Range of Motion Products, LLC v. Armaid Company Inc.

United States Court of Appeals
for the Federal Circuit
______________________
RANGE OF MOTION PRODUCTS, LLC,
Plaintiff-Appellant
v.
ARMAID COMPANY INC.,
Defendant-Appellee
______________________
2023-2427
______________________
Appeal from the United States District Court for the
District of Maine in No. 1:22-cv-00091-JDL, Chief Judge
Jon D. Levy.
______________________
Decided: February 2, 2026
______________________
JUSTIN TINGER , Lambert Shortell and Connaughton,
Boston, MA, argued for plaintiff-appellant. Also repre-
sented by D AVID CONNAUGHTON, BRENDAN M. S HORTELL.
JOSHUA JOHN FOUGERE , Sidley Austin LLP, Washing-
ton, DC, argued for defendant-appellee. Also represented
by CLAIRE H OMSHER , S USAN K. W HALEY ; PETER J. BRANN,
S TACY O. S TITHAM, DAVID S WETNAM-BURLAND, Brann &
Isaacson, Lewiston, ME.
______________________
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RANGE OF MOTION PRODUCTS, LLC v. ARMAID COMPANY INC . 2
Before M OORE, Chief Judge, H UGHES and CUNNINGHAM,
Circuit Judges.
Opinion for the court filed by Circuit Judge CUNNINGHAM.
Dissenting opinion filed by Chief Judge M OORE .
CUNNINGHAM, Circuit Judge.
Range of Motion Products, LLC (“RoM”) appeals the
United States District Court for the District of Maine’s
grant of summary judgment of non-infringement. Range of
Motion Prods. LLC v. Armaid Co., No. 1:22-CV-00091-JDL,
2023 WL 5530768 (D. Me. Aug. 28, 2023) (“Order”). For the
reasons discussed below, we affirm.
I. BACKGROUND
RoM owns U.S. Design Patent No. D802,155, the pa-
tent at issue in this case. Order at *2; J.A. 369–70 ¶ 20;
J.A. 588 ¶ 20. The D’155 patent is titled “Body Massaging
Apparatus” and claims “[t]he ornamental design for a body
massaging apparatus, as shown and described.” The pa-
tent was filed on May 25, 2016, and issued on November 7,
2017. Figure 1 of the patent is reproduced below:
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D’155 patent, Fig. 1.
The parties agree that the “Rolflex,” a device sold by
RoM that is aimed at massaging the entire body, embodies
the design of the D’155 patent. Order at *1–2; Appellant’s
Br. 2; Appellee’s Br. 12. The original version of the Rolflex
is depicted below:
Order at *1; J.A. 366 ¶ 8; J.A. 587 ¶ 8.
Armaid Company Inc. (“Armaid”) produces and sells
the “Armaid2,” the accused product in this case, which is
shown below:
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Order at *2; J.A. 370 ¶ 22; J.A. 588 ¶22. Beginning in the
1990s, Armaid manufactured and sold the “Armaid1,” a
massaging apparatus for the arms. Order at *1; J.A. 364
¶ 2; J.A. 586 ¶ 2. Terry Cross, the owner of Armaid, ob-
tained U.S. Patent No. 5,792,081, a utility patent that was
titled “Limb Massager” and embodied by the Armaid1. Or-
der at *1; J.A. 364 ¶ 3; J.A. 586 ¶ 3. A picture of the Ar-
maid1 is below:
Order at *1; J.A. 364 ¶ 2; J.A. 586 ¶ 2.
In April 2021, RoM sued Armaid in the District of
Maine, alleging infringement of the claim of the D’155 pa-
tent. Range of Motion Prods. LLC v. Armaid Co., No. 1:21-
CV-00105-JDL, 2021 WL 3476607, at *3 (D. Me. Aug. 6,
2021). After the district court denied RoM’s preliminary
injunction motion, the parties stipulated to dismiss this
suit without prejudice. Id. at *13; Order at *1.
On April 8, 2022, RoM sued Armaid again in the un-
derlying action, alleging infringement of the claim of the
D’155 patent. J.A. 71–81. While construing the scope of
the claim of the D’155 patent, the district court distin-
guished between the features of the design that were
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RANGE OF MOTION PRODUCTS, LLC v. ARMAID COMPANY INC . 5
functional versus ornamental and concluded that “many,
but not all, of the design features in the D’155 patent—
which the Rolflex embodied—are driven by function,” Or-
der at *7, and that “the overall . . . scope of the claim is ac-
cordingly narrow,” Order at *8 (alteration in original)
(quoting Sport Dimension, Inc. v. Coleman Co., 820 F.3d
1316, 1322–23 (Fed. Cir. 2016)); see Order at *4–9. With
respect to infringement, the district court concluded that
no reasonable jury could find the design of the Armaid2
substantially similar to the design claimed in the D’155 pa-
tent. See Order at *12. On August 28, 2023, the district
court granted Armaid summary judgment of non-infringe-
ment. Order at *1, *12.
RoM timely appeals. We have jurisdiction under
28 U.S.C. § 1295(a)(1).
II. S TANDARD OF REVIEW
“We review the district court’s ultimate claim construc-
tion of a design patent de novo.” Sport Dimension, 820 F.3d
at 1320. “We review any factual findings underlying the
construction for clear error.” Id.
