DCT

2:21-cv-00597

Top Brand LLC v. Cozy Comfort Co LLC

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I. Executive Summary and Procedural Information

  • Parties & Counsel:
  • Case Identification: 2:21-cv-00597, D. Ariz., 05/21/2021
  • Venue Allegations: Venue is alleged in the District of Arizona because the individual and corporate defendants reside and transact business in the district.
  • Core Dispute: Plaintiffs seek a declaratory judgment that their wearable blanket products do not infringe Defendants' utility and design patents, and further allege that those patents are invalid, unenforceable, and have been used for false marking and unfair competition.
  • Technical Context: The technology concerns oversized, hooded wearable blankets, a product category that combines the features of a blanket and a sweatshirt for enhanced comfort and portability.
  • Key Procedural History: The dispute arose from infringement allegations made by Defendant Cozy Comfort to Amazon.com beginning in November 2019, which resulted in the removal of Plaintiffs' product listings. The complaint alleges that Plaintiffs' counsel provided Defendants with detailed non-infringement arguments which were ignored. The complaint also alleges a pattern of behavior by Defendants, referencing other pending lawsuits, and makes numerous allegations of inequitable conduct during the prosecution of the patents-in-suit for failure to disclose material prior art, including on-sale bars.

Case Timeline

Date Event
2017-09-13 Earliest Priority Date for '431 Patent and '788 Patent
2018-04-30 Earliest Priority Date for '416 Patent
2019-09-16 Earliest Priority Date for '237 Patent
2019-09-17 U.S. Design Patent D859,788 Issues
2019-09-24 U.S. Patent 10,420,431 Issues
2019-11-01 Cozy Comfort allegedly sends infringement notice to Amazon.com (approx. date)
2019-11-13 Plaintiffs' counsel sends letter to Defendants alleging non-infringement
2020-04-11 Earliest Priority Date for '380 Patent
2020-06-09 U.S. Design Patent D886,416 Issues
2020-12-01 U.S. Design Patent D903,237 Issues
2020-12-22 U.S. Design Patent D905,380 Issues
2021-05-21 Second Amended Complaint Filed

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

U.S. Design Patent No. D859,788 - “ENLARGED OVER-GARMENT WITH AN ELEVATED MARSUPIAL POCKET”

The Invention Explained

  • Problem Addressed: As a design patent, the document does not articulate a technical problem. The claimed invention is purely ornamental.
  • The Patented Solution: The patent claims the specific visual appearance of an oversized, hooded garment with a front pocket, as depicted in solid lines in its figures ('788 Patent, Figs. 1-10). The design features a particular combination of proportions, pocket shape and placement, hemline contour, and hood configuration that constitute its overall ornamental appearance ('788 Patent, Claim).
  • Technical Importance: The complaint does not provide sufficient detail for analysis of this specific element.

Key Claims at a Glance

  • The patent contains a single claim for "The ornamental design for an enlarged over-garment with an elevated marsupial pocket, as shown and described" ('788 Patent, Claim). The scope is defined by the solid lines in the patent's drawings.

U.S. Patent No. 10,420,431 - “OVERGARMENT WITH AN ELEVATED MARSUPIAL POCKET”

The Invention Explained

  • Problem Addressed: The patent identifies a need for a comfortable covering that is more practical than a traditional blanket, which must be left behind when a user gets up, and less constrictive than layering conventional clothing ('431 Patent, col. 1:21-38).
  • The Patented Solution: The invention is a large, wearable blanket or "overgarment" that provides a "cozy, comfortable, warm, and spacious covering" which can be worn in various positions, including sitting, standing, or fetal ('431 Patent, col. 2:54-58). A key aspect of the solution is an "elevated marsupial pocket" positioned on the front of the torso ('431 Patent, Abstract; Fig. 1).
  • Technical Importance: This approach seeks to merge the comfort of a blanket with the wearability of a garment, creating a new category of functional apparel.

Key Claims at a Glance

  • The complaint’s allegations focus on Claim 1, though it references all sixteen claims in its false marking count (Compl. ¶282-283). The right to assert other claims is implicitly reserved.
  • Independent Claim 1, Essential Elements:
    • A single body constructed from two soft, woven fabric plies.
    • A torso in the body, with a neck opening.
    • Opposed sleeves attached to the torso at sleeve openings.
    • A marsupial pocket with a top and bottom.
    • The top of the pocket is above the bottom of each sleeve opening, and the bottom of the pocket is below the bottom of each sleeve opening.
    • The pocket has a height which is 1.2 times the distance between the neck opening and the top of the pocket.

