AIPLA Files Amicus Brief in Range of Motion Products, LLC v. Armaid Company Inc.

Arlington, VA. April 17, 2026  — The American Intellectual Property Law Association (AIPLA) filed an amicus curiae brief with the U.S. Court of Appeals for the Federal Circuit in Range of Motion Products, LLC v. Armaid Company Inc., No. 23-2427, supporting rehearing and rehearing en banc. AIPLA urges the Court to restore clarity to design patent law by (1) reaffirming that Gorham v. White (1871) provides the sole governing test for infringement and forecloses any separate “plainly dissimilar” threshold, and (2) confirming that claim construction may not be used to exclude any visual portions of the overall claimed design.

The brief explains that the Federal Circuit’s “plainly dissimilar” language from Egyptian Goddess v. Swisa , Inc. (Fed. Cir. 2008) (en banc), has been improperly elevated into a freestanding threshold test, allowing courts to resolve infringement without applying the ordinary observer standard or considering the prior art. According to AIPLA, this approach inverts Gorham’s focus on similarity, untethers the analysis from the perspective of an ordinary observer conversant with the prior art, and displaces the role of the factfinder. The brief further emphasizes that existing procedural tools, including Rule 56, already permit early resolution in appropriate cases without departing from the governing standard. AIPLA also argues that claim construction may not be used to exclude visual portions of a claimed design based on a purported lack of novelty or ornamentality. Such feature-by-feature filtration conflicts with 35 U.S.C. § 171 and Gorham’s requirement that designs be assessed as a whole, effectively replacing the patented design with a judicially narrowed version. While claim construction may distinguish underlying functional attributes or general concepts, it may not exclude any visual portions of the overall claimed design. Questions of novelty and ornamentality, AIPLA explains, are design-level validity issues for the factfinder, not feature-by-feature claim construction determinations for the court.