The Federal Circuit has twice refused to disturb a judgment that wiped out a design patent case before it reached a jury, and the patentee is now taking the two questions underneath it to the Supreme Court. On 22 October 2026 Chief Justice Roberts, sitting as Circuit Justice for the Federal Circuit, granted an unopposed application under Supreme Court Rule 13.5 to extend the time to petition for certiorari in Range of Motion Products, LLC v. Armaid Company Inc., Application No. 26A564, moving the deadline from 9 November 2026 to 21 December 2026. The extension, reported by Dennis Crouch at Patently-O, was filed on 19 October 2026 by E. Joshua Rosenkranz of Orrick and previews the two questions the petition will raise: whether the Federal Circuit’s “plainly dissimilar” shortcut from Egyptian Goddess, Inc. v. Swisa, Inc., 543 F.3d 665 (Fed. Cir. 2008) (en banc), conflicts with the “substantially the same” ordinary-observer test of Gorham Manufacturing Co. v. White, 81 U.S. (14 Wall.) 511 (1871); and whether judges, rather than juries, may resolve factual disputes about which features of a design are functional as part of claim construction, consistent with the Seventh Amendment and Markman v. Westview Instruments, Inc., 517 U.S. 370 (1996).
The decision below is worth reading before the petition lands. In Range of Motion Products, LLC v. Armaid Co., No. 2023-2427, 166 F.4th 981 (Fed. Cir. 2026), decided 2 February 2026, a divided panel affirmed the District of Maine’s summary judgment of non-infringement of U.S. Design Patent D802,155, “Body Massaging Apparatus,” filed 25 May 2016 and issued 7 November 2017 and embodied in the patentee’s Rolflex device. Judge Cunningham wrote for the court, joined by Judge Hughes; Chief Judge Moore dissented. The district court, Chief Judge Jon D. Levy, had construed the single pictorial claim by separating functional from ornamental features, concluded that many — though not all — of the claimed features were driven by function, and held the resulting claim scope narrow under Sport Dimension, Inc. v. Coleman Co., 820 F.3d 1316 (Fed. Cir. 2016). The evidence it relied on came largely from the patent owner’s own side of the ledger: the claims of a companion utility patent, U.S. Patent No. 5,792,081 (“Limb Massager”), covering arms shaped and dimensioned to clamp a limb; an affidavit describing the clamshell arm geometry as what let the device work on the whole body; and the patentee’s own marketing, which sold the “clam-shaped roller arms” as a source of leverage. With the clamshell arms factored out, the accused Armaid2 was held plainly dissimilar as a matter of law, and the court affirmed on the alternative ground of a three-way comparison against the prior-art Armaid1. Rehearing en banc was denied on 11 August 2026: Judge Cunningham, joined by Judge Hughes, concurred in the denial; Chief Judge Moore, joined by Judge Reyna, dissented; Judges Stoll and Stark dissented without opinion.
What this actually changes for a design portfolio
The most expensive lesson in the panel opinion has nothing to do with the Supreme Court. It is that solid lines in your drawings do not protect a feature from being called functional. The patentee argued that the drawings themselves delineated the claim — solid lines ornamental, broken lines disclaimed — and the Federal Circuit rejected that squarely: treating the drawings as dispositive would make the functional-versus-ornamental inquiry and the PHG Technologies factors pointless, and would effectively bind courts to the examiner’s implicit view of functionality. The court also refused to treat the existence of alternative designs as a threshold question that forecloses the other factors, and confirmed that where the intrinsic record is ambiguous a district court may look to extrinsic evidence, as it did in Smartrend Manufacturing Group v. Opti-Luxx, 159 F.4th 1322 (Fed. Cir. 2025). Practically: every contour that carries a performance story can be subtracted from your claim at the Markman stage, and the subtraction happens before anyone compares your product to the knock-off.
That makes three ordinary prosecution and marketing decisions suddenly load-bearing. First, filing a single design patent with every significant contour in solid lines concentrates all the risk in one construction ruling; a family claiming the overall appearance plus narrower filings on individual ornamental portions in broken-line context gives you a claim that survives functional subtraction. Our patent drawing team builds these line-weight variants as a set rather than one sheet, precisely because the construction you will litigate is the one your drawings allow. Second, a concomitant utility patent is an express PHG factor, so a utility filing on the same product is both protection and ammunition against your design claim — worth checking whether the utility claims describe the very geometry your design patent depends on. Third, and cheapest to fix, audit your product marketing before you enforce. Copy that credits a shape with leverage, grip, airflow or strength is the plaintiff handing the defendant its functionality case.
For enforcement, the message is that design infringement can now die on the paper record. If the construction goes against you, “plainly dissimilar” disposes of the case at summary judgment without a jury ever seeing the two products side by side. That argues for doing the functional-ornamental split and the three-way prior-art comparison as pre-suit diligence rather than as a response to a summary judgment motion — the same analysis the district court performed, run in advance. An honest design infringement analysis that factors out functional features and prices in the narrowed claim will tell you whether you have a case worth filing, and defendants should note that the opinion is effectively a template: find the patentee’s utility family, find its marketing, and move early.
If you have a design case with summary judgment briefing ahead of you, preserve both questions now. Chief Judge Moore’s dissent from the denial of rehearing argues that the shift in framing from “substantially similar” to “plainly dissimilar” pushes the fact finder toward differences and away from the overall impression, and points to survey evidence put before the court in which more than 60 per cent of ordinary observers called designs plainly dissimilar in cases where infringement had in fact been upheld. She would also give the functionality fact disputes to the jury. Four active judges — Moore, Reyna, Stoll and Stark — would have reheard the case, and the concurrence in the denial conceded that where a district court resolves a genuine dispute as a matter of law, the remedy is reversal on appeal. That is a usable record for an objection, and an objection not made now is waived if the test moves.
A note on proportion: an extension of time is not a petition, and a petition is not a grant. What the docket establishes today is a deadline of 21 December 2026 and two questions that split the Federal Circuit twice in a single case. The prosecution and marketing hygiene above is worth doing regardless of what the Supreme Court does with it.