Altair Instruments Inc v. Walmart Inc

I. Executive Summary and Procedural Information

• Parties & Counsel:
  • Plaintiff: Altair Instruments, Inc. (California)
  • Defendant: Telebrands Corp. (New Jersey); Walmart, Inc. (Delaware)
  • Plaintiff’s Counsel: Rutan & Tucker, LLP
• Case Identification: 2:19-cv-08967, C.D. Cal., 12/05/2019
• Venue Allegations: Plaintiff alleges venue is proper because Defendants have committed acts of infringement and maintain regular and established places of business within the Central District of California.
• Core Dispute: Plaintiff alleges that Defendants’ "Dermasuction" device infringes a patent related to microdermabrasion technology that uses a vacuum and a fixed abrasive tip.
• Technical Context: The technology concerns personal care devices for cosmetic skin treatment, specifically the mechanical exfoliation of the skin's outer layer.
• Key Procedural History: The complaint notes that the patent-in-suit has survived two ex parte reexamination proceedings at the USPTO. It also states the patent has been the subject of more than 25 prior lawsuits and was previously found valid and infringed by a "very similar" device in litigation that was affirmed by the U.S. Court of Appeals for the Federal Circuit.

Case Timeline

Date	Event
1999-11-12	’739 Patent Priority Date
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
2018-10-10	Plaintiff Sent Pre-Suit Notice Letter to Defendant Telebrands
2019-12-05	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’s background describes prior art microdermabrasion methods that used powdered abrasives, such as aluminum oxide, which were blown onto or drawn across the skin. This created potential health risks, as the abrasive particles could be inhaled by the operator or patient, injure the eyes, or become embedded in the skin, causing irritation ('739 Patent, col. 2:17-36).
• The Patented Solution: The invention is a device that avoids loose powders by using a tube with an abrasive material permanently attached to its treatment tip. A vacuum applied through an opening in the tip serves two purposes: it pulls the skin into firm contact with the abrasive surface for effective exfoliation and simultaneously suctions away the removed skin cells for collection ('739 Patent, Abstract; col. 3:15-37).
• Technical Importance: This approach aimed to provide the benefits of microdermabrasion without the undesirable side effects and safety concerns associated with airborne abrasive particles ('739 Patent, col. 1:11-14).

Key Claims at a Glance

• The complaint asserts infringement of independent claim 1, along with dependent claims 2, 3, 5, 6, 8, 9, 10, and method claims 12, 13, and 14 (Compl. ¶¶15, 22).
• The essential elements of independent claim 1 (as amended by the second reexamination certificate) are:
  • A device for removing the epidermis without damaging the dermis in a microdermabrasion procedure.
  • A source of a vacuum.
  • A tube with a treatment tip having an abrasive material permanently attached to its operating end, which provides a treatment delivery surface.
  • The treatment delivery surface has a fixed orientation relative to the tube's longitudinal axis.
  • The tube is attached to the vacuum source to create a reduced pressure within its lumen.
  • The treatment surface has one or more openings for continuously applying the vacuum to a skin surface.
  • The vacuum causes the treated 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 additional claims (Compl. ¶15).

III. The Accused Instrumentality

Product Identification

• The "Dermasuction" device (Compl. ¶12).

Functionality and Market Context

• The complaint describes the Dermasuction device as being used to "remove the epidermis without damaging the dermis" (Compl. ¶14). It is alleged to incorporate a vacuum source and an abrasive tip. The complaint includes a marketing image of the product in its packaging and a close-up image of what it identifies as the device's "diamond tip" (Compl. p. 4). Plaintiff alleges Defendants market the device with claims that the abrasive tip "is perfect to exfoliate dead skin for spa-like skin rejuvenation" (Compl. ¶13).