U.S. Design Patent No. D905,380 - “WHOLE BODY BLANKET”

  • Patent Identification: U.S. Design Patent No. D905,380, "WHOLE BODY BLANKET," Issued Dec. 22, 2020.
  • Technology Synopsis: This design patent protects the ornamental appearance of a "whole body blanket." The claim is defined by the specific visual characteristics shown in the patent's figures, including the garment's overall shape, proportions, and pocket design.
  • Asserted Claims: The patent contains a single design claim.
  • Accused Features: The complaint seeks a declaration that Plaintiffs' products, such as the "Tirrinia" hoodie, do not infringe the overall ornamental design of the '380 patent (Compl. ¶157, 159).

U.S. Design Patent No. D886,416 - “OVER-GARMENT WITH A MARSUPIAL POCKET”

  • Patent Identification: U.S. Design Patent No. D886,416, "OVER-GARMENT WITH A MARSUPIAL POCKET," Issued Jun. 9, 2020.
  • Technology Synopsis: This patent protects the ornamental design for an over-garment with a marsupial pocket. The claimed design is defined by the specific aesthetic and proportional elements illustrated in the patent's drawings.
  • Asserted Claims: The patent contains a single design claim.
  • Accused Features: Plaintiffs seek a declaration that their products do not infringe the overall ornamental design claimed in the '416 patent (Compl. ¶201, 203).

U.S. Design Patent No. D903,237 - “OVER-GARMENT WITH AN ELEVATED MARSUPIAL POCKET”

  • Patent Identification: U.S. Design Patent No. D903,237, "OVER-GARMENT WITH AN ELEVATED MARSUPIAL POCKET," Issued Dec. 1, 2020.
  • Technology Synopsis: This patent protects the ornamental design for an over-garment featuring an elevated marsupial pocket. The scope of protection is determined by the specific visual appearance of the garment as depicted in the patent's figures.
  • Asserted Claims: The patent contains a single design claim.
  • Accused Features: Plaintiffs seek a declaration that their products do not infringe the overall ornamental design of the '237 patent (Compl. ¶219, 221).

III. The Accused Instrumentality

Product Identification

  • The complaint primarily identifies the "Tirrinia® Hoodie" as an accused product (Compl. ¶64, 76). It also mentions the "Catalonia Wearable Fleece Blanket with Sleeves and Foot Pockets" (Compl. ¶92) and more generally refers to Plaintiffs' "fleece hooded garments" and other products (Compl. ¶90).

Functionality and Market Context

  • The accused products are described as oversized wearable blankets or large sweatshirts (Compl. ¶64). The complaint presents them as direct competitors to the Defendants' "The Comfy" line of products, targeting the same customers (Compl. ¶56). The infringement allegations and subsequent takedown notices on Amazon.com suggest the products occupy a commercially significant market space (Compl. ¶44, 73). A side-by-side visual comparison provided in the complaint contrasts the patented design with a photograph of the accused Tirrinia Hoodie, highlighting alleged differences in their hemlines (Compl. ¶76, p. 9).

IV. Analysis of Infringement Allegations

D859,788 Patent Infringement Allegations

Since this is a declaratory judgment action, the "allegations" are arguments for non-infringement. The table summarizes the differences Plaintiffs allege would lead an ordinary observer to conclude the designs are not substantially the same.

Claim Element (from the ornamental design) Alleged Non-Infringing Functionality (of the Tirrinia Hoodie) Complaint Citation Patent Citation
Overall appearance including an inwardly tapering hemline The accused product has a hemline that tapers outwardly. A visual provided in the complaint shows the '788 patent figure tapering inward while a photo of the accused product tapers outward. ¶76 Fig. 1
A narrow pocket covering approximately 1/3 of the torso width The accused product features an enlarged front pocket that covers approximately 2/3 of the garment's width. ¶77 Fig. 4
A substantially square pocket with straight sides The accused product's pocket is "demonstrably rectangular" with curved sides. ¶78 Fig. 1
A straight, downward-sloping hemline (longer in back) The accused product's hemline is "generally horizontal from front to back." ¶80 Fig. 7
A substantially circular and "puffy" hood opening The accused product's hood opening is an "elongated, tear-drop shape and thin." ¶81 Fig. 1

10,420,431 Patent Infringement Allegations

The complaint's specific non-infringement arguments for the '431 patent are made in the context of its false marking claims against Defendants' own "The Comfy Original" product. The argument implies that if the patentee's own product does not meet the claim limitations, then Plaintiffs' accused products do not either.

