DCT
2:18-cv-09461
Altair Instruments Inc v. Walmart Inc
I. Executive Summary and Procedural Information
- Parties & Counsel:
- Plaintiff: Altair Instruments, Inc. (California)
- Defendant: Walmart, Inc. (Delaware)
- Plaintiff’s Counsel: Rutan & Tucker, LLP
- Case Identification: 2:18-cv-09461, C.D. Cal., 11/07/2018
- Venue Allegations: Venue is based on allegations that Walmart commits acts of infringement in the Central District of California by making, using, and selling the accused products within the district, and maintains numerous regular and established places of business, including stores and distribution centers, in the district.
- Core Dispute: Plaintiff alleges that Defendant’s sale of various handheld microdermabrasion devices infringes a patent related to a method and device for skin exfoliation using a vacuum and a fixed abrasive tip.
- Technical Context: The technology concerns cosmetic dermatology devices for microdermabrasion, a procedure that exfoliates the outer layer of the skin to improve its appearance.
- Key Procedural History: The complaint notes that the patent-in-suit has survived two separate ex parte reexamination proceedings at the USPTO. It also states that the patent has been the subject of over 25 prior lawsuits, many of which allegedly resulted in settlements or licenses. The complaint heavily references a prior case, Altair Instruments Inc v. Kelley West Enterprises LLC, in which the Central District of California found a "very similar" device to literally infringe the patent-in-suit and confirmed the patent's validity, a ruling the complaint states was affirmed by the U.S. Court of Appeals for the Federal Circuit in 2018.
Case Timeline
| Date | Event |
|---|---|
| 1999-11-12 | U.S. Patent No. 6,241,739 Priority Date |
| 2001-06-05 | U.S. Patent No. 6,241,739 Issue Date |
| 2018-03-02 | Federal Circuit affirms judgment in Altair v. Kelley West |
| 2018-11-07 | Complaint Filed |
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 (’739 Patent).
The Invention Explained
- Problem Addressed: The patent describes prior art microdermabrasion techniques that used a stream of powdered abrasives, such as aluminum oxide, to exfoliate the skin (’739 Patent, col. 2:1-17). This approach created potential health risks, as the abrasive particles could be inhaled by the patient or operator and could become embedded in the treated skin, leading to irritation or providing a site for bacterial infection (’739 Patent, col. 2:18-36).
- The Patented Solution: The invention is a device that avoids loose powders by using a hollow tube, or wand, with an abrasive material, such as diamond grit, permanently attached to its treatment tip (’739 Patent, col. 3:24-30). A vacuum is applied through an opening in the tip, which serves two functions: it pulls the skin into "intimate contact" with the abrasive surface for more effective treatment, and it suctions away the removed skin cells for collection and disposal (’739 Patent, col. 2:39-46; col. 5:42-49).
- Technical Importance: This design sought to provide the benefits of microdermabrasion while eliminating the health hazards and cleanup associated with the airborne abrasive particles used in earlier systems (’739 Patent, col. 3:18-24).
- Analogy: The invention functions less like a sandblaster (which was analogous to the prior art) and more like a vacuum cleaner with a fixed-bristle, abrasive brush head, where the suction pulls the carpet fibers into the brush for cleaning and simultaneously removes the dislodged dirt.
Key Claims at a Glance
- The complaint asserts infringement of at least independent claim 1 and dependent claims 2, 3, 5, 6, 8, 9, 10, 16, 17, and 18, as well as method claims 12, 13, and 14 (Compl. ¶¶ 13, 16, 22).
- Independent Claim 1 (as amended by the C2 Reexamination Certificate) requires:
- A device for removing the epidermis without damaging the dermis, comprising a source of a vacuum and a tube with a treatment tip.
- The treatment tip has an abrasive material permanently attached to its operating end to provide a fixed-orientation treatment delivery surface.
- The tube is attached to the vacuum source, creating a reduced pressure within the tube's lumen.
- The treatment surface has one or more openings for applying the vacuum to a skin surface.
- The applied vacuum causes the skin to have an increased area of contact with the abrasive material.
- The vacuum also functions to collect the removed epidermis cells.
- The complaint reserves the right to assert additional claims (Compl. ¶13, ¶16).
III. The Accused Instrumentality
Product Identification
- The complaint identifies two lead accused products sold on www.walmart.com: the "Professional and Practical Diamond Dermabrasion Microdermabrasion Vacuum Peeling Skin Care Machine [etc.]" ("Pro Microdermabrasion") and the "ORA S’move Wand Diamond Microdermabrasion [etc.]" ("ORA Diamond Microdermabrasion") (Compl. ¶¶ 11, 14). The complaint alleges that a broader list of "Accused Devices" provided in its Exhibit B also infringe (Compl. ¶20).
Functionality and Market Context
- The complaint alleges the accused products are handheld devices used for microdermabrasion procedures to remove the epidermis (Compl. ¶12, ¶15). The devices are alleged to incorporate a vacuum source and use a "diamond tip" that constitutes a tube with an abrasive treatment tip (Compl. ¶12, ¶15).
- The complaint alleges that at least some of the accused products are "[s]old & shipped by Walmart" (Compl. ¶¶ 13, 16).
