Services & Software, and Medical Devices & Healthcare Brands. His technical background in mechanical engineering enables him to develop practical intellectual property strategies that protect innovation while advancing client business goals.
Garrett Fridline is an associate in Brooks Kushman’s Patent Prosecution practice, helping clients protect innovations through strategic patent portfolio development and management. With a background in electrical and electronics engineering, he works closely with inventors and in-house counsel to develop intellectual property strategies that support business objectives and emerging technologies. Garrett’s experience is particularly relevant for companies in Automation & Robotics, Automotive and Mobility Brands & Technology, Battery Technology, and Electrical & Computer Technology industries. He helps clients build and manage intellectual property portfolios that align innovation with long-term business growth.
About Brooks Kushman P.C.
Founded in 1983, Brooks Kushman P.C. has built a national reputation as a premier intellectual property and technology law firm. We accomplish this with the understanding that the most effective IP solutions come from putting great minds together – our clients and our own. With offices across the country, we forge strong relationships with corporations, small to medium-sized businesses, and leading universities across the country.
Brooks Kushman counts a number of Fortune 100 Corporations across a variety of industries among its clients. Our attorneys have a deep understanding and broad range of experience in a variety of industries and technologies, including automotive, AI & data, automation, consumer electronics, manufacturing, medical device, computer technology, aerospace, chemicals, biotechnology, retail, food & beverage, green technology, fintech, and more. We are also recognized by leading legal publications and rankings, including, Best Lawyers, Law360, Intellectual Asset Management, Managing Intellectual Property, and World Trademark Review. For more information, please visit www.BrooksKushman.com.
