by Dennis Crouch

The Federal Circuit denied rehearing today in Range of Motion Products, LLC v. Armaid Co., No. 23-2427 (Fed. Cir. Aug. 11, 2026), leaving in place the panel decision I wrote about in February. 166 F.4th 981 (Fed. Cir. 2026). The denial is accompanied by two opinions. Judge Cunningham, who wrote the panel majority, concurred in the denial and was joined by Judge Hughes, the other member of that majority. Chief Judge Moore, who dissented from the panel decision, dissented again, joined by Judge Reyna. Judges Stoll and Stark dissented without opinion. Judge Newman did not participate, and the poll failed.

What the two opinions circle around is the question of whether Markman v. Westview Instruments, Inc., 517 U.S. 370 (1996), belongs in design patent cases at all. Markman gave claim construction duty to judges based on the idea that construing written instruments is something judges do better than jurors do. But nothing in law school or legal practice teaches judges to interpret design drawings. And, as the Chief explained, "[t]he entirety of a design patent is a series of pictures." In other words, the foundational premise doesn't fit. This is compounded by the ornamental-versus-functional sorting that is being pushed inside design patent claim construction. But that is really not interpretation but rather factfinding on evidence that doesn't appear in the patent document. Judge Cunningham's answer is that somebody has to fix the scope of the claim before a jury compares anything, and that in doing so the court "guides the jury like a trail guide, placing flags and signposts to delineate the boundaries of the claimed design."