Federal Circuit Leaves Design Patent Infringement Framework Intact—But a Sharp Judge-Jury Divide Emerges

The Federal Circuit denied rehearing en banc in Range of Motion Products v. Armaid, preserving the ability of district courts to resolve some design patent infringement cases at summary judgment and to address functionality as part of claim construction. A forceful dissent, however, argues that the current framework has shifted too much of the infringement inquiry away from juries.

On August 11, 2026, the U.S. Court of Appeals for the Federal Circuit declined to revisit en banc its design patent infringement framework in Range of Motion Products, LLC v. Armaid Company Inc. The court denied both panel rehearing and rehearing en banc, leaving intact the panel’s affirmance of summary judgment of noninfringement in favor of Armaid.

The order itself is brief, but the accompanying opinions reveal a significant disagreement within the Federal Circuit over two recurring issues in design patent litigation: when judges may decide infringement without a jury and who should determine whether features of a patented design are functional rather than ornamental.

Judge Cunningham, joined by Judge Hughes, wrote separately to defend the existing framework as consistent with Supreme Court and Federal Circuit precedent. Chief Judge Moore, joined by Judge Reyna, dissented, while Judges Stoll and Stark separately dissented without opinion.

For now, the existing rules remain in place. But the divide exposed by the rehearing order bears watching for companies that rely on—or regularly defend against—design patents.

Key Takeaways

What design patent owners and accused infringers should know

• The existing infringement framework remains intact. The Federal Circuit declined to reconsider its precedent allowing courts, in appropriate cases, to find claimed and accused designs sufficiently distinct to resolve noninfringement as a matter of law.

• Summary judgment remains available. Courts may continue to resolve design patent infringement before trial where no reasonable jury could find the claimed and accused designs substantially the same.

• A prior-art comparison is not invariably required before finding noninfringement. Under the existing Egyptian Goddess framework, sufficiently distinct designs may permit a court to resolve the case without first conducting a detailed prior-art comparison.

• Judges retain an important role in design patent claim construction. Courts may define claim scope and make subsidiary determinations concerning which aspects of a design are functional versus ornamental.

• The ordinary-observer test remains the ultimate infringement standard. Where reasonable jurors could find the designs substantially the same, infringement remains a fact question for the jury.

• The court is divided over whether judges have assumed too much responsibility. Four judges publicly dissented from the denial of rehearing, with Chief Judge Moore arguing that questions of functionality, ornamentality, and substantial similarity should generally be left to juries.

The Case and the Existing Design Patent Framework

The dispute involves U.S. Design Patent No. D802,155 and Armaid’s accused Armaid2 product, both involving handheld massage devices. The district court entered summary judgment of noninfringement, and a Federal Circuit panel affirmed that ruling.

Range of Motion then sought rehearing en banc, asking the full Federal Circuit to reconsider aspects of the design patent infringement framework.

The petition focused on two related questions.

First, under the Federal Circuit’s 2008 en banc decision in Egyptian Goddess, Inc. v. Swisa, Inc., courts applying the ordinary-observer test may conclude in some cases that the patented and accused designs are so distinct that the patentee cannot establish substantial similarity without proceeding to a more detailed comparison involving the prior art.

Second, design patent infringement requires the court to determine the scope of the claimed design before infringement is decided. Existing Federal Circuit precedent permits courts, as part of that claim-construction process, to distinguish between ornamental and functional aspects of the design.

Range of Motion—and the dissenting judges—contended that these doctrines have allowed judges to decide factual issues that should instead be resolved by juries.

The Federal Circuit declined to revisit either rule.

The “Plainly Dissimilar” Path to Summary Judgment Survives

A central dispute concerned language from Egyptian Goddess stating that, in some cases, a claimed design and accused design may be sufficiently distinct that it is apparent “without more” that they would not appear substantially the same to an ordinary observer.

Judge Cunningham’s concurrence rejected the argument that this language improperly shifted the infringement inquiry from similarity to differences.

