Who Decides If a Design Is Copied? A US Massager Case Heads for the Supreme Court

By Ozan Attas

Photo: tookapic / Pixabay

A dispute over the look of a limb massager could bring the US Supreme Court back to a question it first answered in 1871: how design patent infringement should be judged. The patent owner, Range of Motion Products, asked the Court for more time to file its petition, and on 22 October 2026 Chief Justice John Roberts granted the unopposed request. The petition is now due on 21 December, and the patentee has hired Joshua Rosenkranz of Orrick, a well known Supreme Court advocate in patent matters.

The case so far

Range of Motion holds US Design Patent No. D802,155 for a body massaging apparatus, which its Rolflex product embodies. It sued a rival maker of a massage device in federal court in Maine. The trial judge found that many features of the claimed design were dictated by function, read the claim narrowly as a result, and granted summary judgment that there was no infringement.

In February 2026 a divided Federal Circuit panel affirmed. Judge Cunningham, for the majority, agreed that the shape of the arms, which are sized to clamp around a limb, was functional. Comparing the two products side by side without first filtering out those functional features, the majority said, would stretch a design patent beyond the new, original and ornamental design the statute protects, and would make claim construction pointless. Chief Judge Moore dissented, arguing that the court's framework had knocked design patent law off its footing.

In August the full court refused to rehear the case. Six active judges voted against rehearing. Moore, joined by Judge Reyna, dissented again in sharp terms, saying the court had sidelined juries on questions that are classic matters of fact. Judges Stoll and Stark also dissented, without writing.

The two questions

The extension application previews what the petition will ask.

First, the test itself. In Gorham v. White (1871), the Supreme Court held that a design is infringed if an ordinary observer, giving the attention a buyer usually gives, would see the two designs as substantially the same. In Egyptian Goddess v. Swisa (2008), the Federal Circuit, sitting en banc, kept the ordinary observer but added a shortcut: if the designs are plainly dissimilar, the court can find no infringement without looking at the prior art. The patentee argues that this shortcut has drifted away from Gorham.

Second, who decides functionality. Deciding which parts of a design are functional often involves disputed evidence. The patentee says that when judges settle those disputes during claim construction, they take a fact question away from the jury, contrary to the Seventh Amendment and to the line the Supreme Court drew in Markman v. Westview (1996) between claim construction and fact finding.

Why it matters

Design patents have become a major weapon against lookalike products, from phone cases to car parts, and summary judgment is how most weak claims are cleared. If the Supreme Court takes the case and sides with the patentee, more disputes would go to a jury, which raises the cost of defending and the settlement value of design claims. If the Court declines, the Federal Circuit's functional filtering approach stays in place, despite four active judges recording disagreement. The Supreme Court has not yet decided whether to hear the case; that will only come after the petition is filed and the other side responds.

The Indonesian angle

Indonesia protects designs under Law No. 31 of 2000 on Industrial Designs, and disputes go to the Commercial Court, where judges, not juries, decide every question. The jury issue therefore does not arise. The functionality question does. The Indonesian law protects appearance, not technical function, but it gives little guidance on how a court should separate the two when comparing products. Indonesian companies that sell into the US, or that hold US design patents, should follow this petition closely, because it could change how much protection a design with functional features really carries there.

Sources

• Patently-O: Design Patent Infringement Test Heads Toward the Supreme Court (28 Oct 2026)
• Supreme Court of the United States: Docket No. 26A564
• IPWatchdog: Fractured CAFC Denies Rehearing in Case on Proper Test for Design Patent Infringement
• Federal Circuit: order denying rehearing en banc, No. 23-2427 (11 Aug 2026)