The thing that bothered me about the Gobi vs WMW lawsuit is that Gobi never bothered going after BajaRack that also attaches to factory points. I believe Gobi's bigger problem was the similarity between Gobi and WMW's racks. Both are full length basket racks of similar style. BajaRack on the other hand is styled differently, same as a flat rack would be. I understand wanting to stay out of it. It is too bad Gobi has basically destroyed any sort of competition in the market.
Although Gobi didn't sue Bajarack for their 4runner rack... They are currently suing Bajarack for their Convertable Jeep wrangler rack and their FJ cruiser Ladder.
The lawsuit has been going on for over a year. And during that time since Bajarack is defending themselves, they had to stop production and sale of these racks. Meanwhile Gobi doesn't, and anyone who has wanted a rack for their wrangler over the past year and who knows how much into the future, the only rack they have been able to get was Gobi.
Bottom line... even if Gobi doesn't win the lawsuit, they have already won the market.
If you just made a flat rack, ie. without rails, I would definitely argue that it is quite different from Gobi's rack in form and function. However, based on Gobi's track record, they would probably try. Because even if they lose the lawsuit they will win by limiting your sales. They are Patent trolls, Plain and simple.