Patently-O reported Oct. 28 that Range of Motion Products, LLC, received an unopposed 42-day extension to seek U.S. Supreme Court review of its loss in a design-patent infringement case. The outlet said Chief Justice John Roberts granted the request.
Patently-O said the extension application previewed two questions. One concerns whether the Federal Circuit’s “plainly dissimilar” approach conflicts with the Supreme Court’s ordinary-observer test, which asks whether designs appear substantially the same. The other asks whether judges may decide factual disputes about which parts of a design are functional and which are ornamental.
Range of Motion owns U.S. Design Patent No. D802,155, titled “Body Massaging Apparatus.” Its Rolflex device embodies the patented design; Armaid Company Inc.’s Armaid2 is the accused product. The U.S. District Court for the District of Maine granted summary judgment to Armaid on Aug. 28, 2023, finding no infringement. The U.S. Court of Appeals for the Federal Circuit affirmed that judgment on Feb. 2, 2026.
The legal disagreement draws on Gorham Co. v. White, the Supreme Court’s 1871 decision establishing the ordinary-observer test. In 2008, the Federal Circuit’s en banc decision in Egyptian Goddess, Inc. v. Swisa, Inc. said a court may find no infringement without comparing a design with prior art when the designs are plainly dissimilar. The majority in Range of Motion’s appeal said that approach fits Gorham; Chief Judge Kimberly A. Moore argued it shifts attention away from overall similarity and toward differences.
A separate issue involves Markman v. Westview Instruments, Inc., the Supreme Court’s 1996 ruling that judges construe utility-patent claims. The question in this dispute is whether judges may also resolve factual disagreements about functionality when interpreting design-patent claims.
On Aug. 11, 2026, the Federal Circuit denied panel rehearing and rehearing en banc. Moore, joined by Judge Jimmie V. Reyna, dissented. Moore wrote that the court had “erred in our allocation of responsibility between judge and jury in a significant way.” Judges Kara F. Stoll and Leonard P. Stark also dissented without opinions. Judge Tiffany P. Cunningham, joined by Judge Todd M. Hughes, favored retaining the existing framework and correcting errors through appeals.
Patently-O reported that Range of Motion’s petition is due Dec. 21, 2026.