“We review a district court’s grant of summary judg-
ment according to the law of the regional circuit.” Lanard
Toys Ltd. v. Dolgencorp LLC, 958 F.3d 1337, 1341
(Fed. Cir. 2020). In the First Circuit, summary judgment
rulings are reviewed de novo. McKenney v. Mangino,
873 F.3d 75, 80 (1st Cir. 2017). “A district court may only
grant summary judgment when the record, construed in
the light most congenial to the nonmovant, presents no
genuine issue as to any material fact and reflects the mo-
vant’s entitlement to judgment as a matter of law.” Id. (cit-
ing Fed. R. Civ. P. 56(a)).
III. D ISCUSSION
RoM argues that the district court erred in its claim
construction analysis by eliminating entire structural ele-
ments from the claimed design. See Appellant’s Br. 8–28.
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RoM also argues that, even if the district court’s claim con-
struction is correct, the designs of the D’155 patent and Ar-
maid2 are substantially similar. See Appellant’s Br. 34–37.
We address each argument in turn.
A.
On appeal, RoM argues that the district court’s con-
struction “improperly eliminates entire structural ele-
ments from the claimed design.” Appellant’s Br. 8. When
asked what elements were improperly eliminated, RoM
pointed to the district court’s classification of the “shape”
of the arms as functional.1 Oral Arg. 5:05–10:00, 28:06–
28:44, 31:06–31:36, https://oralarguments.cafc.uscourts.
gov/default.aspx?fl=23-2427_02042025.mp3. We agree
with the district court’s conclusion that the shape of the
arms is functional and disagree with RoM’s contention that
the district court entirely eliminated a structural element.
In doing so, we reject RoM’s arguments that the intrinsic
evidence in this case unambiguously demonstrates that the
shape of the arms is solely ornamental.
i.
“Determining whether a design patent has been in-
fringed is a two-part test: (1) the court first construes the
claim to determine its meaning and scope; (2) the fact
finder then compares the properly construed claim to the
accused design.” Lanard Toys, 958 F.3d at 1341. “[A]
1 To the extent that RoM challenges the district
court’s conclusion that the base had functional aspects, see,
e.g., Appellant’s Br. 19, we reject RoM’s challenge for the
same reasons as those discussed below with respect to the
arms. See, e.g., Order at *8 (identifying the “inverted
mushroom base” as functional); id. at *11 (explaining that
its infringement analysis only “[f]actor[ed] out the func-
tional aspects of the bases (which are notably different in
any event)”).
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design is better represented by an illustration ‘than it could
be by any description and a description would probably not
be intelligible without the illustration.’” Egyptian Goddess,
Inc. v. Swisa, Inc., 543 F.3d 665, 679 (Fed. Cir. 2008) (en
banc) (citation omitted). “While it may be unwise to at-
tempt a full description of the claimed design, a court may
find it helpful to point out, either for a jury or in the case of
a bench trial by way of describing the court’s own analysis,
various features of the claimed design as they relate to the
accused design and the prior art.” Id. at 680 (inner quota-
tion marks and citation omitted). For example, “[w]here a
design contains both functional and non-functional ele-
ments, the scope of the claim must be construed in order to
identify the non-functional aspects of the design as shown
in the patent.”2 Sport Dimension, 820 F.3d at 1320 (quot-
ing OddzOn Prods., Inc. v. Just Toys, Inc., 122 F.3d 1396,
1405 (Fed. Cir. 1997)). We have previously identified sev-
eral useful factors for determining whether the patented
design is dictated by function, including:
whether the protected design represents the
best design; whether alternative designs
would adversely affect the utility of the speci-
fied article; whether there are any concomi-
tant utility patents; whether the advertising
2 No factual dispute about claim construction func-
tionality precludes summary judgment: “[T]he construc-
tion of a patent, including terms of art within its claim, is
exclusively within the province of the court.” Markman
v. Westview Instruments, Inc., 517 U.S. 370, 372 (1996); see
Ethicon, 796 F.3d at 1333 (Fed. Cir. 2015) (endorsing, at
summary judgment, claim construction to remove func-
tional elements from design patents); OddzOn Prods., Inc.
v. Just Toys, Inc., 122 F.3d 1396, 1405–06 (Fed. Cir. 1997)
(rejecting extrinsic evidence and upholding a summary
judgment stage functionality claim construction).
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touts particular features of the design as hav-
ing specific utility; and whether there are any
elements in the design or an overall appear-
ance clearly not dictated by function.
PHG Techs., LLC v. St. John Cos., 469 F.3d 1361, 1366–67
(Fed. Cir. 2006) (quoting Berry Sterling Corp. v. Pescor
Plastics, Inc., 122 F.3d 1452, 1456 (Fed. Cir. 1997) (empha-
sis omitted)); see also Sport Dimension, 820 F.3d at 1322
(“Although we introduced these factors to assist courts in
determining whether a claimed design was dictated by
function and thus invalid, they may serve as a useful guide
for claim construction functionality as well.”).
The evidence in the record supports the conclusion that
the shape of the arms is functional. The claims of the ’081
patent cover “limb-massaging apparatus[es]” with arms
that “are shaped and dimensioned to adjustably clamp a
limb between said first and second massaging members.”
’081 patent col. 3 l. 65 to col. 4 l. 9; see Order at *8 (reason-
ing that the D’155 patent, to the extent it is the ’081 pa-
tent’s progeny, inherited these functional aspects). Mr.
Cross’s affidavit identified functional aspects of the Rolflex
that enabled it to massage the entire body, as opposed to
just the arms, such as “the overall clamshell appearance of
the arms, including an increased curve of the therapy arm.”
