Design patent infringement is often described as a visual comparison: place the patented design beside the accused product and ask whether an ordinary observer would regard them as substantially the same. Range of Motion Products, LLC v. Armaid Company Inc. shows why that description is incomplete.

The Federal Circuit’s August 2026 denial of rehearing en banc leaves in place a precedential decision permitting judges to make important determinations about design patent scope before infringement reaches a jury. Courts may distinguish functional from ornamental aspects of a claimed design during claim construction, and they may grant summary judgment where the patented and accused designs are plainly dissimilar.

For companies that develop, protect, license, or compete around physical products, the practical lesson is significant. Design patent exposure may depend not only on how two products look, but also on evidence developed long before litigation, including utility patents, inventor statements, marketing claims, alternative designs, design patent prosecution history, and prior art.

The Litigation May Turn on What the Patent Actually Protects

Range of Motion Products owns U.S. Design Patent No. D802,155, directed to the ornamental design of a body-massaging apparatus embodied in its Rolflex product. Armaid’s accused Armaid2 is also a handheld massaging device. Both incorporate product features such as curved arms, handles, rollers, a hinge, and a base, creating a familiar design-patent problem: visible product characteristics may simultaneously contribute to appearance and perform useful functions.

The district court concluded that many aspects of the patented design were driven by function, leaving relatively narrow ornamental protection. It then granted summary judgment because no reasonable jury could find the Armaid2 substantially similar to the properly construed design. A divided Federal Circuit panel affirmed, and the court subsequently declined to rehear the case en banc.

That sequence matters. The case did not proceed directly from a patent drawing to a jury’s visual impression. The court first determined the scope of the protected design.

Federal Circuit precedent treats that task as claim construction. Under cases including OddzOn Products, Inc. v. Just Toys, Inc., Sport Dimension, Inc. v. Coleman Co., and Lanard Toys Ltd. v. Dolgencorp LLC, courts may identify the ornamental aspects of product features that also serve functional purposes. Functional structures do not simply disappear from the infringement analysis, but their functional characteristics can limit the ornamental territory protected by the patent.

The rehearing concurrence tied that allocation of responsibility to Markman v. Westview Instruments, Inc. and Teva Pharmaceuticals USA, Inc. v. Sandoz, Inc. Claim construction remains an ultimate question of law for the court even where resolving it requires subsidiary factual findings. The concurrence reasoned that the same principle applies when courts determine the boundaries of a design patent.

Commercial Documents Can Become Patent-Scope Evidence

The most consequential aspect of that framework may occur outside the patent case itself.

In evaluating the Rolflex design, the courts considered evidence including a related utility patent, an inventor affidavit, and marketing materials describing functional advantages associated with the product’s curved arms. Evidence of alternative designs can point the other way by showing that a particular visual configuration was not necessary to achieve the product’s function.

That creates an important interaction among product development, patent strategy, commercialization, and later enforcement.

A company may have entirely legitimate reasons to emphasize that a visible product feature improves performance. A utility patent may describe why the configuration works. Marketing materials may explain its technical benefits to customers. Inventors and engineers may document why a particular geometry was selected. None of those activities is inherently problematic.

But Range of Motion illustrates that the same record may later become relevant when a design patent owner argues that the visual feature represents protectable ornamental choice.

Design patent prosecution creates another source of potential limitation. The Federal Circuit has recognized that drawing conventions, including broken lines, and representations made to the Patent Office can affect design patent scope. Its recent decision in Top Brand LLC v. Cozy Comfort Co. further confirms that a design patentee may surrender scope through statements made during prosecution.

The result is a portfolio-management issue rather than merely a litigation issue. Design patents, utility patents, technical documentation, and commercialization materials may address the same product features for different purposes, but those records do not necessarily remain doctrinally isolated if litigation later arises.

Summary Judgment Remains a Meaningful Design Patent Defense

Range of Motion also preserves an important route to resolving design patent disputes before trial.

The Supreme Court’s Gorham Co. v. White decision established the ordinary-observer test, which asks whether the overall visual effects of the patented and accused designs would appear substantially the same to an ordinary purchaser. The Federal Circuit’s en banc decision in Egyptian Goddess, Inc. v. Swisa, Inc. reaffirmed that test and rejected a separate point-of-novelty requirement.

Egyptian Goddess, however, also recognized that some designs will be sufficiently distinct that substantial similarity cannot reasonably be established without proceeding to a more detailed prior-art comparison. Later Federal Circuit decisions have described this as the “plainly dissimilar” inquiry.

Chief Judge Moore, joined by Judge Reyna in dissent from denial of rehearing, argued that this shortcut risks shifting the inquiry from overall similarity toward an examination of individual differences and allowing judges to decide disputes that should reach juries. Judges Stoll and Stark separately dissented without opinion.

Judge Cunningham, joined by Judge Hughes, defended the existing framework. In his view, determining whether designs are substantially the same necessarily requires consideration of both similarities and differences. Summary judgment remains appropriate when no reasonable factfinder could find infringement. The concurrence also emphasized that the district court in Range of Motion performed the more detailed three-way comparison involving the prior art and reached the same result.

The disagreement is therefore significant, but the governing rule remains intact. An accused infringer need not establish that a prior-art comparison is mandatory in every case before seeking summary judgment based on plainly dissimilar overall designs.

Design Patent Strategy Begins Before the Dispute

Range of Motion ultimately reinforces a broader point about intellectual property risk: litigation positions are often built years before litigation begins.

For design patent owners, evidence demonstrating genuine ornamental choice may become important where product appearance and functionality overlap. Alternative configurations, careful design patent drafting, and consistency between prosecution positions and later enforcement theories can materially affect the scope of protection.

For competitors accused of infringement, the relevant record may extend well beyond side-by-side photographs. Utility patents, technical explanations, advertising, prosecution history, prior art, and evidence concerning available alternative designs can support distinct arguments concerning claim scope and infringement.

The Federal Circuit did not announce a new design patent test in Range of Motion. It instead preserved a framework that gives judges substantial responsibility for defining the protected design and for determining whether some infringement disputes can be resolved without trial. Four judges nevertheless voted against denial of rehearing en banc, revealing meaningful disagreement within the court about how far that judicial role should extend.

For businesses operating in markets where product appearance and product performance are closely connected, that makes design patent strategy more than a matter of obtaining drawings and later comparing competing products. The commercial and technical record surrounding the product can help define the patent right itself, and in the right case, that record may determine whether the dispute ever reaches a jury.