The legal test for design patents is psychologically rigged to help people get away with ripping off designs.
SSRN · March 17, 2026 · 6409980
The Takeaway
Courts currently ask if two designs are 'plainly dissimilar,' which triggers a cognitive bias called 'finding the differences.' Instead of seeing the overall similarity (the intended goal of the law), judges and juries are subconsciously tricked into looking for tiny details that don't match, making it easier for copycats to win.
From the abstract
<span>The Federal Circuit's decision in Range of Motion Products v. Armaid Company affirms summary judgment of non-infringement in a design patent dispute, but the case's significance lies in Chief Judge Moore's dissent. Moore argues that the court's post-Egyptian Goddess "plainly dissimilar" standard has fundamentally shifted design patent infringement analysis away from the Supreme Court's "substantially similar" test in Gorham v. White. Drawing on psychological research by Mussweiler and Tver