Order at *8; J.A. 380–82 ¶¶ 12–18. RoM’s marketing ma-
terials further explained that Rolflex’s “clam-shaped roller
arms provide significant leverage.” Order at *8. Based on
this record, the district court concluded the “clamshell”
shape of the arms was functional, but that other features
“appear to be largely ornamental,” such as “the thick ridged
outline” of the design (which includes the arms). Id.; see
also id. at 11 n.11; Ethicon Endo-Surgery, Inc. v. Covidien,
Inc., 796 F.3d 1312, 1333 (Fed. Cir. 2015). We conclude
that the district court did not err in construing the claim to
identify the functional versus the ornamental aspects of
the arms (and the overall design).
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ii.
RoM argues that the intrinsic evidence unambiguously
demonstrates that the shape of the arms is ornamental. In
doing so, RoM relies on (1) the drawings in the D’155 pa-
tent depicting the claimed design in solid lines and depict-
ing “material disclaimed from the invention” using dashed
lines, Appellant’s Br. 24–25 (citing J.A. 37 (D’155 patent));
and (2) the ’081 patent (and the Armaid1 as its commercial
embodiment), which is cited as prior art by the D’155 pa-
tent and which RoM argues serves as “intrinsic evidence
that provide[s] clear examples of alternative designs for the
D’155 patent.” Id. at 25–28. We disagree with RoM’s con-
tention that the intrinsic evidence unambiguously demon-
strates that the shape of the arms is ornamental.
Contrary to RoM’s assertion, the D’155 patent draw-
ings do not delineate the functional and ornamental as-
pects of the design. RoM effectively contends that all
elements depicted by the solid lines are ornamental, and
all elements depicted by the dotted lines are functional.
Appellant’s Br. 24–25. RoM’s position that these lines
show what aspects are functional and what aspects are or-
namental suggests, however, that all design elements must
be either completely ornamental or completely functional.
Our case law does not support this proposition. See, e.g.,
Ethicon, 796 F.3d at 1333 (“[T]he claim was limited to the
ornamental aspects of these functional elements.”). In-
deed, RoM recognizes that the elements depicted in solid
lines have at least some functional aspects. See Appellant’s
Br. 17 (identifying “functional or utilitarian features” of
the Rolflex, including “a base connected to the bottom of a
hinge apparatus” and “two arms connected to the hinge ap-
paratus”).
Moreover, as the district court correctly recognized,
RoM’s proposed approach of treating the D’155 patent’s dis-
claimer of elements as dispositive of the functionality in-
quiry would have courts blindly accept that “every feature
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RANGE OF MOTION PRODUCTS, LLC v. ARMAID COMPANY INC . 10
depicted in solid lines in design patents [is] per se ornamen-
tal.” Order at *8; see Appellant’s Br. 24–28; J.A. 37; D’155
patent at Figs. 1–8. Accepting, without question, the de-
marcations depicted in a design patent would render mean-
ingless the “helpful” practice of distinguishing between
functional and ornamental aspects of the design. Lanard
Toys, 958 F.3d at 1342. The PHG factors similarly would
never be used if we treated the design patent drawings as
unambiguously and dispositively determining functional-
ity. See PHG, 469 F.3d at 1366–67. RoM’s position would
also improperly suggest that courts are effectively bound
by the examiner’s findings on functionality (as indicated by
grant of the design patent). We thus reject RoM’s conten-
tion that the D’155 patent drawings unambiguously show
that the shape of the arms is ornamental.
We reject RoM’s argument that the district court erred
by not treating the existence of alternative designs as a dis-
positive factor that barred examination of the other PHG
factors. Appellant’s Br. 15–16, 18; see Order at *7–8.
RoM’s position is based on a misreading of our case law.
The case on which RoM primarily relies, Ethicon, does not
support the existence of alternative designs as a threshold
inquiry. See Appellant’s Br. 15. Ethicon merely explains
that the existence of alternative designs is an important
factor that can be dispositive of functionality, but that
courts may also consider the other relevant PHG factors.
Ethicon, 796 F.3d at 1329–30. Notably, the case that Eth-
icon discusses and relies upon for its proposition, Berry
Sterling, states that the existence of alternative designs
“join[s] the list of other appropriate considerations for as-
sessing whether the patented design as a whole—its over-
all appearance—was dictated by functional
considerations.” Berry Sterling, 122 F.3d at 1456.
In any event, we disagree with RoM’s assertion that the
’081 patent clearly serves as a feasible alternative design.
See Appellant’s Br. 25–28. Notably, the ’081 patent is titled
“Limb Massager” while the D’155 patent is titled “Body
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RANGE OF MOTION PRODUCTS, LLC v. ARMAID COMPANY INC . 11
Massaging Apparatus,” suggesting that the devices serve
different purposes and have different functional capabili-
ties. Cf. Ethicon, 796 F.3d at 1331 (“[T]o be considered an
alternative, the alternative design must simply provide
‘the same or similar functional capabilities.’” (citation omit-
ted)). We conclude that the intrinsic evidence does not un-
ambiguously establish that the shape of the arms is solely
ornamental, and that therefore the district court did not
err by consulting the extrinsic evidence. See Smartrend
Mfg. Grp., Inc. v. Opti-Luxx Inc., 159 F.4th 1322, 1330–31
(Fed. Cir. 2025) (citing Phillips v. AWH Corp., 415 F.3d
1303, 1318 (Fed. Cir. 2005) (en banc)) (recognizing that for
design patents, like for utility patents, district courts may
consider extrinsic evidence when the intrinsic evidence is
ambiguous). The district court did not commit reversible
error with respect to its claim construction, including with
respect to its determination that the shape of the arms is
functional.
B.
