DCT
2:17-cv-06326
Bring It Up Inc v. Slaylove
Key Events
Complaint
I. Executive Summary and Procedural Information
- Parties & Counsel:
- Plaintiff: Bring It Up, Inc. (California)
- Defendant: Slaylove (California)
- Plaintiff’s Counsel: Lewis Brisbois Bisgaard & Smith LLP
- Case Identification: 2:17-cv-06326, C.D. Cal., 08/28/2017
- Venue Allegations: Venue is alleged to be proper in the Central District of California because the Defendant has purposely availed itself of the privilege of conducting activities in the state, and sells, advertises, and distributes products to customers within the district.
- Core Dispute: Plaintiff alleges that Defendant’s "Perfect Lift" adhesive tape products infringe patents related to cosmetic appliances and methods for lifting human breasts.
- Technical Context: The technology concerns non-surgical, adhesive-based cosmetic products designed to temporarily lift and reshape skin and tissue, particularly for breast enhancement.
- Key Procedural History: The patents-in-suit belong to a family of applications claiming priority back to 2002. The U.S. Patent No. 7,806,749 was issued subject to a terminal disclaimer, which may limit its enforceable term.
Case Timeline
| Date | Event |
|---|---|
| 2002-06-12 | Earliest Priority Date for '749 and '182 Patents |
| 2010-10-05 | U.S. Patent No. 7,806,749 Issues |
| 2011-08-09 | U.S. Patent No. 7,993,182 Issues |
| 2017-08-28 | Complaint Filed |
II. Technology and Patent(s)-in-Suit Analysis
U.S. Patent No. 7,806,749 - "Cosmetic Appliance and Method of Use"
Issued October 5, 2010
The Invention Explained
- Problem Addressed: The patent is directed to a cosmetic appliance and method for "temporarily altering the appearance and shape of selected areas of the surface of a user's body by lifting and/or supporting a selected area of skin" ('749 Patent, col. 2:11-15). The summary of the invention more specifically notes its adaptation "to provide support and to lift saggy areas of a user's skin" ('749 Patent, col. 2:36-37).
- The Patented Solution: The invention is a thin, generally translucent, flexible sheet with an adhesive on one side, covered by a peel-away layer ('749 Patent, col. 2:20-23). For breast lifting, the appliance is disclosed as having a semi-annular shape ('749 Patent, col. 2:39-43, Fig. 3). A user applies a first portion of the appliance to the skin, physically lifts the breast to a desired position, and then adheres the remaining portion of the appliance to hold the breast in the elevated position ('749 Patent, col. 3:1-11).
- Technical Importance: The technology provides a non-surgical, temporary method for achieving a cosmetic lift, which can be concealed under clothing or with cosmetic preparations ('749 Patent, col. 2:48-55).
Key Claims at a Glance
- The complaint asserts independent claims 1 and 5 (Compl. ¶22).
- Independent Claim 1 is a method claim with the essential elements:
- Providing a flexible sheet of translucent material with an adhesive on one side.
- Applying a first portion of the adhesive surface to the "skin of the upper surface of the breast adjacent the breast areola."
- Moving the sheet upwardly to lift the breast to an elevated position.
- Applying the remaining portion of the adhesive surface to hold the breast in that elevated position.
- Independent Claim 5 is a method claim with the essential elements:
- Exposing a human breast with a top surface.
- Providing a sheet of translucent material with an adhesive on its bottom surface.
- Adhering the adhesive surface to the top surface of the breast.
- Lifting the breast upwardly and adhering the adhesive at a higher position.
- The sheet temporarily maintains the skin of the breast's top surface in a smoother condition.
- The complaint does not explicitly reserve the right to assert dependent claims.
U.S. Patent No. 7,993,182 - "Cosmetic Appliances and Methods of Use"
Issued August 9, 2011
The Invention Explained
- Problem Addressed: The patent addresses problems of "sagging and loss of firm breast tissue due to age, gravity, nursing, weight changes, etc." ('182 Patent, col. 2:4-6). It also specifically describes addressing a condition in patients with breast implants known as "falling off the cliff," where the nipple moves downward over time relative to a stationary implant ('182 Patent, col. 9:11-20).