Determining whether two designs are substantially the same, the concurrence reasoned, necessarily requires consideration of both their similarities and their differences. And where those differences are sufficiently pronounced that no reasonable ordinary observer could mistake one design for the other, a court may appropriately resolve noninfringement as a matter of law.

The concurrence also emphasized judicial economy. Federal courts need not send every design patent infringement dispute to a jury when no reasonable jury could find infringement. The Federal Circuit has previously affirmed summary judgment where claimed and accused designs were plainly dissimilar, and the panel had concluded that this case fit within that precedent.

For litigants, the practical point is significant: visual dissimilarity can continue to provide a basis for early resolution of a design patent case.

Prior Art Remains Important—but Not Always Necessary

The dissent argued that the factfinder should always compare the claimed and accused designs in light of the prior art.

The concurrence disagreed that Range of Motion presented an appropriate vehicle for adopting such a rule. The district court had, in fact, performed a three-way comparison among the patented design, the accused design, and the prior art and concluded that no reasonable jury could find infringement under either approach. The Federal Circuit panel affirmed on both grounds.

As a result, the concurrence reasoned, revising Egyptian Goddess would not have changed the result in this case.

The existing framework therefore remains: prior art can be highly important in determining what an ordinary observer would consider significant, particularly in a crowded design field, but a court need not necessarily undertake that analysis where the patented and accused designs are sufficiently distinct on their face.

Courts Will Continue to Address Functionality During Claim Construction

The second major issue concerned the division of responsibility between judge and jury.

Judge Cunningham’s concurrence emphasized that design patent infringement, like utility patent infringement, involves two steps. The court first determines the meaning and scope of the patent claim; infringement is then assessed against the properly construed claim.

That first step can include determining which features of a claimed design are ornamental and which serve functional purposes.

The concurrence rejected the argument that functionality must instead be submitted to the jury whenever it bears on infringement. It distinguished functionality in the validity context—where the issue may be whether an overall design is dictated by function—from functionality during claim construction, where identifying functional features helps define the scope of the design patent right.

The concurrence analogized claim construction to defining the boundaries of property before deciding whether a trespass occurred. A jury may ultimately decide infringement where a genuine factual dispute exists, but it must first understand the boundaries of the patent right it is being asked to enforce.

As the concurrence put it, the court acts like a “trail guide,” identifying the boundaries of the claimed design before the jury evaluates infringement. Distinguishing functional from ornamental aspects is one of those boundary-setting tasks.

A Forceful Dissent: “Let the Jury Do Its Job”

Chief Judge Moore’s dissent takes a fundamentally different view.

The dissent argues that Federal Circuit precedent has gradually transferred quintessential factual questions from juries to judges. In Chief Judge Moore’s view, this has happened in two ways: by allowing judges to determine functionality and ornamentality through claim construction and by allowing courts to find designs “plainly dissimilar” at summary judgment.

Unlike utility patents, the dissent stressed, design patent claims generally consist primarily of pictures rather than technical claim language. The central infringement question is visual: whether an ordinary purchaser would perceive the patented and accused designs as substantially the same.

According to the dissent, judges possess no institutional advantage over juries in making that kind of visual and factual assessment.

The disagreement is particularly vivid in the opinion itself. On page 15, the dissent places the D’155 patent drawing directly beside the accused Armaid2 product and argues that it “defies belief” that no reasonable jury could find the two designs substantially similar in overall appearance.

The dissent later adds the prior-art Armaid1 product to the visual comparison, placing the patented design, accused Armaid2, and prior art side by side. Chief Judge Moore argued that the comparison demonstrates why prior art should be considered as part of the ordinary-observer inquiry and why that analysis is fundamentally factual.

The Dissent Takes Aim at the Role of Functionality

The dissent also questioned whether functionality properly belongs within judicial claim construction at all.

According to Chief Judge Moore, determining whether a particular design choice is functional or ornamental ordinarily requires consideration of factual evidence—such as alternative designs, utility patents, product advertising, and testimony concerning how the product operates.

That is unlike conventional utility patent claim construction, the dissent argued, where judges typically interpret written patent language using intrinsic legal documents.

