DCT

2:17-cv-07253

Bragel Inc v. Gate Six Holdings LLC

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I. Executive Summary and Procedural Information

  • Parties & Counsel:
  • Case Identification: 2:17-cv-07253, U.S. District Court for the Central District of California (C.D. Cal.), 07/30/2018
  • Venue Allegations: Plaintiff alleges venue is proper because Defendant Sudder Trading is a foreign company and Defendant Gate Six has a regular and established place of business in the district, has committed acts of infringement in the district, and directs sales into the district.
  • Core Dispute: Plaintiff alleges that Defendants’ backless, adhesive bra products infringe a patent related to an attachable breast form enhancement system.
  • Technical Context: The technology concerns strapless, backless, and adhesive brassieres designed to provide breast enhancement and support without traditional bands or straps.
  • Key Procedural History: The operative pleading is a First Amended Complaint. The patent-in-suit was filed with a terminal disclaimer, which may limit its enforceable term.

Case Timeline

Date Event
2002-05-31 '296 Patent Priority Date
2006-12-05 U.S. Patent No. 7,144,296 Issues
2018-07-30 Plaintiff Files First Amended Complaint for Infringement

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

  • Patent Identification: U.S. Patent No. 7,144,296, "Attachable Breast Form Enhancement System," issued December 5, 2006 (’296 Patent).
  • The Invention Explained:
    • Problem Addressed: The patent describes a need for a breast enhancement system that provides the benefits of a breast form with the functionality of a backless, strapless bra (’296 Patent, col. 2:8-11). It notes that known strapless bras provide limited enhancement and use disposable, non-reusable adhesives, while existing breast forms are not well-suited for all body types, particularly for women with "sagging breasts" (’296 Patent, col. 2:1-7, 2:20-29).
    • The Patented Solution: The invention is a system of two separate breast forms that are independently attached to the user's skin via a reusable adhesive layer (’296 Patent, col. 3:35-42). A connector is used to adjoin the two forms, allowing the user to customize the position of the forms and the amount of cleavage created (’296 Patent, col. 3:50-61). The forms themselves are composed of a silicone gel encased within a flexible thermoplastic film, intended to look and feel natural (’296 Patent, col. 4:63-65).
    • Technical Importance: The claimed invention sought to provide a customizable, reusable, and strapless alternative to traditional bras that could also serve as a breast enhancer (’296 Patent, col. 3:10-18).
  • Key Claims at a Glance:
    • The complaint asserts independent claim 1 and dependent claims 2 and 5 (Compl. ¶¶15-17, 19).
    • Independent Claim 1 requires:
      • An improved backless, strapless breast form system to be worn in place of a traditional bra
      • A pair of breast forms
      • Each breast form comprising a volume of silicone gel encased between thermoplastic film material
      • Each breast form having a concave interior surface with a pressure sensitive adhesive layer for securing it to the user's breast
      • A connector adapted to adjoin the breast forms, positioned between the inner sides of each of the breast forms
    • The complaint reserves the right to assert additional claims (Compl. ¶41).

III. The Accused Instrumentality

  • Product Identification: The "Backless Push Up Bra" and "Silicone Backless Push Up Bra" (collectively, the "Infringing Products") (Compl. ¶19).
  • Functionality and Market Context: The complaint alleges the Infringing Products are backless, strapless breast form systems sold on websites including "www.nudwear.com" and "www.amazon.com" (Compl. ¶20). According to the complaint, the products consist of a pair of breast forms made of silicone gel encased in a film material (Compl. ¶¶26-27). Each form is described as having a concave shape and an adhesive interior surface for attachment to the user (Compl. ¶28). The two forms are joined by a connector that is permanently attached to the inner side of each form (Compl. ¶29).

