Altair Instruments Inc v. Telebrands Corp

I. Executive Summary and Procedural Information

• Parties & Counsel:
  • Plaintiff: Altair Instruments, Inc. (California)
  • Defendant: Telebrands Corp. (New Jersey)
  • Plaintiff’s Counsel: Rutan & Tucker, LLP
• Case Identification: 2:18-cv-10440, C.D. Cal., 12/17/2018
• Venue Allegations: Plaintiff alleges venue is proper because Defendant has committed acts of infringement in the district and maintains several regular and established places of business, including distribution centers in Riverside, Mira Loma, and other locations.
• Core Dispute: Plaintiff alleges that Defendant’s "Dermasuction" device infringes a patent related to a microdermabrasion system that uses a vacuum-assisted, abrasive-tipped wand.
• Technical Context: The technology concerns cosmetic skincare devices designed to exfoliate the outer layer of the skin (epidermis) to improve its appearance.
• Key Procedural History: The complaint highlights that the patent-in-suit has survived two separate ex parte reexamination proceedings at the USPTO. It also notes that the patent has been the subject of over 25 prior lawsuits, including one where a district court found a "very similar" device to be infringing and the patent not invalid, a ruling the U.S. Court of Appeals for the Federal Circuit subsequently affirmed. Plaintiff also alleges sending a notice letter to Defendant prior to filing suit.

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
2015-07-15	’739 Patent Second Reexamination Certificate (C2) Issued
2018-02-08	Federal Circuit decision in Altair v. Kelley West (date of decision from 711 Fed.Appx. 643)
2018-10-10	Plaintiff’s counsel sends notice letter to Defendant
2018-12-17	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," issued June 5, 2001

The Invention Explained

• Problem Addressed: The patent describes prior art microdermabrasion methods that used a stream of powdered abrasives (e.g., aluminum oxide) to exfoliate the skin (Compl., Ex. A, '739 Patent, col. 2:1-17). This approach presented potential disadvantages, including the possibility of abrasive particles becoming lodged in the skin or being inhaled by the patient or operator, requiring protective masks and glasses ('739 Patent, col. 2:17-36).
• 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 ('739 Patent, col. 3:18-22). A vacuum is applied through an opening in the abrasive tip. This vacuum serves two purposes: first, it pulls the target skin into "intimate contact" with the abrasive surface to enhance exfoliation, and second, it suctions away the removed skin cells for collection ('739 Patent, Abstract; col. 5:44-49).
• Technical Importance: The claimed invention sought to offer a safer and cleaner alternative to powder-based microdermabrasion by integrating the abrasive element directly onto the treatment tool ('739 Patent, col. 1:8-13).

Key Claims at a Glance

• The complaint asserts independent claim 1. (Compl. ¶13).
• The essential elements of the asserted independent claim 1 (as amended by the second reexamination certificate) include:
  • A device for removing the epidermis without damaging the dermis.
  • A source of a vacuum.
  • A tube with a treatment tip having a permanently attached abrasive material on its operating end, with the treatment surface having a fixed longitudinal orientation.
  • The tube is connected to the vacuum source to create reduced pressure in its lumen.
  • The treatment surface has one or more openings to apply the vacuum to the skin.
  • The 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 infringement of dependent claims 2, 3, 5, 6, 8, 9, 10, 16, 17, and 18, as well as method claims 12, 13, and 14. (Compl. ¶14, ¶24, ¶26).

III. The Accused Instrumentality

Product Identification

• The "Dermasuction" device. (Compl. ¶11).

Functionality and Market Context

• The complaint alleges the Dermasuction is a microdermabrasion device that uses a combination of suction and an abrasive tip to "exfoliate dead skin for spa-like skin rejuvenation." (Compl. ¶12). It is alleged to operate using a source of vacuum and interchangeable tips, including a "diamond tip" with a permanently attached abrasive material, to remove the epidermis without damaging the dermis. (Compl. ¶13). The complaint includes a photograph showing the hand-held Dermasuction device, a storage case, and a set of four different interchangeable tips. (Compl. ¶11, p. 3).