RoM contends that, even if the district court’s claim
construction was correct, the designs of the D’155 patent
and the Armaid2 are similar enough to withstand sum-
mary judgment of non-infringement. Appellant’s Br. 34–
37; Oral Arg. 11:09–12:47, 30:30–30:57. We reject RoM’s
argument as it is based on the application of an incorrect
version of the ordinary observer test.
“Design patent infringement is a question of fact,
which a patentee must prove by a preponderance of the ev-
idence.” Columbia Sportswear N. Am., Inc. v. Seirus Inno-
vative Accessories, Inc., 942 F.3d 1119, 1129 (Fed. Cir.
2019). Courts analyze design patent infringement under
the “ordinary observer” test, which provides: “If, in the eye
of an ordinary observer, giving such attention as a pur-
chaser usually gives, two designs are substantially the
same, if the resemblance is such as to deceive such an ob-
server, inducing him to purchase one supposing it to be the
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RANGE OF MOTION PRODUCTS, LLC v. ARMAID COMPANY INC . 12
other, the first one patented is infringed by the other.”3
Egyptian Goddess, 543 F.3d at 670 (quoting Gorham Co.
v. White, 81 U.S. 511, 528 (1871)) (cleaned up). “[T]he ‘or-
dinary observer’ test for design patent infringement re-
quires the fact finder to ‘compar[e] similarities in overall
designs, not similarities of ornamental features in isola-
tion.’” Lanard, 958 F.3d at 1343 (second alteration in orig-
inal) (quoting Ethicon, 796 F.3d at 1335). This test is
performed from the perspective of a hypothetical ordinary
observer who is familiar with the designs in the prior art.
Egyptian Goddess, 543 F.3d at 676–78, 681; Columbia
Sportswear, 942 F.3d at 1129. “Where the claimed and ac-
cused designs are ‘sufficiently distinct’ and ‘plainly dissim-
ilar,’ the patentee fails to meet its burden of proving
infringement as a matter of law.” Ethicon, 796 F.3d
at 1335 (quoting Egyptian Goddess, 543 F.3d at 678). “If
the claimed and accused designs are not plainly dissimilar,
the inquiry may benefit from comparing the claimed and
accused designs with prior art to identify differences that
are not noticeable in the abstract but would be significant
3 As the dissent highlights, the ultimate question is
whether the claimed and accused designs are substantially
similar, with Egyptian Goddess merely recognizing that in
some cases, the claimed and accused designs may be so
clearly not similar (or “dissimilar”) as to remove the need
to consider the prior art. Dissent at 3–6; see Egyptian God-
dess, 543 F.3d at 678. However, the district court properly
considered both the similarities and differences in as-
sessing the overall similarity of the claimed and accused
designs. See Order at *7 (highlighting that “both have op-
posable, curved arms, roller cutouts and handles, with the
arms attached to a hinge apparatus with multiple slots for
size adjustment”); Order at *9–11 (considering the broad
similarities between the designs, although noting that
many of them were related to function).
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RANGE OF MOTION PRODUCTS, LLC v. ARMAID COMPANY INC . 13
to the hypothetical ordinary observer familiar with the
prior art.” Id. (citing Egyptian Goddess, 543 F.3d at 678).
RoM and the dissent advocate for an approach that
fails to respect the limits on a design patent’s scope. Fo-
cusing primarily on the shapes of the arms, RoM argued
that one need only lay the pictures of the two designs next
to each other, or even overlaying one another, to conclude
that there is “substantial evidence of infringement.” Oral
Arg. at 12:20–12:47, 30:30–30:57 (citing J.A. 48). The dis-
sent takes up this suggestion, comparing the “overall de-
sign[ ]” by briefly comparing two pictures. Dissent at 1–2,
7. Notably missing from this methodology, however, is any
attempt to consider claim construction or otherwise sepa-
rate out functional aspects. By failing to ensure that func-
tional aspects of a design do not play a role in the
infringement analysis, the test endorsed by RoM and the
dissent improperly seeks “to extend the scope of the patent
far beyond the statutorily protected ‘new, original and or-
namental design.’” Lanard Toys, 958 F.3d at 1345 (quoting
35 U.S.C. § 171). The dissent and RoM would dramatically
increase the scope of design patents by precluding sum-
mary judgment whenever functional considerations result
in two designs sharing similarities. Contrary to our prece-
dent, this approach would render pointless our require-
ment to construe the claim, including conducting the
functional-versus-ornamental inquiry that enables the fact
finder to “factor[ ] out the functional aspects of [the] de-
sign” when applying the ordinary observer test. Richard-
son v. Stanley Works, Inc., 597 F.3d 1288, 1293 (Fed. Cir.
2010). We reject the proposal to establish what amounts to
an oversimplified version of the ordinary observer test that
effectively eliminates the step of claim construction.
Here, the district court’s infringement analysis
properly focused on the designs’ overall ornamental ap-
pearance and whether “the nonfunctional, ornamental as-
pects of the claimed and accused designs [were] plainly
dissimilar.” Ethicon, 796 F.3d at 1337; see OddzOn Prods.,
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122 F.3d at 1405 (“If . . . a design contains both functional
and ornamental features, the patentee must show that the
perceived similarity is based on the ornamental features of
the design.”). A helpful diagram from the district court’s
opinion, comparing the designs of the D’155 patent, the Ar-
maid2, and the Armaid1, is reproduced below.4
Order at *6. The district court began by comparing the
D’155 patent and the accused Armaid2 side-by-side, noting
that they “share a ‘broad design concept’ and ‘at a concep-
tual level they look quite similar.’” Order at *10 (citation
omitted). The district court recognized, however, that most
of the similarities between the designs were “likenesses
[between] the . . . functional features” and correctly ex-
plained that these features were only to be considered “to
the extent that they contribute to the overall ornamenta-
tion.” Id.; see also id. at *11 n.11 (acknowledging that,
4 We reproduce this diagram for the benefit of both
the plainly dissimilar and three-way comparison steps of
the infringement analysis. This diagram is not meant to
suggest that the first step of the infringement analysis in-
volves comparing the claimed and accused designs with de-
signs in the prior art. See Ethicon, 796 F.3d at 1335, 1337.