The dissent therefore saw little justification for assigning the functionality inquiry to judges simply because the Federal Circuit has labeled it “claim construction.” Instead, it would place questions of aesthetic appearance, ornamentality, and functionality with the jury as part of the ultimate infringement determination.

Its prescription was direct: “Let the jury do its job.”

A Broader Concern About Summary Judgment

Chief Judge Moore also expressed concern that what began as a narrow shortcut for exceptionally clear cases has expanded beyond its intended role.

According to the dissent, Egyptian Goddess’s “plainly dissimilar” language should have been limited to truly straightforward cases. Instead, the dissent contended, district courts increasingly use the doctrine to resolve fact-intensive infringement disputes at summary judgment, sometimes without considering prior art.

The dissent concluded that the exception has effectively “swallowed the rule” and urged the Federal Circuit to restore a larger role for juries. It would continue to permit summary judgment in appropriate cases, but would assign questions of aesthetic appearance, ornamentality, functionality, and substantial similarity to the jury when genuine factual disputes exist.

Practical Implications for Design Patent Owners

For design patent owners, the denial of rehearing reinforces the importance of developing infringement theories with early dispositive motions in mind.

A patentee cannot assume that visual similarity will necessarily reach a jury. If a district court concludes that meaningful differences in overall appearance preclude a reasonable finding of substantial similarity, the case may end at summary judgment.

Patent owners should therefore be prepared to explain not merely that an accused product shares individual features with the claimed design, but why the designs produce substantially the same overall visual impression from the perspective of the ordinary observer.

Prior art can also be critical. Where the field is crowded, similarities between the patented and accused designs that distinguish both from the prior art may take on greater significance. Developing that comparison early may help demonstrate why a seemingly small visual difference should not dispose of the infringement claim.

Finally, because courts continue to define the scope of design patent claims and distinguish ornamental from functional features, patentees should anticipate functionality disputes at the claim-construction stage rather than treating them solely as trial issues.

Practical Implications for Accused Infringers

For accused infringers, the decision preserves two potentially powerful avenues for early resolution.

First, defendants may continue to seek summary judgment where the overall visual impression of the accused product is sufficiently different from the claimed design that no reasonable jury could find infringement.

Second, defendants can continue to argue during claim construction that functional aspects of a design narrow the enforceable scope of the patent. That can materially affect the subsequent ordinary-observer comparison, particularly where similarities between the claimed and accused designs arise primarily from features driven by product function.

The concurrence’s emphasis on judicial economy also confirms that the Federal Circuit remains receptive, at least under current precedent, to resolving design patent cases before trial when the record presents no genuine issue for a jury.

What Comes Next

The Federal Circuit’s formal holding is limited: the court denied rehearing. It did not issue a new en banc rule governing design patent infringement. The panel decision—and the precedents on which it relied—therefore remain controlling.

But the accompanying opinions make the decision noteworthy.

Four judges publicly dissented from rehearing being denied, and Chief Judge Moore’s detailed opinion identifies what she views as structural problems in the current allocation of decision-making authority between judges and juries. At the same time, the Cunningham concurrence characterizes the current framework as settled, consistent with Supreme Court precedent, and capable of addressing erroneous summary judgments through ordinary appellate review rather than doctrinal overhaul.

That division suggests that questions surrounding summary judgment, functionality, and the ordinary-observer test are unlikely to disappear from design patent litigation.

Bottom Line

Range of Motion v. Armaid leaves the Federal Circuit’s existing design patent infringement framework in place.

District courts may continue to resolve noninfringement at summary judgment where no reasonable jury could find the claimed and accused designs substantially the same.

Courts also retain responsibility for construing design patent claims, including addressing functional and ornamental aspects relevant to claim scope.

But the closely watched dissent highlights a competing vision of design patent litigation—one in which visual similarity and functionality are treated principally as factual questions for juries.

For companies enforcing or defending against design patents, the immediate rule has not changed. The debate over who should decide these cases, however, is far from settled.