Funrise Inc v. Big LOTS Stores Inc

I. Executive Summary and Procedural Information

• Parties & Counsel:
  • Plaintiff: Funrise, Inc. (California); Honor Metro Limited (Marshall Islands)
  • Defendant: Big Lots Stores, Inc. (Ohio)
  • Plaintiff’s Counsel: Weintraub Tobin Chediak Coleman Grodin Law Corporation
• Case Identification: 2:19-cv-01228, S.D. Cal., 07/01/2019
• Venue Allegations: Plaintiffs allege venue is proper in the Southern District of California because a substantial part of the events giving rise to the claims, including the offer for sale and sale of infringing goods, occurred in the district, and because Defendant has committed acts of infringement and maintains a regular and established place of business in the district.
• Core Dispute: Plaintiffs allege that Defendant’s "Turbo Bubble Machine" infringes a patent related to an apparatus and method for automatically generating bubbles.
• Technical Context: The lawsuit concerns the market for automated children's toys, specifically devices that produce a high volume of bubbles without manual user involvement.
• Key Procedural History: The complaint does not mention any prior litigation, licensing history, or administrative proceedings related to the patent-in-suit. The allegation of willful infringement is based on notice provided by the filing of this complaint.

Case Timeline

Date	Event
2014-03-20	’661 Patent Priority Date
2017-09-12	’661 Patent Issue Date
2019-07-01	Complaint Filing Date

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

U.S. Patent No. 9,757,661 - "Apparatus and Method for Generating Bubbles"

• Patent Identification: U.S. Patent No. 9,757,661, "Apparatus and Method for Generating Bubbles," issued September 12, 2017 (’661 Patent).

The Invention Explained

• Problem Addressed: The patent describes prior art automated bubble-making devices as often being messy, difficult to use, and requiring a period of time to run before any bubbles are created, which can lead to user boredom (’661 Patent, col. 1:42-51). These devices often required bubble solution to be pumped from a reservoir and streamed over bubble-forming openings, an approach described as complex and expensive to manufacture (’661 Patent, col. 1:36-42, 1:47-49).
• The Patented Solution: The invention is a pumpless bubble-making apparatus that uses a rotating assembly of bubble wands ("follower members") that move along a stationary, undulating cam surface. The cam surface has "valley" portions that align with a trough of bubble solution and "raised" portions that align with an upward airflow from a fan (’661 Patent, col. 2:2-24). As the assembly rotates, the wands dip into the solution in the valleys to get loaded with a bubble film, and are then lifted by the cam surface into the raised position, where the fan blows air through them to create a continuous stream of bubbles (’661 Patent, col. 14:25-44; Fig. 14).
• Technical Importance: This design provides a method for continuous, high-volume bubble generation that avoids the complexity and potential mess of pumping systems by mechanically dipping and raising the bubble wands in a coordinated cycle (’661 Patent, col. 1:49-51).

Key Claims at a Glance

• The complaint asserts independent Claim 1 (’661 Patent, col. 20:50-22:35; Compl. ¶32).
• The essential elements of independent Claim 1 include:
  • A housing, a motor, and a fan device to generate an upward air stream.
  • A bubble generating assembly, rotated by the motor, which includes a body and a plurality of "follower members" (wands).
  • Each follower member has an arm that is "pivotably coupled" to a ring structure inside the assembly's body.
  • A "basin member" that is stationary and contains both a trough for bubble solution and a "cam wall" with a raised portion and a recessed "valley portion."
  • The operational step wherein, as the assembly rotates, the follower members ride along the cam wall, causing them to repetitively transition between a "lowered position" (dipping into the trough) and a "raised position" (aligned with the air stream).
• The complaint asserts infringement of "one or more claims" and focuses its allegations on Claim 1, which suggests the right to assert other claims, including dependent claims, may be reserved (Compl. ¶31).

III. The Accused Instrumentality

Product Identification

• The "Turbo Bubble Machine," also referred to as the "Turbo Bubble Fountain" (the "Accused Product") (Compl. ¶18, Ex. C, p. 58).