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RANGE OF MOTION PRODUCTS, LLC v. ARMAID COMPANY INC . 15
while the clamshell arms were functional, they should still
be “consider[ed for] their ornamental aspects and the way
they contribute to the overall design”); Ethicon, 796 F.3d
at 1336 (“Similarity at this conceptual level, however, is
not sufficient to demonstrate infringement of the claimed
designs.”).
The district court then thoroughly explained the differ-
ences that would stand out to an ordinary observer familiar
with the prior art. These differences include that (1) “the
most noticeable feature” of the D’155 patent was the “fixed
arm” while the “semi-rectangular hinge apparatus of the
Armaid2 makes up proportionally more of the device and
forms the entire base of the product;” (2) the Armaid2 de-
sign, unlike the D’155 patent design, had an “overall seg-
mented appearance” because of “the separation of the
hinge apparatus” and “the presence of raised interior par-
titions in the clamshell arms;” (3) “the size-selection slots
in the Armaid2 are larger, both on their own and in propor-
tion to the product as a whole;” and (4) “the blunter, less
rounded end of the hinge apparatus in the Armaid2” was
more eye-catching than “the subtler, rounder curves of the
hinge apparatus in the D’155 patent.” Order at *11. The
district court concluded that, taken together, “[t]hese fea-
tures contribute to the ‘stylized impression’ conveyed by
the Armaid2 . . . in contrast to the ‘robust and workman-
like’ impression conveyed by the D’155 patent.” Id. (cita-
tion omitted); see Lanard, 958 F.3d at 1343 (“Under the
‘ordinary observer’ test, a court must consider the orna-
mental features and analyze how they impact the overall
design.”). We conclude that the district court did not com-
mit reversible error in reaching its determination that the
design of the Armaid2 and the narrow design protected by
the D’155 patent are plainly dissimilar. Order at *11; see
Ethicon, 796 F.3d at 1335 (“Where the claimed and accused
designs are ‘sufficiently distinct’ and ‘plainly dissimilar,’
the patentee fails to meet its burden of proving infringe-
ment as a matter of law.” (quoting Egyptian Goddess,
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RANGE OF MOTION PRODUCTS, LLC v. ARMAID COMPANY INC . 16
543 F.3d at 678)). We affirm the district court’s judgment
that the Armaid2 does not infringe the D’155 patent.
Because we agree that the district court did not revers-
ibly err in reaching its plainly dissimilar conclusion, it did
not need to reach the three-way comparison step of the in-
fringement analysis. See Ethicon, 796 F.3d at 1337. None-
theless, even if it needed to reach the three-way
comparison step, we agree with the district court that a
comparison of the D’155 patent and the Armaid2 designs
with the Armaid1 design in the prior art further supports
the conclusion that no reasonable jury could find that the
designs at issue are substantially similar. See Order
at *11. After accounting for functional aspects, the district
court found the most salient differences between the Ar-
maid1 and Armaid2 to be (1) “the shape of the arms,” par-
ticularly with respect to “the areas just below the
cylindrical handlebars” in the three images shown above in
the reproduced diagram; and (2) “the manner in which the
fixed arm connects to the hinge apparatus.” Id. Consider-
ing these features as part of its comparison of the overall
similarity of the designs, the district court concluded that
it would reach the same conclusion that no reasonable jury
could find the claimed and accused designs substantially
similar. Id. at *11–12. This inquiry was proper under our
case law. See Crocs, Inc. v. Int’l Trade Comm’n, 598 F.3d
1294, 1303 (Fed. Cir. 2010) (“When the differences between
the claimed and accused designs are viewed in light of the
prior art, the attention of the hypothetical ordinary ob-
server may be drawn to those aspects of the claimed design
that differ from the prior art. If the claimed design is close
to the prior art designs, small differences between the ac-
cused design and the claimed design assume more im-
portance to the eye of the hypothetical ordinary
observer . . . depending on the overall effect of those differ-
ences on the design.” (citing Egyptian Goddess, 543 F.3d
at 681)). We conclude that the district court did not revers-
ibly err in its analysis and would therefore also affirm the
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RANGE OF MOTION PRODUCTS, LLC v. ARMAID COMPANY INC . 17
district court’s grant of summary judgment of non-infringe-
ment on this alternative basis.
IV. CONCLUSION
We have considered RoM’s remaining arguments and
find them unpersuasive. We affirm the district court’s
judgment of non-infringement.
AFFIRMED
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United States Court of Appeals
for the Federal Circuit
______________________
RANGE OF MOTION PRODUCTS, LLC,
Plaintiff-Appellant
v.
ARMAID COMPANY INC.,
Defendant-Appellee
______________________
2023-2427
______________________
Appeal from the United States District Court for the
District of Maine in No. 1:22-cv-00091-JDL, Chief Judge
Jon D. Levy.
______________________
M OORE , Chief Judge, dissenting.
