"The dissent challenges the Federal Circuit's 'plainly dissimilar' rule, suggesting it may lead to an improper focus on differences rather than overall sameness in design patent cases."
"The petition argues that the 'plainly dissimilar' threshold inverts the traditional approach established in Gorham Mfg. Co. v. White, shifting the factfinder's focus."
"Concerns are raised regarding the judicial assessment of functionality at claim construction, which may intrude on the jury's role as protected by the Seventh Amendment."
In Range of Motion Products, LLC v. Armaid Co., a dissent by Chief Judge Moore critiques the Federal Circuit's 'plainly dissimilar' rule. The losing patentee seeks en banc rehearing, supported by three amici. They argue that the rule shifts focus from overall sameness to differences, potentially infringing on jury roles. The petition raises concerns about the judicial assessment of functionality during claim construction, questioning its compatibility with the Seventh Amendment. The majority dismissed these concerns, asserting that claim construction is a court's exclusive domain.
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