Spot the Differences? That May Not be Enough When Evaluating Design Patent Infringement
The Federal Circuit’s decision in Range of Motion Prods., LLC v. Armaid Co. is an instance illustrating that summary judgment is often too soon to decide design patent infringement. At the heart of the dispute is the "ordinary observer" test, which asks if a person would be deceived into buying one product thinking it is the other. In this instance, the court overturned a lower court’s summary judgment of non-infringement regarding a handheld massage device. By doing so, the Federal Circuit signaled that when two designs share fundamental visual characteristics, judges should be wary of dismissing the case before it ever reaches a jury.
This ruling highlights the "visual nuances" trap that can complicate design patent enforcement and defense. The district court had originally focused on specific differences, such as the shape of the handles and the connection points of the massage rollers. However, the Federal Circuit clarified that a court cannot simply list differences to grant summary judgment if the "overall appearance" remains substantially similar. For developing or protecting a product, this means that there may still be infringement in view of distinct functional improvements or minor aesthetic tweaks if the core visual impression mirrors a protected design.
The Armaid decision is a reminder that the "ordinary observer" is not a technical expert, but a consumer. This distinction is vital for patent strategy: it suggests that legal evaluations should prioritize broad visual impressions over granular technical specifications when assessing infringement. Because the Federal Circuit found that a reasonable jury could find the two designs "substantially the same" despite their differences, it signaled that the threshold for ending a case early is higher than simply noting some visual distinctions. The evaluation of design patent infringement should thus be focused on the overall visual appearance of an article compared to a claimed design rather than simply notation of the differences.