Today the Federal Circuit released two precedential opinions, a precedential order, and two nonprecedential orders dismissing cases. Both of the precedential opinions come in trade cases, and in both cases the court affirms the judgment of the Court of International Trade. In the precedential order, the Federal Circuit denies panel and en banc rehearing in a design patent cases. Notably, Judge Cunningham joined by Judge Hughes released an opinion concurring in the denial of the petition for rehearing en banc , while Chief Judge Moore joined by Judge Reyna released an opinion dissenting from the denial of the petition for rehearing en banc. Here are the introductions to the opinions and links to the dismissals.
Fedmet Resources Corp. v. Magnesia Carbon Bricks Fair Trade Committee (Precedential)
This case concerns the United States Court of International Trade’s decision sustaining the determination of the United States Department of Commerce on remand. Commerce had initially determined that imports of certain refractory bricks containing five percent or less alumina are still within the scope of antidumping and countervailing duty orders on imports of magnesia carbon bricks from Mexico and the People’s Republic of China. On appeal, the Trade Court concluded that this court previously held that the addition of any alumina to a magnesia carbon brick took it outside the scope of the orders and remanded to Commerce for reconsideration. On remand, Commerce determined under protest that the subject bricks are not within the scope of the orders. After the Trade Court sustained Commerce’s redetermination, Magnesia Carbon Bricks Fair Trade Committee appealed to this court. For the following reasons, we affirm.
Fusong Jinlong Wooden Group Co. v. United States (Precedential)
Wego International Floors LLC, Galleher Corp., and Galleher, LLC (together, “Appellants”) appeal from a final order of the Court of International Trade (“Trade Court”) setting antidumping duties for multilayered wood flooring imported from the People’s Republic of China. Fusong Jinlong Wooden Grp. Co. v. United States, 732 F. Supp. 3d 1333 (Ct. Int’l Trade 2024) (“Final Decision”). Because we deem Appellants’ arguments on appeal forfeited, we affirm.
Range of Motion Products, LLC v. Armaid Co. (Precedential Order)
Range of Motion Products, LLC filed a petition for rehearing en banc. A response to the petition was invited by the court and filed by Armaid Company Inc. Industrial Designers Society of America, Inc., Institute for Design Science and Public Policy, Oake Law Office, PLLC, American Intellectual Property Law Association, and Perry Saidman requested leave to file briefs as amici curiae, which the court granted.
The petition was referred to the panel that heard the appeal, and thereafter the petition was referred to the circuit judges who are in regular active service. The court conducted a poll on request, and the poll failed.
Upon consideration thereof,
IT IS ORDERED THAT:
The petition for panel rehearing is denied.
The petition for rehearing en banc is denied.
CUNNINGHAM, Circuit Judge, with whom HUGHES, Circuit Judge, joins, concurring in the denial of the petition for rehearing en banc.
The panel decision is consistent with longstanding Supreme Court and Federal Circuit precedent. There is no need to overrule a prior holding of this court. None of the other rationales for rehearing en banc apply. We thus agree that en banc review is not warranted.
The dissent presents two principal complaints: (1) a sentence in Egyptian Goddess, Inc. v. Swisa, Inc., 543 F.3d 665, 678 (Fed. Cir. 2008) (en banc), has purportedly improperly focused the design patent infringement inquiry on differences and allowed district courts to resolve infringement at summary judgment without an examination of prior art; and (2) this court’s use of “claim construction” in design patent infringement involves factual questions of functionality that should be decided by the jury. Neither holds water, nor demonstrates why this case is a good vehicle for en banc review. We address each complaint in turn.
MOORE, Chief Judge, with whom REYNA, Circuit Judge, joins, dissenting from the denial of the petition for rehearing en banc.
We have messed up design patent infringement and essentially eliminated any role for the jury over what are quintessential jury-type fact questions. We have done so in two ways, each diverting to the judge to decide as a matter of law essential fact questions of the type juries routinely answer.
First, we declared that claim construction includes determining which aspects of a design are functional versus ornamental. Sport Dimension, Inc. v. Colemon Co., 820 F.3d 1316, 1322 (Fed. Cir. 2016). The entirety of a design patent is a series of pictures. Determining design patent infringement is not a task rooted in documentary interpretation of legal text, but rather a side-eye glance by an ordinary observer at two designs to determine substantial similarity. How is a judge better equipped than a jury to hear evidence on how aspects of a design are functional versus ornamental? Once the judge determines an aspect of a design has functional attributes, it is entirely unclear what happens next—should the functional aspects be excluded from the comparison of the overall appearance of the two designs? That would run up against our precedent. Sport Dimension, 820 F.3d at 1322. Should the functional aspects be discounted somehow, as in the district court’s analysis below? Range of Motion Prods. LLC v. Armaid Co., No. 22-cv-91, 2023 WL 5530768, at *8 (D. Me. Aug. 28, 2023) (“Order”). What is the standard? For me, the answer is simple: the question of functionality is inextricably intertwined with the ultimate patent infringement question for the jury—“if in the eye of the ordinary observer . . . two designs are substantially the same.” Gorham Mfg. Co. v. White, 81 U.S. 511, 528 (1871).
Here arrives the second flaw—we inadvertently inverted the Supreme Court’s infringement test in a single unnecessary sentence in Egyptian Goddess, Inc. v. Swisa, Inc., 543 F.3d 665 (Fed. Cir. 2008). Without realizing it, we changed the frame of reference from whether two designs are substantially similar in overall appearance to whether two designs are “sufficiently distinct” or “plainly dissimilar.” Egyptian Goddess, 543 F.3d at 678. All it takes is one look at the relevant design patent infringement comparisons in several recent Federal Circuit cases to appreciate how far afield we have gotten. It defies belief to conclude no reasonable jury could find the following patented and accused designs substantially similar in overall appearance:
Order, at *10.
Ethicon Endo-Surgery, Inc. v. Covidien, Inc., 796 F.3d 1312, 1334–37 (Fed. Cir. 2015).
North Star Tech. Int’l Ltd. v. Latham Pool Prods., Inc., No. 23-2138, 2025 WL 1189919, at *1–2 (Fed. Cir. Apr. 24, 2025) (non-precedential).
We have erred in our allocation of responsibility between judge and jury in a significant way. The error is so obvious and the fix so easy: return us to Gorham, where the test for design patent infringement is whether an ordinary observer would find the two designs are substantially similar in overall appearance. Allocate to the jury questions of ornamentality and substantial similarity, inextricable parts of the infringement assessment.