Claim Element (from Independent Claim 1) Alleged Non-Infringing Functionality (of "The Comfy Original") Complaint Citation Patent Citation
a marsupial pocket has a height between its top and bottom which is 1.2 times the distance between the neck opening and the top of the marsupial pocket The actual "The Comfy Original" product has a pocket height of 10.5 inches and a neck-to-pocket distance of 7.25 inches. This results in a ratio of 1.45 (10.5 / 7.25), not the claimed 1.2. The complaint includes photographs with a ruler to demonstrate these measurements. ¶286-290 col. 11:21-25

Identified Points of Contention

  • Scope Questions (Design Patents): The primary question for the design patents is whether the collective visual differences alleged by Plaintiffs—regarding the hemline, pocket shape, pocket size, and hood—are sufficient to render the overall appearance of the accused products "plainly dissimilar" to the patented designs in the eyes of an ordinary observer.
  • Technical Questions (Utility Patent): The dispute over the '431 patent raises a specific factual question: how are the "height" of the pocket and the "distance" from the neck opening to be measured, and does the accused product's resulting ratio meet the precise "1.2 times" limitation? The complaint notes that the word "approximately" was removed during prosecution, suggesting that this limitation should be strictly construed (Compl. ¶284).

V. Key Claim Terms for Construction

  • The Term: "wherein the marsupial pocket has a height between its top and bottom which is 1.2 times the distance between the neck opening and the top of the marsupial pocket" ('431 Patent, Claim 1).
  • Context and Importance: The construction and application of this precise numerical limitation appear central to the infringement analysis for the '431 patent. Practitioners may focus on this term because the complaint makes a detailed, measurement-based argument for non-infringement (in the context of false marking) and highlights the prosecution history, where the term "approximately" was deleted, suggesting little to no tolerance for deviation from the 1.2 ratio (Compl. ¶284, 288-290).
  • Intrinsic Evidence for Interpretation:
    • Evidence for a Broader Interpretation: A party might argue that standard measurement conventions allow for some flexibility or that other language in the specification suggests the numbers are illustrative. For example, the description of a person wearing the garment "in a fetal position" or "while walking" could imply that the garment's dimensions are dynamic and not fixed to a single, rigid measurement ('431 Patent, col. 2:56-58).
    • Evidence for a Narrower Interpretation: The plain language of the claim recites a specific ratio ("1.2 times") without any qualifying language like "about" or "approximately." The complaint alleges that the term "approximately" was explicitly deleted from this limitation during prosecution, which may create a strong argument for a narrow interpretation with no deviation from the recited value (Compl. ¶284). The specification provides a corresponding description that repeats this ratio, further cementing its importance ('431 Patent, col. 5:50-54).

VI. Other Allegations

  • Willful Infringement: This is a declaratory judgment action by the accused infringer. However, Plaintiffs allege that Defendants' conduct justifies finding the case "exceptional" under 35 U.S.C. § 285, which would entitle Plaintiffs to attorney fees (Compl. ¶131). The basis for this is Defendants' alleged continuation of infringement accusations to Amazon.com even after receiving detailed non-infringement arguments from Plaintiffs' counsel (Compl. ¶129).
  • False Marking: Plaintiffs allege that Defendants engaged in false marking in violation of 35 U.S.C. §292 (Compl. ¶249). The allegation is that Defendants mark their "The Comfy" products with the '431 and '788 patent numbers, but that these products do not actually practice the claims of those patents (Compl. ¶261, 291). The complaint provides detailed photographic evidence with measurements to support the assertion that "The Comfy Original" does not meet the "1.2 times" ratio limitation of the '431 patent's claims (Compl. ¶286-290).

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

  • A core issue will be one of design patent scope: For the '788, '380, '416, and '237 design patents, the case will depend on the "ordinary observer" test. The central question is whether the numerous visual distinctions highlighted by Plaintiffs—in the hemline, pocket, and hood—are significant enough to differentiate the overall appearance of their products from the patented designs, or if the general concept is so similar that an ordinary observer would be deceived.
  • A key evidentiary question will be one of claim construction and factual measurement: For the '431 utility patent, the dispute may hinge on the precise meaning of the "1.2 times" dimensional ratio in Claim 1. The court will need to determine whether the deletion of "approximately" during prosecution limits the claim to that exact figure, and fact-finders will then need to determine if the accused products meet that strict limitation.
  • A fundamental question will be the enforceability of the entire patent portfolio: Plaintiffs' extensive allegations of inequitable conduct, particularly the failure to disclose the alleged on-sale bar of Defendants' own "The Comfy" product to the USPTO during prosecution, raise a threshold challenge to the validity and enforceability of the patents-in-suit. If proven, this could render the infringement analysis moot.