DCT
2:17-cv-00880
Altair Instruments Inc v. Dermamed Solutions LLC
I. Executive Summary and Procedural Information
- Parties & Counsel:
- Plaintiff: Altair Instruments Inc (California)
- Defendant: Dermamed Solutions LLC (Pennsylvania)
- Plaintiff’s Counsel: Rutan & Tucker LLP
- Case Identification: 2:17-cv-00880, C.D. Cal., 02/03/2017
- Venue Allegations: Plaintiff alleges venue is proper because Defendant sells, has sold, or offers to sell the accused products within the Central District of California.
- Core Dispute: Plaintiff alleges that Defendant’s "MegaPeel Ex" microdermabrasion device infringes a patent related to a method and apparatus for skin exfoliation using a vacuum-assisted, abrasive-tipped wand.
- Technical Context: The technology relates to cosmetic dermatology devices for microdermabrasion, a non-invasive procedure to remove the outer layer of skin.
- Key Procedural History: The patent-in-suit, U.S. Patent No. 6,241,739, has undergone two ex parte reexaminations, resulting in the issuance of two reexamination certificates that amended the patent's claims. Plaintiff alleges it provided Defendant with actual notice of the patent on October 16, 2014, while the second reexamination was pending.
Case Timeline
| Date | Event |
|---|---|
| 1999-11-12 | ’739 Patent Priority Date |
| 2001-06-05 | ’739 Patent Issue Date |
| 2007-12-11 | First Reexamination Certificate (C1) Issued |
| 2014-10-16 | Plaintiff alleges sending notice of the ’739 Patent to Defendant |
| 2015-07-15 | Second Reexamination Certificate (C2) Issued |
| 2017-02-03 | Complaint Filing Date |
II. Technology and Patent(s)-in-Suit Analysis
U.S. Patent No. 6,241,739 - “Microdermabrasion Device And Method Of Treating The Skin Surface”
The patent-in-suit is U.S. Patent No. 6,241,739, issued June 5, 2001 (the “’739 Patent”).
The Invention Explained
- Problem Addressed: The patent describes conventional microdermabrasion techniques that use a stream of powdered abrasive material (e.g., aluminum oxide) to exfoliate the skin. The patent identifies potential disadvantages with this approach, including the risk of abrasive particles becoming lodged in the skin or being inhaled by the patient or practitioner, causing irritation or other health issues (’739 Patent, col. 2:17-37).
- The Patented Solution: The invention proposes a device that avoids loose powders by using a hollow tube, or wand, with an abrasive material permanently attached to its treatment tip. A vacuum is applied through a hole in the tip, which serves two functions: it pulls the skin into firm, intimate contact with the abrasive surface for effective exfoliation, and it aspirates the removed skin cells into a collection filter (’739 Patent, Abstract; col. 2:38-46). Figure 3 illustrates the complete system, including the vacuum pump (24), filter (18), and treatment tube (22).
- Technical Importance: The described invention sought to offer a safer and cleaner method of microdermabrasion by eliminating the use of free-flowing abrasive particles (’739 Patent, col. 3:17-21).
Key Claims at a Glance
- The complaint asserts independent claims 1, 9, 12, and 16, as amended by the reexamination certificates.
- Independent Claim 1: A device for removing the epidermis comprising a vacuum source and a tube with a treatment tip, where the tip has an "abrasive material permanently attached," a "fixed orientation," and "one or more openings" for "continuously applying" a vacuum to the skin.
- Independent Claim 9: A tubular device for microdermabrasion with a "first end with an abrasive surface provided by an abrasive material permanently attached thereto," where the end has openings and a "fixed orientation," and a second end for attachment to a vacuum source that "continuously provides a negative pressure."
- Independent Claim 12: A method of performing microdermabrasion by providing a tool with a "skin contacting surface having an abrasive material permanently attached" that is "non-rotational during use," applying a sub-ambient pressure through the tool, and moving the tool across the skin.
- Independent Claim 16: A microdermabrasion wand assembly comprising a wand with a "permanently attached" abrasive material, a lumen for a vacuum, a connected vacuum source, a valve to vary the vacuum level, and a filter.
- The complaint reserves the right to assert various dependent claims (Compl. ¶12).
III. The Accused Instrumentality
Product Identification
The complaint identifies "one or more microdermabrasion devices, including one known as the 'MegaPeel Ex'" (the "Accused Devices") (Compl. ¶12).
Functionality and Market Context
The complaint does not provide sufficient detail for analysis of the Accused Devices' specific functionality or operation. It makes a conclusory allegation that the devices are used for microdermabrasion and infringe the ’739 Patent (Compl. ¶12). No probative visual evidence provided in complaint.
IV. Analysis of Infringement Allegations
The complaint does not contain a claim chart or detailed infringement contentions. It alleges globally that the Accused Devices "contain each and every element" of the asserted claims (Compl. ¶12). The following table summarizes the infringement theory for a representative claim based on this general allegation.