Functionality and Market Context

• The complaint alleges the Accused Product is an apparatus for generating bubbles sold by Defendant Big Lots (Compl. ¶¶18, 20). The complaint includes a detailed claim chart with photographs purporting to show that the Accused Product contains an internal mechanism consisting of a motor, a fan, and a rotating assembly of bubble wands that dip into a solution trough and are then raised into an airstream (Compl. Ex. C, pp. 58-75). A photograph of the Accused Product's packaging shows it advertising the ability to make "up to 10,000 bubbles in 5 minutes" (Compl. Ex. C, p. 58). Plaintiffs allege that the Accused Product competes directly with their own patented "Gazillion Bubbles Tornado" product, causing price erosion and lost sales (Compl. ¶¶16, 25-26).

IV. Analysis of Infringement Allegations

The complaint alleges direct infringement of at least Claim 1 of the ’661 Patent, providing a detailed limitation-by-limitation claim chart in Exhibit C, from which the following summary is derived (Compl. ¶¶32-33, Ex. C).

’661 Patent Infringement Allegations

Claim Element (from Independent Claim 1)	Alleged Infringing Functionality	Complaint Citation	Patent Citation
a housing extending from a bottom end to a top end;	The Accused Product is shown to have an outer housing with a distinct top and bottom end. A photograph shows the housing with labels for the "Top end," "Housing," and "Bottom end." (Compl. Ex. C, p. 59).	¶33; Ex. C, p. 59	col. 5:18-20
a motor positioned in the housing;	The Accused Product contains an electric motor located inside the housing. Photographs depict the motor component removed from the assembly. (Compl. Ex. C, p. 60).	¶33; Ex. C, p. 60	col. 5:65-66
a fan device positioned in the housing, the fan device operably coupled to the motor to generate an upward air stream;	The Accused Product contains a fan, positioned inside the housing and shown to be coupled to the motor, for the purpose of generating airflow. (Compl. Ex. C, p. 61).	¶33; Ex. C, p. 61	col. 7:16-24
a bubble generating assembly comprising: a body comprising: ... a plurality of slots in the body that form passageways into the cavity...; and a ring structure positioned in the cavity;	Photographs show the Accused Product's bubble generating assembly has a body with an upper and lower shell, creating an internal cavity. The body has slots, and a ring-like structure is positioned inside the cavity. (Compl. Ex. C, pp. 63-68).	¶33; Ex. C, pp. 63-68	col. 13:30-54
a plurality of follower members extending through the passageways... each of the follower members comprising: an arm having a first end in the cavity and pivotably coupled to the ring structure... and a bubble generating device coupled to a second end of the arm located outside of the body;	The Accused Product's follower members (wands) are shown to have arms that extend through slots in the body. The inner end of the arm is pivotably connected to the internal ring structure, and the outer end holds the bubble-forming wand. (Compl. Ex. C, pp. 69-70).	¶33; Ex. C, pp. 69-70	col. 13:14-24
a basin member comprising: ... a cam wall having a raised portion and a recess that forms a valley portion;	The Accused Product is alleged to have a basin with a trough for bubble solution and a stationary cam wall structure. A photograph points to a "Raised portion" and a "Recess that forms a valley" on this wall. (Compl. Ex. C, p. 73).	¶33; Ex. C, p. 73	col. 8:14-15
wherein upon the bubble generating assembly being rotated... each of the follower members ride along the cam wall and repetitively transition between: (1) a lowered position... and (2) a raised position...	The complaint alleges that as the motor rotates the wand assembly, the wands ride along the cam wall, causing them to dip into the trough (lowered position) and then lift into the fan's airstream (raised position). A photograph shows a follower member in a raised position. (Compl. Ex. C, p. 75).	¶33; Ex. C, pp. 74-75	col. 14:25-44
wherein each of the follower members transition between the raised position and the lowered position by rotating about the second axis.	The up-and-down motion of the wands is allegedly achieved by the arms rotating/pivoting at their connection point to the internal ring structure. A photograph shows the full assembly, which allegedly performs this function. (Compl. Ex. C, p. 75).	¶33; Ex. C, p. 75	col. 15:3-9