- The Patented Solution: The '182 patent discloses multiple embodiments, including a disposable adhesive tape lift similar to the '749 patent and a reusable, molded, cup-shaped appliance made of silicone gel ('182 Patent, col. 2:11-14, 2:51-56). The claimed method involves applying the appliance to the "upper inner and upper outer quadrants of the breast," moving the sheet to lift the breast "from the top," and then adhering the remainder to maintain the lifted position ('182 Patent, col. 10:13-24).
- Technical Importance: This patent expands upon the earlier concept by introducing reusable, shaped appliances and directly addressing postsurgical cosmetic issues, thereby broadening the invention's applicability ('182 Patent, col. 9:20-29).
Key Claims at a Glance
- The complaint asserts independent claim 1 (Compl. ¶31).
- Independent Claim 1 is a method claim with the essential elements:
- Providing a sheet of translucent material with an adhesive and a peel-away layer.
- Removing at least part of the peel-away layer.
- Applying a part of the sheet to the "upper inner and upper outer quadrants of the breast."
- Moving the sheet "generally upwardly, or upwardly and rearwardly to lift the breast from the top to a lifted position."
- Applying the remaining part of the sheet to maintain the breast in the lifted position.
- The complaint does not explicitly reserve the right to assert dependent claims.
III. The Accused Instrumentality
Product Identification
The accused products are Defendant Slaylove’s "Perfect Lift" brand breast lift products (Compl. ¶20).
Functionality and Market Context
The complaint describes the accused product as an "adhesive tape" that offers a "simple solution for sagging breasts without surgery" (Compl. ¶24, ¶26). Plaintiff alleges the product is intended for use with a "lift-from-the-top" placement method (Compl. ¶22, ¶31). An image included in the complaint shows a before-and-after comparison of a model wearing the accused product, illustrating a visible lift (Compl. ¶21). The complaint alleges the product is sold online and distributed within the judicial district (Compl. ¶15, ¶20).
IV. Analysis of Infringement Allegations
'749 Patent Infringement Allegations
| Claim Element (from Independent Claim 1) | Alleged Infringing Functionality | Complaint Citation | Patent Citation |
|---|---|---|---|
| providing a flexible sheet made of translucent material, cut into a predetermined shape and having an adhesive on one side of the sheet... | Defendant provides the "Perfect Lift" product, described as an "adhesive tape" for lifting breasts. | ¶21, ¶24 | col. 4:18-23 |
| applying the first portion of the adhesive surface of the sheet to skin of the upper surface of the breast adjacent the breast areola to adhere the first portion... | The complaint alleges the product is used via a "lift-from-the-top" method, which involves application to the breast. | ¶22 | col. 4:24-28 |
| moving the sheet upwardly to lift the sheet and the breast to an elevated position; and, | The product's marketing slogan is "Stick it! Lift it! Slay it!" and accompanying images show a lifting effect. | ¶21 | col. 4:29-31 |
| applying the remaining portion of the adhesive surface of the sheet to the skin of the upper surface of the breast to adhere the sheet... to hold the breast in the elevated position. | Completing the application of the adhesive tape secures it and holds the breast in the lifted position shown in the "After" image. | ¶21 | col. 4:32-36 |
Identified Points of Contention
- Scope Questions: A central question may be whether the accused method of use meets the specific locational requirement of "adjacent the breast areola" as recited in Claim 1. The complaint's general allegations and visual evidence do not provide sufficient detail to confirm application at this precise anatomical location.
- Technical Questions: The claim requires a "translucent material." The complaint does not contain specific evidence, beyond conclusory allegation, that the accused "Perfect Lift" tape is, in fact, translucent.
'182 Patent Infringement Allegations
| Claim Element (from Independent Claim 1) | Alleged Infringing Functionality | Complaint Citation | Patent Citation |
|---|---|---|---|
| providing a sheet made of translucent material, having an adhesive applied to one side of the sheet... and having a peel-away layer... | Defendant provides the "Perfect Lift" adhesive tape product. An image shows the tape on a backing, consistent with a peel-away layer. | ¶30 | col. 10:6-10 |
| removing at least part of the peel-away layer to expose the adhesive; | The instructions for use depicted in the complaint show a user handling the adhesive product in a manner consistent with removing it from a backing. | ¶30 | col. 10:11-12 |
| applying a part of the sheet to upper inner and upper outer quadrants of the breast so that the adhesive contacts the breast; | The complaint alleges the product is used in a "lift-from-the-top" method, which would involve application to the upper portion of the breast. | ¶31 | col. 10:13-15 |
| moving the sheet generally upwardly... to lift the breast from the top to a lifted position; | The product's name ("Perfect Lift") and marketing slogan ("Lift it!") explicitly describe this function. | ¶30 | col. 10:17-19 |
| applying the remaining part of the sheet... to maintain the breast in the lifted position. | The final step of the depicted application method involves securing the tape to hold the lift. | ¶30 | col. 10:22-24 |
Identified Points of Contention
- Scope Questions: Does the general "lift-from-the-top" method alleged in the complaint (Compl. ¶31) satisfy the specific anatomical requirement of applying the sheet to the "upper inner and upper outer quadrants of the breast"? The complaint does not provide evidence, such as detailed user instructions, that specifies this exact placement.