’739 Patent Infringement Allegations
| Claim Element (from Independent Claim 1, as amended) | Alleged Infringing Functionality | Complaint Citation | Patent Citation |
|---|---|---|---|
| A device for removing the epidermis without damaging the dermis of the skin in a microdermabrasion procedure | The complaint alleges the "MegaPeel Ex" is a microdermabrasion device. | ¶12 | col. 1:15-24 |
| a source of a vacuum | The complaint alleges the Accused Devices practice this element. | ¶12 | col. 4:2-3 |
| a tube with a treatment tip thereon for removing cells comprising the epidermis layer of the skin surface being treated | The complaint alleges the Accused Devices practice this element. | ¶12 | col. 3:21-25 |
| the treatment tip having an abrasive material permanently attached to an operating end thereof | The complaint alleges the Accused Devices practice this element. | ¶12 | col. 2:39-41 |
| the treatment delivery surface having an orientation fixed in regard to an axis extending longitudinally through the tube | The complaint alleges the Accused Devices practice this element. | col. 5:15-18 | |
| the tube being attached to the source of vacuum so that a lumen through the tube has a reduced pressure | The complaint alleges the Accused Devices practice this element. | ¶12 | col. 4:3-6 |
| the treatment delivery surface having one or more openings therein for continuously applying the reduced pressure | The complaint alleges the Accused Devices practice this element. | ¶12 | col. 5:50-58 |
| said continuously applied vacuum causing the skin being treated to have an increased area of contact with the abrasive material... the vacuum also functioning to collect epidermis cells | The complaint alleges the Accused Devices practice this element. | ¶12 | col. 5:42-50 |
Identified Points of Contention
- Factual Questions: Given the lack of detail in the complaint, the primary point of contention will be factual: does the "MegaPeel Ex" device, upon technical inspection, actually incorporate each element of the asserted claims? The complaint provides no specific evidence to support its allegations.
- Scope Questions: A central question will be whether the abrasive component of the "MegaPeel Ex" meets the "permanently attached" limitation. The interpretation of this term, which was a focus of the patent's reexamination, will be critical. For example, does the accused device use disposable tips, and if so, can such a tip be considered "permanently attached" within the meaning of the claims?
- Technical Questions: What evidence supports the allegation that the accused device applies vacuum "continuously," as required by claims 1 and 9, and holds the treatment tip "non-rotational during use," as required by method claim 12?
V. Key Claim Terms for Construction
"abrasive material permanently attached"
(appears in independent claims 1, 9, 12, 16)
- Context and Importance: This term is the core of the invention's departure from prior art that used loose abrasive powders. Its meaning was central to the patent's reexaminations and will likely be the focal point of the claim construction and infringement disputes.
- Intrinsic Evidence for Interpretation:
- Evidence for a Broader Interpretation: The specification discloses embodiments where the abrasive is a "removable and replaceable tip" or a "removable disc" that fits over the end of the treatment tube, which could support a construction where "permanently" means fixed during a single procedure, rather than inseparable from the wand itself (’739 Patent, col. 4:61-65).
- Evidence for a Narrower Interpretation: The specification also describes embodiments where diamond grit is permanently secured using nickel plating or where the abrasive surface is formed by machining the metal tip itself (a process known as knurling) (’739 Patent, col. 3:25-31; col. 5:5-9). This could support a narrower construction where "permanently" means integral, non-disposable, and lasting for the life of the tool.
"non-rotational during use"
(appears in independent claim 12)
- Context and Importance: This method limitation distinguishes the invention from prior art devices using rotating brushes. Practitioners may focus on this term because the infringement analysis for the method claim depends on how the accused device is actually operated by end-users.
- Intrinsic Evidence for Interpretation:
- Evidence for a Broader Interpretation: The patent distinguishes itself from devices that use "rotating brushes and cylinders" (’739 Patent, col. 1:50-51). A plaintiff could argue "non-rotational" simply means the device lacks a motor or mechanism to actively spin the tip, not that any incidental twisting by an operator would negate infringement.
- Evidence for a Narrower Interpretation: A defendant could argue for a plain meaning, where any rotation of the tip relative to the wand during the abrasion process falls outside the claim scope.
VI. Other Allegations
Indirect Infringement
The complaint alleges both contributory and induced infringement, stating that Dermamed is liable for infringement by "Users of the Accused Devices" (Compl. ¶12). This suggests an inducement theory based on Defendant providing the "MegaPeel Ex" device along with instructions or training that allegedly direct users to perform the patented method.
Willful Infringement
The complaint alleges willful infringement based on pre-suit knowledge. It states that Plaintiff sent a letter with a copy of the ’739 Patent to Defendant on October 16, 2014, thereby providing actual notice (Compl. ¶10, ¶13). The complaint further alleges that Defendant continued its infringing conduct even after receiving notice and after the patent successfully emerged from a subsequent reexamination, rendering the infringement "willful, wanton and deliberate" (Compl. ¶13-14).
VII. Analyst’s Conclusion: Key Questions for the Case
- A core issue will be one of claim scope: Can the term “abrasive material permanently attached,” which was critical to the patent's survival during reexamination, be construed to read on the specific design of the accused "MegaPeel Ex" device? The case may turn on whether the accused device’s abrasive tips, if found to be disposable, fall within the scope of "permanently attached" as defined by the specification and prosecution history.
- A key evidentiary question will be factual: Given the complaint’s conclusory allegations, discovery will be required to establish the basic facts of how the accused device operates. The central factual dispute will be whether the "MegaPeel Ex" device and its method of use meet the specific limitations of the asserted claims, which were narrowed and clarified during two reexaminations.
- A key question for damages will be willfulness: Did Defendant's alleged continuation of sales after receiving notice of the patent in October 2014, and after the patent was confirmed in a 2015 reexamination, rise to the level of objectively reckless conduct required to support a finding of willful infringement and potential enhanced damages?