I believe a reasonable jury could find that “in the eye of
the ordinary observer, giving such attention as a purchaser
usually gives, [the] two designs are substantially the
same.” Gorham Co. v. White, 81 U.S. 511, 528 (1871). This
is, of course, a fact question. I think the district court erred
when it took this question away from the jury and granted
summary judgement of noninfringement. Here are the two
designs at issue:
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RANGE OF MOTION PRODUCTS, LLC v. ARMAID COMPANY INC . 2
D’155 Patent
(Claimed Design)
Armaid2
(Accused Design)
It is hard to imagine, looking at the two overall designs,
that no reasonable purchaser of handheld massagers could
ever find that the overall designs were substantially simi-
lar. This decision was not the product of a jury verdict; it
was a summary judgment where the judge concluded that
no reasonable juror could find that the designs were sub-
stantially similar. I confess that I considered ending the
dissent here.
But alas, I have more to say. I believe there exists a
small and easily solved problem in our design patent law
that led the district court astray. A problem, which I con-
fess, has infected several of our cases and which has been
the subject of several amicus briefs to our court.
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RANGE OF MOTION PRODUCTS, LLC v. ARMAID COMPANY INC . 3
D ISCUSSION
I. The Sufficiently Distinct/Plainly Dissimilar Test
In Gorham, the Supreme Court made clear the test for
infringement is the substantial similarity of the overall de-
signs, explaining “the effect of the whole design,” rather
than individual features, controls the inquiry. 81 U.S. at
530. Our predecessor courts long recognized the substan-
tial similarity test as the proper standard for assessing de-
sign patent infringement. See, e.g., Blumcraft of
Pittsburgh v. United States, 372 F.2d 1014, 1016 (Ct. Cl.
1967); In re Dubois, 262 F.2d 88, 91 (CCPA 1958).
In Litton Systems, Inc. v. Whirlpool Corporation, 728
F.2d 1423 (Fed. Cir. 1984), this court began requiring
plaintiffs to prove not only similarity under the ordinary
observer test but also that the accused design appropriates
the novelty of the claimed design. 728 F.2d at 1444 (“For a
design patent to be infringed, however, no matter how sim-
ilar two items look, the accused device must appropriate
the novelty in the patented device which distinguishes it
from the prior art.” (quotation omitted)). In Egyptian God-
dess, Inc. v. Swisa, Inc., 543 F.3d 665 (Fed. Cir. 2008) (en
banc), we overruled the point of novelty test, recognizing
the test proved difficult to administer and conflicted with
the ordinary observer test laid out in Gorham. 543 F.3d at
670–72, 678. We explained the ordinary observer test is
“the sole test” for determining infringement and should
generally be conducted using the proper “frame of refer-
ence” by comparing the claimed and accused designs in
light of the prior art. Id. at 677–78.
Without realizing it, in Egyptian Goddess, we meaning-
fully changed the substantial similarity test. We changed
the frame of reference from whether two designs are sub-
stantially similar in overall appearance to whether two de-
signs are “sufficiently distinct” or “plainly dissimilar.”
Egyptian Goddess, 543 F.3d at 678. Recently, we have re-
ceived a number of briefs that convincingly explain how
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RANGE OF MOTION PRODUCTS, LLC v. ARMAID COMPANY INC . 4
this linguistic sleight of hand (substantially similar to
plainly dissimilar) resulted in a significant change in the
law. These briefs explained how there is a real-world dif-
ference between the paradigm shift from “substantially
similar” to “plainly dissimilar/sufficiently distinct.” See
North Star Tech. Int’l Ltd. v. Latham Pool Prods., Inc., No.
23-2138, Dkt. 89 at 2–3, 8–12 (Pet. for Reh’g En Banc), Dkt.
100 at 1–4 (Inst. for Design Sci. & Pub. Pol’y Am. Br.), Dkt.
103 at 1, 3–4 (Oake Law Office, PLLC Am. Br.) (Fed. Cir.
2025). The former causes the fact finder to focus on the
similarity of the overall designs whereas the latter forces
the fact finder to focus on the differences.
Anyone who has ever done one of the childhood puzzles
which asks you to circle the differences between two other-
wise seemingly identical pictures can appreciate that fo-
cusing on differences makes those differences more
significant and causes you to lose sight of the overall simi-
larity.1
Highlights for Children, Oct. 2016, at 20, available at
https://fliphtml5.com/fwspv/ktmi.
1 Google AI states that one important benefit of such
childhood find-the-differences games is that they train the
brain to focus on and notice small details. Google AI
prompt “childhood find the difference game” search per-
formed by Chief Judge Moore on December 10, 2025.
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RANGE OF MOTION PRODUCTS, LLC v. ARMAID COMPANY INC . 5
There are a number of problems with our “plainly dis-
similar/sufficiently distinct” test, including the reframing
away from similarities and towards differences. See North
Star Tech. Int’l Ltd. v. Latham Pool Prods., Inc., No. 23-
2138, Dkt. 100 at 1–4 (Inst. for Design Sci. & Pub. Pol’y
Am. Br.) (Fed. Cir. 2025).2 The results of a recent survey
presented to this court demonstrate how impactful this
paradigm shift can be. When shown designs from Supreme
Court and Federal Circuit cases where infringement find-
ings were upheld and asked whether they were plainly dis-
similar, over 60% of ordinary observers polled answered in
the affirmative. Id. at 3–4.
In the legal field, we have long recognized that the
framing of questions matters. See, e.g., FERC v. Elec.
Power Supply Ass’n, 577 U.S. 260, 297–98 (2016) (Scalia,
J., dissenting) (“[A] proper framing of the inquiry is im-
portant . . . .”); Madison v. Alabama, 586 U.S. 265, 278
(2019) (noting that how the court “framed its test” was
“most important”); Urda v. Sokso, 146 F.4th 311, 314–15
(3d Cir. 2025) (noting that how a court “framed the ques-
tion of law” “is especially important” and, when framed in-
correctly, it can lead to improper results); Elhady v. Kable,
993 F.3d 208, 220 (4th Cir. 2021) (noting that “framing” is
“important”); United States v. Hills, 27 F.4th 1155, 1178
(6th Cir. 2022) (noting that a “question or matter” may turn
“on how the pending ‘question’ or ‘matter’ is framed”).
