Intake Breathing Technology LLC v. Airway ESTD 2024

I. Executive Summary and Procedural Information

• Parties & Counsel:
  • Plaintiff: Intake Breathing Technology, LLC (California)
  • Defendant: Airway ESTD 2024 (Alabama)
  • Plaintiff’s Counsel: Capell & Howard, P.C.
• Case Identification: 2:25-cv-00281, M.D. Ala., 04/11/2025
• Venue Allegations: Venue is alleged to be proper based on Defendant having a regular and established place of business within the Middle District of Alabama.
• Core Dispute: Plaintiff alleges that Defendant’s e-commerce sale of its "Airway Magnetic Nasal Strips" infringes a patent related to nasal dilator technology that uses magnetic force to improve airflow.
• Technical Context: The technology operates in the consumer health and sporting goods sector, addressing breathing difficulties, particularly those induced by pressure from eyewear.
• Key Procedural History: The complaint alleges that Plaintiff provided Defendant with pre-suit notice of infringement via a direct message through Defendant's e-commerce storefront in March 2025, followed by a formal cease and desist letter from counsel on April 2, 2025. These allegations form the basis of the willfulness claim.

Case Timeline

Date	Event
2013-12-20	’969 Patent Priority Date
2016-12-06	’969 Patent Issue Date
2024-XX-XX	Accused Product Line Established ("ESTD 2024")
2025-03-XX	Pre-Suit Notice (Direct Message)
2025-04-02	Pre-Suit Notice (Cease & Desist Letter)
2025-04-11	Complaint Filing Date

II. Technology and Patent(s)-in-Suit Analysis

U.S. Patent No. 9,510,969 - "Nasal element for a breathing system," Issued December 6, 2016

The Invention Explained

• Problem Addressed: The patent addresses the problem of eyewear, such as sports goggles, compressing a wearer's nasal passages, which "inhibits the ability of the wearer to breathe through the nose" (’969 Patent, col. 1:53-56). The complaint notes this problem was first identified by the inventor during a motorcycle excursion while wearing goggles (Compl. ¶9).
• The Patented Solution: The invention is a system designed to hold the nostrils open using an external force, often magnetic (’969 Patent, Abstract). It generally consists of a disposable element that adheres to the outside of the nose, and a corresponding external component (such as a magnet on a pair of goggles or a separate magnet) that attracts the nasal element. This attraction pulls the sides of the nose outward, causing the nasal passages to dilate and improve airflow (’969 Patent, col. 2:5-12).
• Technical Importance: The technology provides a method to counteract nasal compression from external sources like eyewear, which is particularly relevant in sports where both protective goggles and optimal breathing are necessary (Compl. ¶9-10; ’969 Patent, col. 1:36-44).

Key Claims at a Glance

• The complaint asserts infringement of at least independent Claim 1 (Compl. ¶25).
• The essential elements of independent Claim 1 include:
  • A disposable apparatus for use with a magnet, comprising a flexible base layer with an adhesive on one side to attach to the nose.
  • A metallic element coupled to the non-adhesive side of the base layer, configured to interact with the magnet to impart a dilating force.
  • An outer layer that at least partially covers the metallic element.
  • A portion of the flexible base layer that extends "radially outward beyond the metallic element to define a flexible peripheral portion."
  • The metallic element is "configured to allow for movement of the magnet relative to the metallic element" when engaged.
  • The apparatus is "selectively transitional between an active state" (where it imparts the dilating force) and an "inactive state" (where the force ceases).
• The complaint does not explicitly reserve the right to assert dependent claims.

III. The Accused Instrumentality

Product Identification

• The accused products are the "Airway Magnetic Nasal Strips" (Compl. ¶25).

Functionality and Market Context

• The complaint describes the accused products as "externally applied, flexible strips" with a "flexible backing layer coated on one side with medical-grade adhesive" and a "metallic insert or embedded structure on the upper (non-adhesive) side" (Compl. ¶26-28). This metallic component is alleged to interact with a magnetic force to "promote dilation" of the nasal passages (Compl. ¶28). The complaint repeatedly cites imagery from the defendant's product webpage to illustrate the construction of the accused "Airway Magnetic Nasal Strips," including its flexible backing, adhesive, and embedded metallic element (Compl. ¶27, ¶28).
• Plaintiff alleges Defendant operates e-commerce stores, including on major platforms like Amazon and TikTok, and uses influencers to market the accused products (Compl. ¶16-17, ¶20). The complaint claims the success of Plaintiff's own products has led to "opportunistic sellers" entering the market with products that "closely mimic Plaintiff's designs," resulting in significant lost sales for the Plaintiff (Compl. ¶18).

IV. Analysis of Infringement Allegations

’969 Patent Infringement Allegations

Claim Element (from Independent Claim 1)	Alleged Infringing Functionality	Complaint Citation	Patent Citation
A disposable apparatus attachable to a nose of a wearer and configured for use with a magnet positioned adjacent to the nose of the wearer...	The accused "Airway Magnetic Nasal Strips" are marketed as externally applied, flexible strips that are worn across the nose and include a magnetic feature.	¶26	col. 1:17-22
a flexible base layer including a first surface and an opposing second surface, the first surface having an adhesive disposed thereon to enable the first surface to be selectively attachable to the nose of the wearer	The strips are constructed with a flexible backing layer coated on one side with medical-grade adhesive, allowing attachment to the nasal bridge.	¶27	col. 8:51-53
a metallic element coupled to the second surface of the base layer and being configured to interact with the magnet... the interaction between the metallic element and the magnet imparting a dilating force on the nose of the wearer causing the nose... to dilate	The strips include a metallic insert on the non-adhesive side that interacts with a magnetic component to generate lateral tension or lift on nasal tissue to promote dilation.	¶28	col. 8:61-63
an outer layer coupled to the base layer and extending over the metallic element to at least partially cover the metallic element	The strips have a top cover layer (e.g., plastic or polymer) that conceals or protects the internal metallic element.	¶29	col. 8:60-62
at least a portion of the flexible base layer extending radially outward beyond the metallic element to define a flexible peripheral portion	The strips allegedly feature "flared, adhesive outer regions extending beyond the metallic element, allowing peripheral flexibility."	¶30	col. 11:1-4
the metallic element being configured to allow for movement of the magnet relative to the metallic element when the magnet is magnetically engaged with the metallic element	The strips allegedly allow for "some movement or repositioning during engagement, and is not permanently affixed," which permits magnetic alignment.	¶31	col. 8:63-9:1
the disposable apparatus, while being attached to the nose of the wearer, being selectively transitional between an active state and an inactive state...	The strips are alleged to have a functional mode where magnetic coupling occurs during use ("active") and to decouple when the strip is removed ("inactive").	¶32	col. 8:45-54