IV. Analysis of Infringement Allegations
’739 Patent Infringement Allegations
The complaint provides parallel infringement contentions for both lead accused products. The following chart summarizes the allegations for the "Pro Microdermabrasion" device against the current version of Claim 1.
| Claim Element (from Independent Claim 1) | Alleged Infringing Functionality | Complaint Citation | Patent Citation |
|---|---|---|---|
| A device for removing the epidermis without damaging the dermis of the skin in a microdermabrasion procedure comprising: a source of a vacuum | The Pro Microdermabrasion is used for microdermabrasion procedures to remove the epidermis and includes a vacuum source. | ¶12 | col. 1:7-11 |
| a tube with a treatment tip thereon for removing cells comprising the epidermis layer of the skin surface being treated | The device's "diamond tip" is alleged to be a tube with a treatment tip for removing epidermis cells. | ¶12 | col. 3:25-30 |
| the treatment tip having an abrasive material permanently attached to an operating end thereof to provide a treatment delivery surface | The treatment tip is alleged to have a permanently attached abrasive material on its operating end. | ¶12 | col. 4:25-31 |
| the treatment delivery surface having an orientation fixed in regard to an axis extending longitudinally through the tube | The treatment delivery surface is alleged to have a fixed orientation relative to the tube's longitudinal axis. | ¶12 | col. 6:11-13 |
| the tube being attached to the source of vacuum so that a lumen through the tube has a reduced pressure therein... | The tube is alleged to be attached to the vacuum source, creating a reduced pressure inside. | ¶12 | col. 4:3-6 |
| the treatment delivery surface having one or more openings therein for continuously applying the reduced pressure... to a skin surface | The treatment delivery surface is alleged to have an opening for continuously applying the vacuum pressure to the skin. The complaint provides a visual of the "Pro Microdermabrasion" device, which depicts a handheld wand with a detachable, abrasive-style tip (Compl. p. 4). | ¶12 | col. 4:12-13 |
| said continuously applied vacuum causing the skin being treated to have an increased area of contact with the abrasive material... | The complaint alleges the vacuum causes the treated skin to have an increased area of contact with the abrasive material on the tip. | ¶12 | col. 5:42-45 |
| the vacuum also functioning to collect epidermis cells of the skin surface being treated | The complaint alleges the vacuum also functions to collect the removed epidermis cells. | ¶12 | col. 4:19-21 |
Identified Points of Contention
- Scope Questions: A central question will be whether the accused products are materially distinguishable from the device adjudicated in the Kelley West case, which Plaintiff alleges was "very similar" (Compl. ¶19). A defense may focus on any structural or functional differences to escape the persuasive force of that prior ruling.
- Technical Questions: The complaint's infringement allegations are conclusory and largely recite the claim language. A key factual dispute may be whether the accused devices actually perform the claimed functions. For example, what evidence demonstrates that the vacuum in the accused products causes an "increased area of contact" between the skin and the abrasive tip, as required by the claim, rather than simply suctioning away debris?
V. Key Claim Terms for Construction
The Term: "permanently attached"
Context and Importance: This term was intended to distinguish the invention from prior art systems that used a flow of loose, consumable abrasive powders. Its construction is critical to determining whether the accused products, which use "diamond tips," meet this limitation. Practitioners may focus on this term to dispute whether a user-replaceable tip assembly qualifies as having "permanently attached" abrasive material in the manner contemplated by the patent.
Intrinsic Evidence for Interpretation:
- Evidence for a Broader Interpretation: The specification discusses embodiments with a "removable and replaceable tip" or a "removable disc 46 sized to fit over the end 40 of the tube 22" (’739 Patent, col. 4:62-66). This could support an interpretation where "permanently attached" refers to the abrasive grit being bonded to the tip surface, even if the entire tip can be detached from the wand.
- Evidence for a Narrower Interpretation: The overall focus on creating a durable, reusable tool that avoids consumable powders could support an argument that "permanently attached" implies a more integral, non-disposable construction, contrasting with any part designed for frequent replacement.
The Term: "increased area of contact"
Context and Importance: This is a functional limitation that describes a purported result of applying the vacuum. Proving infringement requires showing that the accused devices achieve this specific outcome. The dispute will likely center on what type and degree of "increase" is required.
Intrinsic Evidence for Interpretation:
- Evidence for a Broader Interpretation: A plaintiff may argue that any drawing of the skin towards the tip by the vacuum, however slight, inherently increases the contact area compared to a state with no vacuum pressure and satisfies the claim.
- Evidence for a Narrower Interpretation: The specification states, "The skin being treated is pulled against the abrasive tip, thus increasing the effectiveness of the tissue abrasion and removal process" (’739 Patent, col. 5:42-45). A defendant could argue this requires a specific physical action of pulling and potentially stretching the skin against the abrasive surface, not just incidental contact.
VI. Other Allegations
- Indirect Infringement: The complaint alleges that "Users of the Accused Devices also infringe" method claims of the ’739 patent (Compl. ¶22). However, it does not plead specific facts to support the knowledge and intent elements required for a claim of induced infringement, such as references to specific instructions in user manuals that would direct users to infringe.
- Willful Infringement: The complaint does not contain an explicit allegation of willful infringement or a request for enhanced damages.
VII. Analyst’s Conclusion: Key Questions for the Case
- A core issue will be one of precedent and distinction: To what extent will the prior Federal Circuit decision affirming infringement by a "very similar" device preclude Walmart from challenging infringement or validity? The case will likely turn on whether Walmart can successfully argue that its accused products are technically and legally distinct from the device previously adjudicated.
- A key evidentiary question will be one of functional proof: Can the Plaintiff prove, with more than conclusory allegations, that the accused products meet the functional limitations of the claims? Specifically, does the vacuum in the accused devices cause an "increased area of contact" between the skin and the abrasive tip in the manner described by the patent, or does it merely provide suction for debris removal?