IV. Analysis of Infringement Allegations

'296 Patent Infringement Allegations

Claim Element (from Independent Claim 1) Alleged Infringing Functionality Complaint Citation Patent Citation
a pair of breast forms, wherein each breast form comprises: a volume of silicone gel encased between thermoplastic film material; The Infringing Products are comprised of a pair of breast forms, each made of silicone gel encased in a film material. ¶¶26-27, 32 col. 4:63-65
a concave interior surface facing towards a user's breast The breast forms of the Infringing Products are described as concave. A photograph depicts the concave shape of the interior. ¶28, 32 col. 4:15-18
having a pressure sensitive adhesive layer for securing the breast form to the user's breast; and The interior surface of the breast forms is alleged to have an adhesive layer to secure the product to the breast. ¶28, 32 col. 4:21-24
a connector adapted to adjoin the breast forms together, wherein the connector is positioned between inner sides of each of the breast forms. The Infringing Products are alleged to include a connector permanently attached between the inner sides of the two breast forms. ¶29, 32 col. 4:50-54

  • Visual Evidence: The complaint includes a photograph illustrating that the accused product is comprised of a "Thermoplastic Film Material" encasing "Silicone Gel (underneath)" (Compl. ¶32, p. 8). Another photograph with callouts shows the "Connector Adapted to Adjoin the Breast Forms" located between the "Inner Side of Breast Form 1" and "Inner Side of Breast Form 2" (Compl. ¶32, p. 9).

  • Identified Points of Contention:

    • Technical Questions: A potential question is whether the "adhesive layer" on the accused products (Compl. ¶28) possesses the specific properties of the "pressure sensitive adhesive" described in the patent, which emphasizes reusability and a particular balance of adhesion and cohesion forces (’296 Patent, col. 4:35-49). The complaint does not provide detail on the specific properties of the accused adhesive.
    • Scope Questions: The complaint's infringement theory appears to map directly onto the elements of Claim 1. The primary dispute may center on the validity of the claims in view of prior art rather than on non-infringement, an issue not addressed in the complaint.

V. Key Claim Terms for Construction

  • The Term: "pressure sensitive adhesive layer"
  • Context and Importance: The definition of this term is critical because the patent specification describes a "re-usable PSA that is permanently grown to the interior surface" and has an adhesion force greater than its cohesion force, allowing it to be reused repeatedly and cleaned with soap and water (’296 Patent, col. 4:35-49). Whether the claim is limited to an adhesive with these specific reusable and durable properties, or covers any adhesive that secures the form, will be a central question.
  • Intrinsic Evidence for Interpretation:
    • Evidence for a Broader Interpretation: The claim language itself does not recite reusability or a specific adhesion/cohesion ratio, which may support an argument that the term should be given its plain and ordinary meaning, covering any pressure-sensitive adhesive.
    • Evidence for a Narrower Interpretation: The detailed description repeatedly emphasizes the reusability and durability of the adhesive as a key feature that distinguishes the invention from prior art that used "disposable" adhesives (’296 Patent, col. 2:5-7, 4:35-49). This may support a narrower construction limited to adhesives with the specifically described properties.

VI. Other Allegations

  • Indirect Infringement: The complaint alleges that the Infringing Products have "no substantial, non-infringing use," which is language used to support a claim for contributory infringement (Compl. ¶31). It also alleges Defendants acted "in concert with others," which may suggest a basis for induced infringement (Compl. ¶31).
  • Willful Infringement: The complaint alleges that Defendants had "actual or constructive notice of the existence of the '296 Patent" and that their infringement "is and have been willful" (Compl. ¶¶35, 38). The complaint does not plead specific facts detailing how or when pre-suit notice was provided to the Defendants.

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

  • A central issue will be one of claim scope: will the term "pressure sensitive adhesive layer" be construed broadly to cover any suitable adhesive, as the plain language might suggest, or will it be limited to the specific reusable and durable adhesive described in detail in the specification as a distinguishing feature over the prior art?
  • A key evidentiary question will be the technical comparison of the materials. Assuming a straightforward construction, the case will depend on factual evidence proving that the accused products are made of a "volume of silicone gel" encased in "thermoplastic film material," as required by the claim.
  • The case may ultimately turn on validity, an issue not detailed in the complaint. Given the direct mapping of the accused product's features to the claim elements, a primary defense strategy may be to argue that the combination of two adhesive cups with a central connector was obvious in light of prior art in the field of women's intimates.