Altair Instruments Inc v. Skinact

I. Executive Summary and Procedural Information

• Parties & Counsel:
  • Plaintiff: Altair Instruments, Inc. (California)
  • Defendant: Skinact (California); Spa and Equipment (California)
  • Plaintiff’s Counsel: Rutan & Tucker, LLP
• Case Identification: 2:17-cv-00894, C.D. Cal., 02/03/2017
• Venue Allegations: Venue is based on allegations that Defendants reside, maintain a principal place of business, and sell or offer to sell the accused products within the Central District of California.
• Core Dispute: Plaintiff alleges that Defendants’ various microdermabrasion systems infringe a patent related to a method and device for exfoliating skin using a vacuum-assisted, fixed-abrasive-tip wand.
• Technical Context: The technology falls within the field of cosmetic dermatology, specifically devices for microdermabrasion, a procedure to mechanically remove the outer layer of skin.
• Key Procedural History: The patent-in-suit, U.S. Patent No. 6,241,739, has undergone two separate ex parte reexaminations, resulting in the cancellation and amendment of several claims. The second reexamination concluded with a certificate issued on July 15, 2015. The complaint alleges that Defendants had actual notice of the patent as of October 16, 2014, while the second reexamination was still pending. The survival of the patent through two reexaminations, albeit with amendments, may be presented by the plaintiff as evidence of the patent's validity.

Case Timeline

Date	Event
1999-11-12	'739 Patent Priority Date (Application Filing)
2001-06-05	'739 Patent Issue Date
2007-12-11	'739 Patent First Reexamination Certificate (C1) Issued
2014-10-16	Plaintiff alleges sending notice of the '739 patent to Defendants
2015-07-15	'739 Patent Second Reexamination Certificate (C2) Issued
2017-02-03	Complaint Filing Date

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

• Patent Identification: U.S. Patent No. 6,241,739, "Microdermabrasion Device And Method Of Treating The Skin Surface," issued June 5, 2001 (as amended by Reexamination Certificates C1 and C2).

The Invention Explained

• Problem Addressed: The patent describes prior art microdermabrasion techniques that used a stream of loose abrasive powder, such as aluminum oxide, to exfoliate the skin ('739 Patent, col. 2:1-7). This method created potential health risks, as the abrasive dust could be inhaled by patients and operators, and residual particles could be left embedded in the skin, causing irritation ('739 Patent, col. 2:16-36).
• The Patented Solution: The invention is a microdermabrasion device that avoids loose powders by using a hollow tube, or wand, with an abrasive material permanently attached to its treatment tip ('739 Patent, Abstract; col. 3:17-21). A vacuum is applied through one or more openings in the tip. The vacuum is described as performing a dual function: it pulls the skin into "intimate contact" with the fixed abrasive surface to enhance the treatment, and it aspirates the removed skin cells for collection in a filter ('739 Patent, col. 2:38-46; col. 5:42-49).
• Technical Importance: The described approach sought to provide the benefits of microdermabrasion without the health hazards and cleanup associated with the "bead-blasting" type systems prevalent at the time ('739 Patent, col. 3:17-21).

Key Claims at a Glance

• The complaint asserts independent claims 1, 9, 12, and 16, along with several dependent claims (Compl. ¶12). The claims were amended during reexamination.
• Independent Claim 1 (as amended) recites a device for removing the epidermis, comprising:
  • A source of a vacuum.
  • A tube with a treatment tip having an "abrasive material permanently attached" to its operating end.
  • The tip has a "fixed" orientation and "one or more openings" for applying the vacuum.
  • The vacuum causes the skin to have an "increased area of contact" with the abrasive material and also collects the removed epidermis cells.
• Independent Claim 12 (as amended) recites a method of performing microdermabrasion, comprising:
  • Providing a tubular tool with a "skin contacting surface having an abrasive material permanently attached."
  • The surface is "non-rotational during use."
  • Applying a sub-ambient pressure through the tool to the skin.
  • Bringing the abrasive surface into contact with the skin while the pressure is delivered.
  • Moving the abrasive surface across the skin to remove epidermal cells.
• The complaint reserves the right to assert dependent claims 2, 3, 5, 6, 8, 10, 13, 14, 17, and 18 (Compl. ¶12).

III. The Accused Instrumentality

Product Identification

• The complaint names a range of products, including the “PR-01 Diamond Peel,” “Supra 5 in 1 Microdermabrasion,” “Diamond Microdermabrasion Machine,” and “Cosmo 15 Function Skin Care System,” among others (collectively, the "Accused Devices") (Compl. ¶12).

Functionality and Market Context

• The complaint broadly identifies the accused products as "microdermabrasion devices" (Compl. ¶12). It alleges that these devices "contain each and every element" of the asserted claims but does not provide specific details about their components or mechanism of operation (Compl. ¶12). The infringement allegation rests on the assertion that these are systems for performing microdermabrasion that operate in a manner covered by the patent-in-suit. No probative visual evidence provided in complaint.