IV. Analysis of Infringement Allegations

’739 Patent Infringement Allegations

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:	The Dermasuction is used to remove the epidermis without damaging the dermis in a microdermabrasion procedure.	¶13	col. 2:21-24
a source of a vacuum, and	The Dermasuction includes a source of vacuum.	¶13	col. 3:41-43
a tube with a treatment tip thereon for removing cells comprising the epidermis layer of the skin surface being treated, the treatment tip having an abrasive material permanently attached to an operating end thereof to provide a treatment delivery surface,	The "diamond tip" constitutes a tube with a treatment tip. It has an abrasive material permanently attached to its operating end to provide a treatment delivery surface.	¶13	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 has an orientation fixed in regard to an axis extending longitudinally through the tube.	¶13	col. 3:20-22
the tube being attached to the source of vacuum so that a lumen through the tube has a reduced pressure therein which is less than the ambient pressure surrounding the tube,	The tube is attached to the source of vacuum so that a lumen through the tube has a reduced pressure therein which is less than the ambient pressure.	¶13	col. 4:1-11
the treatment delivery surface having one or more openings therein for continuously applying the reduced pressure within the tube through substantially all said one or more openings to a skin surface,	The treatment delivery surface has an opening to allow for continuously applying the reduced pressure within the tube through the opening to a skin surface.	¶13	col. 4:12-13
said continuously applied vacuum causing the skin being treated to have an increased area of contact with the abrasive material permanently attached to the treatment tip,	The continuously applied vacuum causes the skin being treated to have an increased area of contact with the abrasive material attached to the treatment tip.	¶13	col. 5:44-47
the vacuum also functioning to collect epidermis cells of the skin surface being treated.	The vacuum also functions to collect epidermis cells of the skin surface being treated.	¶13	col. 4:19-21

• Identified Points of Contention:
  • Scope Questions: A central dispute may arise over the meaning of "permanently attached." The accused product uses interchangeable tips (Compl. ¶11, p. 3). The core question will be whether a securely fastened but user-replaceable tip meets the "permanently attached" limitation, which was originally used to distinguish the invention from prior art using loose abrasive powders.
  • Technical Questions: The complaint asserts that the accused device’s vacuum causes an "increased area of contact" between the skin and the abrasive tip. (Compl. ¶13). A potential point of contention is whether Plaintiff can provide sufficient technical evidence to demonstrate that the accused device actually operates in this specific manner, as opposed to the vacuum's primary function being merely the removal of debris.

V. Key Claim Terms for Construction

• The Term: "permanently attached"
• Context and Importance: This term is critical because it distinguishes the patented invention from prior art that propelled loose abrasive particles at the skin. The accused Dermasuction device features interchangeable tips. Therefore, the construction of "permanently" will be decisive for infringement. Practitioners may focus on this term because its interpretation will determine whether the claim can read on devices with replaceable components.
• Intrinsic Evidence for Interpretation:
  • Evidence for a Broader Interpretation: The specification explicitly contemplates replaceable components, stating, "A further alternative would be a tube, which could be stainless steel, plastic or other stiff tubular material, with a suitable removable and replaceable tip..." ('739 Patent, col. 4:61-64). This language may support an interpretation where "permanently attached" means securely fixed during a single treatment, not necessarily irremovable from the wand.
  • Evidence for a Narrower Interpretation: The patent's primary embodiment describes adhering diamond grit to the tip "by a plating process using nickel as a binder," which suggests a manufacturing-level, non-user-serviceable attachment ('739 Patent, col. 4:25-28). A defendant could argue this context limits "permanently" to a more durable, factory-fused bond.

VI. Other Allegations

• Indirect Infringement: The complaint alleges that "Users of the Dermasuction also infringe" the asserted method claims. (Compl. ¶26). This forms a basis for induced infringement, which may be supported by allegations that Defendant provides the device with marketing materials and instructions that encourage end-users to operate it in an infringing manner (Compl. ¶12).
• Willful Infringement: Willfulness is alleged based on Defendant’s continued sale of the Dermasuction device after receiving a letter from Plaintiff’s counsel on October 10, 2018. The letter allegedly provided actual notice of the ’739 patent and the infringement allegations (Compl. ¶18).

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

• A core issue will be one of claim construction: can the term "permanently attached," which was crucial for distinguishing the invention from prior art using loose powders, be construed to cover the accused device's system of user-interchangeable treatment tips? The patent’s own disclosure of "removable and replaceable" tips suggests this will be a central point of legal argument.
• A second key issue will be the impact of the litigation history: Plaintiff heavily emphasizes that the ’739 patent survived two reexaminations and was previously found valid and infringed in litigation against a "very similar" product, a finding affirmed by the Federal Circuit. The dispositive weight of these prior proceedings will depend on the degree of technical similarity the court finds between the previously adjudicated device and the accused Dermasuction device.
• A final question will be evidentiary: beyond conclusory allegations, what specific technical evidence will Plaintiff present to prove that the accused device’s vacuum performs the claimed function of "causing the skin being treated to have an increased area of contact with the abrasive material," a key functional limitation of the asserted claim?