- Technical Questions: As with the ’749 Patent, a key question will be what evidence supports the allegation that the accused product is made of a "translucent material" as required by the claim.
V. Key Claim Terms for Construction
For the ’749 Patent
- The Term: "upper surface of the breast adjacent the breast areola" (Claim 1)
- Context and Importance: This term defines the precise starting location for the claimed method. Practitioners may focus on this term because the infringement allegation rests on whether the accused product's use, described generally as "lift-from-the-top" (Compl. ¶22), satisfies this specific anatomical limitation.
- Intrinsic Evidence for Interpretation:
- Evidence for a Broader Interpretation: The patent uses the general phrase "skin of the upper surface of the breast" elsewhere, which could suggest a less restrictive meaning than the immediate vicinity of the areola (e.g., ’749 Patent, col. 4:33-34).
- Evidence for a Narrower Interpretation: The detailed description of the preferred embodiment for breast lifting (Fig. 3) specifies that the "inner perimeter (11) of the semi-annulus is adjacent to the areola" ('749 Patent, col. 3:1-3). This could be used to argue that the claimed "upper surface" is limited to this specific area.
For the ’182 Patent
- The Term: "upper inner and upper outer quadrants of the breast" (Claim 1)
- Context and Importance: This term defines the required application area for the method of Claim 1. Its construction is critical because the complaint's infringement theory relies on the accused "lift-from-the-top" method (Compl. ¶31) mapping onto these specific anatomical regions.
- Intrinsic Evidence for Interpretation:
- Evidence for a Broader Interpretation: A party could argue the phrase is a general descriptor for the top portion of the breast, and any application that achieves a lift "from the top" would suffice, as suggested by the general description of the method's goal ('182 Patent, col. 10:18-19).
- Evidence for a Narrower Interpretation: The patent's "Field of Invention" section explicitly references "Surgical Anatomy" and the four breast quadrants by name ('182 Patent, col. 1:31-37). This may support an argument that the terms carry a precise anatomical meaning, requiring application to those defined areas rather than just the general "top" of the breast.
VI. Other Allegations
Indirect Infringement
The complaint alleges active inducement of infringement for both the ’749 and ’182 patents. The factual basis for this allegation is that Defendant Slaylove sells the accused products and provides "instructions for use" that allegedly direct end-users to perform the infringing methods (Compl. ¶20, ¶23, ¶29, ¶32).
Willful Infringement
The complaint does not use the term "willful," but it requests trebled damages pursuant to 35 U.S.C. § 284, which is the statutory remedy for willful infringement (Compl., Prayer for Relief ¶F). The complaint alleges that knowledge of infringement will exist "at least as early as of the service of this Complaint," suggesting the claim is based on alleged post-suit knowledge (Compl. ¶24, ¶33).
VII. Analyst’s Conclusion: Key Questions for the Case
- A core issue will be one of claim scope and evidentiary support: Can the general marketing slogans and images provided in the complaint satisfy the specific anatomical location requirements recited in the asserted claims, namely "adjacent the breast areola" ('749 patent) and "upper inner and upper outer quadrants of the breast" ('182 patent)? The court will have to determine if the evidence of the accused method is specific enough to meet these limitations.
- A second key question will be one of material properties: What evidence will be presented to establish that the accused "Perfect Lift" tape is made of the "translucent material" required by the asserted claims of both patents, a fact that is alleged but not substantiated in the complaint's exhibits?
- Finally, the induced infringement claim will depend on the content of the defendant's actual "instructions for use." A central question for the court will be whether those instructions direct users to perform each and every step of the claimed methods, particularly the specific application locations, with the requisite intent for inducement.