IV. Analysis of Infringement Allegations

The complaint does not include a claim chart or a detailed, element-by-element infringement analysis. Instead, it makes a general allegation that the Accused Devices practice the asserted claims of the '739 Patent (Compl. ¶12). The core of the infringement theory is that the accused microdermabrasion systems are devices and perform methods that fall within the scope of the patent's claims, as amended through reexamination. The complaint alleges direct infringement by Defendants, infringement by users of the devices, and liability for both induced and contributory infringement (Compl. ¶12).

• Identified Points of Contention:
  • Technical Question: A central factual dispute will likely concern the operational characteristics of the Accused Devices. For claims requiring the vacuum to cause an "increased area of contact" with the skin, the plaintiff will need to provide evidence that the accused systems' vacuums perform this specific skin-tensioning function, rather than solely providing suction for debris removal.
  • Scope Questions: The interpretation of claim terms added or emphasized during reexamination will be critical. A key question is whether the accused devices feature an "abrasive material permanently attached" to the treatment tip. The meaning of "permanently attached" will likely be a significant point of claim construction, determining whether it precludes tips that are user-replaceable, even if the abrasive grit itself is bonded to that tip. The prosecution history of the reexaminations will be highly relevant to this analysis.

V. Key Claim Terms for Construction

• The Term: "abrasive material permanently attached" (from claims 1, 9, 12, 16)

• Context and Importance: This limitation appears in all asserted independent claims and was a focus of the amendments made during reexamination. Its construction is critical for distinguishing the claimed invention from prior art systems that may have used disposable abrasive components or loose abrasive powders. The outcome of its interpretation will likely determine the scope of the patent with respect to a wide range of modern microdermabrasion devices.

• Intrinsic Evidence for Interpretation:

  • Evidence for a Broader Interpretation: The specification discusses an embodiment with a "removable disc" with an abrasive end that fits over the treatment tube ('739 Patent, col. 4:65-col. 5:4). This could support an argument that "permanently attached" refers to the permanent bonding of the abrasive particles (e.g., diamond grit) to a tip component, even if that component itself is replaceable by a user.
  • Evidence for a Narrower Interpretation: The description states the invention is "generally accomplished by the use of a tube having a treatment tip with an abrasive material permanently attached thereto" ('739 Patent, col. 3:19-21). This phrasing, combined with the patent's overall objective to replace other systems, could support a narrower construction where the abrasive surface is integral to a non-disposable wand.

• The Term: "vacuum causing the skin being treated to have an increased area of contact with the abrasive tip" (from claim 1)

• Context and Importance: This functional language defines a specific purpose for the vacuum beyond mere debris collection. Infringement will require proof that the accused devices are designed to or inherently achieve this skin-pulling effect. Practitioners may focus on this term because it links a structural element (vacuum source) to a functional result at the treatment site.

• Intrinsic Evidence for Interpretation:

  • Evidence for a Broader Interpretation: An argument could be made that any vacuum applied at the skin's surface through a treatment tip will inherently pull the skin taut and toward the tip, thereby satisfying this limitation.
  • Evidence for a Narrower Interpretation: The patent describes this effect as an "unexpected advantage" and notes that a "concave tip as shown in FIG. 4 is particularly effective" in achieving this contact ('739 Patent, col. 5:42-52). This may support an argument that the claim requires more than incidental suction and implies a design or vacuum level specifically intended to produce this skin-tensioning result, potentially tied to a specific tip geometry.

VI. Other Allegations

• Indirect Infringement: The complaint alleges that Defendants are liable for contributory and induced infringement, premised on the direct infringement by users of the Accused Devices (Compl. ¶12). The complaint does not, however, plead specific facts to support the element of intent for inducement, such as citing specific instructions in user manuals that would direct users to perform the patented method.
• Willful Infringement: The willfulness allegation is based on Defendants' alleged continued infringement after receiving actual notice of the '739 patent on October 16, 2014 (Compl. ¶¶ 10, 13, 14). The complaint further states that this infringement continued even after the USPTO issued a Reexamination Certificate, which may be used to argue that Defendants faced an objectively high likelihood of infringement and proceeded despite this risk (Compl. ¶¶ 13-14).

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

This case appears to center on the precise scope of claims that have been tested and amended through two separate reexaminations. The key questions for the court will likely be:

1. A core issue will be one of definitional scope: Following two reexaminations, what is the proper construction of the term "abrasive material permanently attached"? The case may turn on whether this phrase can be read to cover devices with user-replaceable abrasive tips, or if it is limited to more integrated, non-disposable designs.

2. A key evidentiary question will be one of demonstrating function: Can the plaintiff prove that the vacuum in the accused systems performs the specific, claimed function of "causing... an increased area of contact" with the skin? This will require moving beyond structural comparisons to a technical analysis of how the accused devices actually operate on a user's skin.

3. A third question relates to willfulness and damages: Given the allegation that Defendants received notice of the patent during a pending reexamination and continued to sell the accused products after the patent's claims were confirmed, a central issue will be whether this conduct rises to the level of willful infringement, potentially exposing Defendants to enhanced damages.