2 Amici have also argued that our plainly dissimilar
test lacks any standards or guidance making it entirely
subjective. And it has resulted in strained summary judg-
ment rulings which have taken this highly factual infringe-
ment question away from juries where they belong. North
Star Tech. Int’l Ltd. v. Latham Pool Prods., Inc., No. 23-
2138, Dkt. 100 at 1–4 (Inst. for Design Sci. & Pub. Pol’y
Am. Br.), Dkt. 103 at 1, 3 (Oake Law Office, PLLC Am. Br.)
(Fed. Cir. 2025).
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RANGE OF MOTION PRODUCTS, LLC v. ARMAID COMPANY INC . 6
Psychological literature has likewise documented the im-
pact such framing can have on outcome.3 For example,
“judges who engage in similarity testing selectively gener-
ate knowledge indicating that the target is similar to the
standard, whereas judges who engage in dissimilarity test-
ing selectively generate knowledge indicating dissimilar-
ity.” Thomas Mussweiler, Comparison Processes in Social
Judgment: Mechanisms and Consequences, 110 PSYCH. R.
472, 479 (2003). “The psychological principles that govern
the perception of decision problems and the evaluation of
probabilities and outcomes produce predictable shifts of
preference when the same problem is framed in different
ways.” Amos Tversky & Daniel Kahneman, The Framing
of Decisions and the Psychology of Choice, 211 S CIENCE 453,
453 (Jan. 1981). In short, framing matters and can mean-
ingfully impact outcome.
I will end this section where I began: Is it really the
case that no reasonable juror could find the designs at issue
substantially similar?
3 Bart Geurts, Alternatives in Framing and Decision
Making, 28 M IND & LANGUAGE 1, 1 (Feb. 2013) (“There is a
wealth of experimental data showing that the way a prob-
lem is framed may have an effect on people’s choices and
decisions.”); Sonia Chopra, The Psychology of Framing and
Jury Decision-Making, J. CONSUMER ATT’YS ASS’N. S. CAL.
(Jan. 2020) (“‘Framing effect’ refers to the phenomenon
that how a situation, problem, or choice is posed influences
the way we perceive value, make choices, or behave – even
when the alternatives are equivalent. Changing the frame
can change the preferred outcome or choice.”); Amos
Tversky et al., The Causes of Preference Reversal, 80 AM.
ECON. REV . 204, 215 (1990) (“[A]lternative framings of the
same options (for example, in terms of gains vs. losses, or
in terms of survival vs. mortality) produce inconsistent
preferences . . . .”).
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RANGE OF MOTION PRODUCTS, LLC v. ARMAID COMPANY INC . 7
D’155 Patent
(Claimed Design)
Armaid2
(Accused Design)
Perhaps the answer is no if the question is about the simi-
larities but yes if the question is instead focused on the dif-
ferences.
II. Trend in Design Patent Cases
I am even more troubled by the fact that this is not an
isolated incident but appears representative of a much
broader trend.
In North Star, we affirmed the district court’s grant of
summary judgment of noninfringement by holding the
claimed and accused pool designs (reproduced below) are
“plainly dissimilar” as a matter of law. North Star Tech.
Int’l Ltd. v. Latham Pool Prods., Inc., No. 23-2138, 2025
WL 1189919, at *1–2 (Fed. Cir. Apr. 24, 2025).
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RANGE OF MOTION PRODUCTS, LLC v. ARMAID COMPANY INC . 8
It is hard for me to look at the patented pool design and the
accused product and agree that no reasonable juror could
find that their overall appearance is substantially similar.
Here too, could the framing “plainly dissimilar” rather
than “substantially similar” have impacted the outcome?
In Ethicon Endo-Surgery, we affirmed another district
court’s grant of summary judgment of noninfringement by
holding the claimed and accused designs (reproduced be-
low) “plainly dissimilar.” Ethicon Endo-Surgery, Inc. v.
Covidien, Inc., 796 F.3d 1312, 1334–37 (Fed. Cir. 2015).
We acknowledged the designs were similar at a “general
conceptual level” but held that, after excluding functional
elements, the designs were “plainly dissimilar” focusing
again on particular design differences. Id. at 1336–37.
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RANGE OF MOTION PRODUCTS, LLC v. ARMAID COMPANY INC . 9
While I do not foreclose the possibility of a jury finding non-
infringement on these facts, which I would affirm, I am sur-
prised to learn that no reasonable person could find them
so.
I am troubled that such issues are being decided by dis-
trict courts at summary judgment. It is not just that I dis-
agree with every one of these outcomes, which I do, but that
I think there is a larger problem, of our creation. I think
there is a meaningful difference between determining
whether two things are substantially similar and deter-
mining whether they are plainly dissimilar/sufficiently dis-
tinct. And I cannot rule out the possibility that this
paradigm shift in the law (which we created) may be re-
sponsible for these many outcomes which I find troubling.
I think we ought to correct our error in Egyptian God-
dess and reaffirm that the substantially similar test, an-
nounced by the Supreme Court in Gorham, is “the sole
test.” Accordingly, we would vacate and remand the pre-
sent case for the district court to reconsider summary judg-
ment, focusing on the overall similarities, as Gorham
requires, rather than differences. With the proper focus, I
find it difficult to conclude that no reasonable juror could
find the claimed and accused designs substantially similar
in overall design.