• Identified Points of Contention:
  • Scope Questions: The complaint alleges the "inactive state" is when the strip is "removed" from the nose (Compl. ¶32). A potential dispute may arise over whether this satisfies the "selectively transitional" limitation. The patent's original context involving goggles that can be lifted and lowered while the nasal element remains attached (’969 Patent, col. 1:41-44) could support an interpretation where the transition must occur while the apparatus is attached to the wearer.
  • Technical Questions: Claim 1 requires that the metallic element be "configured to allow for movement of the magnet relative to the metallic element." The complaint alleges the accused product is "not permanently affixed" (Compl. ¶31). The central technical question is what evidence demonstrates that the accused product is specifically "configured" for such movement, beyond the incidental slippage inherent in any non-fixed magnetic coupling, and whether that functionality matches the claim's requirement, which is linked in the specification to avoiding "uncomfortable torque" (’969 Patent, col. 8:63-9:1).

V. Key Claim Terms for Construction

• The Term: "selectively transitional between an active state and an inactive state"

  • Context and Importance: The definition of this term is critical for determining the scope of infringement. Practitioners may focus on this term because the complaint's theory—that "inactive" means "removed" (Compl. ¶32)—could be challenged as reading a limitation out of the claim, as any disposable adhesive product is "inactive" when removed. The dispute will center on whether the transition is a feature of the apparatus itself during use.
  • Intrinsic Evidence for a Broader Interpretation: The claim language itself does not explicitly forbid the "inactive state" from being the state when the device is removed from the wearer. A party could argue that the plain meaning covers any transition from a force-imparting state to a non-force-imparting state.
  • Intrinsic Evidence for a Narrower Interpretation: The patent's description of placing goggles onto the wearer's head to engage the system suggests a transition while the nasal element remains affixed (’969 Patent, col. 8:45-54). This embodiment may support a narrower construction where the apparatus must be capable of transitioning between states while remaining "attached to the nose of the wearer," as recited in the claim.

• The Term: "configured to allow for movement of the magnet relative to the metallic element"

  • Context and Importance: This term defines the required nature of the magnetic coupling. Practitioners may focus on this term because it appears to require more than a simple magnetic attraction. The infringement analysis will depend on whether the accused product has a specific design or quality that enables this "movement."
  • Intrinsic Evidence for a Broader Interpretation: Language in the complaint suggests any non-permanent fixture that "allows for some movement or repositioning" meets the claim (Compl. ¶31). This could be argued to cover the natural ability of two separated magnetic objects to shift before settling.
  • Intrinsic Evidence for a Narrower Interpretation: The specification links this feature to a specific purpose: avoiding "flat-to-flat attachment which may create uncomfortable torque on the nostril" (’969 Patent, col. 8:63-9:1). This purpose-driven language may support a narrower construction requiring a configuration that demonstrably facilitates multi-axis realignment to prevent torque, rather than just any incidental slippage. Dependent claim 18 further specifies "unrestricted movement... along at least two axes," suggesting the independent claim requires some, but not necessarily unrestricted, movement.

VI. Other Allegations

• Indirect Infringement: The prayer for relief seeks to enjoin "aiding, abetting, contributing to, or otherwise assisting anyone in infringing" (Compl., Prayer for Relief ¶1(b)). However, the factual allegations in the body of the complaint focus exclusively on direct infringement through Defendant's own making, using, selling, and importing activities (Compl. ¶24). The complaint does not provide specific detail for analysis of indirect infringement theories.
• Willful Infringement: The complaint alleges willful infringement based on pre-suit knowledge. It pleads that Plaintiff sent a "direct message to Defendant through its e-commerce storefront in March 2025" and that its counsel sent a "formal cease and desist letter" on April 2, 2025, which allegedly identified the ’969 Patent. The complaint alleges Defendant "ignored the communication" and "failed to respond or comply," which it characterizes as a "blatant disregard for Plaintiff's intellectual property rights" (Compl. ¶21-22).

VII. Analyst’s Conclusion: Key Questions for the Case

• A core issue will be one of claim construction: does the limitation "selectively transitional between an active state and an inactive state" require that the transition be possible while the apparatus is attached to the wearer, or is the change from "in use" to "removed from the nose," as the complaint alleges, sufficient to meet this element?
• A key evidentiary question will be one of technical function: does the accused product's simple magnetic coupling provide the specific "movement" that the patent claims is "configured" to occur, or does the claim, when read in light of the specification's goal of avoiding "uncomfortable torque," require a more distinct structural feature that is absent in the accused device?
• A third central question will relate to willfulness: given the allegations of specific pre-suit communications, the court will likely examine the content of those notices and the nature of Defendant's alleged failure to respond to determine if the conduct rises to the level of egregiousness required for enhanced damages.