Identified Points of Contention

• Scope Questions: The complaint's infringement theory relies on a direct, literal mapping of the accused device's components to the claim elements. A potential dispute may arise over the precise definition of claim terms. For example, the defense could question whether the accused "ring structure" or "cam wall" are structurally and functionally identical to the structures required by the claims, when read in light of the patent's specification.
• Technical Questions: The complaint's evidence consists of photographs of the Accused Product (Compl. Ex. C). While illustrative, these visuals may not capture subtle but potentially material differences in the mechanical operation or component geometry. A key technical question will be whether the accused mechanism's movement—specifically the "pivotably coupled" action of the follower arms and their interaction with the "cam wall"—is the same as that claimed, or if it operates on a different principle.

V. Key Claim Terms for Construction

"cam wall having a raised portion and a recess that forms a valley portion"

• Context and Importance: This term is the functional heart of the invention, as it dictates the entire mechanical cycle of dipping the wands in solution and raising them into the airstream. The interpretation of what constitutes a "cam wall" with these features will be central to determining infringement. Practitioners may focus on this term because the specific geometry of the cam dictates the motion of the follower members.
• Intrinsic Evidence for Interpretation:
  • Evidence for a Broader Interpretation: Claim 1 itself uses general language, requiring only a "raised portion" and a "recess that forms a valley portion," which could be argued to cover any surface that creates a height differential to guide the follower members (’661 Patent, col. 21:20-22).
  • Evidence for a Narrower Interpretation: The specification describes a very specific annular "cam wall 138" with a "first raised portion 140," a "second raised portion 141," and corresponding valley portions, including details about the ramped walls connecting them (’661 Patent, col. 9:7-34; Fig. 11). A party could argue the term should be construed more narrowly to reflect these detailed embodiments.

"pivotably coupled"

• Context and Importance: This term defines the connection between the follower arms and the central body of the rotating assembly. The nature of this coupling allows the wands to move up and down as they follow the cam wall. Whether the accused device's connection meets this limitation is a critical infringement question.
• Intrinsic Evidence for Interpretation:
  • Evidence for a Broader Interpretation: The term itself suggests a simple hinged or rotational connection allowing movement about an axis. The claim language states the arm is pivotably coupled "so as to be pivotable about a second axis" (’661 Patent, col. 21:5-7).
  • Evidence for a Narrower Interpretation: The patent discloses a specific embodiment where follower arms are coupled to a "ring structure 223" and move within "slots 226" formed in the body, which constrains the pivoting motion (’661 Patent, col. 13:25-30, 13:49-54). A defendant might argue that "pivotably coupled" in this context requires the specific type of constrained pivotal movement shown in the figures.

VI. Other Allegations

• Indirect Infringement: The complaint does not contain specific factual allegations to support claims of induced or contributory infringement. The focus is on direct infringement by the Defendant (Compl. ¶¶ 31-33).
• Willful Infringement: The complaint alleges that Defendant's infringement is willful and deliberate "at least at all times after the filing of the Complaint" (Compl. ¶38). This allegation is based on the notice of infringement provided by the service of the lawsuit itself, not on any alleged pre-suit knowledge.

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

The resolution of this case will likely depend on the answers to two central questions:

1. A core issue will be one of claim construction: Will the court interpret key mechanical terms like "cam wall" and "pivotably coupled" broadly according to their plain meaning, or will it limit them to the more specific structures and geometries disclosed in the patent's detailed description and figures?
2. A key evidentiary question will be one of factual correspondence: Assuming a favorable claim construction for the Plaintiff, does the accused "Turbo Bubble Machine" actually practice each element of the asserted claims? The dispute will turn on a detailed comparison of the accused device's internal mechanics against the language of the patent's claims, moving beyond the initial photographic evidence provided in the complaint.