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RANGE OF MOTION PRODUCTS, LLC v. ARMAID COMPANY INC . 10
III. Application of the Plainly Dissimilar Test
Drives the Result
The district court properly stated the Gorham substan-
tially similar standard and found that even design ele-
ments which had a functional purpose, still had
ornamental features (like the arms), and therefore must be
considered in the infringement analysis. The district court
went so far as to expressly find that “the D’155 patent and
the Armaid2 share a ‘broad design concept’ and at a ‘con-
ceptual level they look quite similar.” Range of Motion
Prods. LLC v. Armaid Co. Inc., No. 1:22-CV-00091,
2023 WL 5530768, at *10 (D. Me. Aug. 28, 2023) (“Deci-
sion”). After this acknowledgement, the district court finds
(which it should not do at summary judgment): “when
viewing the D’155 patent and the Armaid2 side-by-side,
certain features stand out.” Id. at *11. The entirety of the
district court’s subsequent analysis, much like the chil-
dren’s find-the-differences game, amounted to identifica-
tion of minute differences in each element. See id.
(identifying and discussing each small difference in the ap-
pearance of various elements). Finally, after focusing ex-
clusively on these minute differences, the court finds
(again not its job on summary judgment): “In sum, I find
that the ornamental aspects of the two designs are plainly
dissimilar.” Id.
That the district court is making fact findings cannot
reasonably be denied. Nor can the fact that its entire anal-
ysis is guided by a focus on element-by-element differences.
As the above demonstrates, this is not a one-off, and by this
court endorsing the primacy of the sufficiently dis-
tinct/plainly dissimilar test and affirming this case decided
on summary judgment: replication is certain. Our errant
language in Egyptian Goddess has and will result in the
near-complete removal of the jury from its fact-finding role
in design patent infringement.
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RANGE OF MOTION PRODUCTS, LLC v. ARMAID COMPANY INC . 11
The majority does not grapple with any of these con-
cerns, which in fairness to the majority, are the result of a
pattern of cases and a number of amicus briefs recently
filed in our court.
The majority’s only defense of the reframing from sim-
ilarities to differences is that “Egyptian Goddess merely
recognize[s] that in some cases, the claimed and accused
designs may be so clearly not similar (or ‘dissimilar’) as to
remove the need to consider the prior art.” Maj. at 12 n.3.
But this case is clearly not one of those where the designs
are “so clearly not similar” that summary judgment of non-
infringement was warranted. Nor was North Star or Ethi-
con Endo-Surgery.
When performing the substantial similarity analysis
required by Gorham, I think the court should always “com-
par[e] the claimed and accused designs in light of the prior
art,” Egyptian Goddess, 543 F.3d at 677, with no special
exception for plainly dissimilar designs, which has proved
unworkable. As we explained in Egyptian Goddess, “a com-
parison of the claimed and accused designs with the prior
art” can benefit resolution of the substantial similarity
test, id. at 678, and this case demonstrates precisely why.
Here, the context provided by the prior art further estab-
lishes that the issue of infringement should not have been
decided at summary judgment.
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RANGE OF MOTION PRODUCTS, LLC v. ARMAID COMPANY INC . 12
D’155 Patent
(Claimed Design)
Armaid2
(Accused Design)
Armaid1
(Prior Art)
Comparing the Armaid1 prior art to the D’155 patent,
my eyes are drawn to the substantial difference in the base
as well as the overall shape of the arms. This includes the
curvature of the arms, the ridges in the arms, the thickness
of the arms, and the vertical positioning of the rollers rela-
tive to the arms. These are ornamental features which the
district court correctly indicated should not be excluded
from consideration of the overall appearance. Decision, at
*8 (“To be sure, some features of the D’155 patent appear
to be largely ornamental, including the hollowness and
length of the handles, the thick ridged outline, the precise
shape of the connector pivot, and the shape of the portion
of the device where the hinge apparatus attaches to the
fixed arm.”) The visually dominating base of the Armaid1
with its neck and platform is quite distinguishable from the
small base structure of the Armaid2 or D’155 design.4 To
4 There is some evidence that the inverted mush-
room base of the D’155 design had a functional motivation
(because it is rounded it can be used at any angle), J.A. 381,
but there is no evidence that the substantiality of the base
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RANGE OF MOTION PRODUCTS, LLC v. ARMAID COMPANY INC . 13
my consumer eyes, the D’155 design is “deceptively similar
to the [Armaid2], even to an observer familiar with [the
prior art Armaid1].” Egyptian Goddess, 543 F.3d at 677. I
do not preclude the possibility that a jury could find other-
wise. I do object, however, to taking the question from the
fact finder. Just look at the pictures: reasonable minds
can differ. If I were on this jury, I would find the Armaid2
is substantially similar in overall ornamental appearance
to the D’155 patent taking into account the differences and
similarities with the prior art.
CONCLUSION
The district court granted summary judgment conclud-
ing: “In sum, I find that the ornamental aspects of the two
designs are plainly dissimilar, such that ROM cannot show
patent infringement as a matter of law.” Decision, at *11.
While at times the court stated the law correctly, from its
analysis and this clear fact finding, the court was focused
on differences in individual features rather than similari-
ties in the overall designs. I think the legal frame of refer-
ence is askew and believe it infected the analysis. I dissent.
played any functional role. The Armaid1 base seems large
and separate from the remainder of the apparatus unlike
the D’155 patent and the Armaid2 design. Again, I do not
preclude a jury from finding otherwise.
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