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.	¶14	col. 13:21-23 (C2)
a source of a vacuum, and	The Dermasuction includes a source of vacuum.	¶14	col. 3:38-44
a tube with a treatment tip thereon for removing cells comprising the epidermis layer... the treatment tip having an abrasive material permanently attached to an operating end thereof...	The diamond tip shown above constitutes a tube with a treatment tip... The treatment tip has an abrasive material permanently attached to an operating end thereof...	¶14	col. 3:19-24
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.	¶14	col. 13:30-33 (C2)
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...	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 surrounding the tube.	¶14	col. 4:1-11
the treatment delivery surface having one or more openings therein for continuously applying the reduced pressure... 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.	¶14	col. 5:51-59
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 permanently attached to the treatment tip.	¶14	col. 5:42-47
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.	¶14	col. 3:30-34

• Identified Points of Contention:
  • Scope Questions: A central dispute may arise over the meaning of "permanently attached." The complaint alleges the accused "diamond tip" meets this limitation (Compl. p. 4). Defendants could argue that if the tip is designed to be user-replaceable, it is not "permanently attached" as required by the claim. The question for the court would be whether "permanently" means inseparable from the device for its entire life, or simply fixed during use (as opposed to being a loose powder).
  • Technical Questions: A factual question may be whether the accused device's vacuum performs the specific functions claimed. The complaint alleges the vacuum causes an "increased area of contact" with the abrasive tip, a key functional limitation added during reexamination. Proving that this specific interaction occurs in the accused product will require technical evidence.

V. Key Claim Terms for Construction

• The Term: "permanently attached"
• Context and Importance: This term is critical because it distinguishes the invention from prior art that used flowing abrasive powders. The infringement analysis for the accused device, which has what appears to be a detachable tip (Compl. p. 4), may hinge on the construction of this term. Practitioners may focus on this term because its definition will determine whether products with replaceable abrasive heads fall within the scope of the claim.
• Intrinsic Evidence for Interpretation:
  • Evidence for a Broader Interpretation: The specification’s primary goal is to solve the problem of "powdered abrasive materials" that "may result in undesirable side effects" ('739 Patent, col. 1:12-14). A party could argue that any abrasive that is fixed to a tip, even a replaceable one, is "permanently attached" in the sense that it is not a free-flowing powder, thereby fulfilling the patent's stated purpose.
  • Evidence for a Narrower Interpretation: The specification describes embodiments where "diamond grit 42 preferably adhered to the end of a metal tube by a plating process using nickel 44 as a binder" ('739 Patent, col. 7:25-27). This suggests a manufacturing-level bond. Furthermore, the patent elsewhere discusses a "removable disc 46" as an alternative ('739 Patent, col. 7:65-col. 8:4), which could be used to argue that the patentee knew how to claim a removable part and chose not to in claim 1.

VI. Other Allegations

• Indirect Infringement: The complaint alleges that "Users of the Dermasuction also infringe" method claims 12, 13, and 14 (Compl. ¶22). This raises a claim for indirect infringement, though the complaint does not specify the factual basis (e.g., user manuals or instructions) for alleging that Defendants induced their customers to infringe.
• Willful Infringement: The complaint alleges willful infringement based on Defendants’ purported knowledge of the ’739 patent. This allegation is supported by a pre-suit notice letter sent to Telebrands on October 10, 2018, and Defendants' alleged continued sales thereafter (Compl. ¶19). The complaint further supports this claim by citing the patent’s extensive litigation history and a Federal Circuit decision affirming a finding of infringement against a "very similar" device (Compl. ¶¶17-18).

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

• A core issue will be one of definitional scope: can the term "permanently attached," which was central to overcoming prior art based on loose powders, be construed to cover the accused product's seemingly detachable abrasive tip? The resolution of this claim construction dispute may be dispositive of infringement.
• A second key question will relate to willfulness: given the explicit pre-suit notice and a prior, Federal Circuit-affirmed judgment against a similar product, what evidence can Defendants present to demonstrate they had an objectively reasonable, good-faith belief that their specific product did not infringe the ’739 patent?